Landess: Why Are We Even Talking about ‘Ethics Reform’?

April 26, 2016

Ashley Landess, Inside Insight

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By ASHLEY LANDESS

South Carolina Statehouse DomeAt the South Carolina State House, corruption is legal and intimidation is real. Cosmetic ‘ethics’ legislation won’t change it.

South Carolina politicians claim to be close to reforming at least two of the laws responsible for our state’s rampant corruption. Unfortunately, they aren’t doing that at all, and citizens need to understand why what’s being debated in the State House – and aggressively championed by the governor – does nothing but protect the status quo.

Real reform is the only way we can change anything in this state. Surely the recent battle over the roads proved that! Legislators and the governor all proposed a tax hike, and none were serious about changing the system that governs transportation. Without those changes, legislators and DOT commissioners will continue to directly profit from transportation spending, with no accountability to the public at all.

We want to change that through major, systemic reform that we’ve been promoting and researching for years. Eight reforms that include separation of powers, transparency and even following current state law would start the process and open the door for all other reform. But so far, the legislature and the governor have not only refused to put forward that reform; they’ve also misled the public about what they are poised to pass.

Of the eight-point agenda we’ve proposed, only two reforms are really on the table: mandated disclosure of public officials’ income sources, and the elimination of the legislative ethics committees and State Ethics Commission that govern violations of the laws under the Ethics Act. The governor in particular is aggressively selling the current proposals in the legislature as doing both of those things.

In fact, they do neither and would even make the system worse.

We know income disclosure is the only way to discover conflicts of interest and stop them. As long as public officials – particularly part-time legislators, who should be allowed to make a living outside the State House but who too often make it from their position in the State House – are allowed to profit from government contracts and/or special interests, they won’t do a thing to cut spending or give up power. Why would they when serving in office can be so lucrative?

Over the last several years, we’ve exposed many cases of clear conflict. Senator Hugh Leatherman is in control of just about every entity that touches transportation – from the state budget to the powerful State Infrastructure Bank – and his concrete company makes millions from state contracts. Former Speaker Bobby Harrell blatantly strong-armed regulators into giving him permits for his business about which they were clearly uncomfortable. Dept. of Transportation Chairman Mike Wooten’s firm has multiple government contracts. Another DOT commissioner, John Hardee, works for a company that has a 12-year contract with DOT. (Hardee also happens to be Sen. Leatherman’s son-in-law – Leatherman, of course, is on the powerful board that nominates DOT commissioners.)

Those are just a few of the many examples we’ve found. There are no doubt many we can’t see. And they’ll remain invisible as long as the law allows it. Current law certainly does allow officials to hide all sources of income, and so would the proposal that’s being debated in the legislature currently! Current law requires some disclosure of government income, but the loopholes are such that almost none of it falls under the law – the current proposal being touted as “reform” does not fix those loopholes and even makes them worse.

The same is true for the so-called “independent policing,” which citizens are led to believe does what we’ve said it must: eliminate all “ethics” committees, in the legislature and the state commission, and put Ethics Act crimes under the criminal code and thus the jurisdiction of the criminal justice system; and put technical reporting violations under the Ethics Commission.

That wouldn’t happen under the current bills. Rather, the Ethics Commission would be given power to investigate legislators – along with all other public officials – but not the power to determine guilt or innocence, and not the power to punish. Those powers would stay firmly under the ethics committees.

That’s hardly an improvement. No one on any of these entities is qualified to enforce the law. Furthermore, lawmakers would have appointments to the Ethics Commission – thus expanding legislative power over the executive branch, not eliminating it, and thus failing to get rid of legislative self-policing.

The appointing legislators wouldn’t even be acting as public officials, but rather as leaders of the two main political parties. How are citizens supposed to hold them accountable at all?

Of course, no one is talking about the plan’s details. Rather, Governor Haley and legislative leaders insist they are offering “real reform” that would solve the problems we’ve exposed. Let’s hope no one is fooled. Nothing would change. It’s fair, then, to ask why they are so motivated to preserve a corrupt system in which public officials can break the law with impunity and profit secretly from office.

The whole mess needs to be torn down. Ethics Committees have done an abysmal job of holding official accountable. Examples abound. Look at the Senate Ethics Committee, chaired by Luke Rankin, who has demonstrated exactly how they operate. When a citizen emailed him raising questions about another senator’s campaign spending, Rankin threatened him with criminal prosecution because the citizen had carbon copied SCPC’s research director. Rankin cited a senate rule saying no one could speak about any information sent to the Ethics Committee.  A threat of criminal prosecution has a pretty good chilling effect on citizen complaints against powerful officials, and it really doesn’t take much speculation to figure out that was the goal.

Rankin also recently sent a memo to “all candidates, former candidates, former senators and current senators” demanding campaign bank statements, which aren’t typically part of the filing though they can be requested. Rankin didn’t ask politely, either. He said failure to produce them would result in a “formal ethics complaint” and a subpoena!

What was most interesting about that memo were two things. First, it referenced as the authority for the demand a Senate Ethics Committee advisory opinion (advisory opinions are not law – that’s why they’re called advisory opinions). Second, it was dated March 10, 2016 – which was before the filing period for office began, and thus there was no real way to be sure who was/wasn’t a new candidate!

The House Ethics Committee, meanwhile, has fined people who once ran against incumbents but hadn’t done the paperwork to close out old campaign accounts – even as it did nothing in the face of the overwhelming evidence against their former Speaker. And the State Ethics Commission negotiated a deal behind closed doors with Gov. Haley regarding her security detail at a campaign event. When Commission Director Herb Hayden was asked by The Nerve to produce a memo written by the staff attorney saying Haley had to reimburse the state for the detail, Hayden said he’d destroyed the memo. He hadn’t, and a court ruled he violated the FOIA law. Can we really trust the Commission to enforce the law any more than legislators’ committees?

There is one more proposal being pushed through, and this one is the worst of all. The current bill to shut down criticism of all politicians is a blatantly unconstitutional violation of the First Amendment, and there is no doubt it will end up in court if it were to pass. The bill says that anyone who “refers to” a candidate for office in a communication will fall under the state’s regulation as if it were a PAC. That means private organizations that aren’t engaging at all in elections (such as SCPC, which is prohibited from electioneering under the IRS rules) would have to disclose all of our supporters publicly.

We protect our supporters’ identity for many reasons, but the most important reason is to shield them from intimidation and retaliation by powerful politicians who don’t like what we do at SCPC. In particular, The Nerve – which does refer to public officials often – would be almost unable to write anything about what’s happening in state government beyond recycled press releases that public officials want reported.

The goal of that plan is to shut down any and all criticism of politicians, whether or not it has anything to do with an election. We’re entitled to criticize government – that’s the purpose of the First Amendment, and the Supreme Court has agreed multiple times. In fact, it’s only in the narrowest circumstance that even speech affecting an election directly is regulated. It must be directly and clearly engaging in a specific election about a specific candidate, and must be at high enough spending threshold to trigger threat of quid pro quo corruption.

But our leaders aren’t worried about our constitutional right to free speech. They are worried about being re-elected at a time when their corrupt system – and defense of it – is known by more citizens than ever before.

Think powerful officials don’t intimidate their critics? Surely no one in this state who has paid attention over the last five years believes that. No regular reader of The Nerve could think that’s true. Last week, we gave you some examples of those who have been on the receiving end of massive intimidation campaigns by powerful “leaders.” Talbert Black of Campaign for Liberty went to jail after locking horns with a powerful former senator known for his less-than-gentle tactics. The National Association of Gun Rights was warned by a representative of the Ethics Commission to stop calling the governor’s office to complain about the bill to silence critics.

And we at SCPC know something about being threatened and intimidated by the powerful legislative leadership. I received plenty of “messages,” directly and indirectly threatening me, and a blog of anonymous “consultants” spent a year smearing me in an attempt to deter support for SCPC. I wasn’t the only one, either. Far from it, unfortunately. And the trend to pass laws to silence all of us is alarming. They proposed a “FOIA Court” to adjudicate citizens’ “burdensome” requests for information. They proposed a rule to force anyone testifying before a House committee to be sworn in under oath and risk a felony conviction for providing “incomplete” testimony. And now this law requiring full disclosure of our supports – exposing supporters to retaliation – if we merely mention a politician by name in any communication.

There is too much at stake to allow anything but full, substantive reform for which we and thousands of South Carolinians have been calling for years. The criminal justice system simply isn’t working. It’s bad enough we had to force it to work by filing a complaint against former Speaker Harrell – an action of last resort when it became clear no one was willing to take the matter on. But even after all that – and with the pressure of thousands of South Carolinians and groups ranging from Campaign for Liberty and Tea Party groups to the Coastal Conservation League and Common Cause – Harrell got a slap on the wrist on misdemeanors.

We were told the rest of the questions we had about his activities wouldn’t be ignored, and that he would be forced to reveal others who were part of the corruption. So far, neither of those assurances seems to have been followed through. Harrell got a slap on the wrist.

Perhaps Solicitor David Pascoe still has substantive evidence and an investigation into Harrell and the others. Perhaps the Attorney General’s office is looking at everyone outside Harrell. But it doesn’t seem to be so, at least not to those of us who were told “this isn’t over.”

Investigation into corruption of powerful officials does, for now, appear to be over despite evidence of much, much more wrongdoing that seems not to have been investigated. Again, perhaps I’m wrong. I hope so. But if not, then more than ever the laws have to be changed and strengthened and enforced. It’s the only way we can ever stop powerful officials from intimidating critics and profiting from office.

Such intimidation is growing worse as reform is being weakened. It’s difficult even for us to hope for any real change. But still, we do. And still, we fight. We are Americans, and we have no choice but to fight tyranny and demand freedom. We owe every generation that. But it’s up to all of you to do the work with us. Your voices have gotten us this far. It’s you who must grow louder and stronger, empowering the reform movement to do the same. You are the only power we’ve ever had and the only thing that will stop the corruption that, if it remains unchecked, will very soon rob us of even the voice we have to fight it.

Ashley Landess is president of the South Carolina Policy Council, The Nerve’s parent organization.