MERCER: In Capitol so wide open, who can tell real crook?

• Bob Mercer

Bob Mercer

Talk about it

Would it be bribery of a legislator if a lobbyist or group of lobbyists operated what’s known as a drink room at a motel or hotel during session?

How about if they had a house just a block from the Capitol where the door was always open for the same purpose? What if a business group handed out passes to legislators, allowing them to ride the River Cities transit buses whenever they wanted? What if a lobbyist took a legislator, or a few legislators, or an entire committee of legislators, to dinner? What if a group of legislators invited lobbyists to a fundraiser for their political party during session? What if a legislator sent a letter to lobbyists asking for contributions?

What if a candidate for state office set up a political action committee, commonly known as a PAC, so that it appeared to be independent of his campaign? And then routed money from the PAC to his campaign, as a means of allowing donors to give more than they otherwise legally could directly contribute to the campaign?

All of these things happened in South Dakota in the past two years.

No one was investigated or prosecuted. Evidently none of this was illegal.

The South Dakota Supreme Court has never been presented with a case involving the state constitution’s provisions regarding bribery of a legislator or considered any case involving the state laws regarding bribery, unlawful influence, improper influence, compelling action, compelling inaction, or solicitation of a legislator.

The reason for this seemingly unblemished record of legislator integrity might be the words of the constitution itself. Consider the oath legislators take, when they promise:

“… I have not knowingly or intentionally paid or contributed anything, or made any promise in the nature of a bribe, to directly or indirectly influence any vote at the election at which I was chosen to fill said office, and have not accepted, nor will I accept or receive directly or indirectly, any money, pass, or any other valuable thing, from any corporation, company or person, for any vote or influence I may give or withhold on any bill or resolution, or appropriation, or for any other official act.”

Then there’s this second section from the same Article III, regarding the Legislature, in the constitution:

“Any person who shall give, demand, offer, directly or indirectly, any money, testimonial, privilege or personal advantage, thing of value to any executive or judicial officer or member of the Legislature, to influence him in the performance of any of his official or public duties, shall be guilty of bribery and shall be punished in such manner as shall be provided by law.

The catch, of course, is proving that someone “directly or indirectly” gave something or made an offer or made a demand in an attempt to influence.

What our Legislature does is look the other way. So does our secretary of state, whose office oversees campaign finance regulations.

And unless someone takes an official complaint to law enforcement, the state attorney general isn’t going to open an investigation. The trails aren’t hard to find, however.

There are people who gave many thousands of dollars to candidates for the Legislature, secretary of state and governor, from both parties, for 2010 races, despite the limits in state law.

Here is the law regarding contributions to statewide candidates. To understand the loophole purposely left, read the three sentences together:

“If the contributor is a person, no candidate for statewide office or the candidate’s campaign committee may accept any contribution which in the aggregate exceeds four thousand dollars during any calendar year.

“A candidate campaign committee may accept contributions from any candidate campaign committee, political action committee, or political party.

“The limitation on any contribution from a person in this section does not apply to any contribution by the candidate or the candidate’s immediate family.”

The same provisions generally apply for the Legislature and county offices. The amount is smaller, but the loophole is just as big:

“If the contributor is a person, no candidate for legislative or county office or the candidate’s campaign committee may accept any contribution which in the aggregate exceeds one thousand dollars during any calendar year.

“A candidate campaign committee may accept contributions from any candidate campaign committee, political action committee, or political party.

“The limitation on any contribution from a person in this section does not apply to any contribution by the candidate or the candidate’s immediate family.”

The loophole is that a person can go around the contribution limit by giving money to a PAC. There is a limit on a contribution to a PAC, but there are loopholes there, too:

“If the contributor is a person or an organization, no political action committee may accept any contribution which in the aggregate exceeds ten thousand dollars during any calendar year.

“A political action committee may accept contributions from any candidate campaign committee, political action committee, or political party.”

A person can give $10,000 apiece to as many PACs as he or she so chooses.

At least four of the six candidates for governor in 2010 benefited greatly from these loopholes: Democrat Scott Heidepriem, and Republicans Gordon Howie, Dave Knudson and, to a limited extent, Dennis Daugaard.

So did the two candidates for secretary of state, Democrat Ben Nesselhuf and Jason Gant.

And we could start naming legislators but for fear that someone would be left off the list. One legislator received a single $10,000 contribution that paid for about 40 percent of her campaign.

No one introduced legislation in the 2011 or 2012 sessions to do anything about any of it.

This is the way our Legislature is.

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