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Harry Cassin
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Virginia’s Shamefully Inadequate Ethics Laws, Part III: Ethics Reform or Empty Promises?

As I discussed in Parts I and II of this series, Virginia Governor Bob McDonnell and Attorney General Ken Cuccinelli are embroiled in significant ethics scandals that involve Star Scientific and Jonnie R. Williams. While these matters may be painful for the parties involved, there is a silver lining to these troubling violations of the public trust: vocal and potentially influential calls for reform.

For example, Terry McAuliffe, who’s running for governor against Cuccinelli, has proposed several critical enhancements to the Virginia ethics regime. In an attempt to prevent elected officials from accepting lavish gifts and travel, McAuliffe has proposed, among other things, that no elected official (or immediate family member) may accept gifts worth more than $100 from a single donor. Moreover, he proposes closing a gigantic loophole that (currently) not only allows donors to provide gifts of unlimited value to officials’ immediate family members, but also exempts them from disclosure requirements.

For Virginia, imposing a gift cap would be a radical shift in policy and would undoubtedly change the manner in which elected officials perform their jobs. No longer would donors be permitted to send elected officials on expensive vacations, or ply them with lavish meals and entertainment. As the Virginian Pilot noted, “Amending gift rules could also mean a cultural change in Richmond during winter legislative sessions, whose nightly, after-hours activities include a lineup of lobbyist-sponsored dinners and receptions.”

In addition to the gift limits, McAuliffe has also proposed establishing an independent ethics commission. As mentioned in yesterday’s post, Virginia is one of only nine states without a statewide ethics commission. In addition to ensuring compliance with Virginia’s ethics laws, it could also provide citizens with a single source of information about the state’s ethics regime and its requirements. While not impossible to locate, one could hardly describe the information provided about Virginia’s current ethics regime as “user-friendly.” It would be incredible if Virginia could provide its residents with something like this, this or this.

Interestingly, McDonnell offered a similar proposal during his 2009 campaign, though he decided against the commission once he was elected. He claimed that a commission was no longer necessary after he established a state inspector general’s office. While this office may be proficient at rooting out fraud, waste and abuse in government, it lacks the authority to investigate elected officials unless requested to do so by the governor, attorney general or a grand jury. Unfortunately, as recent events demonstrate, the limitations on the inspector general’s authority are problematic — particularly when the individuals tasked with requesting investigations are violating the state’s ethics requirements themselves.

Of course, for some officials, Virginia’s (self-proclaimed) reputation for ethical and transparent government makes such reforms unnecessary. When Virginia House Speaker William J. Howell was asked about the proposed gift caps, he replied: “Money and influence, unfortunately, is part of politics, and it’s not going away . . .[a]nd efforts to limit it often have the unintended consequence of driving it underground. . . . I really like what we do in Virginia, and have done successfully for some time. We believe disclosure and transparency is more effective than more heavy-handed regulations.”

Interesting. In other words, Howell believes that gifts should not be limited because the limits will cause individuals to violate the limits and hide the gifts. While this is just one statement from one elected official, it is emblematic of Virginia’s approach to ethics  — an approach that is responsible for the state’s regressive ethics regime.

McAuliffe’s opponent in the Virginia gubernatorial race, Ken Cuccinelli, has yet to embrace gift caps. Instead, he has proposed reforms that are significantly less stringent and fraught with potential loopholes: a 10-day reporting window for gifts over $500, and a requirement that immediate family members report gifts. Although this is a modest improvement over the current system, under Cuccinelli’s proposed “reforms,” he would still be permitted to accept thousands of dollars worth of lavish vacations, air fare and entertainment. He would just have to report them more quickly.

Although some Virginia politicians are unwavering in their unsubstantiated beliefs that gift limits are not effective, the McDonnell and Cuccinelli scandals are evidence that the current regime is not working. Whether these current scandals are enough to bring about change is an open question. Let’s hope that this time, the politicians keep their promises.


Jessica Tillipman is a Senior Editor of the FCPA Blog. She’s the Assistant Dean for Field Placement and Professorial Lecturer in Law at The George Washington University Law School, where she teaches an Anti-Corruption seminar. She also advises companies on FCPA compliance and government procurement-related issues. She can be contacted here

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