New and Improved?

June 19, 2014

Inside Insight

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ariail new and improvedUNFORTUNATELY, IT’S NOT BETTER THAN NOTHING

The so-called “ethics reform” bill is being spun as an imperfect step forward. That’s become a familiar refrain in Columbia. Our lawmakers rarely introduce bills that fully reflect the will of the public, much less pass them. But the ethics bill before the Senate today isn’t simply “less than we wanted but better than nothing.”

It is, in fact, worse than nothing. It would do more harm than good, and that is the very definition of bad legislation.

This ethics “reform” got off to a bad start when the House Speaker orchestrated a shell bill (it passed full committee without anyone being able to read it) that actually de-criminalized ethics violations and violated the free speech of citizens by forcing them to register as lobbyists just to speak before a public hearing.

Several versions later, the bill still de-criminalizes some ethics violations (by changing the law to make certain violations legal) and still violates free speech (of a different sort – more on that in a moment). I suppose one could argue that it is “progress” that this version protects politicians and harms citizens less blatantly than the first version did, but that’s about the best that can be said.

Specifically, this version of ethics reform would allow politicians to spend their campaign funds not only on campaign expenses but also on pretty much anything else. That’s a change from the current law, which says in addition to campaign costs funds can be used for “ordinary expenses in connection with official duties” of their office. That provision has clearly been interpreted to mean everything from a television set (former Lt. Gov. Ken Ard) to paying off a private airplane (Speaker Bobby Harrell). But rather than eliminating the vague language – this is ethics “reform,” right? – lawmakers actually expanded what’s allowed by including trips to conferences and Party conventions, and even the costs of taking family members.

And just for good measure, lawmakers inserted the phrase “not limited to” – as in, what lawmakers can do with campaign money is “not limited to” the very generous list of things named in the bill. In other words: pretty much anything goes now.

That’s hardly a step forward. Nor is the change to current law that prohibits legislators from representing clients before government boards except in a contested case to include any matter that could become contested. Which again, could mean anything. Lawmakers should be prohibited from lobbying government entities on behalf of clients. The new language appears to be a green-light to do exactly that.

Those are two examples of making what was once prohibited legal. But the worst of it would be language that could force campaign disclosure laws on non-profit organizations that do not – and indeed, under IRS regulations, cannot – engage in elections. Under the new law, groups that send out mailings even mentioning an elected official during a prescribed number of days before an election could be forced to disclose their organizations’ top donors. That is exactly the sort of communication the federal courts have ruled protected free speech. It is unconstitutional to silence criticism of any kind of elected officials.

But that’s what this language would do, and only a court challenge would reverse it.

What’s more insulting is that they re-defined political action committees in such a way that they wouldn’t be forced to disclose in many cases even if they give money directly to candidates. So under this new language, groups that do not directly engage in elections could be forced to disclose their supporters and expose them to intimidation by powerful politicians, while groups that do engage directly in elections (that is, contribute to campaigns) could keep their donors secret from the public and thus hide potential conflicts of interest.

Unfortunately, this isn’t an exaggeration. Multiple attorneys agree that that scenario is accurate, and no one I could find directly disputes that it is. Proponents simply brush off the concerns as overreactions. Anyone dealing with this legislature should know better.

As to the income source disclosure provision – which is one of the eight reforms SCPC identified as necessary to end systemic corruption – it has exceptions that could open the door for hiding income sources. There is no reason for any exceptions to requirements on income disclosure, and our legislators have proved that where there’s a will, there’s a loophole.

The Senate is considering the bill today. Fortunately, a filibuster by Senator Lee Bright two weeks ago gave us time to read the bill, but it had already passed the House. If it passes today, it will likely become law. The governor has said she supports it and will sign it.

If so, we’ll have even more hurdles to overcome to stop the corruption that threatens our freedom more every year.