Piling on

Is the storyline on the string of fallen Massachusetts House speakers overblown?

Since the conviction of former House speaker Sal DiMasi almost no political story is complete without a solemn intonation about “the third speaker in a row guilty of federal charges.” I’ve fallen into it myself. But maybe we’ve been a little too hard on these men (well, two of them anyway) and not hard enough on their prosecutorial pursuers.

As former Patriots coach Bill Parcells says, you are what your record says you are. Charles Flaherty pled guilty to income tax evasion. Thomas Finneran pled guilty to obstruction of justice. DiMasi was found guilty of extortion, fraud, and conspiracy charges related to actions he took as speaker. But were Flaherty and Finneran really guilty of what we would identify as political corruption?

When I wrote recently of corruption as including government secrecy I did so using a broad definition of political corruption, but the definition of corruption is contested among political scientists. The narrowest definition would focus upon a politician using his or her office for private gain. A broad classification might take in all kinds of unethical behavior – but that is more difficult as a matter of definition. So it makes sense that if an individual is to risk his or her liberty for taking some official action, the rules should be clear and prosecutors should show restraint in tagging someone as corrupt.

That isn’t what happened to Charlie Flaherty. In 1993 the Boston Globe documented dubious relationships between lobbyists and legislators, including the then-House speaker. The United States Attorney initially investigated a trip legislators and lobbyists had taken, where Flaherty had swapped the tedium of December legislating for the soft breezes of Puerto Rico. After two years of pursuing that line, prosecutors turned to Flaherty’s relationship with parking lot owner Richard Goldberg, whose business was impacted by state government.  Though Goldberg was indicted in the case, Flaherty never was. However, Flaherty did eventually plead guilty to a 13-year-old tax case and conflict of interest charges.

As negotiations dragged on between the federal prosecutor and Flaherty’s lawyer, the

Boston Globe’s Frank Phillips reported that the US attorney was under pressure in the legal community to drop the investigation because the case was not deemed “worthy of a federal investigation and federal resources.” Globe columnist David Nyhan had it about right:  “The gist of the feds' case, as I get it, is that in 1983 he listed $5,800 in business expense deductions for which he cannot provide documentation now,” he wrote of Flaherty. “This is some kind of reach, plucking deductions from taxes of 13 years past. But the feds needed something, anything, to justify their expensive political chase.” Jack Beatty, biographer of James Michael Curley and thus something of an expert on roguish politicians, told the New York Times that Flaherty had been “railroaded.”

Go back and read the accounts and I doubt you will be moved to offer Flaherty a good government award. He was fined by the State Ethics Commission for some of the conduct that the federal prosecutors had pursued but not charged. But after being hounded for three years, financially devastated, exhausted, and with his reputation in tatters, you might understand why Flaherty took the plea agreement rather than battling a powerful and implacable foe for several more years.

As to Thomas Finneran, those who followed his case know that he lied in testimony in a 2002 federal court in a case about the racial impact of the House redistricting plan. Except as Harvey Silverglate argues in his book Three Felonies a Day: How the Feds Target the Innocent, Finneran did no such thing.

Silverglate recognizes that Finneran may have been practicing a form of political cuteness, Massachusetts style, when he testified about his supposed limited role in redistricting. To someone in Finneran’s position, detailing his own dominance over the legislative process in the House would be lending a sort of insult to his members. The federal judge who ignited the investigation of Finneran looked at the facts far differently than someone familiar with the folkways of state politics. While US Attorney Michael Sullivan, as a former state representative, might have been expected to accurately divine the practices of Beacon Hill, he might also have other interests. In taking apart the legal basis for the indictment Silverglate writes: “to take the giant leap that Sullivan did, transforming the everyday operation of politics and its accompanying decorum into felony perjury, betrays a troubling misunderstanding of basic American politics, assuming, of course, that Sullivan’s misunderstanding was genuine rather than driven by his own ambitions.”

Why then, with a defensible case, would Finneran accept a plea agreement? Because the prosecutor has among his powers the ability to induce a plea by offering favorable terms. In Finneran’s case, the government’s offer was 18 months of unsupervised probation and a $25,000 fine. Had Finneran been convicted after a trial the sentencing range would have been 10 to 16 months in prison.

These cases are troubling inasmuch as they are the basis for the “three speakers” narrative. Recent comments by federal judges leave me concerned that some jurists henceforth may consider themselves to be sentencing Massachusetts’ corruption, and not an individual defendant (though a sentence of eight years for DiMasi is certainly reasonable).

Unfortunately, it looks like we are going to be seeing more indictments down the road for some potentially serious charges.  But the Flaherty and Finneran cases show that in our concern with abuse of power, sometimes we should be taking as critical a look at the hunters as at the hunted.

Maurice Cunningham is an associate professor of political science at the University of Massachusetts Boston.