It’s Shocking What Bob McDonnell and Ken Cuccinelli Get Away With, Thanks to Virginia’s Lax Ethics Laws

The law, lawyers, and the court.
July 19 2013 5:14 PM

Virginia Is Corrupt

It’s shocking what Gov. McDonnell and attorney general Cuccinelli get away with, thanks to the state’s lax ethics laws.

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These revelations elide the main question, which is why? Instead of simply conceding that Virginia’s ethics and disclosure rules are crap, why aren’t we trying to fix them? John McGlennon is chairman of the government department at the College of William and Mary. I asked him to help me understand what it is about the culture and history of Virginia that leads to such a shocking blind trust in elected officials. “The first part is the culture,” he explained. “We have long operated under the notion that in our government we entrust the representation of running the state to distinguished citizens who are expected to act in the best interests of the state. And because we trust them, we shouldn’t impose burdens on them.” McGlennon adds that this is what Daniel Elazar has termed “the quintessential example of the traditionalist culture.” His second observation is that the part-time Virginia legislature has for many years “been populated by lawyers that inevitably had business in front of the state,” and it was tacitly understood that their practices would benefit from their elected positions. They believed that disclosure was sufficiently strong medicine and—more importantly—they still cite the fact that there are so few prosecutions as evidence that the system works.

This is, of course, circular logic, McGlennon adds. “There haven’t been incidents,” he says, “because so little is illegal.”

Megan Rhyne is executive director of the Virginia Coalition for Open Government, and I asked her the same question: How did Virginia allow itself to be snookered into a system that presumes its leaders don’t take Rolexes for favors? She says, “It may sound hokey and naïve, but the belief in Virginia has always been that a part-time legislature is a gentleman’s club. We just don’t do these things.”

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Thus, in Virginia, there is no limit on who can give and how much, corporations can write checks to candidates directly from their own treasuries, gifts to spouses and children are not reported, and disclosures are filed annually. And we just trust elected officials to do all that, knowing that if they forget to disclose things one year, they can always amend their disclosures later.

Cuccinelli has benefited more than anyone from the good old Virginia presumption that the law is what the attorney general says it is. In his time as attorney general, he has claimed to be suddenly exempt from state Freedom of Information Act laws. He has allowed his office to assist two out-of-state gas companies in a suit against landowners bilked out of natural gas royalties, involvement that “shocked” the judge overseeing the case. (One of the gas companies, CNX, has donated more than $85,000 to Cuccinelli's gubernatorial campaign.) He gave himself the authority to veto abortion-clinic regulations, properly enacted by the Virginia Board of Health, because he disagreed with their conclusions. He defends a state sodomy statue that is unconstitutional on its face, although he voted not to update it when he had the chance.

This isn’t about politics. It’s not about individual politicians either. It’s about an ethics regime that protects the interests, privacy, and misconduct of elected officials because of a long-standing tradition that we shouldn’t burden them with our need for trivial things. Like honesty.

Despite rumors that McDonnell might resign before the election, and despite the fact that his legal team is expanding almost weekly, he has maintained that he has at all times acted within legal parameters. He may not be wrong. As he told a Virginia radio show: “These have been the disclosure rules of Virginia. I'm following those. To, after the fact, impose some new requirements on an official when you haven't kept record of other gifts given to family members or things like that obviously wouldn't be fair."

And Cuccinelli has doubled down. Traditionally in Virginia, the attorney general has stepped down after announcing his candidacy for governor. McDonnell did so in 2009. But Cuccinelli chose to remain in office while campaigning, claiming that Virginia is the only state that asks its officials to do so. When the inevitable conflicts of interest or the appearance of impropriety then arise—as will happen when one accepts tens of thousands of dollars in campaign donations from energy companies while acting as the state’s lawyer—well, it’s just the Virginia way.

There are lots of proposals swirling around to fix the commonwealth’s lax ethics laws. Closing some of the major loopholes, including caps on gifts and gifts to families, will help. But the real challenge will be more fundamental: persuading Virginians that just because the laws are “lax” doesn’t mean no one has ever traded favors for gifts here. The real mystery is not that Virginians are hopelessly cynical about their elected officials. We are. The mystery is that given the opportunity to do something to hold them to account, we’re somehow too romantic to try.