Rep. Stace Nelson isn’t happy about Gov. Dennis Daugaard’s call for Attorney General Marty Jackley to investigate the anonymous robocalls attacking South Dakota legislative leaders.
“The email I saw him put out today from his campaign site saying he’s going to have the attorney general go after his political opponents, I’m astounded,” Nelson said.
So Nelson fired off his own email to Jackley, asking for his own investigation into alleged campaign finance violations by Daugaard:
If your office deems it appropriate to do the governor’s political bidding, to go after his political opponents who are complaining about his embarrassing bill, and those that voted for it, while those doing so are being substantially compliant with our state law, then I respectfully request the same standards be applied to the governor and others regardless of their political standing. Please accept this email be my official complaint and request for your office to investigate the governor for appearing to be in gross noncompliance of this same statute SDCL 12-27-16 § (2) which he appears to have violated repeatedly when he admittedly (see attached) conducted numerous polling calls citing candidates and public officials within the 60 day period before the 2012 June primary, from a telephone number that was inoperative, and without advising those called who the calls were coming from. I would also ask that your office investigate him for failing to comply with other SD campaign finance laws in his refusal to declare the numerous expensive in-kind contributions to candidates that he provided expensive polling data to (see attached email chain). Along that line, there is currently similar polling telephone calls, that are occurring across SD, that cite elected officials, candidates, without identification who is paying for them, within 60 days of the election, and which are equally in full noncompliance with this statute.
At issue are the polls Daugaard’s campaign paid for way back in May (news I broke in Political Smokeout’s third post) before he controversially endorsed five legislative candidates.
Tony Venhuizen, Daugaard’s spokesman, said in an email that Nelson’s accusations are wrong:
Polls do not require a disclosure. The law he is referencing applies to “a communication which expressly advocates for or against a candidate, public office holder, ballot question, or political party.” A poll does not fit that definition.
Asked about the second section of SDCL 12-17-16 (the one Nelson referenced in his request), Venhuizen wrote:
The title of the section makes it pretty clear that it applies to communications that are intended to advocate for or against a candidate.
There is a distinction between those communications that “expressly advocate,” and those that do not. The latter group applies to communications like some of the robo-calls in question, which don’t expressly advocate for the election or defeat of a candidate, but that carry a clear political message.
A poll makes no communication of any idea or statement at all - it simply asks questions.*
Venhuizen confirmed that the polls did not have a disclosure and wrote that he’s not aware of “any political poll that has one.”
On Nelson’s complaint regarding the campaign not declaring providing polls as “in-kind contributions” to candidates, Venhuizen said he stood by his prior comments to me. I quoted him on May 30 saying this:
Venhuizen said providing polling data doesn’t count as an in-kind contribution to these lawmakers campaigns because “the Daugaard campaign didn’t incur any additional cost by sharing it.” The primary value of the polls, Venhuizen said, was to Daugaard himself. Value to the legislative candidates was secondary.
(Venhuizen, Daugaard’s director of policy and communications, was the governor’s campaign manager in 2010. He commented from his personal email account and said he was using his personal phone, not his state email and state phone.)
I’ve emailed Jackley asking if he has received Nelson’s complaint and for the status of any action on it. I’ll update this post when he replies.
UPDATE: Jackley doesn’t look like he’ll be investigating the governor. He responded with the following:
As for the other matters you will need to address with Representative Nelson… I have received several requests that deal with sections 16 and 17 (which I have provided), and the attorney general’s office is reviewing the matter as it relates to those statutory requirements.
As for Nelson’s complaints about whether the polls should have been reported as in-kind contributions, Jackley referred me to Secretary of State Jason Gant, who on June 4 told Nelson he was not “empowered to determine” any fault related to Nelson’s complaint and advised him to contact Jackley for any follow-up.
Read Gant’s letter here.
What do people think about Nelson’s complaint?
*Technically speaking, some polls do send communications or messages. They’re called push polls, and their intent is to shape public opinion, not measure it. A push poll isn’t just a slanted poll, it’s one that goes out to a lot of people in the guise of a poll, and asks things like, “A recent report showed Congressman Smith hates motherhood and apple pie. Does this make you more or less likely to vote for him?” The question is beside the point — the intent is to get the statement that precedes the question out to as many people as possible, and convince them it’s true by dressing it up like a poll.
