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.

Gov. Bob McDonnell speaks at the Opportunities in Motion Commonwealth of Virginia Governor's Transportation Conference in Vienna, VA.
Virginia Gov. Bob McDonnell in 2012

Photo by Bonnie Jo Mount/Washington Post/Getty Images

If you’re looking for indoor fun in 100-degree weather, go ahead and Google Virginia’s ethics laws for elected officials. First thing you’ll notice? The word “lax” is used to modify the words “Virginia Ethics Laws” so often in news accounts that you could not be faulted for believing “Lax Virginia Ethics Laws” to be the official title of the statute.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The next thing you’ll notice? That seems to just be the way things are, here in the Old Dominion.

Embattled Gov. Bob McDonnell has probably just cratered a once-promising political career over $145,000 in undisclosed gifts—each worthy of its own episode of Real Housewives of Richmond—including a $6,500 Rolex, a New York shopping spree for his wife, limo rides, catering for his daughter’s wedding, and a ride in a Ferrari. Is it shocking that McDonnell and his wife twisted themselves into pretzels to shill for the donor company’s weird tobacco-based nutritional supplements?

Under the “Lax Virginia Ethics Law,” there is no cap on the amount of gifts an elected official can receive, so long as all gifts valued at more than $50 are disclosed annually. Moreover, any gifts to spouses and immediate family members are not counted as gifts to the official. So that when, for instance, Jonnie R. Williams Sr., the chief executive of the foundering nutritional supplements company Star Scientific, paid out $15,000 to cater the governor’s daughter’s wedding in 2011, that was considered a gift to the daughter—even though the governor signed the catering contract and the caterers refunded the overpayment to his wife.

McDonnell is now subject to tanking poll numbers, an FBI investigation, and a grand jury probe over the possibility that he did favors for Star Scientific in exchange for gifts and cash. Indeed nobody can have been happier than McDonnell when the commonwealth’s attorney general, Ken Cuccinelli, pushed him out of the headlines midweek with ethics questions about his own relationship with Star Scientific and an unerringly Victorian zeal for criminalizing every act of consensual oral sex within state lines.

Cuccinelli was cleared Thursday following a three-month ethics probe by an independent investigator who found no ethics violations in his failure to disclose $5,100 in gifts from the CEO of Star Scientific. The attorney general had no conflict of interest when he purchased shares of Star Scientific and vacationed at the CEO’s various properties, all while his office defended a tax-assessment lawsuit filed by Star Scientific, the same Star Scientific in which he held more than $10,000 in stock. This, while occasionally failing to disclose gifts from Williams in his annual disclosure forms. Because a guy forgets.

As the independent inquiry determined, “Although one cannot help but question whether repeated omissions of Williams are coincidence or a pattern reflecting intent to conceal, the disclosure of several other benefits and gifts from Williams in his original statements suggests that the attorney general was not attempting to conceal the relationship.” My friend Scott Pilutik memorably characterizes this legal conclusion as follows: “Because Cuccinelli didn't always conceal the fact that he was creating an appearance of impropriety by accepting gifts, well, nothing to see here. If only everyone earned so much mileage out of all the times they choose not to break the law.”

(Actually, the best zinger in Thursday’s ethics report is not even the bit about how Cuccinelli did disclose some lavish gifts. It’s where the investigator explains that the attorney general took $6,000 in free food supplements from Star Scientific since, “because of his engineering background, [Cuccinelli] became interested in the purported science surrounding the company’s Anatabloc product.” It’s heartening to hear that the same attorney general who doesn’t believe in the science behind climate change can be such a staunch believer in the science behind unregulated food supplements.

So there it is. No ethics violations by Cuccinelli. And that’s because of Virginia’s lax ethics laws. Actually, not just lax. Ephemeral. Actually, no. Virginia was ranked 47 out of 50 and awarded an F in a comprehensive study on corruption risk in a recent national State Integrity Investigation. So it’s not so much ethics laws as ethics suggestions.

Jessica Tillipman has been blogging hard about the Virginia disclosure rules for the FCPA blog, and she points out that the commonwealth’s F is well-earned:

“Per the State Integrity Investigation, [Virginia] is one of only nine states without a statewide ethics commission and one of four states without campaign finance limits. Moreover, according to the National Conference of State Legislators, Virginia is one of just ten states in the country that, as noted above, does not limit the value of personal gifts provided to elected officials.”  

Tillipman told me that the fact that there is no cap on the amounts one can give as a gift in Virginia is “almost unheard of.” She added that the gifts given to McDonnell, including the Rolex, the NFL tickets, and the lavish vacation loaners, would have been clearly impermissible under the Foreign Corrupt Practices Act. “Why is it,” she wonders, “that we permit people to accept gifts in Virginia that they couldn’t accept if they worked in India?”

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.”

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.

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