Representative Spencer Gosch (R-23/Glenham) has roused 18 Republican colleagues to co-sponsor a poorly worded, unworkable, and unconstitutional restriction on out-of-state campaign contributions to ballot question committees.
House Bill 1074 would add this language to our campaign finance laws:
No ballot question committee may accept from any person, organization, political committee, or political party that is not a resident of this state contributions that equal more than seventy-five percent of the total contributions the ballot question committee accepts from a person, organization, political committee, or political party that is a resident of this state [HB 1074, introduced 2017.01.23].
Poorly worded: I know of no legal definition in South Dakota law that applies the concept of “residency” to political committees and organizations.
Unworkable: Suppose it’s March 31 and I’m launching ballot question committee to refer all of Spencer Gosch’s hare-brained ideas (I count three so far in his list of sponsored bills) to a public vote. At 12:00 p.m., my committee receives via my online fundraising page its first contribution, a $1,000 from a friend in Minneapolis. At 12:01 p.m., I receive my second contribution, $2,000 from a friend in Sioux Falls.
Would that sequence put my Minnesota donor and me in violation of HB 1074? Do I have to refund every out-of-state contribution (or some constantly changing fraction thereof) that my ballot question committee receives and ask those out-of-state donors to resubmit their contributions when my in-state tally has climbed to a certain amount? Would ballot question committees need to post a constant running tally of in-state contributions, multiply by 75%, and tell out-of-state allies they can only donate that much today, but maybe more tomorrow? Or does Representative Gosch only going to check the pre-general and year-end campaign finance reports to make sure the out-of-state/in-state dollar ratio is less than 3/4 on those two specific dates?
Unconstitutional: HB 1074 will not withstand First Amendment scrutiny. South Dakota cannot impose a restriction on political speech (alas, yes, money is speech) that applies to residents of some states and not others. If my Sioux Falls friend can give my ballot question committee unlimited contributions (and that’s what current statute allows), so can my Minnesota friend.
If Representative Gosch really wants to limit the ability of rich out-of-staters like Rod Aycox and Henry T. Nicholas to buy their way onto our ballot and clutter our airwaves with crappy initiated measures, he should drop his sloppy HB 1074 and sign on to Senate Bill 54, Secretary of State Shantel Krebs’s proposal to repeal portions of IM 22 and replace it with new campaign finance reforms. Secretary Krebs scratches Gosch’s itch with Section 35:
If the contributor is a person or entity, no ballot question committee may accept any contribution that in the aggregate exceeds ten thousand dollars during any calendar year. Notwithstanding any other law, no person or entity may contribute more than ten thousand dollars to any ballot question committee. A ballot question committee shall return within ten days to a contributor any contribution that exceeds the contribution limits provided under chapter 12-27. A violation of this section is a Class 1 misdemeanor [SB 54 Section 35, introduced 2017.01.11].
Under HB 1074, a donor in Minnesota wouldn’t know if she can give $100,000, $224.33, or nothing to a South Dakota ballot question committee on any given day, or whether she could write another check tomorrow. Under SB 54, that generous donor would know she’s done at $10K, no matter what day she writes that check.
SB 54 treats Minnesota donors the same as South Dakota donors, avoiding HB 1074’s Constitutional trouble.
As a bonus, SB 54 also lays out who gets in trouble for exceeding the limit (the ballot question committee, not the donor) and makes clear the punishment. HB 1074 doesn’t define the perp or the penalty (laws need teeth, Spencer!).
We can cap campaign contributions, but the First Amendment says we have to do so equally, without discriminating against Minnesotans. Let’s avoid a lawsuit, kill HB 1074, and turn the Legislature’s attention to SB 54.