Ehrlich’s air time and Gansler’s duty

May 01, 2010

Can former Republican Gov. Robert L. Ehrlich Jr., now running for his old job this year in a rematch against Democratic Gov. Martin O'Malley, continue to host his popular talk show on WBAL Radio without declaring his time on the air as an in-kind campaign contribution?

That's the question Maryland Democrats are asking the state elections board to resolve. Mr. Ehrlich says he doesn't have to report the air time's value — which potentially could be worth tens of thousands of dollars — until he formally files as a candidate with the state elections board in July.

Not so fast, says the state Democratic Party. Recently, it wrote the state elections board for clarification of the law governing campaign finance contributions. The board, in turn, passed the request on to State Attorney General Douglas Gansler, who says his office will issue an advisory opinion on the matter.

Mr. Gansler is a Democrat and also up for re-election this year, so some inevitably will wonder whether he can deliver a wholly unbiased view. But Raquel Guillory, a spokeswoman for Mr. Gansler, said the AG's office receives four or five requests a week from state agencies for legal clarification, and that the opinions the office issues are based on statutory and case law, not politics. In any event, AG's opinions are not legally binding; state agencies that request them are free to ignore them if they so choose.

In regard to Mr. Ehrlich's free air time at WBAL, the attorney general's office conceivably could find the arrangement perfectly legal under state law. In that case it would so advise the elections board, which in turn would pass the advice back to the state Democratic Party. It would then be up to the party to decide whether to accept the finding or to hire a private attorney to pursue the matter in court.

If the AG's office determined a violation occurred, it would similarly notify the elections board, which would then refer the matter to the state prosecutor's office for investigation. It would be up to the state prosecutor to open an inquiry that could lead to prosecution. But the prosecutor's office also has the power to open an investigation on its own, regardless of what the AG's office finds.

As a practical matter, that's unlikely, since the current state prosecutor, Robert Rohrbaugh, already has announced plans to step down this year, leaving his successor little time to conduct any investigation before the November election. Perhaps more to the point, Mr. Rohrbaugh himself has said that his office no longer has the resources to conduct major investigations or prosecutions of public officials.

Mr. Gansler no doubt has his eye on the clock too. He was criticized for taking more than a year to issue an opinion requested by the governor on how the state should treat same-sex couples who were married in states where such unions are legal. Mr. Ehrlich's use of free air time may still be a contentious issue when the former governor formally files in July, but any opinion Mr. Gansler issued then would be almost impossible to divorce from the context of the election-year campaign season; it would look politically motivated no matter how sound its legal reasoning.

Ms. Guillory says the issues are straightforward enough that it shouldn't take the attorney general's office nearly that long to issue its opinion. Let's just hope she is right.

—Glenn McNatt

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