The Messy Facts in Virginia

FactCheck.org

Summary

The Virginia governor’s race is breaking our general expectations as fact-checkers: There’s strident attack galore, but much of it is accurate.

We normally find the harsher the attack, the more likely it’s false. So much for that. Instead of a fact-checking field day in this race, we find the accusations in ads from each side are generally on target, or so close to being so that we find only minor quibbles.

So, we’ll simply explain the attacks and mini-scandals plaguing both candidates — noting when campaign ads have gone a bit too far or pushed false implications.

  • Ads from the Republican Governors Association point out, correctly, that Democrat Terry McAuliffe’s electric-car company proposed to build a huge plant in China rather than in Virginia. It’s the case, as another RGA ad says, that GreenTech’s financing is being investigated by the Securities and Exchange Commission — and the inspector general of the Department of Homeland Security. McAuliffe says he wasn’t responsible for that part of company business.
  • An ad from McAuliffe is on target when it says Republican Ken Cuccinelli has an “ethics problem.”
  • Several McAuliffe ads say Attorney General Cuccinelli’s office is under investigation for “helping” an energy company that’s being sued by Virginia landowners who say they’re owed gas royalties. Plus, the ads say, Cuccinelli has receive more than $100,000 in campaign contributions from that company. Both statements are factual. Another McAuliffe ad highlights Cuccinelli’s 2010 legal case against a climate change scientist whose findings Cuccinelli disputed. That caused the University of Virginia to spend $600,000 defending the case, which Cuccinelli lost.
  • Another McAuliffe ad attacks the attorney general’s ties to businessman Jonnie R. Williams, whose gift-giving has put Virginia Gov. Bob McDonnell and his wife under federal investigation. It’s the case, as the ad says, that Cuccinelli has said he can’t return the gifts, or repay their value, to Williams.

As you might expect, there are some exaggerations, spin and inaccuracies. One ad from a group supporting McAuliffe incorrectly claims that Cuccinelli is being investigated by the state’s inspector general, when in fact the target is one of Cuccinelli’s assistants. And the Republican attacks on the big China plant that McAuliffe once promoted fail to mention that it was never built. Construction was halted when Chinese government funding dried up.

But overall, neither side has had to strain the facts all that much to make their assaults.

Analysis

We’ll start with a string of Republican ads attacking McAuliffe, and then chronicle a slew of McAuliffe ads going after his GOP opponent, Cuccinelli.

 The Gift of GreenTech

The Republican Governors Association has been attacking McAuliffe with a TV ad released Aug. 14, claiming that he “built his factory in China” and asking “Why not Virginia?”

RGA Ad: “A Bad Deal For Virginia”

Announcer:  Terry McAuliffe built his factory in China. Why not Virginia?

McAuliffe: “I wanted to put the plants here in Virginia, but unfortunately, for whatever reason, Virginia did not bid on the car manufacturing facility.”

Announcer: Virginia smelled a rat.

State officials under Democrat Governor Kaine likened McAuliffe’s factory financing to a visa-for-sale scheme, with potential national security implications, now federal investigations.

Using political connections for preferential treatment?

Selling visas to wealthy Chinese investors?

Terry McAuliffe. A bad deal for Virginia.

An earlier RGA attack ad (released July 23) said McAuliffe is “betting on China, not Virginia” to create jobs.

RGA Ad: “Terry McAuliffe: Betting On China, Not Virginia”

Announcer: Terry McAuliffe.

McAuliffe: “I know what it is to create good jobs.”

Announcer: But instead of creating jobs in Virginia, Terry McAuliffe is betting on China.

McAuliffe: “I’ve just announced a plant in China…..We’re ready to go.” “We laid the cornerstone two days ago in China and we’re off and building it.” “Here’s the facility that we are building over here…it will be a total of 15 million square feet.” “What folks what to know from me most importantly, how are you going to grow this economy and how are you going to create jobs.”

Announcer: Can you trust Terry McAuliffe?

Yet another RGA attack ad, released July 30, accused McAuliffe of being untruthful when he claimed to have moved the “entire company” [GreenTech] back to the U.S. from China. It showed video of him saying work was proceeding “feverishly” on a plant in Ordos, China. The announcer concluded: “You just can’t trust Terry McAuliffe.”

RGA Ad: “You Just Can’t Trust Terry McAuliffe”

McAuliffe: “I actually went to China and bought their biggest electric car company and I moved the entire company back to the United States of America.”

Announcer: Not true.

Mississippi TV Reporter: “McAuliffe came here to Mississippi last summer with the promise of thousands of jobs and a huge manufacturing facility. But now here we are in 2013 and the only thing on this site is some overgrown grass and some gravel.”

Announcer: But in China?

McAuliffe: “Here we are from Ordos, China. As you can see, the construction is going on feverishly behind us.”

Announcer: You just can’t trust Terry McAuliffe.

So what are the facts? It’s the case that McAuliffe has so far failed to deliver on his promises that the electric-car venture he helped launch three years ago would create thousands of jobs. But of the roughly 95 to 100 people it does employ, only five are in China. The huge Chinese factory that McAuliffe once bragged of has been shelved indefinitely.

It’s also accurate, as the most recent ad states, that the company’s financing is under federal investigation by the Securities and Exchange Commission. No official charges or accusations of wrongdoing have surfaced yet.

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Blue_MyCar
The company is GreenTech Automotive, which produces a two-passenger “Neighborhood Electric Vehicle” originally made in China by EuAuto Technology Limited before McAuliffe and his partners acquired the Hong Kong-based firm in May 2010. GreenTech calls it “MyCar.” In the U.S., it’s limited to 25 or 35 m.p.h. top speed (depending on state law) and not legal for highway driving.

Jobs: Promises vs. Reality

In promoting the venture in 2010, McAuliffe said, “The business plan is to hire more than 4,000 workers in Mississippi, Tennessee and Virginia.” In a video clip dated 2011, he can be seen saying “several thousand employees” would be working at GreenTech’s plant in Mississippi. Those overly optimistic predictions are now being used against him.

In reality, few jobs have so far materialized. As of mid-August, GreenTech employed “more than 80″ people in Mississippi and “approximately ten” at its Virginia headquarters, according to Marianne McInerney, who is GreenTech’s executive vice president for sales and marketing and who responded to our questions by email. Workers in GreenTech’s temporary plant (a former elevator factory) in Horn Lake, Miss., “are producing no more than one car every two or three days,” according to the Washington Post, quoting unnamed current and former company employees. GreenTech won’t disclose sales or production figures. It says a new factory being built in Tunica, Miss., won’t start production until some time next year.

As for China, the Ordos plant that McAuliffe announced with such gusto in 2011 may never be built. Construction was halted and put on indefinite hold when Chinese government funding dried up. GreenTech’s McInerney says the company employs five people there, awaiting a decision on whether promised government financial assistance will be restarted.

Meanwhile, McAuliffe’s claim to be a savvy, job-creating businessman has taken a beating. His resignation as GreenTech’s board chairman was accepted in a letter dated Dec. 1, 2012, a copy of which was supplied to us by the company at our request. No announcement was made at the time, and the public didn’t learn of his exit until Politico reported it in April 2013. His opponent immediately called the resignation “an admission of failure.”

And in a later interview with the New York Times, GreenTech’s chief executive officer said there are days he wishes he had never gone into business with McAuliffe. “I learned a lot of things,” the Times quoted CEO Charles Wang as saying. “Politicians or people with political backgrounds are dangerous to business.”

For example, the Times wrote that Wang recalled a key federal official who “seemed to burn with resentment that Mr. McAuliffe went over his head” to Janet Napolitano, the secretary of Homeland Security, while seeking federal clearance to recruit foreign investors through a special visa program. Wang said that negative publicity over McAuliffe’s use of political connections “had given investors cold feet” and attracted unwelcome attention from McAuliffe’s political enemies, the Times reported.  McAuliffe is a former chairman of the Democratic National Committee with close ties to Bill and Hillary Clinton.

Ordos, China

The RGA ads mentioning China are unfair to McAuliffe to this extent: They fail to mention that GreenTech and McAuliffe have always said that a big assembly factory in Ordos, a city in inner Mongolia, would produce jobs in the U.S. as well.

GreenTech says the plant, if it is ever built, will assemble autos largely from “core components” made in the U.S. The company says exporting complete U.S.-made vehicles to China is “economically infeasible” due to China’s high tariffs. Such joint ventures are the norm in other car companies seeking a piece of the growing Chinese market for autos, now the world’s largest. For example, as we’ve reported, General Motors now makes and sells nearly as many cars in China as in the U.S.

Also, viewers would never suspect from viewing the RGA ads that construction of the factory is halted and may or may not resume. “Unfortunately, the City of Ordos experienced a significant economic downturn and the project was placed on hold,” GreenTech told us. “As soon as the [Ordos] city government provides the agreed upon incentive, work would restart.” Finally, GreenTech is only a 50-50 partner in the plant, part of a joint venture with a Chinese auto firm, and McAuliffe owns but 25 percent of GreenTech’s voting stock, according to the company. So it’s a stretch for an RGA ad to refer to the Ordos plant as “his factory.”

But the fact remains that the ever-enthusiastic McAuliffe was a cheerleader for building a plant in China that, according to GreenTech, could produce 10 times more cars than the company’s still-unfinished plant in Mississippi. The Tunica plant will have a capacity of 30,000 vehicles per year, while the Ordos plant is planned for a maximum production of 300,000 per year, with “multiple manufacturing and assembly lines,” according to GreenTech’s McInerney.

So, we judge that McAuliffe has made himself fair game for this sort of attack. For one thing, Democrats claimed that 2012 Republican presidential nominee Mitt Romney “shipped jobs to China and Mexico.” Furthermore,  McAuliffe himself engaged in a similar attack against a Bush administration nominee in 2004, when he was DNC chairman, during a debate televised on C-Span. So what goes around, comes around.

Visas for Sale?

The RGA’s latest attack on GreenTech is also mostly on target when it says that Virginia officials “likened McAuliffe’s factory financing to a visa-for-sale scheme, with potential national security implications,” and that the company is under multiple federal investigations. But no charges have been filed, and it remains to be seen what will come of any of those probes.

McAuliffe and GreenTech originally wanted to build a plant in Virginia, which, of course, would have been of more political benefit to McAuliffe’s gubernatorial prospects than a plant in another state. But even under the administration of a fellow Democrat, then-Gov. Tim Kaine, Virginia development officials were highly skeptical of GreenTech’s prospects. One recently released memo, dated Nov. 19, 2009, from the executive director of  the Virginia Economic Development Partnership (VEDP) stated that “we have grave doubts about the business model” presented by GreenTech, and that “we are not inclined to support the development of the plant” unless GreenTech could come up with additional information to “allay our fears.”

Virginia development officials were concerned about GreenTech’s lack of experience in the auto business, for one thing, but also about its proposed use of a special federal program that grants visas to foreign investors. The EB-5 “immigrant investor” program run by the U.S. Citizenship and Immigration Services was established by Congress in 1990, and grants permanent worker visas to those who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers. GreenTech proposed to finance a Virginia plant in part through money raised from Chinese investors seeking such visas.

In a now-famous email released by VEDP under the Freedom of Information Act, its director of business development, Liz Povar, told colleagues that she had “serious concerns” about the way GreenTech proposed to raise funds through EB-5 visas. “[I] still can’t get my head around this being anything other than a visa-for-sale scheme with potential national security implications that we have no way to confirm or discount,” she wrote. “This ‘feels’ like a national political play instead of a Virginia economic development opportunity. I am not willing to stake Virginia’s reputation on this at this juncture.”

She did not specify how “national security” might be affected, and there’s no indication that VEDP pursued that angle. And in any case, GreenTech had pretty much given up on getting aid from Virginia by the time she wrote that email, which was dated Nov. 17, 2009. GreenTech CEO Wang already had announced plans for a new plant in Tunica, Miss., on Oct. 9, 2009, at a symbolic “groundbreaking” ceremony at the proposed plant site. Mississippi later loaned $5 million to GreenTech on its pledge to create at least 350 jobs.

As for federal investigations, GreenTech says it is “cooperating fully” with an SEC subpoena that it received July 12. The Associated Press reported Aug. 2, based on SEC documents released by Republican Sen. Charles Grassley of Iowa, that the investigation centers on whether GreenTech improperly promised foreign investors that they would get a guaranteed return on their money, and an SEC summary said that “fraud was possible but not fully verified.”

McAuliffe responded in a Washington Post opinion piece dated Aug. 16, saying:

McAuliffe, Aug. 16, 2013: I’ve not been contacted in any way by those conducting the [SEC] investigation and have no knowledge of it beyond what has been reported. From what has been reported, the investigation appears to be looking at a document allegedly prepared for potential investors — something I was not responsible for as chairman.

Earlier, the Associated Press also reported that the inspector general of the Department of Homeland Security was investigating whether Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, improperly aided an investment company headed by Hillary Clinton’s brother. That company, Gulf Coast Funds Management LLC, is the vehicle through which GreenTech sought to raise its EB-5 visa program funds. At a Senate hearing, Mayorkas strongly denied any wrongdoing. “I have never, ever in my career exercised undue influence to influence the outcome of a case,” he said. Mayorkas is the same official whom GreenTech’s CEO described as seemingly burning with resentment at McAuliffe’s appeal to his boss, Secretary Napolitano. The IG told Congress that so far “we do not have any findings of criminal misconduct,” according to CNN.

All in all, the investigations are a political embarrassment for McAuliffe, even if no charges ever result.

 And from the McAuliffe Camp …

One ad from McAuliffe claims that Cuccinelli’s attacks on him “twist the facts,” while “it’s Cuccinelli who has an ethics problem.” Hmm. Interesting. We find both camps have plenty of legitimate material from which to reap hard-hitting attacks.

This particular ad, in fact, titled “Landowners,” gets the basic facts right, though it leaves the false impression that the “twist the facts” quote, attributed to the Richmond Times-Dispatch, pertained to an ethical attack. It didn’t. And other newspaper quotes cited in the ad don’t write off the ethical questions surrounding McAuliffe — on the GreenTech Automotive company he headed — despite that ad’s suggestion that they do.

McAuliffe for Governor Ad: “Landowners”

McAuliffe: I’m Terry McAuliffe, candidate for governor, and I sponsored this ad.

Announcer: Ken Cuccinelli’s attacks on Terry McAuliffe twist the facts, and have been called false and ridiculous. The truth is, it’s Cuccinelli who has an ethics problem. Cuccinelli’s office is now under investigation by the inspector general of Virginia for secretly helping an energy company that’s taking gas from landowners but refusing to pay them. The same company that’s given Cuccinell’s campaign over $100,000. Ken Cuccinelli: He’s not for us.

The ad says: “Ken Cuccinelli’s attacks on Terry McAuliffe twist the facts, and have been called false and ridiculous. The truth is, it’s Cuccinelli who has an ethics problem.” The words “twists facts” and “false” appear on screen, attributed to the Times-Dispatch, and “ridiculous” is attributed to the Washington Post. Only the “ridiculous” quote, from a Post editorial, pertains to the GreenTech ethical scandal plaguing McAuliffe. And even then, the editorial said “the jury is out” still on whether the electric car company is a bona fide manufacturing business.

A Times-Dispatch headline over an Aug. 12 Times-Dispatch/PolitiFact Virginia article said, “Cuccinelli twists facts on rebid of union-friendly Metrorail contract.” Cuccinelli had claimed that McAuliffe would drive up transportation costs by giving construction contracts to labor unions. He cited bids for Metrorail’s Silver Line as proof, saying that Gov. Bob McDonnell forced rebidding of one part of the project without a union-friendly contract agreement and that “the price came down $300 million.”

But there was no rebidding. There was only bidding on the contract without the union language. Cuccinelli was speculating that this money was saved, based on estimates of what contracts were expected to be and what was the winning bid, PolitiFact said. The story concluded that the “basis” of Cuccinelli’s claim had “merit,” since McDonnell pushed for the change in the contract and bids were lower than expected. But, it concluded, Cuccinelli “twists facts to suggest there was a tangible $300 million savings in killing the union agreement.”

The “false” quote is from another Times-Dispatch/PolitiFact Virginia piece that found it was “false” for Cuccinelli to claim that McAuliffe hasn’t “rolled out any policies.”

Finally, the “ridiculous” quote comes from an April 15 Washington Post editorial that said comparing GreenTech Automotive to Solyndra was “ridiculous.” The Post never said Cuccinelli had made such a claim. Instead it linked to a Wall Street Journal column that carried the headline “Terry McAuliffe’s Solyndra.” The McAuliffe campaign points to comments Cuccinelli made in June on the Hugh Hewitt radio show, when he called GreenTech a “flop” and said McAuliffe had “his little Solyndra going there in the poorest part of Mississippi.”

Washington Post editorial, April 15: Republicans first attacked Mr. McAuliffe for doing business outside Virginia. Horrors! That dovetailed with their portrayal of him as a carpetbagger — even though he’s lived in Virginia for more than 20 years — but otherwise was absurd.

It’s equally ridiculous to compare GreenTech to Solyndra, the federally subsidized solar-cell maker that went bust, triggering a torrent of criticism from Republicans. Solyndra received $535 million in loan guarantees from the Energy Department. With the exception of a $3 million loan and land for the plant in Mississippi, GreenTech is relying on private capital, much of it from Chinese investors (including visa-seekers).

The editorial didn’t dismiss the questions about GreenTech’s use of EB-5 visas to attract foreign capital. The Post’s editorial board said: “Although Mr. McAuliffe resigned as GreenTech’s chairman late last year, it would produce a stench if it turns out that GreenTech’s raison d’etre turns out to be little more than a magnet for cheap foreign capital, without realistic prospects of producing cars, jobs or profit.” The editorial said the use of foreign investors under the visa program alone doesn’t make a scandal. But “the jury is out” on GreenTech’s legitimacy.

That’s hardly proof that newspapers have cleared McAuliffe on ethical attacks from Cuccinelli, as the ad implies.

Coal Companies and Cuccinelli

The ad goes on to focus on Cuccinelli’s involvement with Consol Energy, a Pittsburgh-area company whose subsidiary has been extracting coalbed methane from southern Virginia. The ad says: “Cuccinelli’s office is now under investigation by the inspector general of Virginia for secretly helping an energy company that’s taking gas from landowners but refusing to pay them.”

It’s true that the attorney general’s office is being investigated by the state inspector general to determine if an assistant AG improperly gave legal advice to attorneys for energy companies CNX and EQT Production. Those companies are being sued by southwest Virginia residents who say they are owed millions — which is sitting in escrow accounts — for the extraction of methane gas from coal seams on their properties.

The ad then points out that’s “the same company that’s given Cuccinelli’s campaign over $100,000.” CNX is a subsidiary of Consol Energy, which has donated more than $111,000 to Cuccinelli for Governor, according to the Virginia Public Access Project.

The McAuliffe camp has made the IG investigation and Consol Energy donations to Cuccinelli the focus of several ads. One ad from a group supporting McAuliffe goes too far when it says that “Cuccinelli is also being investigated by the inspector general.” He is not.

NextGen Climate Action Ad: “Take Questions”

Text on-screen: Ken Cuccinelli is Virginia’s Attorney General. (The top law enforcement official in Virginia) Ken Cuccinelli is also being investigated by the inspector general for his office’s use of taxpayer’s money … helping an out-of-state energy company ripping off Virginians who are owed millions in royalties. Today, Virginia reporters had some questions …

Clip of Cuccinelli with reporters. Reporter: Can we ask some off-topic questions?

Cuccinelli: No, I’m going to leave that with these guys. …

Reporter: The inspector general …

Cuccinelli: No, no no. Sorry. Other topics, today you’ve got to ask …

Reporter: Your folks want us to ask tough questions of Terry McAuliffe, I mean, shouldn’t we be able to do the same of you?

Cuccinelli: And you have. Call tomorrow …

On-screen text: Energy companies haven’t paid the millions of dollars in royalties they owe Virginians yet. Guess who they have paid? Ken Cuccinelli. $100,000 in campaign contributions. No wonder he’s not taking questions.

Reporter in clip: OK, that’s not going to turn out well.

On-screen text: Cuccinelli is also running for governor. We think it’s time Cuccinelli take some questions. KensVirginia.com. Paid for by NextGen Climate Action.

 

The inspector general, Michael F.A. Morehart, told the Washington Post that he isn’t investigating — and can’t investigate — the attorney general. “Our legislation prohibits my office from looking at the attorney general or any elected official but for a request from the attorney general, or governor, or a grand jury,” he said. “I couldn’t look at the AG if I wanted to.”

The ad was paid for by NextGen Climate Action Committee, which registered with the Federal Election Commission in July with a Sacramento address. It’s backed by investment banker Tom Steyer, a Democratic donor and bundler for Barack Obama. He’s also a cofounder of the environmental group Next Generation.

There’s opinion in these claims. Are the energy companies “ripping off Virginians who are owed millions in royalties”? Some, including those who filed the lawsuit, certainly think so. The energy companies say they’re not. Was Cuccinelli’s office “secretly helping” the energy companies fight the lawsuits? A state judge said the emails show the assistant AG was “shockingly” helping the defense. The AG’s office says she was defending a state law on gas and oil.

We’ll give more background on the case and the AG office’s involvement.

Virginia landowners first filed lawsuits in 2010 over royalties they say they are owed by EQT and CNX, companies that have drilled for natural gas in the southwestern part of the state. A U.S. magistrate judge, Pamela Meade Sargent, recommended that four of five lawsuits be classified as class-action suits in June. The legal claims concern both payment and disclosure of the accounting of royalties, and mineral rights. A 2004 Virginia Supreme Court ruling said the gas, which is found in the coal seam, was a “distinct mineral estate” from coal. So, even if a landowner had long ago signed over the rights to the coal on his or her land, the gas would still belong to the landowner. Lawsuits also concern a “forced pooling” practice set by a 1990 law that allows companies to drill on land without permission and put royalties into escrow accounts, leaving a court to decide who gets the disputed money.

The Virginia Gas and Oil Board ordered royalties to be placed in escrow, under the 1990 law. The energy companies point to that law as supporting their activities.

The controversy has gone on for years. Virginia’s Bristol Herald Courier won a Pulitzer Prize in 2010 for its reporting on the languishing escrow accounts — there’s nearly $30 million in the accounts — and mismanagement of the funds. The paper’s timeline of events details energy company actions and legal battles since the 1990 law was passed. In an editor’s note on the launch of the series on Dec. 6, 2009, Managing Editor J. Todd Foster wrote: “Nearly 20 years ago, gas corporations and the commonwealth of Virginia figured out that below the surface of seven Southwest Virginia counties lies vaporous gold – pools of methane gas worth billions of dollars. The legislature crafted a law that allows these companies to extract the gas without the knowledge or consent of private property owners – a subterranean form of eminent domain. Those companies are getting rich. The moms and pops who own the land are getting screwed.”

As for Cuccinelli’s office, emails from Assistant Attorney General Sharon Pigeon to attorneys for EQT and CNX came to light after the magistrate judge scolded Pigeon for the correspondence. “Shockingly, these emails show that the [Virginia Gas and Oil] Board, or at least Pigeon, has been actively involved in assisting EQT and CNX with the defense of these cases, including offering advice on and providing information for use on the Motions currently before the court,” Magistrate Pamela Meade Sargent wrote in her recommendation for class-action status for the lawsuits.

In one email, Pigeon tells an attorney for EQT to use a file she had sent “in response to the Motion to Certify a Class Action!” In another message to an attorney for CNX, Pigeon questioned how the case could be certified a class action and says of one plaintiff: “Apparently, he wants the benefits of the royalty being paid, but wants to undermine the system enabling that payment.” And in another, she comments on an opinion that she says “opens the door wide open to demand each & every one of these folks produce the chain of title documents to support the fact that ‘coal only’ was the only severed mineral down through the entire chain.”

The AG’s office, and Cuccinelli himself, says these emails aren’t any kind of smoking gun. A spokesman for the AG’s office told the Roanoke Times that Pigeon represented the Virginia Gas and Oil Board’s “interest in getting gas ownership issues resolved sooner rather than later, so that the royalties can be released to their rightful property owners.”

In a June op-ed published in the Roanoke Times, Cuccinelli said the attorney general’s office wasn’t giving the gas companies legal advice, but instead was defending the constitutionality of the 1990 state law. “The senior assistant attorney general did communicate with attorneys for the gas companies about the interpretation of the [Gas and Oil Act] because they shared a common interest with the commonwealth in protecting the law,” he said. “The gas companies were using the law as their defense, claiming they were following the law when they paid royalties to the property owners.”

Cuccinelli wrote that in the lawsuit, “the lawyers representing the property owners tried to have the Virginia Gas and Oil Act declared unconstitutional. If they had been successful, it would have been a travesty for their own clients. Without the act, most of these property owners wouldn’t get any royalty payments, so our office intervened to uphold the constitutionality of the act – as is our legal obligation.”

But that distinction would still mean Pigeon was helping the lawyers interpret a law that’s central to their defense. It’s fodder for attack ads like this one, featuring a woman from southwest Virginia, who says: “Since the energy company has come in, they have been making millions from the gas that’s coming from our property. … I haven’t seen one penny. Ken Cuccinelli’s office has given information to the energy company to fight us. Then Cuccinelli got $100,000 for his governor’s campaign. He has made it perfectly clear he cannot be trusted.”

McAuliffe for Governor Ad: “Trust”

McAuliffe: I’m Terry McAuliffe, candidate for governor, and I sponsored this ad.

Shirley Keene: I was born and raised in southwest Virginia. Very fine people, good neighbors, a good place to live, a good place to raise your family. Since the energy company has come in, they have been making millions from the gas that’s coming from our property. They’re going to extract your gas and leave you with nothing. I haven’t seen one penny. Ken Cuccinelli’s office has given information to the energy company to fight us. Then Cuccinelli got $100,000 for his governor’s campaign. He has made it perfectly clear he cannot be trusted. When you help an energy company against the people that have elected you to office, that is wrong. You have let your people down. You have let the community down. And I do not trust him.

There’s opinion here, too. An on-screen graphic says: “The company is playing legal games to avoid paying landowners.”

We can’t litigate those lawsuits here. And the inspector general investigation is ongoing, with no charges of wrongdoing as of yet.

From a fact-checking standpoint, we can only quibble with the implication that Cuccinelli’s office gave information to the energy companies because Consol Energy donated to his campaign. There’s no proof of that, and Cuccinelli has objected to such assertions, saying in his June op-ed: “I reject — in the strongest possible terms — the notion that campaign donations by Consol Energy affected our handling of this case.”

It may be an unfortunate fact for Cuccinelli, but it’s not surprising that Consol Energy would donate to the Republican candidate for governor’s campaign. The vast majority of the company’s political donations to Virginia candidates and committees — 84 percent — went to Republicans.

Climate Change and Gift Giving

The flap over the gas royalty case isn’t the only tune in the McAuliffe attack-ad playlist. The Democrat also has criticized his opponent for a legal case against a climate change scientist whose findings Cuccinelli disagreed with, and for accepting, and not returning, gifts from businessman Jonnie R. Williams, whose gift-giving has put Virginia Gov. McDonnell and his wife under federal investigation.

We passed over these two attack ads when they came out, because the claims in them are true — even if the lack of substance in the race is alarming.

In an ad called “Witch Hunt,” the NextGen Climate Action group and the McAuliffe camp — one version of the ad says it was paid for by NextGen and “authorized” by McAuliffe — says Cuccinelli “used taxpayer funds to investigate a U.Va. professor whose research on climate change he opposed.” And he “forced” the university to spend $600,000 defending itself against Cuccinelli.

NextGen Climate Action/McAuliffe for Governor Ad: “Witch Hunt”

Announcers: It’s been called Cuccinelli’s witch hunt. Designed to intimidate and suppress. Ken Cuccinelli used taxpayer funds to investigate a U.Va. professor whose research on climate change Cuccinelli opposed. Cuccinelli, a climate change denier, forced the university to spend over half a million dollars defending itself against its own attorney general. Ken Cuccinelli, he’s focused on his own agenda, not us. NextGen Climate Action Committee sponsored this ad.

That’s true. Editorials from 2010 in the Roanoke Times and the Washington Post called Cuccinelli’s actions a “witch hunt.” He launched an investigation of a then-University of Virginia professor, Michael E. Mann, who had published a famous “hockey stick” graph of spiking world temperatures in the 1900s. Mann’s work was criticized, and Cuccinelli, using a state anti-fraud law, called into question Mann’s ability to accept a subsequent state grant for separate research.

An Oct. 6, 2010, Washington Post editorial said there was “only one plausible explanation” for Cuccinelli’s actions, “that he is on a fishing expedition designed to intimidate and suppress honest research and the free exchange of ideas upon which science and academia both depend — all because he does not like what science says about climate change.”

The university refused to turn over documents demanded by Cuccinelli, and said it spent nearly $600,000 defending itself in the case, money coming from private funds. A statement by the university’s faculty senate said that Cuccinelli’s actions send “a chilling message to scientists engaged in basic research involving Earth’s climate and indeed to scholars in any discipline,” adding that the legal maneuvers were a direct threat to “academic freedom.”

In 2012, the Virginia Supreme Court ruled against the attorney general, saying he lacked authority to pursue the anti-fraud case against a university. (Mann, by the way, is voicing support for McAuliffe.)

And then there’s the controversy over gifts Cuccinelli received from businessman Jonnie Williams, CEO of Star Scientific, a nutritional supplement company. The ad below pieces together several local TV news clips saying that Cuccinelli said he’s glad Gov. McDonnell was returning the gifts he had received from Williams, but Cuccinelli wouldn’t be returning the gifts he got, which include a pricey Thanksgiving dinner, private jet trips and time in a vacation home. Of course, those aren’t exactly the type of gifts one can give back — and that’s the point Cuccinelli has made.

McAuliffe for Governor Ad: “Gifts”

News clip 1: As Gov. Bob McDonnell returns thousands of dollars worth of gifts to campaign donor Jonnie Williams, Attorney General Ken Cuccinelli says he’s not giving anything back.

News clip 2: Attorney General Ken Cuccinelli making quite clear tonight he will not be following the governor’s lead.

News clip 3: Cuccinelli received more than $18,000 worth of gifts.

News clip 4: They include a $1,500 catered Thanksgiving dinner, private jet trips and vacation lodgings.

Announcer: Ken Cuccinelli, helping himself, not us.

McAuliffe: I’m Terry McAuliffe, candidate for governor, and I sponsored this ad.

Cuccinelli told reporters that he would write a check for the $18,000 worth of gifts, “but that’s just not something I can do, from my family’s perspective.”

The attorney general was cleared of criminal wrongdoing by a state prosecutor for not reporting the gifts on state disclosure forms for several years, until he amended the forms in April. The ad doesn’t mention that. “Although one cannot help but question whether repeated omissions of gifts from Williams are a coincidence or a pattern reflecting intent to conceal, the disclosure of several other gifts and benefits from Williams in his original statements suggests that the attorney general was not attempting to conceal the relationship,” the prosecutor’s report said. The prosecutor noted that he didn’t “broadly investigate” Cuccinelli or his office.

Cuccinelli is not under federal investigation like the governor and his wife. Authorities are looking into whether McDonnell offered to help Williams’ company while the governor was accepting gifts and money, including more than $100,000 that McDonnell called a loan, from the businessman.

But the fact is, Cuccinelli accepted gifts from Williams and now says he can’t return them and won’t pay back what they were worth. And that’s what the ad says.

– by Lori Robertson and Brooks Jackson

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