Ethics Commission to hold Probable Cause Hearing on Gov. Hutchinson

By now, you’ve undoubtedly heard that Governor Asa Hutchinson is in Cleveland tonight to speak at the GOP convention in support of Republican Presidential Nominee Donald J. Trump. Hutchinson, along with other state-level luminaries such as Attorney General Leslie Rutledge, trekked up to the shores of the Cuyahoga River with impunity, in large part because of an earlier Ethics Commission ruling that campaigning on state time for federal candidates was not barred by state law because those candidates were not actually candidates.1

While the other Arkansans in Ohio can take their time getting back after the convention ends Thursday night, however, Gov. Hutchison might want to hurry back. After all, his probable-cause hearing before the Arkansas Ethics Commission is scheduled for 9am on Friday, July 22.

Let’s back up.

In February, I wrote this post about the ethics complaint against Ms. Rutledge and inveterate scofflaw Dennis Milligan’s travel to Iowa to campaign for Mike Huckabee. That post went up on Thursday, February 11.

On Monday, February 15, I got a message from my office:

Somewhat intrigued, I called the number and, to my surprise, it was the Governor’s direct line, and he answered the phone himself. Some pleasantries were exchanged and then…

Actually, wait. You don’t need to take my word for how the call went; I have it right here, so you can listen to it.

In case you are unable to listen to the recording, or maybe you just want the Cliff’s Notes version, the long and short of the phone call is that the Governor “followed with interest and read [my] latest treatise on the history of that one law.” The reason for his call was to ask how a governor could comply with the law, given that governors wanted to campaign for candidates who would support the governor’s agenda. Some more choice tidbits from the call:

• He asked how Bill Clinton could run for President while he was governor, given that the law was in effect at that time. I suggested that maybe no one had raised the issue, but then I also allowed for “some wiggle room” in the statute where it would permit someone to campaign for himself, just not for others. Gov. Hutchinson said you could read the statute that way, but “you could interpret it the other way.”
• He pointed out that “you had Governor Beebe campaigning for other candidates…just historically, you’ve always done that.” I mentioned, again, that no one had made it an issue before. Also, again, I suggested the people gave some deference to governors in that role because of the importance of the position (unlike, say, State Treasurer). Gov. Hutchinson responded, “yeah, but you’ve raised substantive law issues that makes anyone nervous[.]”
• “We might need to amend this law. A lot depends on what the Ethics Commission says, but it might need to be clarified.”
• I pointed out that the unchanged nature of the law since 1915 suggested that, at least in the abstract, everyone seemed to agree that the law was a good idea. Gov. Hutchinson replied, laughing, “shucks, I wouldn’t run for Governor if I thought I was gonna have to keep hours!”
• Finally, Gov. Hutchinson said they would “follow [the ethics outcome] with interest and try to balance it in the meantime.”

Apparently, by “balance it in the meantime,” he meant “just ignore it entirely.” Two weeks later, on February 29, Gov. Hutchinson went to two campaign events for Sen. Eddie Joe Williams during office hours.

Subsequently, the Ethics Commission dismissed the complaints against Rutledge and Milligan without a hearing, holding that federal candidates were not “candidates” within the meaning of the statute. By extension, then, both myself and our former Attorney General read that to mean that state-level candidates were “candidates.” So, armed with that knowledge, Gov. Hutchinson’s campaign events for Sen. Williams formed the basis of an ethics complaint against the governor, which I filed on March 31.

In response, Gov. Hutchinson’s spokesman, J.R. Davis, rambled about how “it is the Governor’s expectation that the Ethics Commission not only handle this issue fairly but that it also starts coming down on those who file frivolous complaints in the future.”2

Frivolous. [friv-uh-lus] adj. “of little or no weight, worth, or importance; not worthy of serious notice.”

It appears that the Ethics Commission does not share Mr. Davis’s opinion about what is and is not frivolous.

Ultimately, what you have here–which I hope the Ethics Commission will recognize–is an elected official, learned in the law, who specifically noted that the statute at issue could be a problem for him if he were to campaign for other candidates, who then went out and did exactly that two weeks after the telephone discussion that he and I had on the issue.

They say that ignorance of the law is no excuse, and that’s often true, but at least it is reasonably easy to forgive someone who breaks a law they didn’t know they were breaking. It is much harder to excuse someone’s flouting of a law with full knowledge that he was doing so.

Gov. Hutchinson can point all day long to the actions of past governors, but that is no more a defense than claiming “other people have done it before!” is a defense to driving 60 through Damascus, AR. Or, as the late Chief Justice Jim Hannah once wrote: “Rules are rules for a reason, and they have a purpose.”