Losing the Virginia Way

Bob McDonnell's gifts scandal offers an opportunity for in-depth reporting on ethics reform

COLUMBIA, SC — At this point, if you’re paying attention at all to politics in Virginia, you’ve heard at least some of the stunning revelations about undisclosed gifts that a wealthy, well-connected businessman has lavished on Gov. Bob McDonnell, a Republican, and members of his family.

Jonnie Williams, the CEO of a nutritional supplement company called Star Scientific, has bestowed gifts amounting to nearly $150,000—including a Rolex watch, a Bergdorf Goodman shopping spree, a five-figure corporate payment, even wedding catering—on McDonnell and his family, as CNN’s Peter Hamby wrote in a solid state-of-play piece this week. State and federal investigators are now looking into the relationship. It’s a scandal, a Loudoun Times-Mirror reporter wrote on July 16, that “is not fading anytime soon.”

The standout investigative work on this story has come from The Washington Post, which first exposed the cozy relationship between the governor and his benefactor in March and has been dropping bombshells ever since. (The paper’s reporting is collected in an attractive archive here.) And almost from the time the first story appeared, reporters and commentators at the Post and elsewhere have put the scandal in the context of the commonwealth’s “notoriously” or “embarrassingly” relaxed ethics laws.

The headline on an April article by the Post’s Laura Vozzella, who along with colleague Rosalind S. Helderman has most of the key bylines on the McDonnell story, declared: “Virginia has one of nation’s most lax ethics laws for politicians.” Officeholders are allowed to accept “personal gifts of unlimited value,” Vozzella reported—McDonnell’s predecessor, Democrat Tim Kaine, received an $18,000 Caribbean vacation from a supporter. And they don’t have to disclose gifts to immediate family members, like the catering bill Williams picked up for McDonnell’s daughter’s wedding.

In another strong April piece, editorial writer Shawn Day of The Virginian-Pilot observed that Virginia earned an “F” on last year’s State Integrity Investigation, an analysis of the risk for corruption published by the Center for Public Integrity, Global Integrity, and Public Radio International. (Disclosure: I was the project’s reporter-researcher for South Carolina.) Day also noted an irony in the report that underscores just how weak ethics oversight is in the commonwealth:

Virginia’s score last year on the corruption risk report card was established through a grading rubric involving multiple categories. One of those concerned executive-branch accountability. Although it, too, drew a failing grade, the category held one of the commonwealth’s few bright spots: “In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.” Virginia’s score: 100 percent.

The reporter’s notes offered this detail: “The only regulation governing gifts is that of disclosure, and there is no evidence to indicate that the executive branch is failing to disclose gifts. However, no one audits the disclosure forms or enforces the regulation.”

That detail is critical to understanding the weakness of Virginia’s system. As McDonnell’s ties to Star Scientific have shown, the system provides only part of the picture. There is nothing in law that prohibits an elected official’s spouse, or any other immediate relative, from reaping a windfall, whether through cash or goods or services, from a political donor. And there is nothing that requires a governor, or an attorney general or a lawmaker, to report such an arrangement.

For his part, McDonnell’s defense is that he’s just playing by the rules that are in place. Larry Sabato, who leads the University of Virginia’s Center for Politics, succinctly pointed out why that’s not very satisfying. “For a moment, forget partisan politics,” he tweeted July 13. “Under VA’s very lax gift laws, our pols can be wholly owned subsidiaries of one or few rich.”

‘The Virginia Way’

So as the gift scandal has unfolded, the coverage has given readers a solid sense of how toothless Virginia’s ethics laws are, and how McDonnell has exploited them. But as an outside observer reading the coverage, I hadn’t been able to get a clear understanding of what exactly it is about the commonwealth that has allowed for such weak oversight and regulation. (Virginia is one of only a handful of states without a statewide ethics commission and one of even fewer in which campaign contributions are not capped, according to the National Conference of State Legislatures.)

Recently, I caught up with Day of The Virginian-Pilot to talk about his April piece and the broader set of issues. The current state of affairs, he told me, largely has to do with attitude. In Richmond, Day says, the mindset is that the legislature is a genteel chamber where lawmakers conduct themselves above board, and therefore there is little reason to spend much time hashing out new ethics rules. And while reform proposals might sometimes get discussed, he says—as they were after a different scandal a few years ago—they’re rarely followed through with legislation.

There’s a general belief, Day adds, “that this kind of stuff doesn’t happen here; that these restrictive laws have not been necessary here because we don’t do business that way.” It’s a story Virginia’s political elite tells about itself, and it was invoked by Ken Cuccinelli, the attorney general and Republican gubernatorial candidate who faces questions about his own failure to disclose ties to Williams, as he tried to distance himself from the McDonnell situation during a campaign stop: “What we’ve all been seeing is very painful for Virginia, and it’s completely inconsistent with Virginia’s very reserved traditions.”

Megan Rhyne, director of the Williamsburg-based Virginia Coalition for Open Government, shared a similar assessment.

“If you go back through the years, there has been very little high-level corruption in Virginia,” she said. The McDonnell gift scandal marks the first time in the state’s history that a sitting governor has even been investigated, Rhyne added. That’s despite Virginia having had more governors than any other state in the nation.

“Only one state-level legislator has gone to jail for corruption in my recent memory of 15 or so years,” Rhyne added. “So, Virginia legislators truly believe on some level that their tradition of clean government—The Virginia Way—obviates the need to impose strict laws. That belief may be naive, and while it may apply to the people in office now”—or may not!—“it does nothing to protect against unscrupulous, unethical legislators who may be elected in the future.”

In other talks I’ve had with sources in Virginia, I’ve gotten a sense that the idea lawmakers could be corrupted by influence, gifts, or otherwise is just, well, offensive. Not that it shouldn’t be, obviously, but compared to states like, say, New York or South Carolina, where allegations of politicians disgracing themselves may be met with eyerolls, the commonwealth appears a much milder place.

For someone relatively new to the Virginia political beat, it can be a bit of an eye-opener.

Take Loudoun Times-Mirror reporter Trevor Baratko, who came to Virginia to cover politics last year from the rough-and-tumble political culture of South Carolina. The atmosphere in Richmond is completely different from that of his last job, he told me.

“Almost immediately within arriving in Virginia in early 2012, I began hearing about the ‘Virginia Way’ and ‘Jefferson’s House,’” Baratko said. “Virginia politics are, as I was told, expected to be beyond hyper-partisanship. And corruption or pay-for-play just wasn’t something a high-profile statewide elected official would engage in.” (For context, the following events have occurred in the past year in South Carolina: the lieutenant governor pleaded guilty to multiple counts of public corruption; the governor faced two very public ethics hearings of which she was ultimately cleared, but later paid a fine for improper campaign records; a state senator resigned amid allegations he used campaign funds for purchases at adult superstores and for male enhancement drugs; the attorney general failed to report more than $130,000 in campaign funds; and the state police are currently investigating the House Speaker for using his public office for personal gain, though he denies wrongdoing.)

A push for less transparency?

But in the wake of the McDonnell scandal, “The Virginia Way” might be up for reconsideration. A Washington Post interactive published last weekend tracks $3.1 million in personal gifts to elected officials over the past decade—and that’s just what was disclosed.

“As conflicts between the federal executive and legislative branches have recently demonstrated, crisis is an increasingly necessary impetus for change in our country,” Geoff Skelley, a staffer at the University of Virginia’s Center for Politics, told me recently. “Perhaps this crisis over improper gifts will incite Virginia’s government to make needed alterations to the state’s ethics laws.”

Such hopes are laced with irony, though. The jailed legislator Megan Rhyne referred to above was Phil Hamilton, an influential Republican delegate from Newport News. In 2009, when McDonnell was running for governor, Hamilton was being investigated by a federal grand jury for soliciting a job with a university where he’d helped steer $500,000 in state funds.

At the peak of Hamilton’s scandal, candidate McDonnell capitalized on it, proposing the creation of a statewide ethics commission. But as BuzzFeed’s Andrew Kaczynski pointed out in a recent piece, that plan never came to fruition after the governor was elected.

In writing about the state’s lax laws in April, the Post’s Vozzella reported that the Hamilton scandal had “inspired a flurry of bills intended to strengthen ethics rules, but very few passed.” Among the killed legislation was a measure “that would have banned gifts worth more than $100. No changes were made to the state’s campaign contribution laws, which allow unlimited donations as long as they are disclosed.” In 2010, this headline appeared in the Post: “Virginia General Assembly goes slow on tough ethics reform.”

And despite recent calls for stricter rules, Virginia lawmakers had actually been tacking in the opposite direction before the McDonnell scandal broke, according to one recent report. In a July 14 piece, Associated Press political writer Bob Lewis wrote:

Transparency didn’t seem much of a concern in January and February. That’s when lawmakers exempted emails written and sent on state accounts by themselves and their staffs from the state’s Freedom of Information Act.

They also exempted some records regarding disaster preparedness and exempted a new Nuclear Energy Consortium Authority from FOIA’s provisions.

Every year, Virginia’s elected representatives try—and usually succeed—in cloaking more information about what they do and how government does the public’s business from the people who elected them.

The Coalition for Open Government’s Rhyne, discussing that article, says the actual change was fairly small: the exemption has actually been on the books for about a dozen years, and the recent movement on it merely clarified that the carve-out also applied to aides when they are speaking on a lawmaker’s behalf.

Regardless, it makes for less transparency in Virginia, not more. And it’s especially striking because the Post’s latest scoop this week—the first to show McDonnell personally intervening on behalf of Williams and Star Scientific—was based on emails obtained under the Freedom of Information Act.

The reporting agenda ahead

Now, of course, there’s a new crop of gubernatorial candidates offering their own ideas for reform. Cuccinelli, the Republican, has said he would eliminate the disclosure exemption for gifts to family members of public officials. Democratic nominee Terry McAuliffe has called for a ban on gifts over $100. Meanwhile, State Sen. Ralph Northam, a Democrat, has called for the creation of an ethics board, a $100 cap on gifts to lawmakers and immediate family members, and a lowering to $5,000 of the threshold for disclosure of investments, which is currently twice that figure.

In the weeks and months to come, plenty of the coverage is sure to be devoted to tracking the fall from grace of McDonnell, who not long ago was considered a rising star with national ambitions. But Virginia reporters and editors should devote just as much attention to tracking the fate of ethics reform. That means nailing down the details of the various proposals—scrutinizing how they compare to national norms, and how responsive each one is to specific problems in the commonwealth. And do any meaningful reform proposals have a practical chance of passing, or is the next legislative session set for a replay of 2010—a flood of lip-service measures with no follow through?

There is also a ripe opportunity to expand journalistic scrutiny beyond the issue of gifts and influence-peddling. The State Integrity Investigation on which Virginia did so poorly examined hundreds of other questions about the state’s code of laws and the risk for corruption across 14 areas of state government. On several other key categories, including judicial and legislative accountability, public access to information, lobbying disclosure, political financing, and ethics enforcement, the commonwealth got an “F.” The report comes with a narrative story behind the score that offers context for the grades. It’s a valuable tool and a source of story ideas for muck-raking reporters.

Of course, for the moment, the gift-giving angle is likely to drive the reform debate. As the Center for Politics’ Sabato tweeted recently: “Ban on gifts is a totally nonpartisan reform. Both D and R pols have taken plenty. Voters, shut off the gravy train.”

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Corey Hutchins is CJR's correspondent based in Colorado, where he is also a journalist for The Colorado Independent. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins recently worked on the State Integrity Investigation at the Center for Public Integrity and he has contributed to Slate, The Nation, The Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at coreyhutchins@gmail.com. Tags: , , , , ,