Will Bobby Harrell end up doing time after all?
I’ve never thought he should – why should the taxpayers feed and clothe and provide medical care for someone who is not a danger to society? – and I still wouldn’t hold my breath.
But the rule of law does need to be upheld. And recent reporting from the online publication The Nerve leaves little doubt that the former speaker of the House violated the terms of his plea agreement, which under that agreement is at least theoretically supposed to subject him to the six-year prison sentence that was suspended to three years’ probation.
Actually, we knew all along that Mr. Harrell had violated the agreement, because it required him to resign his House seat “immediately following his guilty plea” to six corruption counts, and he waited until the next day. But that’s quibbling. What The Nerve discovered was that the $3,517 he used to pay the first installment on his $94,000 restitution came from his campaign account.
The fact that it would even occur to him to use his campaign account to pay restitution for the crime of … misusing his campaign account is the actual point of this column, but hold that thought while I explain why he could be in more trouble: That plea agreement also required him to forfeit to the state all the money in his campaign account. If his final campaign report is accurate, that was around $4,500.
If Mr. Harrell had turned the balance of his campaign account over to the state as he was required to do, then he would not have been able to use $3,517.01 from that account to make his first restitution payment eight days later. That money would have had to come out of his own pocket rather than the pockets of special interests.
The Nerve reported last week that SLED is looking into the matter, and I have a difficult time seeing how this shouldn’t end in Mr. Harrell being hauled back in front of a judge to explain why he shouldn’t be sent to jail, and why Solicitor David Pascoe shouldn’t be free now to prosecute him on those other counts he dropped as part of the agreement.
This clearly bears watching, because while Mr. Pascoe and Attorney General Alan Wilson before him did a bang-up job ferreting out Mr. Harrell’s misuse of campaign funds for personal expenses, there have been lots of questions about Circuit Judge Casey Manning’s kid-gloves treatment of the man who up until his indictment pretty much decided who got to become and remain judges in our state.
State law doesn’t clearly prohibit politicians from using campaign funds to pay criminal penalties for violating the ethics law.
But the outrage of this story isn’t that Mr. Harrell violated his plea agreement. Well, that is an outrage, but it’s not a surprise; he is, after all, a criminal, and one thing criminals tend to do is … violate the law. The bigger outrage is that absent the plea agreement, it’s not at all clear that anything would have prevented him from using his campaign account to pay restitution – just like he used his campaign account to pay $113,475 to his criminal defense attorneys. Just like then-Gov. Mark Sanford used his campaign account to fight ethics charges for misuse of campaign and government resources. Just like Gov. Nikki Haley used her campaign account to pay for her own legal defense against ethics charges. (Gov. Haley, at least, was cleared of the charges against her.)
The House Ethics Committee issued an advisory opinion in 2013 that, if carried to its logical conclusion, would prohibit anyone who violates the ethics law from using campaign funds to pay fines or even attorney fees. But the committee has not carried that opinion to its logical conclusion. It has not taken any action to require Mr Harrell to reimburse his account for his attorney fees.
That lack of action certainly hasn’t been because the idea didn’t occur to committee members; I wrote a column last year spelling out precisely how their own opinion practically required them to do that, and calling on them to do so.
Need yet more evidence that the House and Senate Ethics committees should not be allowed to police legislators’– and former legislators’ – compliance with the ethics law? Just think about this: Even when a former legislator has been stripped of power, forced to resign and pleaded guilty to violating the ethics law, even when the House has this big fat black eye as a result that it desperately wants to heal up, the House Ethics Committee won’t tell him he has to pay back money he used to cover personal expenses.
One of the things that legislators promised they were going to do this year was clearly prohibit elected officials from using campaign funds (i.e., money given to them by special interests that want their support of legislation) to pay their attorneys and their penalties when they violate the law. That reform died – along with requirements that lawmakers tell the public who’s paying their salaries and that special interests tell us when they’re spending money to influence our votes – because a slight majority of senators refused to allow a quasi-independent agency to investigate legislators’ compliance with the law.
One of the things the Harrell case makes clear is how little value any reforms involving legislative behavior would serve as long as the House and Senate keep investigating – or not investigating – their own members, and former members.
Contact Cindi Ross Scoppe, associate editorial page editor at The (Columbia) State at firstname.lastname@example.org.