Sunday, January 23, 2011

Jessica Peck Corry's Ridiculous Defense of Scott Gessler

Well, I guess someone had to do it. The Independence Institute's Jessica Peck Corry has taken to the pages of Huffington Post to defend Scott Gessler from those of us who think that the Secretary of State shouldn't be moonlighting for his old law firm. Let's look at just how ridiculous her arguments really are.

Peck Corry first glosses over the Colorado Rules of Professional conduct with a wave of her hand, declaring that, "Scott will not take on any matter coming before the Secretary of State." She goes on to state that, "the CBA has issued multiple rules governing the obligations of working attorneys who also serve in elected office. They do not prohibit, in any way, the type of arrangement Scott seeks, and in fact, provide a framework for attorneys to follow to ensure that ethical breaches are avoided."

This argument is entirely superfluous though. Peck Corry is merely restating the purpose of Colorado's Professional Rules of Conduct. Every attorney in Colorado is required to follow these Rules in order to avoid ethical breaches. We know the purpose of the Rules. At issue is their application to Gessler's specific behavior. You'll note that Corry does not engage with the Rules and try to apply them to the situation at hand. This is not by accident.

And at this point Peck Corry's defense descends into a fit of pique,
If Scott's second job presents a problem, then we better also start talking with the multitude of lawyers and teachers who now serve under the Capitol's golden dome as our state lawmakers. In what has become an annual tradition each legislative session, former or current members of the state's teachers' unions introduce bills designed to directly benefit union causes, who by the way, respond by pumping millions of dollars into legislator campaign coffers each year.

Terrence Carroll, the recently term-limited Speaker of the Colorado House, maintained his legal practice while in office, and is now a heavy hitter at a major 17th Street law firm. He was joined by nearly 20 of the General Assembly's 100 lawmakers, who also maintained part-time or full-time law practices while serving last session or in the current one.

Let's unpack this nonsense. First, we have a total non-sequitor regarding teachers unions. This is more like a rhetorical tick than an actual argument. But underneath that attack we see Peck Corry is trying to conflate Gessler, the full-time Secretary of State, with part-time legislators. In doing so she completely ignores the fact that the legislature in Colorado is, by definition, a part-time position. One that only pays around $30,000 per annum as the legislature is in session just 120 days a year. The Secretary of State is a full-time position, just as the Office of Governor, Lieutenant Governor, Treasurer, and Attorney General. And, just like those positions, the Secretary of State is paid a full time salary which more than doubles those paid to our part-time legislators.

Peck Corry's argument also completely ignores the nature and function of the legislature and the Executive Branch. The legislature creates the law of the state but they have no authority to enforce those laws. There are 100 legislators divided between two house and even if all 100 vote in favor of a bill the Governor must still sign it into law. In reality, the power of any single legislator over the laws of our state is relatively de minimus. But the role of the Secretary of State is entirely different. The Secretary's own website describes the office as, 
the chief executive of an office that oversees and administers many laws including Colorado's business and commercial statutes pertaining to profit and nonprofit corporations, limited liability companies, partnership... Colorado Election Code, Voter Registration Law, Campaign Finance Laws, Lobbyist Regulation...
The Secretary enforces laws passed by the legislature and signed by the Governor. Surely any reasonable person can recognize the distinction between 1 out of 100 part-time legislators who hold no power of enforcement and a full-time member of the Executive Branch who is charged with enforcement of various constitutional provisions, statutes, rules and regulations. So then why can't Peck Corry recognize this distinction as well?

Peck Corry is a self-described friend and supporter of Scott Gessler. She is an able and accomplished attorney in her own right. And yet she cannot muster a single substantive defense of Gessler's actions. This should tell you all you need to know about the ethically dubious nature of those actions.


Basilides said...

Gessler's duties include interpreting and implementing the statutes in rules and regulations consistent with the Constitution. Enforcement is the duty of the Attorney General upon referral from the SoS if there are possible infractions. If Gessler cannot keep his duties separate from and out of conflict with his legal practice, I guess we can take it to the Supreme Court to enforce the Code of Ethics or move to impeach him. The SoS office has been compromised by voting machine vendors for so many years, standing up to them will be my test of his veracity.

Andrew Oh-Willeke said...

"She is an able and accomplished attorney in her own right."

Correction. This shouild read: "She is an attorney who is well known for her non-legal advocacy."

Basilides - not quite correct. Gessler's duties include enforcement, e.g. by levying fines, determing who wins elections, handling complaints brought by members of the public, deciding which complaints to follow up on with enforcement action, and directing the AG in the AG's actions to litigate in the court system on behalf of the AG's office as the AG's client in those actions. Most SOS enforcement activity never leaves the SOS's office and never involved the AG.

A refusal to recuse himself in cases involved his own firm when he is an employee of that firm, which is his stated policy and plan, is deeply problematic from a conflict of interests perspective.