Attorney General Marty Jackley released his explanation yesterday of Speaker G. Mark Mickelson’s proposed ballot initiative to ban contributions to ballot question committees from people, PACs, and businesses from outside of South Dakota. A.G. Jackley agrees with LRC director Jason Hancock and me that Mickelson’s ban “is likely to be challenged on constitutional grounds.”
Mickelson is willing to risk this constitutional challenge to block wealthy out-of-state interests who “want to come in and screw around with things” in South Dakota elections. Yet while Mickelson’s initiative would restrict out-of-state meddling with laws on the ballot, Mickelson seems unwilling to prevent out-of-state meddling with our lawmakers. As I contended during my testimony to the Legislature’s Initiative and Referendum Task Force in June, if rich out-of-staters can harm South Dakota by buying the passage of one law on the ballot, they could do at least as much harm by buying a legislator, or several legislators, or a Governor who can change multiple laws.
Mickelson complains that out-of-state donors spent over $10 million on ballot measures in South Dakota’s 2016 election. But two of the ballot measures that passed—Mickelson’s favored Amendment R on vo-tech governnance and the grassroots Initiated Measure 21 capping payday loan interest—passed with supporters spending very little money, in-state or out-of-state. If I were a rich out-of-stater like California billionaire Henry T. Nicholas with $2.1 million to blow on South Dakota elections and if I wanted to have a more lasting impact on South Dakota law than writing one vanity project into the state constitution, I’d form PACs to funnel $58,000 each to 36 legislative candidates—12 in the Senate, 24 in the House—who would form one-third blocs who could make or break votes in each chamber. If I could recruit one equally rich buddy, we could buy ourselves a supermajority and set the agenda in Pierre for two years. Why would Mickelson mobilize and initiative against dreaded out-of-state influence on ballot measures but not against the arguably larger threat of out-of-state influence in candidate elections?
Speaker Mickelson accepted $7,100 pre-general and $500 post-general from out-of-state or federal PACs. Senator John Thune, whose campaign committee Mickelson’s wife Cynthia chairs, received 78% of his itemized individual contributions and 99% of his PAC contributions from out-of-staters.
Oh—that’s why. Mickelson is happy to lead a conversation about the influence of wealthy out-of-staters on ballot measures that threaten his legislative authority, but he doesn’t want to talk about the out-of-state money that helps him and his Republicans grab that legislative authority.
Oh well. Mickelson now must gather 13,871 signatures to put this hypocritical measure to a vote. Then he’ll need to beat back the beaucoup bucks that his out-of-state friends the Koch Brothers will spend to beat his measure. And then if he wins our vote (and he might, because his anti-out-of-stater message will play well to South Dakota’s bunker mentality), he’ll have to go to court, where his unconstitutional measure will lose before any sober judge.