Stretching Cuccinelli’s Record

FactCheck.org

Two ads attacking Republican Virginia gubernatorial candidate Ken Cuccinelli go too far.

  • An ad from Democrat Terry McAuliffe features an OB-GYN who claims Cuccinelli “wants to make all abortion illegal. Even in cases of rape and incest. Even to protect a woman’s health.” Cuccinelli has staked a strong anti-abortion position, but he has said that he makes an exception “to save the life of the mother.”
  • A TV ad by a pro-McAuliffe group displays a photo of an FBI raid, while the announcer says, “Cuccinelli has been questioned by the FBI about the Star Scientific scandal.” That’s misleading. The raid shown in the ad had nothing to do with Cuccinelli or Star Scientific, and Cuccinelli has been cleared of any wrongdoing in a state review.

The race between McAuliffe and Cuccinelli has been hard-fought, with the latest poll showing just 3 percentage points separating the two major party candidates. We have looked at the claims in numerous attack ads launched by both sides, and have found some that twist the truth, and some hard-hitting ads from both sides that are substantially accurate. Here, we examine two ads attacking Cuccinelli that take a fair line of attack too far.

Attacking Cuccinelli on Abortion

A new ad from the McAuliffe campaign titled “Offended” tries to portray Cuccinelli as out of touch with women on the abortion issue.

To be sure, Cuccinelli has been a staunch abortion opponent. As a state legislator, Cuccinelli once described himself as “the most aggressive pro-life leader in the Virginia Senate.” And Cuccinelli really does oppose exceptions for rape and incest, as the ad says. But the ad goes a bit too far when the OB-GYN featured in the ad states that Cuccinelli wants to make “all abortion” illegal.

In a 2010 interview with Washington Post Magazine, Cuccinelli was asked if there are “any situations in which you would approve” abortion. Cuccinelli replied: “To save the life of the mother.” His campaign says that position has not changed.

The McAuliffe campaign bases its claim that Cuccinelli opposes “all abortion” on his past support for “personhood” legislation that would grant all rights and privileges afforded to persons to unborn children at the point of conception.

In 2007, as a state senator, Cuccinelli cosponsored a bill that stated: “That life begins at the moment of fertilization and the right to enjoyment of life guaranteed by Article 1, § 1 of the Constitution of Virginia is vested in each born and preborn human being from the moment of fertilization.” The bill failed in the House on a 45-53 vote.

And in 2012, as the state’s attorney general, Cuccinelli appeared at a rally in support of an HB 1 “personhood” bill effort in Virginia.

HB1: The laws of this Commonwealth shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this Commonwealth, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this Commonwealth. … As used in this section, the term “unborn children” or “unborn child” shall include any unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.

Cuccinelli was quoted at the rally saying of the bill, “It’s hard to believe we actually have to come and advocate for something as basic as life, but we’ve had to do it for decades and we’re going to have to do it for the rest of our lives. The fight for life is going to last for all of our lives.” The bill passed the Virginia House but died in the Senate.

NARAL Pro-Choice Virginia warned that the bill “would lay the legal groundwork to ban abortion without exception — even in cases of rape, incest, or danger to the life of the woman.”

The McAuliffe campaign claims Cuccinelli’s support for those bills runs counter to his claims that he supports an exception when the life of the mother is in danger. But that’s a matter of debate.

Harvard Law School Professor I. Glenn Cohen, co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, told us in an email that Cuccinelli’s support for “personhood” legislation isn’t necessarily inconsistent with a life-of-the-mother exception.

“I would say it is unclear, or at least Cuccinelli has some wiggle room,” Cohen stated. “His support of the 2007 and 2012 bill is akin to his saying fetuses are just like born persons, such that killing them is the same thing as murder. That much is common ground. That, though, is not necessarily inconsistent with a life of the mother exception. Even though murder is a crime, we do have defenses to being convicted of murder, one of which is self-defense. Cuccinelli could think that the life of the mother exception to criminalizing abortion is like the self-defense exception to murder, in that the fetus is threatening the life of the mother and she has an abortion to stop it much like I might shoot an assailant in self-defense if that assailant was about to kill me. That is at least a possible interpretation of his position that would leave open an exception for the life of the mother.”

Cuccinelli’s record as an aggressive abortion opponent is well-documented, but the McAuliffe campaign’s ad goes beyond the facts. The ad claims that Cuccinelli opposes “all abortion,” and Cuccinelli has said that he supports an exception to save the life of the mother.

 The FBI Raid That Wasn’t

As we’ve said before, this race has featured plenty of attack ads that are largely accurate. In the case of “Questioned” — a new TV ad from NextGen Climate Change Action Committee — it is true that “Cuccinelli has been questioned by the FBI about the Star Scientific scandal.” But, as the announcer speaks those words, viewers are shown the powerful image of FBI agents hauling boxes out of a business, suggesting Cuccinelli is the target of an FBI investigation and was the subject of an FBI raid. He is neither.

In fact, the photo shown in the ad has nothing to do with Star Scientific or Cuccinelli. It was taken during an FBI raid at Vitreo-Retinal Consultants Eye Center (now called the Melgen Retina Eye Center) in West Palm Beach, Fla. The center is owned by Salomon Melgen, a major Democratic donor and longtime friend of Democratic Sen. Robert Menendez. We found the photo with stories about the raid on Vitreo-Retinal on the Daily Caller and the Guardian websites. It was taken Jan. 30 by Joe Raedle of Getty Images.

So, the ad attacks a Republican for being “questioned by the FBI” with an image of an FBI raid on a major Democratic donor.

What’s Cuccinelli’s involvement with Star Scientific? We’ve covered this ground before in our article “The Messy Facts in Virginia,” although there was a new wrinkle that prompted this ad.

As we’ve already reported, Cuccinelli disclosed some but not all of the gifts that he received from businessman Jonnie Williams, CEO of Star Scientific, a nutritional supplement company. Cuccinelli was cleared of criminal wrongdoing in July by state prosecutors. The state review of Cuccinelli found that he did not violate disclosure laws for failing to report the gifts and that there was “no evidence that the Attorney General in any way promoted, supported or assisted Star Scientific while he had a financial interest in the company.”

But Republican Gov. Bob McDonnell and his wife are under federal investigation. That probe centers on whether McDonnell offered to help Star Scientific while the governor was accepting $145,000 in gifts and money from Williams, including more than $100,000 in what McDonnell called a loan.

On Sept. 10, Cuccinelli announced he would donate more than $18,000 — the value of the gifts that he received from Williams — to charity. Local TV reporter Ryan Nobles asked Cuccinelli that day if he had been contacted by federal investigators about his connections with Williams. Here’s Cuccinelli’s response, as reported by the Washington Post, which the ad cites as the source of this claim:

Cuccinelli, Sept. 10: Yes. I was asked questions about Jonnie.

Nobles: And it never led to anything further than that? They haven’t said anything since then?

Cuccinelli: No. That was months and months ago.

The Cuccinelli campaign told the Post that an FBI agent was present during the state police interview with Cuccinelli. Richmond Commonwealth’s Attorney Michael N. Herring, who oversaw the state review, told the Post that the state police report on Cuccinelli’s interview didn’t mention an FBI agent being present, but that didn’t necessarily mean that an FBI agent wasn’t there.

Herring — a Democrat — told the Post it doesn’t much matter whether Cuccinelli was questioned by the FBI or not. “I don’t see the issue here,” he said. “In my opinion, the fed focus has always been on McDonnell and Williams, and rightly so.”

– Robert Farley and Eugene Kiely

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