Fact Check: Claims made in the race for Virginia’s governor

September 26, 2013

“[Ken Cuccinelli] sponsored personhood legislation that would outlaw most forms of contraception, would make the pill illegal.”

-Terry McAuliffe

In 2007, when he was a member of the Virginia Senate, Cuccinelli co-sponsored a bill that would have added a line to the Virginia constitution that stated the following:   “That life begins at the moment of fertilization and the right to enjoyment of life guaranteed by Article 1, § 1 of the Constitution of Virginia is vested in each born and preborn human being from the moment of fertilization.”

The bill did not explicitly ban birth control, but the practical effect of the legislation could have been to ban some contraceptives. While there are various ways to interpret the legislation, some birth control methods might be affected because there are forms that prevent a fertilized egg from implantation in the wall of the uterus.

In 2012, the Virginia House of Delegates approved a version of the legislation that Cuccinelli co-sponsored in 2009.  That bill stated that “unborn children at every stage of development enjoy all the rights, privileges, and immunities available to other persons, citizens, and residents of the Commonwealth.”

As The Post’s Fact Checker, Glenn Kessler noted: At the time the House of Delegate approved the measure, the American Congress of Obstetricians and Gynecologists denounced such “personhood” laws. They warned that such measures could “deny women access to the full spectrum of preventive health care including contraception.”

In talking points that accompanied the announcement, ACOG said that “some of the most effective and reliable forms of contraception – oral contraceptives, intrauterine devices, and other forms of FDA-approved contraceptives – could be banned in states that adopt ‘personhood’ measures.”

Kessler wrote that the 2007 proposal Cuccinelli co-sponsored appears to be even more conservative than the 2012 one, as it defines life as beginning at “fertilization.” There are various ways to interpret the impact on birth control, but some methods might be affected because there are birth control methods that prevent a fertilized egg from implantation in the wall of the uterus.

The verdict: Republican Ken Cuccinelli did not back a bill or bills that would have explicitly banned some forms of contraceptive, though he did co-sponsor a measure in which could have results in limits on some contraceptives.

-Lori Aratani

“Cuccinelli’s office is now under investigation by the inspector general of Virginia for secretly helping an energy company that’s taking gas from landowners but refusing to pay them.”

-Terry McAuliffe ad

What does a complex mineral gas rights case involving southwest Virginia property owners and two large energy companies have to do with the Virginia race for governor?

The same could be said for the case’s involvement with the office of Attorney General Kenneth Cuccinelli, the Republican nominee. First, the background: the mineral rights lawsuit has to do with whether a large group of landowners was short-changed when two large conglomerates paid them for rights to extract gas from their land. The issue has dragged on for years, and a potential fix from the General Assembly in 2010 didn’t sort it out as some had hoped.

One of the companies in the mineral rights case, Consol Energy, donated $111,000 to Cuccinelli’s campaign. After the General Assembly tried to take on the issue with its 2010 law, The Roanoke Times reported in June, Cuccinelli later issued an opinion letter that essentially made the law “invalid,” according to the bill’s chief sponsor.

Further, Assistant Attorney General Sharon Pigeon sent a series of emails that appeared to give the energy companies legal advice. Cuccinelli’s office has defended her actions, saying that the attorney general’s office shared a common interest with the companies in upholding Virginia law in the matter.

A federal judge overseeing the energy case said the e-mails were inappropriate. “Shockingly, these emails show … at least [ Assistant Attorney General Sharon] Pigeon, has been actively involved in assisting EQT and CNX [the energy companies] with the defense of these cases, including offering advice on and providing information for use on the motions before the court.”

 The attorney general has responded: “I have a proven track record of representing the law impartially regardless of whom my donors are,” Cuccinelli wrote in a Roanoke Times op-ed.

The Virginia inspector general has begun an investigation into Pigeon’s emails and conduct, according to news reports. The McAuliffe campaign and other Democrats have seized on the issue, saying that Cuccinelli intervened on behalf of a donor and the outcome of the investigation could affect him.

 -Jeremy Borden

 

 

“I will not sign a budget in Virginia unless it includes the Medicaid expansion”

-Terry McAuliffe

When Terry McAuliffe threw down this gauntlet in the summer of 2013, Virginia Republicans pounced at the chance to suggest that the Democrat would be willing to shut down state government over an issue of deep ideological division: whether the state should pursue an option under the Affordable Care Act to expand its Medicaid program.

Under the act, states may expand their Medicaid programs, which provide health coverage for poor families and the elderly, and receive  millions in federal dollars to help pay for it. The promised aid would amount to $2 billion a year in Virginia.Republicans who opposed the Affordable Care Act do not want to expand Medicaid, saying the already strapped federal government cannot afford to make good on that promise.

Republicans in the Virginia House of Delegates said that McAuliffe’s pledge about the state budget amounted to a threat to shut down government because there is no hope, they said, of the Republcian majority in the House supporting the expansion. The ultimate outcome of a veto, they said, would be a shutdown of government.

McAuliffe’s campaign, through a spokesman, denied that that the veto promise amounted to a shutdown threat.

And at a forum on economic development in Richmond on Sept. 18, McAuliffe backed away even from his statement that he wouldn’t sign a budget.Asked whether he really meant that he would not sign a budget without the expansion, McAuliffe said: “I always say, ‘Please make sure you send a budget that has the Medicaid expansion.’ ” He has left off the “please” in at least three campaign appearances.

When pressed on his previous statements, McAuliffe suggested that he could talk reluctant Republicans into supporting expansion with a series of one-on-one meetings over meals

The verdict: There’s no question McAuliffe said that he wouldn’t sign the budget. And it’s certainly possible in a House of Delegates overwhelmingly controlled by Republicans that a veto of the state budget would lead to an impasse, and eventually, a government shutdown. What’s less clear is whether McAuliffe understood the consequences of his threat — and whether he would actually make good on it.

-Amy Gardner

 

 

“Will [Virginians] vote for someone who may enter office with a federal investigation hanging over his head? That would be a first.”

-Ken Cuccinelli at a forum on energy, Aug. 29, 2013

In an extremely bitter race, Cuccinelli has suggested more than once that McAuliffe not only has a federal investigation hanging over his head, but has had a habit of skating close to the edge. But McAuliffe has returned fire, slamming Cuccinelli for his own ethical lapses that have led to state investigations of him and his office. So who’s right?

Cuccinelli’s campaign has spent a lot of talk and advertising dollars focusing a spotlight on federal investigations involving McAuliffe’s electric-car company GreenTech Automotive and a sister firm, Gulf Coast Funds Management. GreenTech and Gulf Coast Funds Management are closely related firms that rely heavily on a federal program, known as the EB-5, that gives conditional visas to foreign investors.

The Department of Homeland Security’s inspector general has launched a preliminary investigation into whether top officials at the U.S. Citizenship and Immigration Services (USCIS) improperly intervened on behalf of GreenTech as the venture sought to raise capital from foreign investors. Meanwhile, the Securities and Exchange Commission is investigating the conduct of GreenTech and Gulf Coast Funds Management in soliciting foreign investors, according to government documents. Company officials have said they are cooperating fully with the SEC’s investigators.

In an op-ed that ran in the Washington Post, McAuliffe said he had not been contacted in any way by those conducting the SEC investigation and did not know of it until reporters contacted his campaign.

“From what has been reported, the investigation appears to be looking at a document allegedly prepared for potential investors — something I was not responsible for as chairman,” McAuliffe said.

Although the scope of the SEC’s investigation isn’t known, there is no evidence that the investigation is targeting McAuliffe personally. But McAuliffe also founded the company with Charles Wang in 2009 and served as its chairman until he quietly resigned in December 2012, and the Post reported that, as chairman emeritus, he still remains a key part of the company’s business. Wang has told the Post that under advice of legal counsel not to talk to his partner. So there’s also no way of knowing whether McAuliffe’s conduct as a former principal of GreenTech has come under scrutiny.

As for Cuccinelli’s lapses, McAuliffe’s campaign has highlighted Cuccinelli’s acceptance of $18,000 in gifts from Star Scientific’s Jonnie R. Williams, Sr., the same political donor whose gifts have triggered a federal probe of Gov. Robert F. McDonnell (R).

Richmond Commonwealth’s Attorney Michael N. Herring (D) has said he found no evidence that Cuccinelli broke the law when he failed to disclose about $4,500 in gifts from Williams and substantial stock holdings in Star Scientific.

“Although one cannot help but question whether repeated omissions of gifts from [Williams] are coincidence or a pattern reflecting intent to conceal, the disclosure of several other gifts and benefits from Williams in his original statements suggests that the Attorney General was not attempting to conceal the relationship,” Herr¬ing wrote in his report. Cuccinelli initiated Herring’s review after acknowledging several lapses last spring.

McAuliffe has also attacked Cuccinelli over his office’s involvement in a complex dispute over natural gas royalties in Southwest Virginia. And McAuliffe’s camp has put out an ad claiming that Cuccinelli’s attacks on McAuliffe twisted the facts. “The truth is,” McAuliffe’s ad says, “it’s Cuccinelli who has an ethics problem.”

The ad refers to the state Inspector General Michael F. A. Morehart’s investigation into claims that a deputy attorney general in Cuccinelli’s office gave improper legal help to two energy companies fighting Southwest Virginia landowners in a mineral rights case. One of the companies, Consol Energy, donated $111,000 to Cuccinelli’s campaign.

The Bristol Herald Courier reported that a review of at least 52 emails between the deputy and two energy companies suggests the deputy offered advice on courtroom tactics as well as strategy on upholding the state law. But Morehart has said explicitly that he is focused on the conduct of Cuccinelli’s deputy, and not the attorney general himself. Cuccinelli’s campaign spokesman has said the attorney general’s office is cooperating in the investigation and believes the inspector general will find that the office has acted properly.

McAuliffe’s campaign has also dwelled on Cuccinelli’s recent disclosure that an FBI agent participated in an interview he gave to state police about his relationship with Williams. Cuccinelli said he was never the subject of a federal investigation, but that the FBI participated in questioning for the state review. We again turn to Richmond Commonwealth’s Attorney Herring, who said he wasn’t aware of a federal investigator at the session because a Virginia State Police report on the interview does not make reference to participation by a federal investigator. But he did not rule that out. “It is entirely possible that the FBI was present and it’s just not reflected in the VSP report,” he said. “I don’t see the issue here. In my opinion, the fed focus has always been on McDonnell and Williams, and rightly so.”

The verdict: Cuccinelli is making a leap to say that McAuliffe is under investigation when the only thing known for certain is that the SEC is looking at his business venture. But McAuliffe is arguably making a bigger leap, given that a state prosecutor has said publicly that the focus of the federal investigation has been on Governor McDonnell and Jonnie Williams, and that the inspector general has said Cuccinelli is not under investigation.

 -Freddie Kunkle

“Cuccinelli has not returned any gifts from Star Scientific.”

Gov. Robert F. McDonnell isn’t the only Virginia politician who has received gifts from Star Scientific CEO Jonnie R. Williams Sr. Attorney General Ken Cuccinelli received an estimated $18,000 in gifts from Williams including a flight, a turkey dinner, stays at Williams’ vacation home and nearly $7,000 in dietary supplements.

In August, Cuccinelli said he could not return the gifts because they were intangible items. As for writing a check, Cuccinelli said, “If I could do that, I just might do that. But that’s just not something I can do, from my family’s perspective.” An aide later added: “As a father of seven children, like most Virginians, he needs to manage a family budget, and his comment simply reflected that reality.”

But in September, Cuccinelli apparently had a change of heart. He announced he was donating $18,000 to a Richmond-based charity.

The verdict: Cuccinelli did not return any gifts he has received from Star Scientific but donated $18,000 – the equivalent value of the items — to a Richmond-based charity.

 - Lori Aratani

 

“Virginia is 50th in the country in teacher pay”

-Terry McAuliffe

Democratic gubernatorial candidate Terry McAuliffe often says, as a way of promising more investment in education, that Virginia ranks last in the country when it comes to how it pays its teachers.

“It’s a disgrace the way we treat our teachers here in Virginia,” he told Loudoun County Democrats, according to the Loudoun Times. He also repeated the claim that “average teacher pay in the commonwealth ranks last in the nation,” according to the June 3 story.

McAuliffe’s source, says campaign spokesman Josh Schwerin, is a CQ Press analysis that looks at a ratio of average teacher salary as a percentage of average pay of all workers. According to the analysis of 2009 salary data, the number one state in this category, Rhode Island, pays its teachers 136 percent of the average worker in other jobs. It’s perhaps an awkward way to measure, but it shows that average teacher pay is more than on par with other jobs.

Virginia pays its teachers 102 percent of the average pays of other professions, from janitor to defense contractor, according to Schwerin and the analysis. The analysis does not include the District of Columbia.

The National Education Association, using data from 2012, puts Virginia’s annual average pay at 15th in the country, or $36,737. Other rankings put Virginia toward the middle of the pack when it comes to teacher pay.

The verdict: So is Virginia 15th or last? All rankings are problematic, and this particular questions shows why. It would be a mouthful to explain the CQ Press analysis every time McAuliffe talks about education and teacher pay in the state. At the same time, it’s incorrect to cite average teacher pay in Virginia as being dead last.

We have some sympathy on this one. Even though based on 2009 salary data, and technically having nothing to do with “average” teacher pay compared directly to other states, McAuliffe is making an interesting and valid point about how he believes the state views its teachers. He also has the statistic, convoluted as it is, to back it up. We would argue that a little more precision would save McAuliffe from more fact-checking scrutiny down the road.

-Jeremy Borden

 

“McAuliffe has flip-flopped on offshore drilling and coal since his 2009 campaign.”

 

Both candidates in the Virginia race for governor, Republican Kenneth Cuccinelli and Democrat Terry McAuliffe, take every opportunity to criticize each other on energy issues, including coal and offshore drilling.

Has McAuliffe flip-flopped on previous positions on both issues, as Cuccinelli’s campaign likes to say? A speech by President Obama outlining new Environmental Protection Agency regulations — which would impose tighter restrictions on coal plants — in June set off both campaigns and provides some context for the discussion.

Cuccinelli used Obama’s climate plan to attack McAuliffe and his fellow Democrats for their policies on coal. And McAuliffe offered some mild criticism of the Obama administration’s potential actions that could adversely affect coal in the state, the Post has reported.

“While we’re waiting on actual regulations to be proposed, Terry believes any new regulations should balance the need to encourage clean energy with the fact that coal is, and will continue to be, a large portion of Virginia’s energy mix,” said McAuliffe spokesman Josh Schwerin.

Running in a Democratic primary in 2009, McAuliffe’s position on all things coal were unequivocal: “As governor, I never want another coal plant built,” he said at the time. “I want us to build wind farms, biomass, biodiesel and solar — that’s my emphasis.”

This May, according to the Bristol Herald-Courier, McAuliffe said during a visit to Bristol that he wanted “to make sure we have a healthy work force of coal” and “to make sure this vital industry here in Virginia continues to grow.”

On offshore drilling, McAuliffe said in debates and other forums that he was opposed to drilling. He now supports legislation by Virginia Sens. Timothy M. Kaine and Mark Warner that would explore the option.

The verdict: McAuliffe has reversed his position on offshore drilling. “He has learned more about offshore drilling from experts in Virginia. He thinks that because of technological progress we can now do it in a responsible fashion,” the campaign told us in a statement.

McAuliffe supposed “flip-flop” on coal is a little murkier. In 2009, he was unequivocally against the expansion of coal. Now, he’s hedging his bets, taking both sides by saying that coal is an important industry and will continue to grow.

“Coal will continue to be an important part of Virginia’s energy mix and economy for years to come, while investing in new energy technologies will allow us to further grow and diversify our economy,” his campaign said in a statement.

Clearly, though, that’s a change from his 2009 position, even if it’s not an outright reversal.

“I don’t know anything about [efforts by my supporters to pressure a Northern Virginia business PAC to reverse its endorsement of Ken Cuccinelli],”

-Terry McAuliffe

After the political arm of the Northern Virginia Technology Council voted to endorse Ken Cuccinelli over Terry McAuliffe, high-powered McAuliffe supporters waged a weekend-long campaign to try to reverse the decision.

NVTC’s TechPAC ultimately gave Cuccinelli the nod, and McAuliffe was hurt by the perception that his allies had tried to strong-arm the group. Three Democratic state legislators warned in emails that they would not support TechPAC’s agenda in Richmond if they did not reverse the endorsement.

McAuliffe tried to distance himself from that arm-twisting, telling reporters after during an appearance in Richmond on Sept. 18, “I don’t know anything about it.”

On Sept. 12, after interviewing both candidates, the bipartisan TechPAC board voted to endorse Cuccinelli. That night, TechPAC chair Dendy Young called both candidates to advise them of the decision, which was to be announced at 1 p.m. the next day, a Friday. Within 15 minutes, McAuliffe supporters were calling officials with NVTC and TechPAC, expressing outrage and urging them to reconsider, those officials said.

TechPAC delayed its announcement and endured a weekend of heavy lobbying before making the Cuccinelli endorsement public that Monday. During that time, NVTC and TechPAC officials said they heard from McAuliffe supporters, including elected officials, but not from his campaign. Those who called did not specifically say that McAuliffe had asked them to do so, according to those officials.

 The verdict: McAuliffe obviously shared the news that he had not gotten the endorsement with someone, and that word spread quickly. It seems unlikely, after lobbying on his behalf postponed the announcement, that he would not have tried to find out the reason for the delay or kept tabs on the situation throughout the weekend. But it is not clear that McAuliffe knew what was going on behind the scenes.

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