Distasteful as it may seem, state law allows elected officials and candidates to raise money from donors — or even to use previously donated campaign contributions — to pay for their defense when they are accused of crimes committed in the course of their official duties or while running a campaign.
It’s kind of a strange idea, and (because it is allowed under federal law too), it leads to ludicrous situations such as this one: Rep. Duncan Hunter (R-Alpine) is currently using his congressional campaign funds to pay the lawyers fighting multiple criminal charges that he, well, misused campaign funds for personal use. Is that not a textbook definition of “irony”?
Now the situation is getting even stranger. Regulators in Sacramento want to change the state version of the law so that some crimes will qualify for this treatment while other crimes won’t. The argument seems to be that some allegations are so indefensible that elected officials should be presumed guilty and forbidden from tapping these funds for their defense.
A bill sponsored by the state’s Fair Political Practices Commission, the appointed body that regulates campaign funds, would prohibit elected officials and candidates from using campaign funds or establishing legal defense funds to help defray their legal costs if they are charged with certain specific crimes: sexual harassment, discrimination or other fair employment violations. Even if those allegations arose from on-the-job conduct.
It’s not appropriate to create exemptions in the law just because the allegations are politically unpopular.
Yet they could still use their funds to defend themselves if they were charged with bribery or extortion or theft or voter fraud or assault, as long as the crimes occurred during the course of business.
The legal foundation for this proposal is, to be generous, shaky. It seems to be based on nothing more than the broad public outrage, at this moment in history, over sexual harassment. That outrage is surely justified, but that’s no reason to treat those crimes differently from others.
The proposal grew out of a letter from former state Sen. Tony Mendoza (D-Artesia) asking for permission to set up a legal defense fund to pay the costs of fighting allegations of wrongful termination and sexual misconduct involving several women, including members of his own staff. The state code governing political legal defense funds says that an elected official facing administrative, civil or criminal charges for things he or she did as part of his or her job may set up such a fund and raise unlimited amounts from donors. Since the charges arose from conduct involving his legislative staff, an FPPC lawyer gave Mendoza the go-ahead.
But a month later, the commission voted to rescind its permission, even though Mendoza had already created the fund and raised money (most of which came from tapping his reelection campaign funds). It was an unusual decision for a number of reasons, starting with the fact that the investigation had by that time concluded, finding that the charges of improper behavior were most likely valid, and Mendoza had resigned from his Senate seat rather than face a vote by his colleagues to kick him out.
But more troubling was the lack of justification for the decision. At the March 22 meeting where it was discussed, commissioners said they felt the initial approval was wrong, but they weren’t sure exactly why or what to do about it. “It just doesn’t look good. It reflects on us,” Commissioner Brian Hatch said.
We share the commission’s distaste for a system that allows legislators to hit up lobbyists, special interests and other deep-pocketed political donors to pay to fight allegations of heinous crimes. But it’s not appropriate to create exemptions in the law just because the allegations are politically unpopular.
It’s heartening that the #MeToo movement has raised the consciousness of policymakers. But the instinct to hold powerful people accountable can lead well-intentioned people astray. This seems to be such a case.
Ideally, regulators and legislators would put aside this narrow question and use this as an opportunity to undertake a broader assessment of the rules regarding use of political funds for legal defense. It’s legitimate to reconsider, for example, whether there should be limits on contributions to legal defense funds or restrictions on using regular campaign funds for legal fees. They also should look at whether politicians accused of corruption on behalf of political donors ought to be allowed to ask those same political donors to bail them out.