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.

Kerry Rich - A Poor Choice for the 26th House District

One of the more humorous aspects of Alabama politics is the inability of the Republican Party to come up with a ticket whose names promise any degree of gravitas in Alabama government. Young Boozer? Really? And how about Twinkle? Then there’s the one who changed his first name to “Dr.” so he could have the title on the ballot. Of course, if he has to admit any more lies about his primary campaign finances, he might have to change his name to “Pinocchio.”

Sometimes, the silliness of the Republican candidates comes not from the name, but the person who has the name. Think of Christine O’Donnell.

Here in Alabama, the GOP has its share of comic relief on the ballot. One such instance is in Marshall County, the home of State House District 26. When longtime Democratic Representative Frank McDaniel announced his retirement, the Republicans immediately put this seat at the top of their list of “Safe Republican” takeaway seats, and used it as a talking point with the media as one of the prime examples of why a GOP takeover of the Legislature was inevitable.

Then, reality intruded, in the form of Republican nominee Kerry Rich.

Rich emerged from a contentious four-way Republican primary with the GOP nomination. The manager of a small “nonprofit” FM radio station in Albertville, Rich is trying to make some Alabama political history. He is trying to become, so far as anyone knows, the first person to represent three different districts in the Alabama House of Representatives. In the late 1970’s, Rich represented (as a Democrat) a district in Etowah County. From 1990 until 1994, he represented the 27th District, the other district in Marshall County (currently held by Democrat Jeff McLaughlin). On both occasions, he apparently found Alabama such a distasteful state, that upon concluding a term in the Legislature, he moved out of state.

It looks like Rich - who has made a career of owning and operating small-market “Christian” radio stations - still likes the sound of the Mormon classic “Come, Come Ye Saints.” While registered to vote in Marshall County, he also remains actively on the voter rolls back in Utah:

Utah

Maybe Mr. Rich needs to explain to the good folks of Marshall County why he’s keeping one toe in the Utah pool. Or whether he has legally relinquished his Utah residency, so as to be legally eligible to vote and run for office in Alabama. Then again, I can understand why he might not want to go back to Utah:

Kerry Rich Utah Tax Lien Record

Of course, maybe Rich wants to head back out to his old haunts in Colorado. In July 2009, he bought a vacant lot in the resort town of Crested Butte, Colorado, valued at $100,000.00. (I need to get into “nonprofit” radio!) In a more serious vein, the voters of the 26th District have a right to ask whether Rich can be trusted to keep his roots planted in Alabama this time, and build the kind of seniority that Frank McDaniel put to such good use for their benefit.

Like any Republican candidate today, Rich cannot use the words “conservative” or “Christian” often enough in his campaign pitch. However, one has to wonder if Rich didn’t fall in with some of the “Big Love” polygamist crowd while out in Utah. He seems to have indulged his support of marriage on at least two occasions, missing one ex-wife so often, he saw to it she had to take him back to court on five occasions after the original divorce:

Kerry Rich AlaCourt Divorce Docket

Now, it’s the 21st Century, and a divorce doesn’t, and shouldn’t, be a disqualification for public office. But when a candidate makes such a big deal of being a strictly conservative Christian, we have a right to look at how he has lived up to the strict standards he wants to legislate for everyone else. Not to mention that, in Rich’s case, his continuing child support and custody issues appear to have influenced his voting in the Legislature. In the 1991 Regular Session, then-Representative Rich voted against passage of SB 466, which was introduced to require state authorities to investigate deadbeat dads. Rich was one of only 7 Representatives voting against the bill. (Roll call 3422, 30th Legislative Day). Rich had earlier tried to water down the bill with an amendment, which was defeated. Real peach of a guy.

But it’s not just his personal life that gives cause for giggles. Rich has proven himself the Keystone Kop of the campaign trail, too. Rich, who boasts of being a professional career broadcaster, seems not to know as much about FCC regulations as he should. Anyone old enough to remember the Reagan years probably knows enough to not vote Republican. They also probably remember that you never saw the former movie star’s cinematic masterworks on TV during his presidency - because of FCC regulations that banned such airing if not balanced by free time for his opponents. Rich, blissfully ignorant of the rule, kept gabbing away on the air after announcing his candidacy. After a primary opponent filed a complaint with the FCC, Rich was forced to make an embarrassing $250.00 contribution to his own opponent, in lieu of free air time on his station. (Which air time she said she didn’t want, as apparently the station’s ratings stink.)

The horserace angle on this seat is that, since McDaniel’s retirement announcement, King Pig Mike Hubbard and other Republican quotables have been rattling this seat off as a sure takeaway from Democrats, as part of their strategy of trying to make the takeover happen by continuously referring to it as inevitable. In this case, the Democrats answered with the nomination of Randall White, a recently-retired adult education supervisor. White is so conservative he wears a belt and suspenders, and (unlike Rich) he is a lifelong resident of the district. Local people know White, and Rich only loses credibility when he plays the GOP one-note kazoo of shouting “liberal!!”

Something is not working for Rich. Or it is working for White. Or both. I saw a couple of polls early in this year that didn’t look good for the Democrats here. Within the last week or ten days, I have been shown two polls by some folks in Montgomery, both by some of the most reputable pollsters in the state, that paint a different picture. One showed a dead heat, but is by now a couple of weeks old. The same poll had shown a GOP lead a few months earlier. The other poll shows White with a lead, almost more than the poll’s margin of error.

A couple of things are at work here. One is that the GOP has simply stuck itself with a schmuck candidate, and he is inevitably losing ground. With him falling in the polls, and behind, this close to Election Day, Rich is fast looking like a goner. (And if this is one of their “safe” seats, what is happening in their “reach” seats?) The other thing is something I have long predicted. Democrats are going to do better generally than the CONVENTIONAL WISDOM says we will. As general angst about Obama or Pelosi drove down Democratic poll numbers in March and June, when voters were unfocused, a closer look by most voters - who don’t think about elections before October - is beginning to move poll numbers in a Democratic direction.

The Rich nomination highlights another phenomenon of the 2010 Alabama Republican effort. Despite all their blabber about promoting clean, ethical, Christian candidates to “reform” the Democratic “corruption” in Alabama, a closer look reveals the feet of clay. We have the spotted record of Rich, or the outright commercial fraud of GOP Senate nominee Shadrack McGill. Or their “reform” gubernatorial nominee, Robert Bentley, whose daily revisions of how much money he knew he was getting in the Republican Primary from AEA, and how much he was cooperating with them, have left him without any credibility. (Some polls suggest voters are noticing this, too. Stay tuned.) We Democrats need to take every opportunity in these closing days to keep the heat and light on the hypocrites of the GOP.

While Rich was away in Utah, that state hosted the 2002 Winter Olympics. In 1992, while he was still in Alabama, Albertville, the largest town in this House district, “hosted” its own spoof of the Winter Olympics during the real Olympics in Albertville, France. Who knows? If Rich doesn’t like the way the voters treat him in November - or even if he gets elected - he may be living in Sochi, Russia, by the time the Winter Games are played there in 2014. We can only hope.

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.