RICHMOND — While attorneys for former Virginia governor Robert F. McDonnell wrangle in court over felony charges that he and his wife, Maureen, illegally accepted luxury gifts and large loans, state lawmakers are wrapping up a session in which they have left open key loopholes that could allow a similar scandal to unfold.
With just a week to go before its scheduled adjournment, the General Assembly has not passed the kind of sweeping reforms of Virginia’s lax ethics rules that Republicans and Democrats both said they wanted after the McDonnell revelations began, and they did little to address a host of other problems cited by advocates of deeper reform.
They left untouched the state’s no-limit campaign finance culture, in which officials can take checks of any size as long as they’re disclosed. They let themselves and other state and local officials continue taking unlimited and undisclosed loans through companies they own. And although they passed bills banning some individual gifts greater than $250, they put no caps on the cumulative dollar value of gifts officials can receive from people with business before them.
The House and Senate have passed different bills. They will work on a compromise over the next week, but neither bill addresses key loopholes.
Lawmakers said it was more difficult than they expected to make far-reaching changes, in part because as they got into the details, they became concerned that imposing tough limits could end up inadvertently criminalizing their own honest mistakes.
Top Republican and Democratic leaders also saw little benefit in publicly sparring over laws governing their own conduct and that of other statewide and local officials. They made a strategic decision to prioritize their own bipartisan unity over the ambition of their shared ethics package, which tamped down debate and undercut bolder initiatives.
Another key hurdle is philosophy. Despite the desire to be seen as doing something post-McDonnell, some of the powerful legislators who could have pushed for more comprehensive changes — but haven’t — remained intensely skeptical of the entire reform exercise.
“The absurdity is, you can’t legislate ethics,” said Senate Majority Leader Richard L. Saslaw (D-Fairfax). “Either you’re dishonest or you’re not, okay? It’s more window dressing. It’s an attempt to deal with stuff, maybe tighten up a few things here or there.”
Saslaw said that states with strict laws on the flow of money in politics are still vulnerable to human nature, just as laws against murder and embezzlement don’t stop bad acts. And despite the McDonnell scandal, and the nine-year prison sentence given to a former ranking member of the House of Delegates in 2011 on bribery and extortion charges, he said Virginia’s record remains strong.
“Look at all the laws that Maryland has. Every three years, one of them goes off to prison,” Saslaw said. “That doesn’t happen here. Do you know what it is? When you’re born, you’ve got a chip in your head, and it tells you what’s right and what’s wrong. And somewhere along the line, some of these chips go bad. That’s the problem.”
That kind of resignation was not how the bipartisan ethics package was originally sold. “These are strong, comprehensive reforms,” read the statement from the Republican and Democratic House leaders.
They did fix a glaring shortcoming, voting to make gifts to immediate family members of public officials subject to public disclosure. And they made disclosures more frequent.
But if the pattern among legislators last year holds, the $250 gift limit that is the centerpiece of their reform agenda would have limited utility, according to an examination of gift disclosure data. If the proposed $250 limit on “tangible gifts” had been in place in 2013, only two gifts to legislators would have unambiguously been banned. Those were a $3,000 cash prize from the National Rifle Association’s political action committee and an iPad, according to Virginia Public Access Project data. A $400 discount on eyeglasses and two sets of jackets and prints, each with a combined value of $265, may also have been caught by the $250 limit.
A key concern for legislators was the fear of tripping themselves up — or supplying their political opponents with ammunition for campaign ads.
So their ethics bills made a distinction between tangible and intangible gifts and put no limits on the intangibles, including domestic and foreign travel, Washington Redskins tickets, meals and passes to Kings Dominion amusement park.
“I think if we tried to ban that outright, we wouldn’t get a bill passed,” said Del. Jennifer L. McClellan (D-Richmond), who helped craft the legislation. “It’s better than nothing. . . . This is a good first step.”
Many legislators argue that it’s too difficult to make a distinction between trips and entertainment that are largely work-related and those with more tenuous connections to their official duties. As a result, they want disclosure rather than dollar limits.
Two weeks into the General Assembly session, on a day McClellan and other members of a House committee tweaked the fine points of their legislative gift language, McDonnell was two blocks away pleading not guilty.
Lawmakers were reluctant to solve problems raised by the former governor’s behavior if it meant forcing themselves to reveal too much personal or business information.
Take the issue of loans.
According to the federal indictment, McDonnell spoke to Jonnie R. Williams Sr., then chief executive of dietary supplement maker Star Scientific Inc., about transferring tens of thousands of shares of company stock to McDonnell and his wife. But later, “because of concerns about disclosures that would be necessary,” the men agreed that Williams would instead “simply transfer $50,000” to a company owned by McDonnell and his sister.
Under current Virginia law, McDonnell would have to disclose large stock holdings or a loan made directly to him, but not a loan to a company in which he held an ownership interest.
But Del. Gregory D. Habeeb (R-Salem) said there was no agreement on how to solve that problem without a “huge expansion” in what must be revealed.
“Should I have to report my law firm’s line of credit every year, because that’s a loan to a business I’m a party to?” Habeeb asked.
Habeeb said that the McDonnell situation involved an elected official who set up a tiny company that served essentially as the governor’s “alter ego” and then was able to accept loans to his company without disclosing them. He called that a “very narrow situation” that the General Assembly had not yet figured out how to address without disrupting legitimate business loans.
“We dealt with the other 99 issues,” he said. “And maybe that’s one we get going forward.”
The U.S. Senate is among the political bodies that have come up with that language.
According to a Senate description of its rules, “You are required to report any liability of any business, investment pool, or other entity, in which you, your spouse, or your dependent child have an interest, unless” they fall into one of three exemptions. Those include publicly traded entities and excepted investment funds. Also exempted: a liability that “is incidental to the primary trade or business of the entity.”
Del. David B. Albo (R-Fairfax), chairman of the Courts of Justice Committee that did detailed work on the ethics bill, said he suspects that McDonnell would have claimed that the loans were “incidental” to the business he owned with his sister.
Still, Albo said, he’s open to the idea, although Senate leader Saslaw is opposed.
The House did address alleged evasions by Maureen McDonnell. At issue is the present tense of the word “own” on disclosure forms. Under current law, filers must identify businesses in which they “own securities” valued at more than $10,000. (Both the House and Senate cut the disclosure threshold to $5,000 in their bills.)
According to the indictment, Maureen McDonnell told her broker in December 2012 to open accounts for her children and to transfer thousands of shares of Star Scientific stock out of her own account “before year-end in order to avoid reporting requirements.”
But the House added an additional tripwire, requiring disclosure not only for what is owned but also for what was “sold or otherwise transferred.” The Senate did not include that change in their bill.
The House bill also bans some gifts to the governor and attorney general from parties involved in civil actions with the state, an issue with Star Scientific’s Williams. Trips and other intangible gifts would still be allowed.
Another challenge was that enforcing tougher rules would cost money that officials said they didn’t want to spend.
McClellan cited a new conflict of interest and ethics advisory council, which would be created under the bills passed by the House and Senate, as the most potent improvement in the package. It would create an online disclosure form database, issue advisory opinions, conduct training and come up with ideas for future reforms.
Some legislators pushed to give the council teeth, including a role as arbiter of which free trips should be considered legitimate. But doing that, Albo said, would cost $200,000 to $300,000. Other legislators want the commission to perform random yearly audits to see if legislators and others are filling out their disclosures truthfully.
“That’s something we could do. But now you’re talking about spending $1 million for the [ethics] council. You’ve got to hire CPAs and stuff,” Albo said.
Albo said there’s still time for legislators to consider amendments suggested by constituents. Ethics legislation is likely headed to negotiations between the two chambers to reconcile the differences between their versions. And Gov. Terry McAuliffe (D) also has the opportunity to amend whatever package passes.
The General Assembly would have to accept or reject the governor’s changes.