Mickelson Ban on Out-of-State Money for Ballot Questions Likely Unconstitutional

Speaker G. Mark Mickelson is proposing a second ballot initiative, this one to ban out-of-state financing of campaigns for and against ballot measures. Just like his colleague Rep. Spencer Gosch’s failed House Bill 1074, which tried to cap out-of-state contributions to ballot question committees, Speaker Mickelson’s proposal is unconstitutional.

Legislative Research Council Director Jason Hancock warns Speaker Mickelson of this likely unconstitutionality in his review of Mickelson’s measure:

The Supreme Court of the United States has not directly addressed the issue of limits or prohibitions on out-of-state contributions to ballot question committees. Please be advised, however, that closely related rulings by the court about contribution limits to ballot question committees indicate the prohibition in this draft may be subject to constitutional scrutiny. Political contribution limits are generally upheld by the court for “‘the prevention of corruption and the appearance of corruption.”‘ See Nixon v. Shrink Missouri Government PAC, 528 U.5.377,388 (2000), quoting Buckley v. Valeo, 425 U.S. 1,25 (I976t.. contribution limits to ballot question committees, however, have been viewed by the court as a restraint on the rights of association and free speech. see Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290,300 (1981) [Jason Hancock, LRC, letter to Speaker G. Mark Mickelson, 2017.06.04].

Americans for Prosperity South Dakota director Ben Lee, who spent lots of out-of-state Koch Brothers money to fight Initiated Measure 22 in 2016, says Mickelson’s ban on his bread and butter is bad:

Ben Lee, state director of Americans for Prosperity, said aiming to outlaw businesses or groups is the wrong approach when many entities span across geographic borders. The former director of the campaign to defeat Initiated Measure 22 said the measure could profoundly limit individuals’ free political speech.

“Our state had some goofy things happen in 2016, but silencing citizens’ voices as a response is a step in the wrong direction,” Lee said [Dana Ferguson, “Lawmaker Looks to Ban Out-of-State Money at the Ballot,” that Sioux Falls paper, 2017.06.20].

Aaaarrgghh—G. Mark! Don’t go forcing me to agree with Ben Lee!

Alas, for the moment, on this point, I agree with Ben Lee. Mickelson’s proposed initiative is a step in an unconstitutional direction. Mickelson gave IM22 sponsors grief for pushing what LRC warned might be unconstitutional; if Mickelson is consistent, he will heed the advice of LRC and even his AFP pals and back off this ban on contributions to ballot measures by Minnesotans and other strangers.


3 Responses to Mickelson Ban on Out-of-State Money for Ballot Questions Likely Unconstitutional

  1. Donald Pay

    Unconstitutional, at least to the Republican appointees to the U.S. Supreme Court. Want to change that? Stop supporting corporate crony capitalists as Justices to the Supreme Court.

    But an idea based on our initiative on nuclear waste in 1984 might be a way to mostly counteract this. We knew the nuclear industry’s out-of-state money was going to swamp whatever we could spend. At that time we had the fairness doctrine, but that was only going to get us about 10% of the broadcast budget as Chem-Nuclear. So, in our initiative we placed a requirement that the state had to hold seven hearings in various locations across the state when there was a vote on any compact or dump site. This allowed for a more thoughtful and fair presentation of facts regarding the ballot questions on these issues and got media coverage across the state to allow citizens more balanced approach to any discussion.

    This, in itself, would be something of an equalizer. But here’s an extension of that idea that might address Mickelson’s concerns in a constitutional way: Let the LRC hold 5-7 hearings in various locations across the state for each ballot issue. The costs of these hearings can be charged to ballot committees, but in a way that is fair and constitutional: progressive fee structures. Thus, for example, fees charged to the ballot committees could be based on average donation or on the size of the totals in the warchest, or on the total spending, or some combination thereof. There could be a minimal or zero charge for the hearings for a ballot committee that has little money, while the charge for a well-funded group would be higher.

  2. Mickelson wants to ban out of state financing when we want to pass a ballot initiative but betting he has no problem with taking money from the various Koch PAC’s, mostly with the term heritage in their name!