By John Crangle
Common Cause of South Carolina
The controversy over Attorney General Henry McMaster’s acceptance and later return of $32,000 of campaign contributions from lawyers he hired to represent the state of South Carolina in a lawsuit against drug companies is yet another episode in a continuing chronicle of attorneys general taking campaign money from lawyers and parties having legal business with the state.
The problem arose when Attorney General Travis Medlock was running for governor, when Attorney General Charlie Condon was running for governor and U.S. Senate and now with McMaster running for governor.
The danger of conflict of interest, favoritism, abuse of office and corruption ia very real for attorneys general, who have in their jurisdiction great discretionary power. The attorney general can decide which lawyers are retained to represent the state in multimillion-dollar lawsuits, which in some cases produce huge attorney fees. Furthermore, the attorney general is in a position to file civil suits and to favorably settle suits benefiting an adverse party. In criminal matters, the attorney general has the power to decide whether to seek an indictment, whether to prosecute, whether to plead a case down or even dismiss.
All of these decisions can have catastrophic or highly beneficial consequences to the lawyers and parties involved. Many lawyers and clients would pay dearly for favored treatment by the attorney general in such cases.
It is all too easy for campaign contributions to influence the decision-making of attorneys general, especially in close cases where great civil or prosecutorial discretion is in play. Given the extensive history of public corruption in South Carolina over the years, it is not far-fetched to envision a future attorney general trading favors for campaign contributions.
Public financing of races for attorney general would be the best cure for the problem of corrupting campaign contributions. As a member of Gov. Jim Hodges’ Commission on Campaign Finance Reform in 2000-01, I argued that the danger of pay-to-play corruption was most acute in the office of attorney general due to the great discretionary power of the office and the enormous stakes involved in major civil and criminal cases. It also seemed that the cost of public financing for the attorney general race would be modest since at the time candidates were spending relatively small sums
The big objection to public financing is always that the taxpayers should not have to pay for the cost of election campaigns. Of course, the taxpayers already pay many costs of elections, including the expense of the S.C Election Commission, the county election commissions and all of the related costs of providing polling places, buying multimillion-dollar voting equipment and hiring poll workers. In case of election appeals and litigation, the taxpayers pay much of these costs too.
My proposal is to have an unprecedented public financing system for attorneys general whereby the ordinary taxpayers pay nothing, but the necessary money would be raised by a tax on campaign contributions to political candidates. As candidates for state and local office raise well over $20 million every four years, a tax of 10 percent would generate enough money to provide candidates for attorney general with public funds sufficient to communicate their positions and qualifications to the voters.
Supreme Court rulings give candidates the right to raise money for their own campaigns, so the state can only offer to give them public financing in exchange for voluntarily not raising money. So public financing alone wouldn’t accomplish our goals. But if we retain the existing laws that limit campaign contributions by source, amount and use, ban contributions from special counsel as suggested in a recent editorial column by Cindi Ross Scoppe and also add my proposal for public financing, we could deter conflicts of interest and abuse of office and inhibit corruption in the position of attorney general.
Finally, an especially and difficult manifestation of the problem is incumbent attorneys general raising funds for another office such as Congress or governor. Although we can’t prohibit an attorney general from raising money, for re-election or election to another office, we can prohibit an incumbent from transferring funds from an attorney general account to a campaign for another office. And we should.
Public financing for the attorney general’s race can serve as a pilot project. If voters and legislators conclude after a trial run that public financing has worked well for attorney general candidates, then public financing could next be tried for another office, such as governor or treasurer.