Archive for Monday, May 12, 2014

Kansas: Corruption charges can be hard to prove, experts say

May 12, 2014

— For the past two weeks, reports have been swirling in Kansas that the FBI is investigating allegations of influence peddling and pay-to-play practices involving former officials in Gov. Sam Brownback's administration.

The FBI has a longstanding policy of neither confirming nor denying the existence of an investigation. But on its website, the agency describes public corruption as its "top criminal investigative priority," and in recent years it has been cracking down hard on political corruption in state and local governments around the country.

"The FBI can be quite zealous in pursuing this type of corruption, if there's any real basis for it, and there certainly appears to be a lot of allegations," said Craig Holman of Public Citizen, a Washington-based group that advocates for consumer protection and campaign finance reform.

But Holman and other experts say the hard part is proving that any of the activities reportedly being investigated rise to the level of criminal activity.

"I think you really often would need a smoking-gun piece of evidence – an email, maybe some witnesses who are willing to testify," said Ronald Jacobs, a partner in the Washington, D.C., law firm Venable LLP who specializes in political law and anti-corruption compliance.

Without anything in writing, Jacobs said, prosecutors would probably need multiple witnesses to testify, "because any one interaction could become a he-said-she-said situation where there are different interpretations of whether something was really a threat, an offer, a suggestion, or a promise."

For his part, Brownback has insisted that nothing being described in reports about the probe constitute criminal activity, calling the reports part of a "smear campaign."

Basis of allegations

People who spoke to the Journal-World, as well as published reports in other news outlets, have said they have been interviewed by the FBI as part of a probe into activities of former administration officials who have since become lobbyists, including some who now work for government contractors.

All of the witnesses who've spoken to reporters so far have insisted that they not be identified by name.

Those people have said part of the probe focuses on the lobbying activities of former Brownback aides, including his former chief of staff, David Kensinger, who left the governor's office in 2012 to manage Road Map Solutions, a political action group that campaigned on behalf of conservative state Senate candidates who were challenging incumbent moderates in the 2012 GOP primaries.

At issue is whether the administration applied pressure to interest groups to hire those lobbyists, and whether other lobbyists were pressured to donate to certain legislative campaigns, as a condition for gaining access to the administration and getting favorable consideration of their issues.

Last week, the Kansas City Star and Wichita Eagle reported that part of the probe focuses on the campaign to oust moderate Republicans in the Senate, and specifically a September 2012 fundraiser in which lobbyists were asked to donate $1,000 to each of the 14 Senate candidates Brownback was endorsing.

Of particular interest, the sources have said, is the fact that the three companies that received contracts to manage the state's newly privatized Medicaid system known as KanCare all subsequently hired former Brownback aides as their lobbyists.

What laws might have been broken

"These charges against the Brownback administration cover a whole gamut of unethical behavior, ranging from revolving-door abuse, to extortion, to pay-to-play," said Holman of Public Citizen.

However, Holman said, unlike many other states, Kansas does not have a "pay-to-play" law, which would ban campaign contributions from government contractors. And it has only a limited "revolving door" statute, which imposes a two-year waiting period before non-elected public officials who have a direct role in making contracts with private businesses can then go work for those businesses.

"Kansas does not have any kind of strong anti-corruption laws, and I'm particularly concerned by the fact that the (state) enforcement agencies do not seem to be involved in this case," Holman said.

Jacobs said any federal prosecution would most likely involve federal bribery laws, or the anti-extortion law known as the Hobbs Act, which prohibits extorting money, goods or services from others, "under the color of public right."

But the key to prosecuting under those laws, both experts said, is showing a "quid pro quo" arrangement - a specific connection between what is being demanded and what is being offered.

Official denials

A number of interest groups and lobbyists have spoken out, on the record, to deny that any such coercion occurred when they selected lobbyists or bid on contracts.

On Wednesday, Kansas University officials publicly denied that their decision last year to hire Riley Scott, a former staffer in Brownback's congressional office, as their Statehouse lobbyist was the result of coercion. Vice Chancellor Tim Caboni said that decision was made purely on the basis of Scott's relationships with many newly elected Republican legislators.

Doug Mays, a former Kansas House speaker who now lobbies for Coventry Health Care, one of the companies that bid on the KanCare project but was not awarded a contract, told the Journal-World last week that he believes the bidding process complied with state purchasing laws.

And Ron Gaches, a former lobbyist for United Health Care, which did receive a KanCare contract, said he hasn't experienced anything inappropriate related to lobbying since the election of Brownback in 2010, even though United terminated its contract with him last year and hired Scott as its new lobbyist.

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