Why Lowell Barron Will Walk Away a Free Man, or, Why Luther Strange Will Never Be Governor - Part I

One of this year’s leading political news stories was the indictment of former State Senator Lowell Barron, shown here before his crippling tractor accident last year, and his former campaign employee Jill Johnson, on charges of violating the Alabama Ethics Act and the Fair Campaign Practices Act. As if on cue, media sources from across Alabama, which have never mentioned the corruption of “Choctaw Bob” Riley or Speaker Mike Hubbard, jumped on the story as an example of “corrupt Democrats.”

The relevant facts of this case are a matter of public record, fully disclosed in Barron’s campaign filings. Jill Johnson was a long-time political employee of Barron, and she is known all across his former district for her campaign and constituent services work. When Shad “Hands Off, He’s My Man!” McGill upset Barron in the 2010 general election, Barron had no further need of a campaign staffer. Like many grateful employers, Barron gave Johnson a well-earned severance bonus. He gave her title to the campaign’s high-mileage, four-year-old Toyota Camry, and two cash payments of $6,000.00 and $50,000.00. The indictment also charges Barron and Johnson for a payment of $2,000.00 during the campaign. I guess Republican Attorney General Luther Strange hasn’t practiced enough real law to know that it’s a crime under § 16 of the Fair Labor Standards Act (29 U.S.C. § 216) not to pay your employees their wages.

In fact, his lack of real legal experience notwithstanding, Strange knows that his indictment of Barron and Johnson is frivolous, perhaps to the point of being unethical conduct on his part as a member of the Alabama Bar. In this post, I am going to look at the Ethics Act charges against Barron and Johnson. In a future post, I will talk about the Fair Campaign Practices Act part of the indictment.

 When Alabama first adopted the Ethics Act in 1973, it was one of the first of its kind in the country. To be sure, over the years, it has provided the means for ridding Alabama politics of a number of unsavory political figures. Republican Governor Guy Hunt comes to mind. Sometimes, it has been criticized as being too strictly applied, as when the Ethics Commission has fined public employees for using the office fax machine for a local personal fax, at no cost to the taxpayers. In balance, though, the law has been beneficial for the state. It is Strange’s blatantly political use of the Act – in the year before an election in which Barron is rumored to be seeking to regain his Senate seat – that is so worthy of condemnation.

The provision of the Ethics Act that Barron and Johnson have been charged with violating is deceptively simple:

Contributions to an office holder, a candidate, or to a public official’s inaugural or transitional fund shall not be converted to personal use. Ala. Code § 36-25-6.

Now, the first thing anyone has to realize is that this part of the Ethics Law only reaches contributions to Barron’s campaign. This case does not involve one penny of taxpayer money. The second is, as noted above, that Barron properly disclosed these payments on his campaign disclosure reports, which are available to anyone online. Finally, according to lawyers involved in the case, Johnson reported receiving these payments on her income tax returns, and paid tax on them. I think we can safely assume that is true, because otherwise she would have been charged with tax evasion.

Let’s unpack the language of the statute. No one is denying that the funds were campaign funds, or, in the words of the statute, “contributions to an office holder [or] a candidate ...” The only question is whether the payments caused contributions to be “converted to personal use.” Now, if Barron had paid these funds to himself, there would be no question that the law had been violated. That is the thing – with inauguration contributions – that got Guy Hunt convicted. But none of the payments in the indictment were to Senator Barron. They were to Johnson. So, Barron and Johnson are only guilty of violating the Ethics Act if payments to her constitute “conversion to personal use.”

Obviously, that phrase “converted to personal use” is the key to these charges. The Ethics Act does not define “personal use.” This leaves no obvious answer to the question, whose “personal use” are we talking about? When it comes to the Alabama Ethics Act, I think it’s safe to say that no one knows more about it than the Alabama Ethics Commission, the independent agency that enforces it. Their staff spends a minimum of 40 hours every week thinking about it, and the Commissioners themselves spend countless hours studying it before and during meetings. In a 2005 opinion to Circuit Judge Joseph Brogden of Escambia County, the Commission had this to say about this statute:

Provided the disposition of excess campaign funds are not converted to the personal use of the candidate, a member of his or her family or a business with which he or she is associated, the disposition of excess campaign funds is controlled [only] by The Fair Campaign Practices Act, found in Title 17 of the Code of Alabama. Alabama Ethics Commission, Advisory Opinion No. 2005-15 to Hon. Joseph Brogden, p. 5 (April 6, 2005)(emphasis added)(approving transfer of surplus campaign funds to church of which officeholder was member, on proviso that he was not an officer or director, and advising that such a transfer was only subject to the FCPA).

In other words, if the transfer is not to the candidate/officeholder, his family member, or his business, Ala. Code § 36-25-6, which is what Barron and Johnson are charged with violating, does not apply to the transfer, and there is no crime. Yes, this Opinion adds words (“a member of his or her family or a business with which he or she is associated”) that are in the statute only by implication, limiting “personal use” to the candidate/officeholder or his family. But when you think about it, no other reading of the law makes sense. 

First, at some point, when campaign contributions are spent on the campaign, they are going to be “converted” to someone’s personal use. When a candidate buys a radio spot, the funds are “converted to the personal use” of the owner of the radio station. Purchase of a newspaper ad means campaign contributions are “converted to the personal use” of the owner of the newspaper. The newspapers that have been condemning Barron without a trial ought to think long and hard about what that interpretation means to their owners. And today, every campaign above the level of dogcatcher has at least one paid staffer. There is no real difference in the legitimate remuneration of a staff member, and the purchase of an ad in the media. If candidates are to exercise their First Amendment right to campaign, contributions to their campaigns have to be “converted to the personal use” of their staff and vendors. “If the First Amendment has any force, it prohibits ... fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 349 (2010). Hiring and paying a campaign staff member is “simply engaging in political speech.”

Secondly, the interpretation of the Ethics Commission makes even more sense when you think about the obvious purpose of this section. Both the Ethics Act and the Criminal Code have bribery provisions. This provision is just a backstop to them. If it weren’t there, a candidate or officeholder could evade a bribery charge by just having the bribing party make a contribution to his campaign, then disburse the funds to himself, rather than directly pocketing a bribe. That’s obviously not an issue when the money goes to a staffer who is not a candidate’s family member.

Finally, the Federal Election Campaign Act of 1971 has a very similar prohibition stating that a “contribution or donation described in subsection (a) of this section shall not be converted by any person to personal use.” 2 U.S.C.A. § 439a(b)(2). The Federal Election Commission has interpreted that statute to prohibit only transfers to the candidate or his family, and even then, allows such payments if the payment to a family member for campaign work is not “in excess of the fair market value of the services provided.” 11 C.F.R. § 113.1(g)(1)(H). Ms. Johnson, it goes without saying, is not a member of Senator Barron’s family.

In short, Senator Barron’s payment of compensation to his staffer, for work done, is not a violation of the Alabama Ethics Act. Attorney General Strange and his assistants know this, and should never have charged Senator Barron or Ms. Johnson. In fact, this law is so clear, that Attorney General Strange has probably violated Rule 3.8 of the Rules of Professional Conduct of the Alabama Bar, which states that a “prosecutor in a criminal case shall ... refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” A criminal defense lawyer I know recently pointed out to me that there have been many cases where both trial and appellate courts have thrown out convictions of even clearly guilty murderers because of intentional prosecutorial misconduct. He went on to tell me that he had searched the back issues of The Alabama Lawyer, in which all disbarments, suspensions, and reprimands of lawyers are published, and had never found a single case in which a prosecutor had been given a sanction for prosecutorial misconduct. (I welcome any correction to that observation in the Comments.) Not even when that misconduct was in a death penalty case. Perhaps this will be the case that changes that.

North Carolina disbarred Mike Nifong, the district attorney who brought bogus rape charges against members of the Duke University lacrosse team in 2006. At least Nifong had a witness who claimed to have been a victim of an actual crime. Perhaps someone with skin in the game will file a complaint with the Alabama Bar when these charges are disposed, and we can do as well as North Carolina.

There is another rule – this one a rule of common sense, involving glass houses and stones – that Attorney General Strange seems to have violated. Meet Jessica Medeiros Garrison. The photo below shows the petite Ms. Garrison next to the 6’9”, former college basketball player, Mr. Strange.

Like Ms. Johnson, Ms. Garrison spent 2010 working for a

candidate. In her case, the candidate was her fellow Mountain Brook resident, Luther Strange. She also owns a corporation, MDM27 Holdings, Inc., which tells the Secretary of State that its purpose is to provide “political marketing services.” As Strange’s 2010 campaign expenditure disclosures show, one of MDM27 Holding’s clients was his campaign. As calculated by the blog Legal Schnauzer, based on these compiled expenditure disclosures, Ms. Garrison and her corporation “converted to [her] personal use,” by Strange’s definition, some $227,727.99 of the campaign contributions to the Strange campaign - over three times what Senator Barron paid Ms. Johnson. You can review these reports, and a compilation of the sums paid Ms. Garrison, and check Legal Schnauzer’s math, here:

Luther Strange Campaign Expenditures 2010-12 by PubliusIX

Ms. Garrison was paid for all this “work” while, as these reports show, Strange had different firms and consultants handling most of the parts of his campaign, such as media, polling, direct mail, and so forth. During part of the time in which she was getting these payments, she had joined the payroll of a white-shoe Birmingham law firm, Balch and Bingham, and couldn’t have been working full time for Strange. Nice work if you can get it.

Now, since the Attorney General is doing the exact same thing for which he indicted Senator Barron and Ms. Johnson, may we presume he will demand that he and Ms. Garrison be indicted, as well? That would, of course, be the honorable thing. And surely, the Attorney General is an honorable man. His fellow Republicans – Governor Bentley and Speaker Hubbard included – allowed contributions to their campaigns to be “converted to personal use” by their staffs.

Will Mr. Strange see to it they are indicted? That would be the honorable thing, and surely the Attorney General is an honorable man. So are they all, all honorable men.

I would ask that the readers of this post, and the coming post on the Fair Campaign Practices Act, do a service for their State, but more importantly, for Senator Barron and Ms. Johnson. Attorney General Strange has played this case for maximum political effect. His investigator arrested Ms. Johnson, and coordinated her arrival at the DeKalb County Jail with the news media. The major media in this state, especially our three largest newspapers and their joint website, have relied almost exclusively on the Attorney General’s office for the “facts” and “law” of this case, and have accurately reported neither as a result. What I want you to do, reader, is bookmark this post, and the coming Part II, in your browser. Keep your eyes on both the TV and newspaper coverage of this case as it proceeds. If you see a story about the case that does not point out the identical behavior of Mr. Strange and Ms. Garrison, or fails to point out the interpretation of the law by the Ethics Commission means there was no violation, get the reporter’s email, and send them a link to this post and/or Part II. Tell them you expect them to do better, since the information about the Attorney General and his “consultant” is also a matter of public record. Tell them you expect them to accurately report the law, as these posts set out, and attorneys for Senator Barron and Ms. Johnson will doubtless do in court. Send letters to the editor. 

This is not a criminal prosecution, because there has not been a crime. As a result, these charges will not stand up, regardless of what the media report. But if we can keep the media honest, not only will Senator Barron and Ms. Johnson walk away vindicated, the real criminal in this case – Luther Strange – will limp back to Montgomery with his dream of riding Barron and Johnson into the Governor’s Mansion in tatters. We can control the headlines with pressure on the media.

Before I close this Part I, let’s return to the cute, petite, pixyish Ms. Garrison. What on earth would Ms. Garrison do with that kind of money “converted to [her] personal use?” Well, it costs a lot to raise a proper Mountain Brook kid these days. Meet Michael Garrison, who just turned six in March, sitting next to Mommy, and, as you can see with your own eyes, already reaching her ears. Isn’t he a cute, tall six-year-old, growing like a weed on triple-13?

Stay tuned, friends, for Part II. And would someone get General Strange something to drink? He is not looking at all well over there.

The Battle for the Republican Soul ... and Other Oxymorons

This Tuesday is the occasion for the Alabama 2012 primary, moved to its early date in the 2011 legislative session in an effort to make Alabama more relevant to the presidential nominating process. In a further effort to save money (it does cost a lot to run an election), the Legislature also moved the primary for downballot races to the March date.

The media, as it is wont to do, has put a laserlike focus on the presidential primary. This is not wholly irrational. Alabama will indeed be the focus of the nation’s attention Tuesday night, especially as Newt Gingrich and Rick Santorum (I am not going where his tie choice leads!) try furtively to push each other out of the Republican race. As only one example of this focus, The Washington Post offers this catchy graphic showing the race’s importance. Mitt Romney, in an effort to secure a win in the Deep South that would contribute substantially to his “inevitable” theme, has expressed a newfound affection for grits and other Southern culture, that is certainly as genuine and sincere as his commitment to freedom of reproductive choice and universal health insurance. The Alabama GOP presidential primary is worth watching, and it will be worthwhile to pick over the numbers starting Wednesday.

I say this because of the adage in Sun Tzu’s widely-read classic The Art of War, that “if you know your enemies and know yourself, you can win a hundred battles without a single loss.” But if we really want to know our enemy, the GOP presidential race may not be the place to look. That contest has become an exercise in pathological syncretism, as the three non-Paul contenders have devoted their full energies into seeing which can most totally pander to the Tea Party wing of the GOP. (Much to the justified delight of President Obama’s campaign staff.) Because of this, the Republican presidential results are going to tell us little more than which of the three was most effective at deploying this strategy.

The more perceptive analyst will be looking at downballot GOP races, in particular at those for Chief Justice and President of the Public Service Commission.

The race for Chief Justice features incumbent Charles Malone of Tuscaloosa, appointed last year by Governor Bentley; Mobile County Circuit Judge Charlie Graddick, and former Chief Justice Roy Moore. Many write off the latter two as contestants for the Shorty Price Award for Futile Candidacies. Graddick burst on the state political scene in 1978 as the candidate for attorney general whose “fry ‘em til their eyes pop out” TV ads (the posted clip is the only remnant I could find online) brought him to the head of a crowded field in the Democratic primary. After two terms as AG, he ran for governor in 1986, and won the Democratic runoff against Bill Baxley. He was properly, if inartfully, stripped of the nomination by the SDEC for encouraging illegal crossover GOP votes in the runoff. After another unsuccessful statewide run - this as the GOP nominee for lieutenant governor against Don Siegelman in 1994 - he settled into a circuit judgeship in Mobile County, where he had started as district attorney in the 1970’s.

Judge Roy Moore, of course, is widely perceived as a caricatured religious fanatic, whose insistence on placing the Ten Commandments in the Heflin-Torbert Building led to his ouster as chief justice. While Moore’s views on the First Amendment need work, his brief tenure on the Court was somewhat more complex. His fixation on the Ten Commandments, for example, includes the radical concept that “Thou Shalt Not Steal” applies to banks and insurance companies, and “Thou Shalt Not Kill” applies to Fortune 500 companies that knowingly sell dangerous products to consumers. This, more than any tactical retreat in the face of public opinion, explains why the state GOP stood silently by while he was ousted from the Supreme Court. (The Judicial Inquiry Commission that prosecuted him was then chaired by a Democratic stalwart, Circuit Judge Randall Cole of DeKalb County.)

Chief Justice Malone is not only a political protégé of Governor Bentley, he is a fellow Tuscaloosan. Like Bentley as governor, he has disappointed as chief justice in not standing up to Business Council interests, but both have had to look over their shoulders at GOP primary races, and both have doubtless not wanted to become the primary target of Business Council wrath. Whether either can, or will, do better after those primaries remains to be seen, but our corporate masters have to have some residual anxiety about that prospect.

Thus, the race for chief justice gives us a pretty good picture of three competing power centers in the GOP. Moore’s vote will give us a clear picture of the strength - or weakness - of those Republicans for whom the New Testament is the shibboleth. (Pardon the mixed biblical metaphor.) Malone, like Bentley, represents that part of the GOP that would like to see the party appeal to a broader constituency than the Mountain Brook Country Club or the First Baptist Church of Gardendale. (For that reason, this element may be the most dangerous to a Democratic renaissance in Alabama.) Graddick probably represents the quiet wishes of the Business Council element of the party. Although The Birmingham News reports that “Malone has the backing of the state’s business establishment,” take that with a grain of salt. Malone’s support from the business community represents more of a hedge, and a prudent support of a chief justice who will, regardless of the primary outcome, be in office until next January. A careful review of Graddick’s financial disclosures will reveal substantial business support, if only viewed through the prism of the actual weakness of the GOP’s much-ballyhooed PAC-to-PAC transfer ban.

The race for the right to face Lucy Baxley for PSC president this fall provides a sharper picture of the BCA-Tea struggle within the GOP. Associate Commissioner Twinkle Andress Cavanaugh is the consummate Business Council puppet. She is so close to BCA lapdog Bob Riley, that she could avoid conception by giving the former governor her Yaz. Her support is clearly centered on that wing of the GOP.

Her principal opponent in the race is Kathy Peterson of Shelby County.
Peterson is the wife of unsuccessful 2010 agriculture commissioner candidate Dale Peterson, whose YouTube ad continues to bring ironic chuckles. (If only people knew that Dale and Kathy’s “farming” business is based on raising show llamas!) Peterson’s vote is going to give us a good feel for the continuing vitality of the Tea wing of the Republican Party. Her husband’s support of the brief bubble of presidential candidate Herman Cain has been repaid by the salesman of mediocre pizza’s campaigning in Alabama on her behalf.

In many respects, these GOP contests are not between light and darkness, but between darker shades of pitch. We should be as careful of rooting for a “moderate” in these races, as we would be of rooting for a “less extreme” mullah in an Iranian “election.” While I will be watching the presidential returns closely, in the long run, I will be picking apart the returns in these two statewide races more closely. They will tell us much more in the long run about the beast we need to slay. Or, at least, cage.

None Dare Call It Treason

No, I have not gone over to the cause of one of the all-time loopiest books ever written, which includes claims that Eisenhower was a Communist sympathizer, not to mention Kennedy and Johnson.

But the title of John Stormer’s book naturally leapt to mind when someone shared a bit of news this week that emerged from the always-interesting pen of Bob Martin at The Montgomery Independent. The lead item in Martin’s column was itself conspicuously absent from the pages of the state’s “mainstream media,” and will probably remain so until they can’t ignore it any longer. Martin cites a source who told him that outgoing Governor “Bingo Bob” Riley offered incoming Attorney General Luther Strange $2,000,000 in campaign financing for a 2014 GOP gubernatorial primary challenge against Governor Robert Bentley. Strange’s end of the quid pro quo would be to “protect” Riley’s two children (and from what would they need protection from the state’s lead prosecutor, pray tell?), and to divert state legal work to them when possible.

Unfortunately, that story wasn’t the shocker. Anyone with two brain cells and access to a media outlet not controlled by Si Newhouse knows what a crook Bob Riley is. The real alarm bells sounded as I read the second half of Martin’s column. In that, he revealed a plausible explanation for certain conduct of the Obama administration.

In other posts, I have taken the Obama administration to task for what I, perhaps with too much naïveté, presumed was inattention on Obama’s part to the continuing partisan reign of terror of Bush-appointed U.S. Attorney Leura Canary in the Middle District of Alabama. Martin cites a source who provides a far more troubling explanation. According to Martin’s source, Obama cut a deal with Senator Jeff Sessions, under which Sessions would not actively oppose Obama’s nominees to the U.S. Supreme Court, in exchange for which Obama would not remove Canary from her perch - a position from which she has masterminded the ethically-riddled persecution of Democrats from Don Siegelman to the bingo defendants.

(Blink.)

Yes, if Martin’s source is right, Obama wasn’t asleep at the switch. He and his politically inept White House actually knowingly cut a deal with one of the most rancid members of the United States Senate, and Obama’s part of the deal was to throw the Alabama Democratic Party under the bus. Obama cut this deal at a time when the Democratic Party had a 60-vote filibuster-proof majority in the Senate; Sessions should have been an ignorable, if odious, afterthought. This deal is just more proof of the political ineptitude of Obama and his Camelot-manqué staff.

Let’s put Obama’s action in perspective. Momentarily leaving aside the burning question of justice for Don Siegelman, leaving Canary at her post had the near-certain effect of further GOP politically motivated prosecutions in Alabama. Prosecutions that directly resulted in Republican political gains last November. Sessions knew that, and so did Obama. As a proximate and foreseeable result of Obama’s action, we not only have a Republican governor, we have a Republican legislature. As a proximate and foreseeable result of Obama’s action, African-American chairs of the House Ways and Means General Fund Committee and the Senate Education Finance Committee lost their positions to white Republicans. As a proximate and foreseeable result of Obama’s action, the national Party lost seats in the Second and Fifth Congressional Districts that were won by Democrats in 2008.

If Obama, who seems to know no fight from which he will not run, was determined to make a deal with Sessions, there were better ways to do it. Build the Air Force tanker in Mobile (oh, wait, the competitor for that is Boeing, based in Obama’s Chicago). Find some policy issue on which to throw him a bone, just don’t sell out the Democratic Party in an entire state.

John Stormer borrowed his book title from a line by Sir John Harington, one of the more interesting figures of the infinitely interesting Elizabethan era. A soldier, courtier, poet, and essayist, he also gained fame by being the inventor of the modern flush toilet (hence the term, “john”). Harington’s epigram has the ring of truth:

“Treason doth never prosper: what’s the reason?
Why, if it prosper, none dare call it treason.”

Perhaps. Even in the case of George W. Bush, many supposedly progressive Democratic voices in Washington flinched from the use of words like “idiot;” a word I would require considerable self-restraint not to use to Obama’s face after Martin’s revelation. Obama’s infantile political crew settled on Charlotte as the site for the 2012 Democratic Convention - the only contender with no unionized hotel staffs in the city - and organized labor is described as “fuming.” He appears more likely than ever to have some opposition in the 2012 primaries. He doesn’t need any embarrassing headlines, and we have something in Alabama called the “Radney Rule.” I’m just sayin’, Mr. President.

Postlude: For those of you who live in the Scottsboros, Andalusias, and Tuscumbias of the state, write the editor or publisher of your local paper, and suggest they contact The Montgomery Independent and start carrying Bob Martin’s column and other items. Yes, they frequently bust Democratic chops, when deserved. But when the deserving always get a chop-busting, Democrats win in the long run.

When Is Ethics Reform Not Ethics Reform?

I had hoped to have a brief sabbatical before resuming this space, but, alas, Choctaw Bob decided to call a special session of the new Republican Legislature, so at least one entry will be fueled by fruitcake and eggnog.

All you have to do in Alabama this week is pick up a major daily newspaper, (note the Publian throat-clearing on that page) or turn on the TV news, to hear how the Wonder of Ethics Reform has been ushered in by the new Republican monopoly on political power in Alabama. You would think no one ever testified under oath to Congress that Bob Riley pocketed millions in Choctaw casino money. Why, it probably all really went to those ethics-reform-killing Democrats who got voted out last month!

The Republican-Newhouse chorus of praise for restrictions on “lobbyist” expenditures depends, for its political effect, on the public’s failure to understand how lobbying really works. The rather simplistic public view - strongly supported by the editorial slant of the largest news outlets - shows most votes in the Legislature being determined over the tenderloin filet with Béarnaise butter at Sinclair’s or the chopped lobster over angel hair at SaZa’s. I won’t discount the impact this gustatory largess has on legislators (although both of the foregoing delicacies are within the per-meal limits of the new law), and its restriction will improve the moral atmosphere. But the real work of the lobbyist lies elsewhere.

The disproportionate influence of lobbyists in the Alabama Legislature stems from a number of factors. Perhaps the most underrated comes from their access to information not otherwise available to legislators. While legislators in many states have access to research staffs and personal staffs that are comparable to those in Congress, Alabama lags behind. The understaffed and underfunded Legislative Reference Service and Legislative Fiscal Office simply cannot provide anyone, including legislators, with much of the information needed to evaluate legislative proposals. Enter the lobbyist, or the interest group they represent. No one has performed this function as notably as the Alabama Education Association. No small part of the influence of Paul Hubbert and his employer comes from their mastery of the complicated budgetary and economic data necessary to balance a budget. In the coming GOP quadrennium, there will be new fights over how to deal with shortfalls in the education budget, but one thing will remain constant. If Governor Bentley’s staff says the Education Trust Fund will be X dollars in the black next year, and Dr. Hubbert’s staff says it will be Y dollars in the red, legislative leaders will be working from the latter presumption, even if they dare not admit it.

As much as lobbyists influence legislation by direct pressure, they earn their keep by simply tracking it, and counting the noses of supporters and opponents. Smaller groups, which don’t have a full time executive or staff in Montgomery, count on retained lobbyists to notify them if a bill impacting their members has been introduced, and then let them know where it is in the legislative process. Even the larger groups on Goat Hill - the AEA’s and the ALFA’s - largely use their lobbying staffs to send blast faxes or emails to members from Boaz to Brewton, to tell them it’s time to call their legislators about House Bill B. That sort of pressure, more than any martini, moves votes in the State House. Even, perhaps especially, in the case of big-ticket legislation, it’s the heavy-hitting principal, not the lobbyist, who makes the trek for deal-closing face time with a swing voter. John Archibald of The Birmingham News figured this out, when he noted (in attacking GOP Senator Scott Beason’s hypocrisy on “ethics reform”), that Beason didn’t wear a wire to talk to some briefcase-toting lobbyist lackey. He (allegedly) wore it to talk to Milton McGregor.

Of course, if you really want to move votes in the legislative process, donate. Fund those re-election bids. And while the “ethics reform” session put a few speed bumps in the path of redirected money, it came far short of erecting any roadblocks. Even the slight additional disclosure required under the PAC-transfer ban is likely to be of limited effect. Remember again AEA’s cannonade against Bradley Byrne during the GOP primary and runoff campaigns.

Even if Bill Maher got the source of the ads wrong, everyone in Alabama knew their origin. AEA’s sponsorship was the worst-kept secret in the history of Alabama politics. As with any step taken to dissuade future attackers, that bankrolling had to be an open secret to be effective. While the transfers to the “True Republican PAC” gave Tim James and Bentley a fig leaf behind which to hide, media buys of such an effective size can only come from a handful of places, and the old cui bono rule makes it easy to short-list the suspects. More to the point, despite the fact that everyone with a pulse knew the ads originated from AEA, they worked. Byrne went down in flames. In the meanwhile, the GOP “ethics” bills won’t particularly impede business interests funneling cash to “religious” groups, some 527 language in the bills notwithstanding. Those “religious” groups, in turn will continue to lobby for Christian stances, like corporate tax breaks, and will identify GOP nominees to their voter-members as “more aligned” with “Christian” positions.

The so-called “ethics reforms” may give the GOP some talking points, and may leave those unfamiliar with the daily grind on Goat Hill with the idea that things are now fine, but they really will not make any material change in how the people’s business is conducted at 11 South Union Street.

What we are left with is the inescapable conclusion that this session had nothing to do with ethics. It had everything to do with passing anti-AEA bills, banning teachers from running for the Legislature, and banning public entities from deducting AEA and ASEA political contributions from paychecks. (I am still waiting for the explanation of why it’s more unethical for a Democratic teacher to vote on an education budget, than it is for a Republican insurance agent to vote on a bill impacting the insurance industry.) Those bills would have been at serious risk of a Bentley veto come January, as well as being maneuvered behind budgets in a regular session. The 52-49 final House vote passing the payroll deduction bill shows that there was insufficient support to pass the bill in a regular session, with a governor more sensitive to employee rights.

Of course, as this blaring headline from The Birmingham News shows, the GOP and its media apologists have not wasted the opportunity to trumpet the “historic” accomplishments of Ethical Bob and his newly-empowered GOP Legislature. With few exceptions, the news coverage has repeated the Republican lie that Democratic Legislatures had “refused” to reform ethics, when in fact, Democratic proposals stronger than those on offer last week were passed by Democratic Houses, and filibustered or blocked by GOP minority blocs in successive Democratic Senates.

Perhaps - and it is our task as Democrats to help them do so - what the Republicans have done is to overreach in their giddy victory dance, and wakened a sleeping giant. In the early 1970’s, George Wallace, looking for some cash to spend as he chose, proposed a raid on the Education Trust Fund. Before this time, AEA had largely been a group of starving, underpaid professionals who gathered in Birmingham during spring break every year to get out of Scottsboro or Eufaula. Under the leadership of the recently-installed Dr. Hubbert, AEA rose with a unified voice, and hundreds of teachers jammed the halls of the Capitol, buttonholing every member of the Legislature. Not only was Wallace’s raid dead on arrival, before running for re-election in 1974, Wallace was careful to pre-empt AEA opposition by giving teachers a $1,000.00 a year across-the-board raise. (This would be close to $4,500.00 in 2010 dollars.) In recent years, while AEA has wielded unsurpassed clout by virtue of its focused financial support and lobbying effort, it has faded somewhat as a voting bloc. Some teachers look at their currently-comfortable paychecks, confuse themselves with members of the Mittelbourgeoisie, and vote Republican in response. Others heed the call of business-shill “clergy,” and vote Republican because Democrats aren’t trying hard enough to execute women trying to obtain abortions. Where the Republican attack on public education will be launched - reduced tenure rights to intimidate teachers, or diversion of scarce dollars to lower-paying charter schools - is not certain. That it will be launched is certain. Sooner, rather than later, any person with the wit to attain the baccalaureate which is a vocational prerequisite for teachers will realize these Republicans mean to do their wallets harm. The impact of 50,000 truly-ticked-off, college-educated-articulate men and women, with starting salaries of $36,000.00 from which to contribute, and all summer off work, can never be underestimated.

Shadrack McGill - The Republican Ethical Standard (Or, How to Win After the Indictment)

We all remember the Exilic tale of Shadrach, Meshach, and Abed-nego. (Though, being well-educated Democrats, we spell the first name correctly, unlike the subject of this post.) These three loyal servants of God refused to obey the edict of Nebuchadnezzar to worship the golden image he had set up. Cast into the fiery furnace, they were not only saved by divine intervention, upon their emergence Nebuchadnezzar repented and promoted them to even higher offices than those they had previously held; a truly Sunday School happy ending.

The devout today are hearing from a thousand pulpits across Alabama, that not only do Democrats favor such sinful activity as gambling, they are taking all sorts of bribes to do so. (I still don’t grasp why we have to be bribed, if we are so wicked and depraved in the first place.) One Republican nominee in particular, Shadrack McGill of Woodville, has interjected himself into the gambling indictment story by claiming to have testified to the grand jury that he was offered $15,000.00 not to run against Democratic Senator Lowell Barron in the 8th District. The claim is patently absurd. McGill is enough of a nonentity that no sensible political boss would spend more than $5,000.00 to keep him out of the race.

More to the point, we would do well to consider the source. McGill’s orthography is not the only indicium of his Biblical unfamiliarity. He seems to be even less conversant with the Mosaic edicts so well defended by former Chief Justice Roy Moore. Especially the one about “Thou shalt not steal.” (Ex. 20:15). Meet Ronnie and Shelia Johnson of Jackson County. According to their court filings, Ronnie and Shelia wanted to live the American dream, and own their own business. Mr. McGill happened to own one, a restaurant in rural Jackson County. The Johnsons agreed to buy McGill’s restaurant from him, for payments of $1,330.26 for 60 months at 20.2% interest. (McGill apparently thinks Lev. 25:36, “Take thou no usury of him, or increase,” doesn’t apply to him, either. Republicans are good at overlooking inconvenient Bible verses.) This January, the Johnsons claim, they tendered the final payment and were ready to take delivery of the deed to their restaurant. Only there was no deed forthcoming. On looking into matters with a lawyer, the Johnsons found out that, contrary to what he had told them, his restaurant had either a mortgage or his own land-sale contract obligation encumbering it, which he apparently hadn’t been paying. (McGill, being a fine Christian, did decline to accept the final payment.) Even if he had given the Johnsons their deed, the property would apparently be of little net value to the Johnsons because of the encumbrance. Meanwhile, McGill can probably buy a lot of yard signs for his campaign with the Johnsons’s $78,485.34. For those who want more detail, this is the complaint as filed in Jackson County Circuit Court:

McGill Complaint

Now, if McGill had been the Republican nominee against Barack Obama, The One would probably still be munching lotus, wondering why McGill didn’t simply succumb to his charm and drop out of the race. Unfortunately for McGill, he’s not running against Obama; he’s running against Lowell Barron, who has been fighting Republicans successfully since The One was a scholarshipped basketball player at Honolulu’s elite Punahou School. (Alabamians, think of Altamont and Indian Springs.) Unlike Obama and his “genius” political staff, Lowell Barron knows what to do when handed a perfectly good baseball bat, and there’s a Republican within arm’s reach:

If Barack Obama’s political skills were as good as Lowell Barron’s, we Democrats would be looking at losing 10 House seats and two Senate seats, tops. And if Obama had Barron’s willingness to answer Republican lies with hard-hitting, yet truthful, counterpunches, we would probably have, at least, public option health insurance, and maybe even a single payer plan. Who knows, if Obama had the wit to quit trying to be a philosopher-president and fight, he might have gotten a big enough stimulus bill, that the unemployment numbers wouldn’t be wreaking their current havoc on Democratic poll numbers.

While Obama is apparently too busy pandering to Republicans by throwing Shirley Sherrod under the bus to tell his Attorney General to fire the last remaining Rove hack in a U.S. Attorney post, there are things we can do to fight back against the GOP sham indictment. We must miss no opportunity to talk about Bob Riley, and his un-investigated $13,000,000.00 from Mississippi Choctaw casino owners. Individual Republicans have their own Achilles’ heels; Kay Ivey drove PACT into the ditch, and Luther “Big Oil” Strange paid for much of his Mountain Brook mansion with oil lobbying money. (In case the ADP missed the memo, oil companies aren’t popular along the Alabama coast this year.) There can be no stop to exposing the seamy underside of the Shadrack McGills (and Mike Hubbards) the GOP is offering the voters to bring “ethics” to Goat Hill. We have to get some paid media up on these issues, and we have to reinforce that message in canvassing, letters to the editor, and just Hardee’s coffee table talk. If I sound like a broken record, or worse yet, a scold, it’s because I haven’t seen the focus and intensity on this point I need to see from a winning Party campaign. I keep hearing “we did a press release on that last week.” Good. Glad you did. But have you or your candidate or Party been quoted on it today?? As a hapless Crimson Tide learnt on the south side of Columbia this weekend, when you lose your focus, you lose. Don’t let it happen to us.

And yo, Shad. Welcome to the furnace, dude.

Fair and Balanced? I’ll Take My Odds in the Bingo Hall Anytime.

Since its inception, the Fox News Network has promoted itself with the Orwellian phrase, “Fair and Balanced,” while being so far from either as to defy credulity. However bad Faux News is, it is at least kept in check by any number of other voices in the media. In Alabama, we are less fortunate, as media ownership is far more concentrated, especially in the print realm. The three newspapers owned by the Newhouse family - The Birmingham News, the Mobile Press-Register, and The Huntsville Times - are not only the three largest newspapers in Alabama; their combined circulation exceeds that of the other twenty-one daily newspapers in Alabama combined. When a media group with that much market power all gets on the same page of the editorial hymnbook, there’s not only temptation for questionable journalistic calls; there is a real danger of the political process becoming skewered in the direction of the dominant media source.

Once upon a time, if The Birmingham News got out of line, the Birmingham Post-Herald was there to offer a contrary perspective. Likewise with The Huntsville News, and the historically Democratic Decatur Daily used to circulate more widely in Huntsville. (Things were less helpful in Mobile, where the Mobile Press and Mobile Register were co-owned by Newhouse even before their 1997 consolidation.) Even in the absence of alternate news sources from the Internet, these correctives kept a significant number of voters aware of alternate perspectives and narratives. But we now live in the age of the one-newspaper town.

This dominant position by one news source has had a serious impact on the events of the last week, and on Alabama politics of the last decade in particular. The coverage of the current indictment of legislators and gaming-industry lobbyists and executives has overlooked one critical point. If not for the efforts of Republican Governor Bob Riley, and those of the GOP Legislative leadership in his hip pocket, there would have been no need for the gaming industry to go all-out in an effort to secure something as simple as the people’s right to vote on the issue. There is certainly reason to believe that Riley has been the beneficiary of millions of dollars of bribes, er, contributions, from out of state gambling interests, most notably the operators of Mississippi Choctaw casinos. This, of course, would give Riley all the incentive he needs to repay his political (and maybe financial) debts to the Choctaw casinos. The first leak of links between Riley and out-of-state gambling interests came in Congressional hearings in 2005, in which sworn testimony was given before a Congressional committee that the Choctaw had pumped $13,000,000 into Alabama to buy Bob Riley a house on South Perry Street.

This year, as Bush-appointed, and Obama-not-yet-fired U.S. Attorney Leura Canary continued her partisan witch hunt of Democrats, Bill Johnson, a former Riley cabinet member who was running for governor, asked to testify to the same grand jury that eventually produced last week’s indictment. He wanted to testify about the other side of the coin: Riley’s receipt of that Choctaw money. Johnson’s letter to Canary was specific enough to make any non-corrupt prosecutor drool:

Bill Johnson Canary Letter

Canary - whose husband managed Riley’s campaigns - refused to allow the grand jury to hear Johnson. In a normal world - say, New York or Minnesota or California - such an accusation about a sitting governor would set off a media feeding frenzy. (And did in Alabama, when that governor’s name was “Siegelman” and he had a “D” before his name.) But Alabama eschews normalcy. In order to determine how one-sided the coverage of gambling influence has been among the three Newhouse newspapers, I did a quantitative analysis. Beginning on the date of this post, I went back two years, in each of the three Newhouse outlets. I did a count of the number of stories that contained the words “Riley” and “Choctaw” in the same paragraph; and of those that contained the words “Democrat,” “Democrats,” or “Democratic” within the same paragraph as any of the words “investigate,” “investigation,” “indict,” “indicted,” or “indictment.” I performed the search on a library LEXIS account, as LEXIS allows root-expansion and proximity-restriction search parameters that are not available on Google, or the Newhouse internal search engine. The results pretty much speak for themselves:

Newspaper	“Riley” in same paragraph as “Choctaw”*	“Democrat/s/ic” in same paragraph as “indict/ed/ment” or “investigat-/e/ion”
	12	135
	7	719
	4	174

I may have to apologize to Fox News. Even they aren’t that one-sided in their coverage. I should point out that many of the handful of Riley-Choctaw hits were in letters to the editor or online comment hits - not on more widely-read front page stories, as most of the Democratic hits were. The Mobile Press-Register has not mentioned the Riley-Choctaw connection since April 10, 2010, even in any published letter to the editor. From the perspective of a political professional, this sort of coverage is nonexistent. A thorough reader of The Birmingham News is going to see one Riley-Choctaw reference every other month. That kind of repetition is not going to move voters away from Riley and the Republicans.

The implications for this kind of lopsided, biased emphasis are obvious. It’s not surprising that many Alabamians - who don’t have the time to dig for the truth - think the Democratic Party is corrupt, and the Republicans, including Bob Riley, are reformers riding white horses up Dexter Avenue to clean the State House of wickedness. Take the modest example of the front page of last Tuesday’s Press-Register, shown on the left. You will note it even has a story showing Bob Riley trumpeting his moral disgust at the evils of gambling. He should know. As Democrats, we don’t have the Choctaw money, and when we try to exercise our First Amendment rights to receive contributions from the other side of that fight, it’s a “bribe” and everyone gets indicted. All I can counsel for now is to stay mad, and do what we can to get even. One way to vent some steam this weekend would be to write letters to the editors of Alabama newspapers (even the Newhouse ones!) demanding to know why there isn’t more investigation - and coverage - of the Riley-Choctaw connection. The IT folks at the Alabama Democratic Party have put up a useful page here, which allows you to email your letters to the editor. Just remember to take an extra moment, to email each paper its own copy of a letter. Editors will deep-six a letter with a string of addresses of other papers. Knock on doors, and talk about Riley and Choctaws at every opportunity - canvassing, in the coffee shop, over the church lunch, wherever. A little paid TV about Johnson’s spurned testimony might not hurt, either. The TV newscasts might be embarrassed enough to cover it if ads during their programs keep mentioning it. In the long run, there is always the free market. I have always wondered why, if The Cullman Times can at least break even with 10,363 weekday readers, a daily in Birmingham couldn’t. It can’t cost that much to cover the Courthouse, City Hall, wrecks and murders, and keep one good reporter in Montgomery. And if a Birmingham paper (with a semi-decent web presence) scooped the News on a Riley corruption story, or something similar, the circulation gap would close quickly. If that doesn’t work, there are other solutions to market dominance available.

Before anyone posts a comment, yes, I know that we live in an online age, and a thousand journalistic flowers bloom online. But the fact remains, most Alabamians get their news from print or broadcast. And even those who do venture online tend to get their state and local news from al.com, the online presence of the Newhouse newspapers. The better “inside baseball” sources like Doc’s Political Parlor and Home of Lawn Mower Repair, and the tenacious Democratic/progressive sites like Legal Schnauzer and the Locust Fork News, just don’t have the page views that the mass media sites do. (Not that this blog does, either, but I’m not writing for a mass audience.)

* I do want to note that the numbers for “Riley”-“Choctaw” are less than the raw number of hits. However, I omitted those stories (about half the raw hits) that made the list by containing a reference to Choctaw County, Alabama, not the Indian tribe peddling influence in Alabama.