Georgia Politics, Campaigns, and Elections for July 28, 2014

On July 28, 1868, United States Secretary of State William Seward proclaimed that the 14th Amendment to the United States Constitution had been ratified and was now part of the Constitution. The first section of the 14th Amendment often forms the basis for litigation and reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Georgia at first rejected the 14th Amendment in 1866, later ratifying it on July 21, 1868 as a condition for readmission.

On July 28, 1978, Animal House was released, instantly becoming one of the greatest films of all time. In case you’ve never seen the film, there is some adult language in the following clip. +1 for Otter’s plaid sportcoat.

On July 28, 1994, the United States Postal Service issued a stamp commemorating “The General” locomotive, which was stolen in 1862 during the Great Locomotive Chase. Today, The General may be viewed at The Southern Museum in Kennesaw.

The locomotive Texas, which also took place in the Great Locomotive Chase, may be viewed at the Cyclorama in downtown Atlanta’s Grant Park. In the news about moving the Cyclorama painting to a new home at the Atlanta History Center in Buckhead, I haven’t heard whether Texas will join it or stay in the current building.

On July 27, 2014, former Braves manager Bobby Cox and pitchers Greg Maddux and Tom Glavine were inducted into the Baseball Hall of Fame, along with former White Sox player Frank Thomas, who was born in Columbus, Georgia.

Georgia Politics, Campaigns, and Elections

First off, we’ll deal with the Department of Irony: this week, the U.S. EPA will hold hearings in Atlanta on a national plan to reduce greenhouse gas emissions by further limiting emissions from coal-powered power plants in Georgia.

The main reasons that coal continues to be used in Georgia is that it’s cheap, plentiful, and provides reliable energy. The Department of Irony came into the picture last week, when EPA announced that the location for the hearing was being changed due to… wait for it…. a power outage in the Sam Nunn federal building in downtown Atlanta.

The culprit in the power outage is apparently the federal government’s ability to maintain a stable electrical system in a single building that it owns and controls 100 percent. And they want to tell us how to run Georgia’s electrical system?

The electrical problem is in a “buss duct” that serves as a conduit to the building’s electrical system, according to Saudia Muwwakkil, regional public relations officer for the GSA.

“Therefore, the chiller plant and a large portion of the building’s electrical grid were rendered inoperable,” she said.

“GSA has embarked in a two-part recovery that involves repairing the damaged buss duct and restoring power to critical areas,” Muwwakkil told The Atlanta Journal-Constitution in an email. “Further evaluation is needed to determine the cause of the malfunction.”

Muwwakkil said that while crews are “working aggressively to restore operations,” the Nunn Center, which houses nearly 5,000 employees working for 21 federal agencies, will remain closed through Friday.

The new location and times for the hearings are at The Omni Hotel at CNN Center, North Tower, Level M4, 100 CNN Center, 190 Marietta St, NW, from  July 29 and 30 beginning at 9 AM and running through 8 PM each day.

Ethically-Challenged

Most readers will be aware that a recent set of events has revived the ethics issues that have dogged Governor Nathan Deal since his 2010 campaign. I have not addressed this issue previously, because I didn’t want to just write my knee-jerk reaction at the time, so I took a self-imposed “cooling off” period to let the story develop before addressing it.

Here’s what actually happened: the head of the Georgia State Ethics Government Transparency and Campaign Finance Commission, Holly LaBarge, went public with a CYA memo that she purportedly wrote to herself detailing communications from two staffers in Governor Deal’s office. Here’s what the memo said:

While on vacation in July 2012, state ethics commission director Holly LaBerge says she received a call from Ryan Teague, Deal’s chief counsel, and texts from chief of staff Chris Riley, according to the memo released by Attorney General Sam Olens’ office in response to an Open Records Act request.

LaBerge claims Teague said, “It was not in the agency’s best interest for these cases to go to a hearing … nor was it in their best political interest either.”

Days later, the commission voted during a public hearing to dismiss the major complaints against Deal, who agreed to pay $3,350 in fees for technical defects to his campaign disclosures. The complaints included claims Deal improperly paid for use of a private aircraft for campaign travel and questioned his use of campaign funds to pay legal fees during his 2010 campaign.

LaBerge’s allegations in the memo represent the first time she has claimed top aides to Deal personally pressured her to quietly settle the cases against the governor and to avoid a public hearing. Former commission Chairman Kevin Abernethy confirmed Monday that he asked LaBerge to draft the memo after she said she was contacted by Teague.

Two things stand out about the memo aside from its concents. First, it was not produced during litigation against former employees of the commission; second, that it is now produced in the context of Holly LaBerge claiming whistleblower protection.

[LaBerge’s lawyer, Lee] Parks makes clear in the letter that LaBerge is seeking protections under the state whisteblower act.

I suspect that last bit means we can look forward to yet another private lawsuit against the state taxpayers.

The state has agreed to pay nearly $3 million to settle three lawsuits, and a threatened fourth, brought by former commission employees who claim they were fired or forced from office over the Deal investigation or its aftermath.

It’s also notable that LaBerge’s newfound conscience comes while the agency’s performance is being audited.

[T]he commission announced [in November 2013] that instead of asking Attorney General Sam Olens to appoint an outside attorney to investigate the agency, it was asking the state Department of Audits and Accounts to look into accusations about how the commission handled a case involving Gov. Nathan Deal.

Here’s what her lawyer wrote to the Commission:

Given the repeated inaction of the Commission and the State following her complaints, Ms. LaBerge felt compelled to provide the interview to the media in order to expose clear waste involved in the exorbitant settlement of these claims. Ms. LaBerge has acted appropriately throughout her tenure with the Commission and during its handling of the Deal Complaints. Yet she now is being isolated in her duties at the Commission and she appears to [be] the sole target of an unorthodox performance audit of the Commission that is focused on the Deal Complaints. We again remind you that Ms. LaBerge’s employment is protected by her whistleblowing actions and ask the Commission to act in accordance with the law moving forward.

So, her concern with waste, inefficiency, and alleged pressure from the Governor’s office didn’t warrant bringing to the public’s attention until she felt her job was threatened.

I’d like to bring to your attention an axiom that is useful when analyzing political or government issues. First is a variation on Occam’s Razor called Hanlon’s Razor, which states:

Never attribute to malice that which is adequately explained by stupidity.

Another way of saying it is to ask whether something is more likely the result of a secret government plot that can only be explained by advanced chess notation, or of bureaucratic incompetence aided and abetted by a CYA mentality.

The real problem that has gone unremarked upon in the context of the complaints against Governor Deal’s campaign is that there is no good reason that they should still have been pending two years after they were filed. It’s the inability of the Commission and Staff to develop a reporting system that works, and a means of reviewing complaints and efficiently dismissing the frivolous ones that turned the State Ethics Commission into a political football long before Nathan Deal started thinking about running for Governor.

Jim Galloway discussed how this works in a recent column, but hasn’t applied that analysis to lead him to ask why it took more than two years to dismiss complaints against Governor Deal that never alleged actual wrongdoing. Here’s what Jim wrote:

To you and me, ethics is a matter of right or wrong, good behavior or misbehavior. The topic is food for teachers and preachers, and is best served giraffe-high.

But in the goat-level language of the state Capitol, ethics is merely politics conducted by other means.

Got a beef with your opposition in the primary? File a complaint with what we once called the state ethics commission. Accuse him of fudging on donations he’s accepted or spent. It’ll earn you a headline, won’t cost a penny and will take years to resolve.

The problem is that everyone in politics in Georgia knows that is true – even a complaint that fails to allege wrongdoing over which the Commission has jurisdiction will sit and ferment for months or years, far longer than it takes to smear your political opponent with allegations of an ethics complaint.

The fact that is most important in this whole issue is that the substantive complaints against the Deal campaign were ultimately disposed of by the Commission by dismissing them, leaving only technical issues with campaign filings for which the campaign was prepared to accept responsibility and pay the fines.

he state ethics commission voted to dismiss the most serious allegations — that Deal benefited when his campaign paid for airfare on a plane that he partly owned and that he improperly used state campaign dollars to pay for legal fees related to a federal ethics investigation.

The Atlanta Journal-Constitution reported in September 2010 that Deal’s campaign had paid a company that he partly owned $135,000 for the use of an airplane. Rome-based ethics watchdog George Anderson later filed an ethics complaint that accused Deal of financially benefiting from campaign expenditures.

But the ethics commission unanimously said Monday that there was no probable cause to believe Deal violated the law that prohibits such a personal benefit.

By the time the Commission got around to addressing the substantive complaints, I had addressed the facts and law of the complaints at great length.

But when we realize that the substantive complaints before the Commission had absolutely no substance and no grounds for being complaints, what we’re talking about is timing – the fact that when the communications took place, the Deal campaign had been under the cloud of “ethics complaints” that were frivolous for two years. It is of course understandable that when they saw light at the end of the tunnel – a hearing before the Commission at which they could argue for dismissal of the substantive complaints and the settlement on terms already agreed to for the technical filing mistakes – they became anxious to put the matters to rest.

Every good “creative nonfiction” story starts with a few facts – here the CYA memo and the text messages it detailed — and then imposes a narrative on it, using the facts to tell the story the author wishes to tell. That’s what has happened here. The AJC decided in 2010 that they wanted to tell a story about what a bad guy Nathan Deal is, and they’ve used whatever facts are convenient along the way to bolster, extend, and retell that story.

But what if the real story is about incompetence. The incompetence of an agency that tried to write and enforce rules for which it had no authority. An agency that is still to this day unable to engineer a working and stable disclosure system. An agency whose employees may have seen a few too many episodes of House of Cards and decide to emulate Frank Underwood instead of fixing the sytem over which they held responsibility. And now in the face of an audit, we get a “gotcha” CYA memo released only when the head of the agency fears for her job, accompanied by protestations that she’s become a whistleblower to fix the problem.

Which brings us to another axiom: every whistleblower plays their own tune.

Here’s my bottom line on this issue:

1. Four years after a complaint was filed, we are still talking about what happened with a complaint that ultimately had no merit and was so lacking that it was dismissed by the Commission in an open meeting.

2. After two years of suffering through endless criticism by the Atlanta Journal-Constitution over a baseless and meritless complaint, of course, Deal and his staff wanted the complaint to “go away.”

3. The way they made the complaint “go away” was by arguing in public, before the Commission, that it had no merit and should be dismissed. It keeps getting lost that the complaints were dismissed by a unanimous Commission.

4. Hanlon’s razor suggests that the reason it took so long to resolve the complaint was more likely a grossly dysfunctional state agency than some grand behind-the-scenes government plot.

Poll Position

On Friday, I was a guest on Georgia Public Broadcasting’s “Political Rewind,” at the end of which each guest is asked to make a prediction. I said, “If you like political polls, you’re going to love the next few weeks.” While we were in the studio, two different polls came across my email.

First, from Rasmussen Reports, was a survey that purports to show:

Perdue (R) …………… 46%
Nunn (D)……………….40%
Another candidate…..4%
Undecided………………10%

The survey of 750 Likely Voters in Georgia was conducted on July 23-24, 2014 by Rasmussen Reports. The margin of sampling error is +/- 4 percentage points with a 95% level of confidence

I don’t think there’s a good reason for failing to name the Libertarian candidate, and it may skew the poll results.

Also on Friday, WSB-TV and Landmark Communications rolled out a new poll on the Governor’s Race:

Deal (R)………..40%
Carter (D)……..47%
Hunt (L)………….5%

Undecided……….8%

WSB and Landmark also released their take on the Senate race:

Perdue (R) …………… 43%
Nunn (D)……………….47%
Swafford (L)…………..4%
Undecided………………7%

According to the onscreen graphics, sample size was 750 Likely Voters, and margin of error is +/-4 points.

Jim Galloway of the AJC notes an important difference in the sample between Rasmussen and WSB – The Landmark/WSB polls shows 30% of voters being African-American, which Rasmussen has them at 25%. That difference could easily explain the spread between the two polls, and I think 30% is more likely the correct prediction.

Other important numbers

CBS News predicts that at this point, David Perdue is favored to win the Senate election in November.

Nunn, the daughter of former Sen. Sam Nunn, is considered among the top Democratic recruits in the country and one of the best hopes for Democrats to keep control of the Senate for the last two years of Obama’s term. But Nunn could have a harder time running as an anti-Washington outsider against Perdue, who’s a political novice himself. She could also have a tougher time picking up moderate independents in the Atlanta suburbs in a race against a business republican like Perdue, who grew up in nearby Macon, than she would have in a race against Kingston, who hails from the more conservative Savannah area.

Republicans need to gain just six seats for the majority and cannot afford to lose the Georgia seat, which opened when Republican Sen. Saxby Chambliss announced his retirement. Georgia is one of only two states where Democrats have a chance to turn a red Senate seat blue in November.

The Washington Post model gives Perdue a 98% chance of winning in November.

One rare feature of the race is that neither of the major party candidates has held elective office before. From 1980 through 2012 there were only two elections like this. In the 2010 Utah election, neither Republican Mike Lee nor Democrat Sam Granato had held previous elective office. The same was true of Elizabeth Dole and Erskine Bowles in the 2002 North Carolina election. In both elections the inexperienced Republican beat the inexperienced Democrat. That certainly sets no precedent for the Republican in Georgia this year, David Perdue, who faces Michelle Nunn. But, other factors suggest that Perdue – the cousin of former Georgia governor Sonny Perdue – has some significant advantages over Nunn, the daughter of former U.S. senator Sam Nunn.

As John Sides has explained here and here, our Election Lab forecasts are based on a model of Senate election outcomes from 1980 to 2012 combined with polling results from the current cycle. Two factors from the model combine to weigh heavily in the Republicans’ favor in Georgia. First, with a Democratic president the midterm penalty (about 3 percentage points, on average) favors the Republicans and Perdue. Second, in recent presidential elections Georgia has been about 6 percentage points more Republican than the country overall, which our model suggests will translate into about 2 percentage points of the Senate vote for Perdue (compared to a state whose presidential vote mirrored the national vote). Together, then, these two factors give Perdue a significant head start. Obama’s low approval ratings and sluggish economic growth also help Perdue.

In Georgia this year, the Republican Senate candidates have out-raised Nunn by about 3 to 1. Based on our model this gives Perdue another boost of almost 4 percentage points compared to if the fundraising between the parties was even.

Our forecast also takes into account polling. In Georgia, as in many states, there have not been many polls and none since Tuesday’s Republican primary run-off. In fact, there have only been two public polls since May. In early June, Survey USA gave Perdue 53 percent of the two-candidate vote (that is, 53 percent among those with a preference for Perdue or Nunn).  More recently, Public Policy Polling, a Democratic polling firm, had Nunn at 54 percent of the two-candidate vote. Overall, our polling average currently gives the advantage to Nunn.

At this point in the election cycle our forecast gives the model more weight than the polls. That’s why our forecast is more pessimistic for Nunn than the other ones tracked by the Upshot. Currently we give the Nunn just a 2 percent chance of winning.