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.

Pickup Opportunity - Secretary of State

Anyone who doubts the importance of the office of Secretary of State need only remember Florida, in November 2000, when Republican Katherine Harris played a pivotal role in stealing Florida's electoral votes for George W. Bush. In Alabama's stolen gubernatorial election of 2002, Alcibiadean Secretary of State Jim Bennett had a key role in blocking the recount of the "After-Midnight" 6,000 vote swing in Baldwin County that handed the election to Riley. Even in the absence of a cliffhanger, the office has a lot of influence over the entire electoral process. In a state where there are always Republican schemes afoot to disfranchise minority voters, either illegally or by changing the law, it's a big advantage to the party controlling this office to be able to collect the media coverage that follows a Secretary of State's pronouncements on any voting issue.

In short, this is an important office.

And, despite the fact that Republican incumbent Beth Chapman avoided a primary challenge (which speaks volumes to the lack of depth in the Republican bench), this office presents a key pickup opportunity among the so-called "constitutional" offices. The Democratic nominee is Scott Gilliland, a Birmingham lawyer. Despite the usual advantages of incumbent name recognition, this office represents a real pickup opportunity for Democrats in 2010. In order to understand why, we need a brief look at how the race for this office fared in the last two cycles.

In the 1998 Democratic near-sweep of statewide offices, one of the few losers was former AEA president, and retired high school Latin teacher, Nancy Worley. She was running against incumbent Jim Bennett, who had switched to the Republican Party after being one of the few Democrats to win statewide in 1994. Other than betraying his party, Bennett had managed not to become entangled in any scandals or controversies, and his name recognition proved too much to overcome. Worley, however, made an effort in 2002 to succeed the term-limited Bennett. This time, she was blessed by circumstances. First, despite premature media political obituaries, Governor Don Siegelman won re-election, though not by a sufficient margin to prevent the "After Midnight" recount theft. Worley was also the beneficiary of an internal bloodbath in the GOP primary between State Representative Dave Thomas of Springville and Roy Moore acolyte Dean Young. In one of the more famous moments in recent Alabama politics, their joint appearance on Alabama Public Television's For the Record degenerated into a shouting match which included repeated offers to step outside to settle matters "mano a mano." When your fall opponent is threatening a fistfight on television with his primary opponent, that is almost always a good sign in politics. As shown on the map, Worley carried most of the more heavily populated counties en route to a 50.1%-49.9% win.

2006 would prove more difficult for Worley. She had made numerous changes in her term that did not sit well with holdover staff from the Bennett secretariat. She was challenged in the Democratic primary by her own elections division director, Ed Packard. Worley handily won the primary, 75.8%-25.2%, but Packard made repeated accusations of improprieties on Worley's part. These accusations were of course amplified and repeated by some of the more Republican-leaning media in Alabama. GOP attorney general Troy King, then still in favor with the Republican High Command, initiated a criminal investigation of Worley. This resulted in felony charges against Worley, which were later dismissed by the circuit court, but reinstated by the GOP-dominated Court of Criminal Appeals. Many legal observers doubt that the charges - which are still pending - will stand, as they are based on the innocuous - and probably Constitutionally protected - delivery of a short letter to State office staff, asking for their votes. (King had not charged GOP Treasurer Kay Ivey for a fundraising letter sent to her office staff.) The relentless repetition of "investigation" and "possible charges" in the media, combined with a strong showing by Bob Riley at the top of the GOP ticket, proved more than Worley could handle. The significant shift in votes to the Republicans is shown in the map to the left, and Chapman beat Worley 57.6%-42.4%. Not only did Worley lose some swing counties she had carried in 2002, Chapman carried several counties considered part of the Democratic base, such as Lauderdale, Marion and Etowah.

If Chapman - pictured to the left - wait, wrong Beth Chapman, pictured to the right (not sure there's any improvement) - was so formidable a candidate in 2006, why is she vulnerable in 2010? Well, what goes around, comes around. This time, it is Chapman who can't seem to put one foot in front of another without crossing an actual ethical boundary. For starters, it emerged that, in her 2006 campaign, she put her teenage sons on the payroll at far above manual-labor rates to "distribute signs" and other material, allowing her to divert campaign funds to Chez Chapman. But it doesn't stop there. In 2008, an Associated Press story revealed that Chapman - who frequently refers to herself as a "full time" Secretary of State - is paid $50,000.00 a year by her "consulting firm." To most Alabamians, that sounds like a full-time salary. What's worse, her "consulting firm" counts among its (apparently few) clients a charity, Shelby County CASA, which gets funding from the State. State funding doled out by the administration of Bob Riley, of whom Chapman is a political ally. Although Chapman was not formally charged in these affairs, the stink lingers.

How has this played out among the chattering classes? Not very well. Consider the following editorial thunder about the lapses:

Chapman is cozying right up to the ethics wall, and she likely cracked a few bricks. But she dodged "official" sanction when the Alabama Ethics Commission voted 4-1 last week to close the complaint against her, finding there was insufficient evidence to take it further.

But Chapman should have known she was in the red-flag zone to begin with. It's not like she's unfamiliar with state policies or the ethics law, considering she served as state auditor before running for secretary of state. And if Chapman didn't know she was tip-toeing awfully close to the line, well, that tells us something, too.

* * *

This shows again that a public official doesn't have to do something illegal to do something wrong. Paying yourself and your family to work in your campaign months after the campaign is over is wrong.

Who came down on Chapman like a ton of bricks? One of the handful of Democratic-leaning newspapers, like The Decatur Daily or The Anniston Star? No, this condemnation came straight off the editorial page of the usually-Republican Birmingham News. Now, if the News stomps on Republican toes this hard, it tells us several things. First, the toes are connected to a true slimeball. Secondly, that even the News is going to be hard-pressed not to prominently feature issues about which it editorialized so strongly, when it runs stories on the race this year (not to mention the implications for its own endorsement). Thirdly, that the News's position can be used to leverage both editorial endorsements and favorable coverage from other media outlets.

It is management of free media coverage, probably more than anything, that is going to be the key to Gilliland's success vel non in this campaign. Chapman, more than any Republican on their statewide ticket, has set herself up for the same sort of death-by-a-thousand-cuts that she was able to inflict on Worley in 2006. If my name were Scott Gilliland, I would identify the beat reporter assigned to this race at every major newspaper in the state, (if not every daily), and at the AP in Montgomery, and have their numbers in my BlackBerry for at least weekly chats, feeding them a weekly diet of something newsworthy. I wouldn't be bashful about educating them (if they don't know) about Chapman's ethical lapses, and giving them juicy, quotable quotes. ("I will be an ethical Secretary of State," won't get quoted. "Beth Chapman is the Rod Blagojevich of Alabama politics," just might.) In a related vein, he should set up some organized group of 5-10 friends, relatives, supporters, or clients who owe him money, and get each of them to each email a letter to the editor a week to every paper in the state. These letters should not hesitate to rehash the dirt on Chapman. Even though only a percentage of such letters are printed, some will be, and the cumulative readership of the editorial pages of all Alabama newspapers is in the tens, if not scores, of thousands. And such readers are high-frequency voters. These letters will have the added impact of influencing editorial endorsements and the quantity and tenor of news coverage.

What both these ideas have in common - and I by no means think they are the only such ideas - is that they are almost cost-free to the Gilliland campaign. Most newspapers accept emailed letters, and copy+paste makes sending a letter to every paper a job of a few minutes a week. Leveraging resources in this way is another absolutely necessary step for Gilliland. As he is probably learning, this is not a race that gets well-bankrolled, even for an incumbent. Few interest groups, other than financial firms that mass-file UCC filings, have a vested interest in relationships with the Secretary of State. Gilliland will be hard pressed to match Chapman financially, as she is the darling of Tea Party types who will give her $100 a clip, so this leveraging is vital. Another resource (more political than financial) for which he can reach in this race are the Democratic probate judges, most of whom long for a Democratic Secretary of State. Probate judges have juice in their respective counties, and no one was ever hurt by having the local probate judge quoted in the local paper as being a supporter. Not to mention, it is rare that a probate judge can't give at least one valuable pointer about something in his or her county. Finally, Gilliland can probably benefit from linking Chapman to Bob Riley in Houston County, where his ongoing crusade against employment (see, "Country Crossing") has him extremely unpopular in that must-win county for a statewide Republican. To the extent Gilliland does expend financial resources - on signage, paid media, or whatever - he will have to focus on those counties that switched from blue to red between the two maps above - and take back the Democratic base.

To overcome Chapman's structural advantages, Gilliland is going to have to approach this race on an around-the-clock basis from this point forward. He's going to have to be willing to draw clear lines between himself and his ethically challenged opponent, and not hesitate to land as hard a punch as he can throw when her guard is down. If this is a contest between an all-positive Gilliland message and Chapman talking about her version of "God and Country," Gilliland won't win. If he can take the attack to Chapman, not only is a nice job in Montgomery waiting in January, there are likely to be term-limited constitutional officers in 2014 in both parties. Finally, he has one natural advantage: everyone roots for the underdog. This race is absolutely winnable.