Scoppe: Bulletproof

Associate EditorMay 13, 2014 

— IN ONE OF MY favorite Saturday Night Live skits, a just-exonerated Bill Clinton walks to the podium in the Rose Garden for a news conference, gives a thumbs-up to his supporters, declares “I … am … bulletproof,” and walks away. After a moment, he turns, walks back to the podium and adds: “Next time, you best bring Kryptonite.”

Our legislators must feel the same way after Circuit Judge Casey Manning discovered that they have bulletproof armor that protects them from criminal prosecution.

Defenders of Monday’s ruling can insist all they want that it does not give legislators immunity from criminal prosecution, that it’s only about making sure proper procedures are followed. But those proper procedures involve going through the House or Senate Ethics committee. Those proper procedures mean that if the House or Senate Ethics committee — meeting in secret — determines that no wrong has been done, then no wrong has been done, and neither the attorney general or anyone else has any authority to question it.

Moreover, if the House or Senate Ethics committee, meeting in secret, determines that there’s nothing to investigate, then anyone who speaks publicly of the matter can be prosecuted.

This is no longer about House Speaker Bobby Harrell and whether he illegally converted campaign funds to personal use or committed other crimes. This is much bigger than Bobby Harrell. This is about whether our legislators are subject to the laws that apply to all other elected officials and candidates. It’s about whether our legislators are a special class unto themselves, above the law.

The funny thing is, no one ever imagined such immunity existed until Judge Manning raised the issue a few weeks ago. It certainly hadn’t occurred to Mr. Harrell, who was apoplectic about Attorney General Alan Wilson and SLED Chief Mark Keel asking the State Grand Jury to investigate him. Never once did his very smart attorneys even imply that Mr. Wilson lacked the constitutional or statutory authority to investigate.

Mr. Harrell said the attorney general was playing politics. He said he was violating the Grand Jury’s secrecy requirements. He said he had a vendetta and a conflict of interest, and his attorneys asked the judge to put a different prosecutor in charge. But they never suggested that anything in the statutes or the constitution limited Mr. Wilson’s authority to pursue this investigation.

Which is to say that there was a secret protection hidden in the constitution and the statutes that no one but Judge Manning had ever been smart enough to see, in the 23 years since the Legislature wrote the ethics law and in more than a century under our current constitution.

Indeed, one of the two favorite excuses legislators have given for not creating an independent panel to review their compliance with the ethics law is that we have all the independent enforcement we need, since the attorney general is free to investigate legislators anytime he wants to. (Their other excuse is that they’ve been doing such a bang-up job enforcing the law that there’s no need for anyone else to do it.)

A legislative fix?

Mr. Wilson will appeal Judge Manning’s decision to the Supreme Court, and it ought to be a pretty easy case for the state to win, since the order hinges on the demonstrably erroneous claim that “Despite multiple requests, the Attorney General has failed to offer or present to the Court any evidence or allegations which are criminal in nature.” By law, the attorney general had to present evidence of criminal violations to a judge before he even convened the State Grand Jury, and when Mr. Wilson said in court this month that he didn’t want to go into detail about that evidence lest he violate the confidentiality requirements, Judge Manning acknowledged that he needed to stop talking.

Still, there’s no guarantee of the outcome. It was, after all, this court that inserted gratuitous language in its Rainey v. Haley decision that Judge Manning relied on to say the Legislature has “exclusive” jurisdiction over legislators’ ethics.

So the ball is in the Legislature’s court.

The good thing is that Rainey gives the Legislature a way to cure Judge Manning’s constitutional problem through a statutory change, which otherwise would sound like an oxymoron. In that ruling, the majority that seemed to say the Legislature had the sole power to judge its members’ ethics also noted with approval that the Legislature had given judges that power during the 50 days before a primary or general election.

Now, the court traditionally has held that the Legislature cannot delegate its constitutional authority, but it apparently established a new standard in Rainey, and as Sen. Shane Massey suggested to me Monday night, that is the key to a legislative fix: The Legislature merely needs to state explicitly that converting campaign funds to personal use — and accepting gifts in return for official actions and otherwise using your office for personal gain and other serious crimes in the ethics law — are indeed the crimes we always knew them to be and that the attorney general does indeed have unrestricted authority to prosecute those crimes that the constitution always said he had.

Act today

The best chance this year for making that fix could come Wednesday. That’s when the House could make final changes to an anemic ethics-reform bill, before it goes to a House-Senate conference committee. This stage is crucial, because it’s the last time legislators can insert new language into the bill by a simple majority; after this, any new language will require two-thirds approval in the House and the Senate.

So, what we need is for someone to propose an amendment to make it clear that ethics violations are crimes and that the attorney general is free to prosecute them. It needs to be a clean amendment — one that doesn’t also grant other forms of immunity, or raise the standard for prosecution, or make any other nefarious changes that reduce the chance that legislators who violate the law will be punished.

There are lots of other shortcomings of that bill, but frankly, no loophole in our ethics law even approaches the significance of the one that Judge Manning just discovered. If the Supreme Court doesn’t overturn his order or the Legislature doesn’t pass the fix, then I’m not sure anything else in the ethics law will really matter very much.

The only people who would vote against such an amendment are those who believe that legislators should remain above the law. No, not even that: It would be those legislators who are so arrogant in their power that they are willing to admit that they believe they are above the law.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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