Fair elections take a blow.

UPDATE: Dale Russell of Fox 5 Atlanta reports.

The Georgia Supreme Court ruled 5-0 that elections charges filed by Gwinnett DA Danny Porter against political consultant Bill McKinney should have been filed in Fulton County, not Gwinnett. I suppose McKinney is now free to pursue anonymous attack campaigns on behalf of his clients in future elections.

I know my friend Bill Simon vehemently disagrees with me on this, but I think McKinney’s actions do serious damage to our elections. A person simply can’t attack a candidate anonymously, spend large sums of money in the process, and not file any paperwork with the Secretary of State explaining who he/she is and where he/she got the money.

The Supreme Court did not rule on the validity of the charges against McKinney, merely on the venue. Nevertheless, the end result will be McKinney is free to pull these shenanigans again. Not good news for fans of fair elections.

Previous posts on this subject.

37 comments

  1. Rpolitic says:

    While I understand your concern would you say the same thing about Thomas Jefferson or Ben Franklin or any of the other revolutionary writers who chose pen names to protect themselves from retirbution from the crown?

  2. Rpolitic says:

    While I understand your concern would you say the same thing about Thomas Jefferson or Ben Franklin or any of the other revolutionary writers who chose pen names to protect themselves from retirbution from the crown?

  3. Bill Simon says:

    Buzz,

    1) How is it fair to use the powers of a DA for political purposes?

    2) If you want to get ticked at someone, go get ticked at your state house and state senators who left this hole wide-open in the law so that it WOULD remain difficult to file charges against violators of the law?

  4. buzzbrockway says:

    Bill,

    I don’t see that Porter acted politically here. He’s not buddies with Kenerly. He couldn’t have cared less if Kenerly won or lost. However, an anonymous well funded attack campaign threatens Porter and all elected officials.

    Imagine if a developer doesn’t like the way a commissioner voted on his/her project. What’s to stop that developer from plunking down $40K to anonymously attack the commissioner in the next election? In a multi-million $ project $40K is chump change. This should be allowed to happen because Paul Howard won’t care? Sorry I don’t buy it.

    As to point #2, the Legislature should take this up, and I intend to speak with my Rep. and Senator about it. 😉

  5. Bill Simon says:

    How fascinating that Judge Clarence Thomas either re-wrote the First Amendment in his decision on that case, OR explained his judicial interpretation of the First Amendment: “…The First Amendment states that the government ‘shall make no law . . .

    In my copy of the Bill of Rights, it says Congress shall make no law restricting the right to free speech….

    Judge Thomas, in this decision, states that he believes when this Constitution was originally conceived, “Congress” was equivalent to “government.”

    Aside from this thread’s discussion, Judge Thomas has given ammunition to anyone who thinks it is okay for state government (or, other subdivisions of government smaller than the federal government) to pass laws restricting free speech, freedom of religion, etc. because they wish to point out that “Oh, the Constitution only restricts Congress from making these laws…not us in this jurisdiction. We can make any laws we want…”

  6. Bill Simon says:

    CORRECTION: Actually…Thomas has given ammunition to the opposition of those who want to create laws restricting the right to free speech, free press, freedom of religion, etc.

  7. Bill Simon says:

    Buzz,

    You really probably don’t know the background of the Porter vs. McKinney case. BUT, regardless of whether you think McKinney is a bad guy or not, I’m fairly certain there were OTHER cases on Porter’s plate at the time that were shoved aside for expediting the McKinney case. Things like rapes, murders, gang stuff…you know, those innocuous crimes against humanity thta MUST take a backseat when politics are involved. Yeah…right.

  8. buzzbrockway says:

    It’s not about McKinney being a bad guy it’s that he did something stupid and I think illegal. All he had to do was file a simple piece of paper with the SoS and everything would have been fine.

  9. jackson says:

    I dont think that DA’s should be able to pursue matters that are the jurisdiction of the ethics commission. It was OBVIOUS that it was political in that the charges were brought right before the election and even tarred the candidate running against Kenerely. You can’t really dispute that.

    Give DA’s the power to pursue things like proper disclaimer, proper filing of campaign reports, etc opens up a whole can of worms, where just an indictment or charge filed by a DA are enought to sink a campaign. That’s scary. Especially if you have a DA that lacks personal ethical standards.

    If you dont believe it can be politicized your wrong. Eliot Spitzer (though on a much higher level) is a great example of this. (Yes, I realize it is a little different, but you get the point. )

  10. Bill Simon says:

    Buzz,

    You said this: “All he had to do was file a simple piece of paper with the SoS and everything would have been fine.”

    Violation of THAT law constitutes a misdemeanor, I believe, and subjects someone to a fine of $1000 at maximum.

    Do YOU think a DA’s office should be the one to prosecute that violation of law, or should they remain being the one entity charged with pursuing and prosecuting FELONIES?

  11. buzzbrockway says:

    jackson,

    Of course DA’s can politicize things, I just don’t see that Danny Porter did in this case.

    You had an anonymous campaign being waged that clearly benefited one candidate. Tens of thousands of dollars were being spent in an effort to influence the outcome of the election yet the public did not know who was behind it and where the money came from. Someone had to do something about it. Filing an ethics complaint wouldn’t work because who do you file it against? Danny Porter was the only person who could do something about this.

  12. buzzbrockway says:

    Bill,

    You’re forgetting the witness intimidation charge that still remains. That is a felony.

    Look, why do we have campaign finance laws at all it people can just ignore them whenever they feel like it?

  13. Rpolitic says:

    Anonymity is necessary in fighting in the institutions that exist. The fact is some times anonymity is still not enough to protect someone willing to step forward and challenge the establishment. The extreme is obviously Derwin Brown.

    Many movements throughout time built support through anonymous communications until such time as enough people were moving in that direction that some safety could be afforded them taking on the powers that be. Whether it was the formation of the unions, the federalists or any number of other movements much of the prelimary activity was done anonymously.

    As for campaign laws it seem ludicrous the regulations placed. Money is not the only thing that wins elections, and in fact can be a negative in many of them.

    Here is a link to the CATO institutes report on anonymity on the internet.

    http://www.cato.org/pubs/briefs/bp54.pdf

    and one from CNET

    http://news.com.com/The+problem+of+thin-skinned+politicos/2010-1028_3-6046090.html

  14. buzzbrockway says:

    Rpolitic,

    I understand what you’re saying, but Bill McKinney was not trying to build a movement, nor was he trying to topple a corrupt politician. He was trying to get his client elected.

    This was no noble cause – it was raw politics – nothing wrong with that but please don’t try to make this into some righteous cause.

  15. liberator says:

    The ultimate test should be truth. If the charges were true there is no libel,if false a libel case can be pursued.

  16. jackson says:

    Buzz – you said FAIR elections take a blow. How do you know that Porter isnt politicizing it? Dont you think his timing was suspect at best? I dont like slimeballs like McKinney or that crowd (nor that developer stooges like Kenerly) but the fact of the matter was a candidate that would have won didnt because of what appeared to be politically motivated announcement of charges and investigations RIGHT BEFORE the election.
    Investigations into wrong doing should never be announced, all of a sudden, right before an election unless timing just happened to work out that way (which it was obvious it didnt because they were still gathering evidence at the time).

    I dont think we will have fair elections with DA’s doing the job of the ethics committee. It’s that simple. Nor more than Sheriffs pursuing charges against Candidates either in campaign related efforts.

    Just using the terminology, “the DA is investigating such and such” is powerful and can seriously affect an innocent candidate. All we need is another Mike Nifong or that DA in Texas that just happens to like “investigating” Republicans just to keep his name in the paper.

  17. SugarHillDad says:

    1st of all I think DA Danny Porter was not Politicizing this situation. He cared nothing of the politics or the candidates. Porter is a media hore and he chases whatever case puts him in the spotlight.

    That being said, Bill McKinney is about as low a form of white trash as I have ever seen. If you have seen him out and about it is a sight to behold. Usually he smells as if he has not bathed in a month with a strong hint of adult beverages about him. Politically he uses some of the dirties tactics I have ever witnessed and I do hope one day he gets what he deserves.

  18. Bill Simon says:

    Buzz,

    Actually…I know more of the background story and why Porter did involve himself. It is for the same reason that he involved himself in the 2004 race against John Dunn.

    I want you to think, Buzz, about the behind-the-scene relationships that exist in Gwinnett County when it comes to political campaigns, the political consultant who is on a lot of these campaigns for candidates opposite Bill McKinney…and Danny Porter.

  19. SugarHillDad says:

    BS- Why do you type so criptically? If you want to talk about Mark Rountree, why don’t you use his name? Do the 2 of you have some history. I hope you aren’t holding a grudge on some old campaign you worked against each other on.

  20. Bill Simon says:

    I have no grudge at all against Mark. I’m just trying to get Buzz to think about the different layers of politics in Gwinnett…and, when one has to think about things, as opposed to just being told about them, one engages more of their neurons to fire. In short, it’s a lot healthier for the brain, SugarDad. 😉

  21. Rpolitic says:

    So buzz just so I am clear because the message is not “noble” for instance a skinhead or black panther who spews hate we should some how restrain what they have to say?

    And what if Mckinney who I do not know is a true believer in whatever the issue was he put this message out for? Are you the one to gauge his passion and belief. This is the slippery slope.

  22. Bill Simon says:

    Buzz,

    That videotape that McKinney mailed-out to the voters in that district was not doctored or fabricated; it was real.

    Kevin Kenerly was taped paling around with the Gwinnett developers who just happened to know his exact itinerary (according to Kenerly) of when he was going to Vegas and where he was going to be.

    “No, I…I don’t know why these developers have such an interest in me and my vacation…I’m just an innocent commissioner…I don’t know nuttin’…”

    THAT is what McKinney mailed-out to the Kenerly district. FACTS, Buzz. Videotaped FACTS that Kenerly’s sleazy enough to hook-up in a very social manner with very developers of projects that HE is supposed to be objective about.

    And, you have been cleverly manipulated (easily, I should say) to believe that the horrid “crime” that was committed was the one in which McKinney didn’t file a piece of paper with the SoS…a law which, by the way, may violate the U.S. Constitution in and of itself.

    Good going, Buzz. Support your local, corrupt politicians, but scream about people who point OUT they are corrupt.

  23. Bill Simon says:

    FYI: Jodie Rosser was beating Kenerly 60-40 3 weeks before the election. That’s when Kenerly’s consultant got scared and had to call-in to Porter for help.

  24. So, if a police officer sees a political candidate commit a crime, he can’t arrest the candidate because it might influence the outcome of an election? Come on.

  25. Bill Simon says:

    Mike,

    “Commits a crime?” Mike, you know damn well a violation of the Ethics Act does NOT constitute a crime. So, don’t mix apples and golf balls here.

    I tell you what DOES constitute a crime: A DA who keeps sticking his nose (and, therefore, the STATE) in political races since the Year 2000 in which your boss is the consultant.

    I hope Danny Porter is dumb enough to make another appearance in any race in 2008 on behalf of Landmark…see, there’s this aspect of the Ethics Act law that covers “contributions in-kind” of government resources. And, you can bet there will be a complaint filed against both Porter and whatever candidate is the beneficiary of Porter’s 4th involvement in a Gwinnett County primary if it happens again.

  26. Bill-
    First: “…a violation of the Ethics Act does NOT constitute a crime. ”
    If that’s true, then OCGA 21-5-9 is not a law. See the part (cited in the GA Supreme Court decision) which says: “…any person who fails to comply with or who knowingly violates this chapter shall be guilty of a misdemeanor.”

    Second: Yep, I work with Landmark Communications -though not on the campaign this case involves. I suppose I should have written a “full disclosure” caveat before posting, but since I’ve been handing out Landmark business cards with my name on them for more than a year, I overlooked that.

    Third: I hope Danny Porter continues to do his job, i.e.: prosecuting people who have broken the law, even if those people are candidates or public officials, in spite of your threat to “file a complaint.”

    Also, if you want to bring criminal charges against someone for violating the State Ethics law (I mean the State Ethics suggestions) you’re going to have to do it in Fulton County. Good luck with that.

  27. Bill Simon says:

    Actually, Mike, the State Ethics Law provides for the venue in which to hear violations of the laws it covers: the State Ethics Commission. Though it is in Fulton County, it does not have to rely on a DA to prosecute its caseload.

    So, the complaints will be filed with the State Ethics Commission if Porter decides in 2008 to make another “ground-breaking” foray into a political race with state government resources.

    If you like the fact that the DA’s office is used more for political purposes than investigation and prosecution of felonies, then that just makes you one of the many sick-minded people that the world of politics produces.

  28. “Actually, Mike, the State Ethics Law provides for the venue in which to hear violations of the laws it covers: the State Ethics Commission. Though it is in Fulton County, it does not have to rely on a DA to prosecute its caseload.”

    That is false, Bill. OCGA 21-5-8 says the venue for civil violations of the chapter shall be the “county of residence of residence of the candidate or public officer.” It is SILENT about criminal violations of the chapter. There was also a Senate Bill (this year) to amend the existing law and make the venue EXPLICITLY Fulton County. Go look it up and tell me I’m wrong.

    And if you’re going to call somebody “sick-minded” it’s always best to take the bite-guard OUT of your mouth and wait until the doctors have taken the electrodes OFF your head.

  29. Mark Rountree says:

    Bill,

    Be careful when you write things like this:

    “That’s when Kenerly’s consultant got scared and had to call-in to Porter for help.”

    It is inaccurate, as is your implication.

    There are laws on the books that regulate when people mix funds together to have an effect on an election. Most legal observers believe that those laws have been broken. The issue that has been in play here is venue.

    I believe that, given the gravity of the situation with statewide implications, the Fulton County DA’s office may seriously consider re-filing. We shall see.

    But primarily, I am stating categorically that what you have written is factually false.

    That being said, will you apologize now that I have stated this and acknowledge that you did not have the facts straight?

  30. Bill Simon says:

    Mark,

    On some other thread last week, you were having a discussion with Chrisishardcore about some voting bloc in some area of (I think) DeKalb County.

    You stated that because Perdue lost the Cross Keys district in 2002, and won the district in 2006, then that proved a “trend.”

    In actuality, Mark, a “trend” is defined by a minimum of 3 data points, not two.

    SO, to apply this “trend” analysis to the case of Gwinnett County, let’s look at the trend of races in which Danny Porter has poked his nose into where one of YOUR candidates was the beneficiary of Porter’s involvement:

    Year 2000: Porter enters the fray between your candidate, Scott LeCraw, and John Dunn (for whatever commission district that was). Danny Porter pokes his nose into the race due to a letter John Dunn sent out. Porter checks the law, and determines Dunn is okay…but NOT before making a public stink about it.

    Year 2004: Your candidate is Dwight Harrison against John Dunn. Porter pokes his nose into the race on the allegations from a tape recording of Dunn talking to some other candidate. Porter informs Dunn that he will pursue charges of either bribery or attempted bribery. AFTER Dunn loses in the primary due to an avalanche of bad press (with the help of your pal, Danny Porter), Porter decides not to prosecute Dunn on ANY charge….as if Porter decided “Oh, well, there’s no need to go after Dunn now…he lost the race, he’s gone.”

    Year 2006: A videotape showing Commissioner Kevin Kenerly (your client) gets distributed to the news media and voters in Gwinnett County. The videotape demonstrably shows Kenerly hobnobbing with the very developers that send their legal minions before the Commission to get variances anf zonings passed.

    The videotape from the news of Kenerly getting interviewed on the news about the Las Vegas trip also gets sent out.

    The factual information about Kenerly is pounding Kenerly’s chances of winning reelection.

    SOMEHOW, Danny Porter finds the time to drop everything he’s doing (Here’s a probable transcript of Danny Porter on the phone back in 2006 when he made his decision to enter the Kenerly commissioner race: “What was that? A gang rape? And, we got the perpetrators? I’d prosecute it, but I have an opportunity to make my mark here investigating anonymous sources of factual information in a political race…so, hell, let them go, we’ll get them after this primary has been decided.)

    Mark, THESE 3 instances of DA Danny Porter getting involved in a political race in which you and your candidate were on the side opposite the one Porter wanted to investigate and charge with whatever “crime” he came up with is so (not!) coincidental, that there is nothing you could possible claim to me that would make me void the connections of this “trend.”

    SO, I am not “apologizing” to you for making the comment about “That’s when Kenerly’s consultant got scared and had to call-in to Porter for help.”

    I believe there IS a solid connection between you, your company, and Danny Porter…the connection being your ability to invite Danny Porter to join the political fray.

    Nothing personal against you or anyone in your company (you included, Mike)

  31. Bill Simon says:

    Correction: I do not honestly know what Porter specifically told Dunn regarding the potential charge of Bribery he was going to lay on Dunn. So, take this is a re-write of the sentence about: “Porter informs Dunn that he will pursue charges (of either bribery or attempted bribery, I think) against him…”

  32. Bill Simon says:

    Mike,

    Sorry for the delay to your comments.

    1) On the point of what the law says, I will take your word for it and concede that I was wrong on my assertion, and do hereby stand corrected.

    2) On my point about you perhaps being a “sick-minded individual,” let’s take the WHOLE quote in context: “If you like the fact that the DA’s office is used more for political purposes than investigation and prosecution of felonies, then that just makes you one of the many sick-minded people that the world of politics produces.”

    I believe that the DA’s office exists to investigate and prosecute felonies; it is the Solicitor’s Office in a county (if they have a solicitor) that exists exclusively for the purpose of investigating misdemeanor crimes.

    Excluding the felony charge in this case, this entire matter should have been handled by the Solicitor’s Office in Gwinnett (unless, in my ignorance of all things Gwinnett, the Solicitor’s office no longer exists…?)

    So, yes, if you (or, ANYONE), who has a financial/political stake in the outcome of a race is in love with the concept of a District Attorney’s office (and, all resources thereof) being used as a hammer against one side of an election for political office to determine the outcome, then, yes, I consider you to be a “sick-minded individual.”

    Because I would say a person who believes the outcome of a political race is the most “do-or-die” important thing in the world to happen, then you have lost touch with reality.

    Mike, if in the past I have demonstrated that _I_ feel that way about a race, and called for the felony-investigatory arm of law enforcement to come into a race and screw with someone for possibly violating misdemeanor law, then I was a sick-minded individual back then. I repeat, “IF” I ever thought that way.

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