Editorial: Noble ethics case highlights possibilities and shortcomings of SC law - Charleston Post Courier

In the grand scheme of things, it doesn’t matter much that Phil Noble failed to report hundreds of campaign donations and used more than $3,500 in donations illegally in his 2018 campaign for governor.

After all, the point of the law is to protect the public — through a combination of disclosure and prohibitions — from candidates who put their own financial and other personal interests ahead of the interests of the public, and the Charleston Democrat finished third in a three-way primary whose victor would go on to lose the general election.

But Mr. Noble’s admission to those violations last month demonstrates the State Ethics Commission’s ability to enforce our law, while at the same time illustrating the commission’s own shortcomings and the shortcomings of the law. It also serves as a reminder of how important it is, until the commission becomes a more aggressive watchdog either on its own or by legislative mandate, for individuals to file complaints when we see obvious violations of state law.

As The Post and Courier’s Seanna Adcox reports, the case against Mr. Noble grew out of a handwritten complaint filed by a spokeswoman who seemed to have been motivated primarily by the fact that she and colleagues didn’t get paid as the campaign wound down. That’s not a violation of the campaign finance law, but the fact that the campaign didn’t file a disclosure report after the election was. And the fact that she pointed out some minor errors on an earlier report apparently alerted ethics investigators to look more closely at those reports rather than simply charging Mr. Noble with failure to file a report.

When the commission subpoenaed Mr. Noble’s bank account records, it discovered 360 contributions and expenditures the campaign had failed to report — many of them during periods where he was filing the required reports. Among the unreported donations were more than $10,000 in contributions that he received from an October 2017 Charleston fundraising event, as well as at least 16 of $1,000 or more.

Those omissions are in some ways the worst kind of violations, because, again, the main point of our law is to allow voters to see who’s bankrolling candidates, and because we tend to assume that when candidates file reports, those reports are complete. They’re also the most difficult to catch under current law; in fact there’s practically no way to detect them without comparing the reports to the campaigns’ bank statements.

That’s why candidates should be required to file copies of their monthly bank statements along with their disclosure reports. And it’s why the Ethics Commission should be required to conduct a minimum number of random audits every month — and given more staff to make that number much larger than could be accomplished with current funding. Just like the IRS has traditionally used the fear of random audits to enhance compliance with the federal income tax law, ethics enforcers could increase compliance if candidates knew there was a better chance they would get caught violating the law.

We appreciate the commission digging into Mr. Noble’s campaign reports and bank records rather than taking the easy way out. But it’s important to note that even in doing so, the commission took an extremely lenient tack, for instance calling all the unreported donations in a month a single violation rather than treating each unreported donation as a violation, as the law clearly allowed. The commission did the same thing with the unreported expenditures.

The problem isn’t that the commission did that in this one individual case — or even that in return for Mr. Noble admitting to other violations, correcting his reports and agreeing to pay fines the commission dropped the charges of failure to report donations and expenditures. After all, that was part of a plea agreement, and authorities routinely give up something in return for not having to spend time and money proving their cases. The problem is that there’s nothing unusual about using this approach to significantly reduce the potential penalty, and candidates know that.

The Noble consent order also highlights one other Ethics Commission policy decision that reduces the cost of violating the law: its lack of transparency. The commission keeps a “complaint resolved” archive on its website listing decades worth of candidates and campaigns, in alphabetical order, along with a note saying anyone who wants to actually read those orders has to contact the commission.

Requiring people to contact a state law enforcement agency rather than simply clicking on a name — as they can do if they want to see campaign disclosure reports — is intimidating for a lot of people and reflects a mindset that this information shouldn’t be easy to access. And that undermines the most important part of the enforcement mechanism: the public exposure for wrongdoing.

So even as we wait for the Legislature to give the Ethics Commission more tools to enforce the law, the commission needs to be more aggressive in how it uses the tools it has. And it needs to recognize that the enforcement actions it takes have little deterrent effect when nobody knows about them, and make it easier for the public to keep track of its actions.

source: https://www.postandcourier.com/opinion/editorials/editorial-noble-ethics-case-highlights-possibilities-and-shortcomings-of-sc-law/article_e4824ccc-56cc-11ec-81a2-5fc423184161.html

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