A lobbyist can walk up to an Alaska lawmaker, hand that lawmaker cash for his re-election campaign and exert a promise that he will vote for the lobbyist's bill in return.
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And neither the lobbyist nor the legislator would be breaking state law.
Alaska bribery laws exclude campaign contributions, a new legal opinion reveals. That means that as long as a contribution is disclosed to the Alaska Public Offices Commission, a person can give or promise to give campaign cash in exchange for that legislator's influence.
"There is nothing in current criminal law that prohibits a legislator from changing a vote in exchange for a campaign contri- bution," reads the opinion by legislative counsel Dan Wayne.
That does not mean lawmakers are free to just pocket money for their votes on important bills. Such quid pro quo is prohibited by the state's legislative ethics code, plus campaign contributions can't be made while the Legislature is in session.
That's not enough, said Rep. Les Gara, D-Anchorage, one of the legislators who discovered the loophole.
The Select Committee on Legislative Ethics' jurisdiction does not extend to campaign donors and the committee's sanctions against lawmakers don't go far enough, he said.
"We want to make sure the message is 100 percent clear to donors that if they try to buy a vote, or they try to sell a vote, they're going to jail," Gara said.
Gara and Rep. Harry Crawford, D-Anchorage, say they will propose legislation next year to make vote trading a felony.
Gara said they discovered the loophole while researching ethics legislation in response to the FBI corruption investigation that resulted in the raids of six lawmakers' offices this summer.
FBI and Department of Justice officials are silent on the investigation. A search warrant used to raid one legislator's office showed agents were looking for financial ties between lawmakers and executives of the oil field services company VECO Corp.
"I think the VECO scandal is a thing that's in the forefront of people's minds," Crawford said. "We shouldn't have to wait for the FBI to come to investigate unethical behavior. This ought to be a state law."
House Majority Leader John Coghill, R-North Pole, said he is willing to discuss the idea, but he believes such violations should go through the ethics committee. While there should be no trading votes for dollars, he said, how can it be proven that a vote was bought and not an alignment of views between a lawmaker and a donor?
"If I go to Juneau and vote in line with a special interest, does that make me a criminal? I don't think so," Coghill said.
Coghill also said he believed the Democrats are using the FBI raids for their own political purposes. The legislators whose offices were searched included five Republicans and one Democrat.
"If you can beat up on the other side by taking the high ground, even if they have the high ground, too, and put them on the defensive - I think that's being used right now," Coghill said. "I think the Democrats are using it very well."
The legal opinion by Wayne echoes Coghill by speculating the reason there is no criminal law now is because it would be difficult to prove beyond a reasonable doubt that there was an intention to influence a legislator with campaign cash.
Also, such a law could have constitutional problems, Wayne wrote.
The First Amendment protects freedom of speech, and campaign contributions are included in those protections. Any restriction on speech must serve a "compelling" state interest to be constitutional, Wayne wrote.
His bill will be narrowly tailored so that it won't be ruled unconstitutional, Gara said.
"You can't tell somebody that they can't give money to a candidate," he said. "You can say that it's illegal to trade your conscious and change your position for money."
Now, if a complaint is filed to the ethics committee, the committee determines if there is probable cause. If a finding is made, the accused can request a public hearing or else the committee forwards recommended sanctions to be approved by either the House or Senate.
Sanctions can range from a reprimand to a fine to expulsion, said Joyce Anderson, administrator of the ethics committee.
However, a campaign donor cannot be punished, she said.
Crawford called the ethics process "less than effective" and legislators watching over their own ethics "the fox guarding the hen house."
Two of the four legislative members of the ethics committee, Senate President Ben Stevens and Rep. Bruce Weyhrauch, were among those whose offices were searched by federal agents.
Weyhrauch declined to speak about the federal investigation other than to say he is cooperating fully. As for the ethics committee, he said, it was intentionally set up so the public members outnumber the legislative members.
H. Conner Thomas, the committee's chairman and an attorney from Nome, added that legislators have alternates in case of a conflict.
Thomas said nothing should be removed from the committee's jurisdiction. Rather, he said he could picture the ethics code and a new criminal law coexisting.
Stevens and VECO officials did not return calls for comment.
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