Lawmakers Punished for Losing Court Cases, Rewarded for Winning

November 6, 2015

Inside Insight

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SC Statehouse

The rule of law politicians

Frankly, I think former Speaker Bobby Harrell is getting a raw deal.

No, I’m not referring to the three-year probation sentence he got from pleading guilty to misdemeanor ethics violations – that was an absurd sentence for what amounted to embezzling hundreds of thousands of dollars, much of which he spent paying off his private airplane.

For Harrell to get off so easily when there was clear evidence that multiple laws were violated and serious charges were warranted is alarming, to be sure. But it’s the direct result of the weak Ethics Act passed in 1992 to address corruption. What it really did was ensure lawmakers would ultimately be protected from any consequences of corruption, and held above the law for crimes for which private citizens – and politicians in other states — would be imprisoned (such as embezzlement).

Harrell got off too easy for his real crimes. What he’s in trouble for now, as Ron Aiken reported this week on The Nerve, is something other politicians have been allowed to do with impunity – paying attorneys’ legal fees out of his campaign account.

Even the House Ethics Committee’s opinion holds that lawyers’ fees shouldn’t be paid from campaign accounts when those fees are incurred defending against charges of misconduct. And yet others have been permitted to pay their lawyer from campaign accounts for defense against such charges, including Governor Haley for her defense in the House committee on charges she illegally lobbied while in the House.

Apparently the House Ethics Committee isn’t quibbling with the propriety of paying legal fees when the official is charged with violating state law. It’s insisting, rather, that one shouldn’t be allowed to do if he’s found guilty.

That’s the kind of capricious interpretation of the law we’d expect from politicians taking on authority they shouldn’t have, and arguably don’t have. Either Harrell should not have paid his legal fees from his account because they constitute neither a campaign expense nor an “ordinary expense” connected to his official duties – surely he’s not arguing that trying to throw the Attorney General off the investigation into his illegal campaign reimbursements was just part of a regular day in the office – or he is allowed to pay them because various ethics entities let others do it. For the House Ethics Committee — whose members never had a critical word about Harrell until he was indicted – to come out swinging after-the-fact in a way that ensures only the guilty suffer just makes the system more dangerous.

The message seems to be if you do spend your campaign account to pay lawyers to get you off the hook, then you’d better win.

That’s not the rule of law. It’s the rule of politicians. And it’s what’s wrong with the entire system governing corruption in the so-called Ethics Act. Politicians should not be held accountable under a separate set of laws that creates a different system of accountability than for the rest of us.  There’s only one felony in the Act, and crimes such as embezzlement and extortion are watered-down to fluffy language and misdemeanors.

It’s time to make the laws clear and applicable equally to all. The Ethics Act needs to be torn apart to put crimes under the criminal code and technical reporting violations under election law and the state Election Commission. There should be no authority under Ethics Committees – or the state Ethics Commission, for that matter – beyond disciplining members for behaving badly according to rules of the individual bodies.

The reason Harrell is in the position he’s in is that legislators know they’ve failed to hold their own accountable, and now the public knows it and wants the whole system reformed. That’s what needs to happen. Harrell got off easy on his crimes (at least, that’s the case so far). But he shouldn’t be punished by his former colleagues simply because he was found guilty while they reserve the right to pay attorneys to keep them out of trouble in the future.

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

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