Many states’ ethics laws contain loopholes that allow potentially imprudent acts by those in power: In some cases, officials use taxpayer-funded housing as a helping hand to bankroll their political aims; other times, they require their personal staff to canvass during work hours. Either way, these legal gray areas allow public resources to be put toward partisan efforts, calling into question whether or not state ethics laws should be modified to protect against this type of activity.
Private fundraisers, public property
Every state has an official residence for its governor, except for Arizona, Massachusetts and Rhode Island. In states featuring governor’s mansions, many officials take advantage of their publicly funded homes to host private events that benefit their party.
Gov. Bill Haslam, R-Tenn., loves transforming his house into a robust fundraising venue. In late September, Haslam held two separate fundraisers the same day at his home for Sen. Marco Rubio, R-Fla., and then for Sen. Kelly Ayotte, R-N.H. While neither lawmaker resides in Tennessee, Haslam utilized his home to benefit his party.
“The mansion is a public resource and it’s not just the governors house; it belongs to the public in a sense,” said Austin Graham, associate counsel at the Campaign Legal Center. “By throwing fundraisers there, if nothing else, it gives the impression that it’s using public resource for private gain.”
This summer, Haslam hosted a fundraiser at his official residence — which was once dubbed “the party room” — for Rep. Diane Black, R-Tenn. Subsequently, her opponent, Joe Carr, labeled Black as “an 18 year career politician” and pointed to her PAC money as crony politics. State Senate Minority Leader Lee Harris also criticized the luncheon on Twitter.
@joeygarrison It's hard for me to believe that a federal official may have a fundraiser on government property, precedent notwithstanding.
— Lee Harris (@LeeHarris4MTOWN) July 12, 2016
When the Nashville Post asked about the fundraiser, Haslam spokesperson Jennifer Donnals said, “The governor appreciates the good work Diane Black is doing representing Tennesseans in Congress and he is glad to support her.”
Tennessee Democrats proposed new language in their ethics code to ban fundraisers at the governor’s mansion outright. “The Governor’s Mansion is special, let’s not treat it like the lobby of a Holiday Inn,” said state Senate Minority Leader Lee Harris in a press release.
We reached out to both Haslam and Black for comment but did not hear back.
In Montana, opposing parties enjoy bashing incumbents for state-funded fundraisers. State Republicans were up in arms when a Democratic fundraiser was held at the governor’s mansion — yet the Republicans hosted an event there 14 years earlier. No formal complaint was filed by either side, but that didn’t stop them from publically railing against the event.
And leading up to her 2014 re-election, Gov. Nikki Haley, R-S.C., utilized her official residence to fundraise. The ethics commission deemed the event legal, citing the state ethics code: “No person may use government personnel, equipment, materials, or an office building in an election campaign. The provisions of this subsection do not apply to a public official’s use of an official residence.”
But the state Democrats still chided Haley for it, arguing that the fundraiser broke the spirit of the law.
“It sounds like South Carolina exempted the mansion specifically, so they have the spirit of the law provided for when the were formulating it,” said Graham of the Campaign Legal Center. “Even if it’s not illegal, it brings up a troubling scenario of a public official using it for what seems like partisan campaigning.”
Larger questions remain: Even if it’s permissible by the state, is it still good practice? What constitutes political activity, and what is a public resource?
“Our set of laws are society’s way of telling us what we believe is ethical or not,” said Jessica Levinson, professor at Loyola Law School in Los Angeles. “If it’s legal, then arguably it’s not unethical to engage in it. It’s worth examining if we should ask elected officials to go further than the law requires them to. Some are clearly stretching it beyond the tent of the law, but if it’s not illegal…”
Many states’ ethics laws contain loopholes allowing imprudent acts by those in power. Such behavior will continue until legislators explicitly prohibit them.
Campaigning during office hours
Taxes pay salaries of elected officials and their staff to work in the public’s interest. But what happens when personal staff canvass for a campaign? Incumbents’ advantage then goes far beyond name recognition.
And what constitutes an elected official’s “personal staff”? Kansas state legislators skirted the law so their entire staff could work on campaigning while on the job. Apparently what was written to only include a lawmaker’s intimate personal staff now encompasses everyone under their roof. For example, Gov. Sam Brownback, R-Kan., isn’t running for office, but he’s still deploying most of his staff to aid fellow down-ballot Republicans.
While such use is widespread, the most troubling issue comes with transparency.
According to the Wichita Eagle, “State law doesn’t even provide a way to track how much tax money ends up subsidizing work to elect or defeat candidates.”
Calculating the exact amount taxpayers foot the bill remains unknown. Aside from the alleged misuse of time and funds, the lack of disclosure and accountability is cause for concern.
Our policy analyst, Emily Shaw, spoke to the unfair obligation taxpayers are funding.
“It sounds like an odd loophole in an otherwise very clear and strong law,” said Shaw “It just sounds like the taxpayers are funding party work and that’s not their general obligation.”
Some states have stricter measures in place. Maine mandates partisan legislative employees limit campaigning to evenings and weekends unless they take leave. Alaska prohibits employees from using work time to “assist in political party or candidate activities, campaigning, or fundraising.” Montana mandates legislators to either decrease an employee’s salary or reimburse the state for time spent campaigning.
“The question of ethics in many states is incredibly blurry,” said Levinson, the professor from Loyola. “Just because it appears excessive doesn’t mean it’s improper. We can’t draw one clear bright line for what is legal.”
Many state and local enforcement agencies fecklessly issue guidance as to how taxpayer money can be spent. But many of their recommendations are toothless without proper enforcement.
“Especially at the state level, it’s usually a matter of resources,” said Graham of the Campaign Legal Center. “One or two attorneys do everything, but there’s not a specific branch devoted to ethics.”
Will states adjust their ethics laws?
States ridden with ethics issues won’t likely change anytime soon, at least without a major act of misconduct; state governments act in their own sphere, protected against any federal across-the-board reforms. And even with scandals, change can be difficult to enact.
Former Virginia Gov. Bob McDonnell’s certainly stretched the limits of what is permissible. His controversial tenure featured at least five acts of alleged bribery, but his meetings, calls, events and $175,000 in gifts never reached the threshold, as the Supreme Court ruled that none of these qualified as corruption under quid pro quo arrangements.
While not illegal, many felt the former governor broke the spirit of the law. Too frequently, it takes a scandal to garner public interest.
“With McDonnell, the media heavily covered it and the public paid attention,” said Graham. “All of that was a result of the public scrutiny that came from investigation. The ‘scandal’ isn’t what’s illegal … it’s what’s actually totally legal.”
So it remains to be seen whether or not ethics laws will be altered to protect against these questionable activities. One thing is certain though: In a season where officials push the limits of operating inside the legal gray area, no commission or code will stop them from seeing green.
The Sunlight Foundation is a non-profit, nonpartisan organization that uses the power of the Internet to catalyze greater government openness and transparency, and provides new tools and resources for media and citizens, alike.