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COMMENTARY ON THE ROTH RESIGNATION : How the Legal System Failed and What We Should Do About It : The scofflaw supervisor was forced out despite system's weaknesses, not because of its strengths. Nothing less than drastic tightening of the laws that govern politicians will do.

March 07, 1993|MARK P. PETRACCA and WILLIAM MITCHELL | Mark P. Petracca is associate professor of political science at UC Irvine. William Mitchell, a Newport Beach attorney, is president of the Orange County chapter of Common Cause.

The long overdue, if widely anticipated, resignation of Orange County Supervisor Don R. Roth was not the triumph of virtue over political corruption. The Roth resignation underscores the difficulties faced by enforcement agencies charged with rooting out political corruption.

Yes, Roth resigned, but not because the legal system worked. He resigned because unrelenting press attention, agitation by public interest groups and investigations by the FBI and county district attorney were inhibiting his performance as supervisor. There's little justice here--not for Roth, in terms of vindication, nor for residents who are entitled to know if he broke the law, if so to what extent, and with what policy consequences.

Answers to these questions will probably never be known. Despite promises to the contrary, experience shows that once someone under investigation resigns, the public's desire and the district attorney's fervor for prosecution wanes. Eventually, someone decides the "public interest" is best served by letting sleeping dogs lie. Elected officials learn that resignation is a sure-fire escape route should they ever get caught with a hand in the cookie jar.

The failure of the system to adequately root out political corruption lies principally in the lack of adequate reporting and ineffective enforcement. The agency charged with locating and investigating political corruption, the state Fair Political Practices Commission (FPPC), operates under a handicap, and the district attorney, also charged with enforcement responsibilities, is not well suited to prosecute violations.

Under current disclosure requirements, it is next to impossible for anyone, including the district attorney, to uncover conflict-of-interest or campaign contribution violations because the responsibility for disclosure rests solely on the officeholder. Should any official decide to underreport or not to report a gift, honorarium, source of income or campaign contribution, there is no way to confirm or falsify the decision. All politicians are not crooks. However, when someone does violate the law--knowingly or "inadvertently"--the self-reporting provision of the Political Reform Act is a weak safeguard.

Disclosure requirements should be changed in two ways. First, the definition of reportable income, gifts and contributions should be expanded, thus reducing incentives to hide what elected officials receive, only to argue later that reporting failures constitute "technical violations."

Second, individuals, groups and businesses, as sources of income, gifts or contributions to elected officials, should be required to report what they give. Only then will sufficient information be available to validate what is or should have been reported by officeholders. Such comparisons are impossible now because there are insufficient reporting requirements for anyone with financial ties to officeholders.

If this change also reduces the incentive of private interests to give funds or services to politicians, all the better for the sake of independent decision-making.

Will these changes stop or end efforts to circumvent the law? No. Nothing ever will. But these changes will at least provide the documentary evidence necessary to hold elected officials accountable for what they report. Disparities between reports would constitute grounds for immediate investigation.

Effective enforcement of laws pertaining to public officials is also wanting. A major part of the problem is the steady dilution of the original Political Reform Act of 1974, including annual FPPC budget cuts, resulting in a material reduction of the legal capacity to solve the very problems it was designed to eliminate.

An example is the 1990 amendment which specifically allows campaign contributions to be used for "holding office" expenses. Such expenses are limited only by the requirement that they be "reasonably related to a legislative or governmental purpose." In practice, this allows elected officials to spend campaign contributions on anything not strictly "personal," including attorney fees! California needs a new Political Reform Act, one with teeth and the resources necessary to take a bite out of political corruption.

Enforcement by the district attorney's office is also problematic. Here the prosecution of political corruption happens almost by accident or serendipity, if at all. Why? The law does not encourage spot-checking or systematic inspections of disclosure reports. As a consequence, investigation of corruption is largely passive and reactive.

There is no doubt that Don Roth was ultimately forced to resign because The Times refused to let this story die. It took insistent press coverage and an FBI investigation to finally spur the district attorney into high gear.

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