R. Blake Curd, Al Novstrup, and the 22 other legislators suing to repeal the entire Anti-Corruption Act (Initiated Measure 22) directly challenge the campaign finance reporting requirements in Count Nine:
Based on the many and short deadlines for disclosure, the information that must be disclosed, and the low disclosure threshold, the disclosure requirements in IM22 are unduly burdensome and thereby violate the right to free speech protected by teh United States and South Dakota Constitution because they will burden, chill, and reduce individuals’ and organizations’ ability to engage in political speech and activity and do not have a relevant correlation or substantial relation to a sufficiently important government interest [R. Blake Curd et al. v. South Dakota, Count Nine, paragraph 94, 2016.11.23].
As a political candidate and manager of two ballot question committees, I am directly affected by the new reporting rules of the Initiated Measure 22, the Anti-Corruption Act. I agree that any campaign finance reporting rules are a burden, but they won’t chill my First Amendment activities. Let’s look at how the newly approved campaign finance reform measures increase my paperwork.
Right now, I have to file at least four campaign finance reports during any given election cycle. Here are the filing deadlines for 2016 candidates and ballot question committees:
- February 1, 2016: Year-end report for 2015, covering all contributions and expenditures through December 31, 2015 (committees who didn’t organize until 2016 didn’t have to file for 2015).
- May 27, 2016: “Second Friday” Pre-primary report, covering through May 23 (candidates with no primary challenger didn’t have to file).
- October 28, 2016: Second Friday Pre-general report, covering through October 24.
- February 6, 2017: Year-end report for 2016, covering through December 31, 2016.
Section 21 of the Anti-Corruption Act adds four more campaign finance reports to my workload. Here’s the schedule for 2018:
- February 1*, 2018: Year-end report for 2017.
- May 1, 2018: “Fifth Tuesday” pre-primary report, covering through April 16.
- May 25, 2018: Second Friday pre-primary report, covering through May 21.
- June 29, 2018: “Fourth Friday” post-primary report, covering through June 15.
- October 2, 2018: Fifth Tuesday pre-general report, covering through September 17.
- October 26, 2018: Second Friday pre-general report, covering through October 22.
- November 30, 2018: Fourth Friday post-general report, covering through November 16.
- February 1*, 2019: Year-end report for 2018, covering through December 31, 2018.
Section 21 also strikes the exemption from pre-primary reports for candidates not facing primaries. This year, even though I started raising and spending money in February, I didn’t have to report any campaign finance until eleven days before the election. If I run in 2018, regardless of whether I face a primary, I will have to file four reports—two pre-primary, one post-primary, and a new pre-general—before I get to the traditional pre-general report on the second Friday before Election Day.
Ambitious candidates may be filing several new reports interspersed among the eight listed above. Section 23 of the Anti-Corruption Act creates a new “Timely Contribution Disclosure Statement” to be filed electronically after receiving more than $500 from any one source. That’s for aggregate contributions in the calendar year. Usually, “Timely” means within five business days of receipt; however, if the contribution arrives within twenty days of the election (primary, general, or special), “Timely” means within 24 hours.
Translation by example:
- If Mom sends you $501 for your campaign, you file a TCDS.
- If Dad sends $500, you don’t file a TCDS. But if Dad sends you another dollar next month, you file a TCDS.
- If an eager donor sets up recurring payments of $100 each month starting on January 1, you don’t file a TCDS until June 1, when you receive your donor’s sixth payment and crack the $500 limit.
- If Kristi Noem sends you $500 on January 1 and $500 on January 2, you file a TCDS after January 2.
- If Kristi Noem sends you $500 on December 31, 2017, and $500 on January 1, 2018, you don’t file a TCDS.
- If Kristi Noem sends you $10 on July 1, 2017, $500 on December 31, 2017, $500 on January 1, 2018, and $10 on June 30, 2018, you file two TCDS’s: one after the December 31 contribution puts Kristi over $500 for 2017, one after the June 30 contribution puts Kristi over $500 for 2018.
Every dollar reported on a TCDS still has to be reported on the next regular campaign finance report, so the point of the TCDS is not simply to document big contributions but to alert us (the press, the opposition, interested citizens) almost immediately to the intervention of big-money donors in a campaign. (Section 30 of IM22, which requires the Secretary of State to put all campaign finance data in a free, searchable, and downloadable database, doesn’t include a requirement for an RSS feed or automatic updates, but the Secretary of State should add such a feature!)
Unlike federal campaign donors, donors to South Dakota campaigns have not had to disclose their occupation and employers. Now both the Timely Contribution Disclosure Statements and the regular campaign finance reports (see Sections 22 and 23) will require that information about donors who give more than $500 aggregate in one year to one candidate, party, or committee.
Yet Section 22 also increases anonymity on the low end by doubling the itemization threshold, the amount folks can give me without having their names show up on a campaign finance report. This year, I didn’t have to give the names of the sixty-plus donors who each gave me $100 or less. Under the Anti-Corruption Act, I can keep donors’ names secret until they give me more than $200. That would have been another 13 donors whose names I wouldn’t have had to report this year.
Actually, let’s start by noting that we can use the word paperwork strictly figuratively.
Note also that for serious campaigns, the term “paperwork” becomes entirely figurative: Section 28 of the Anti-Corruption Act requires that every candidate and committee doing collecting more than $1,000 in a reporting period must file its campaign finance report electronically. Section 28 also makes clear that doesn’t mean scribbling out your campaign finance numbers, taking a quick pic of the sheets, and e-mailing the JPG file to the Secretary of State’s office: to keep those forms searchable, Section 28 says that when a committee must file electronically, “the secretary of state may not accept nor consider filed any statement that uses handwriting as input, aside from a signature.”
None of these changes kick in until the next election cycle: Sections 21, 22, 23, 28, 29, 30, 64, and 67 do not take effect until January 1, 2018. Secretary Krebs thus has plenty of time to redo the forms and ready that big searchable campaign finance database… assuming that Curd, Novstrup, et al. don’t get lucky and win their lawsuit to repeal the Anti-Corruption Act.
*Date Dispute! SDCL 12-27-22 currently sets “the first Monday of February” as the deadline for year-end reports. Section 21 of IM 22 says the year-end filing date is “each February first” but does not underline that change to indicate that it is an amendment to existing statute. Kea Warne says lack of underlining does not disqualify the change: the year-end filing deadline, starting in 2018, will be February 1.