Youngberg Task Force to Address Gap in Reporting Corporate Contributions, Revisit IM22 Campaign Cash Caps

The campaign finance draft legislation I was looking for last week is finally up on the Government Accountability Task Force’s website, just in time for Monday’s 10:30 a.m. meeting. Let’s preview the eight draft bills that Chairman Jordan Youngberg (R-8/Madison) and his colleagues will be wading through:

Draft #134 does nothing, absolutely nothing, other than make existing campaign finance limits more verbose. It leaves in place the ability of political action committees (PACs), parties, and candidate committees to give unlimited contributions to each other and to statewide and legislative candidates. It also leaves in place the ability of darn near anyone to give unlimited sums to ballot question committees.

Draft #209 appears to do nothing other than style-and-form rewordings and removal of superfluous language.

Draft #206 does almost nothing… but what little it does matters a lot. Apparently when the Legislature approved allowing “entities”—the new legal term introduced by the Legislature this year to cover businesses, labor unions, non-profits, and other organizations that aren’t natural persons or political committees—to contribute directly to candidates (something FEC rules don’t allow businesses to do for federal candidates), they forgot to require candidates to itemize contributions from those entities. As it stands right now (in SDCL 12-27-24), businesses and unions could pour all the money they want into Kristi Noem’s, Marty Jackley’s, and Billie Sutton’s campaigns, and Kristi, Marty, and Billie could just write on their 2017 year-end reports, “$2,000,000 from entities” and not tell use who those entities are. Even if the Legislature passes Draft #206 as quickly as it repealed IM22, Kristi, Marty and Billie will still be able to submit their 2017 year-end reports by January 26 and not itemize their corporate overlords donors.

Draft #176 would leave “entities” with far fewer opportunities to contribute to candidate. This draft revokes the ability of entities to contribute directly to anyone other than ballot question committees and proposes the yearly campaign finance limits of Initiated Measure 22 that voters passed in 2016 but which Chairman Youngberg and his Legislative colleagues swiftly repealed last winter:

  1. To gubernatorial candidates: $4,000 per PAC or candidate committee, $40,000 per party, zero from an entity.
  2. To candidates for lieutenant governor and attorney general: $2,000 per person, PAC, or candidate committee; $20,000 per party; zero from an entity.
  3. To secretary of state and other statewide candidates: $1,000 per person, PAC, or candidate committee; $10,000 per party, zero from an entity.
  4. To legislative and county candidates: $750 per person, PAC, or candidate committee; $5,000 per party; zero from an entity.
  5. To PACs: $2,000 per person, entity, PAC, party, or candidate committee.
  6. To parties: $5,000 per person, PAC, or candidate committee; zero from an entity.

Like IM22, Draft #176 would treat “all committees established, financed, maintained, or controlled by the same corporation, labor organization, person, or group of persons” as affiliated units subject to a single, shared contribution limit. Draft #176 drops the Class 2 misdemeanor for first offense and moves violators straight to Class 1 misdemeanor. Finally, to avoid complications, Draft #176 seeks an enactment date of January 1, 2019, so PACs and parties can still have their unlimited fun in the 2018 election.

Draft #191 tinkers with the Legislature’s own definition of “gift” that it wrote last Session in House Bill 1073, one of its IM22 make-up bills. HB 1073 Section 4, now SDCL 2-12-18, excludes from the definition of “gift” many things, including, “Any service or event to assist a public official in the performance of official duties, including any cost to educate or inform the public official on matters of public policy; any advice, information, consultation, or communication regarding actual or proposed legislation; any service to constituents or to promote the economic development of the state….” Draft #191 strikes that exemption and inserts, “educational material to inform public officials on a matter of public policy.” It leaves all of the other exemptions (including food and beverages) alone.

Turning to ballot measures, Draft #166 clarifies the definition of “ballot question committee.” Right now, SDCL 12-27-1 says a ballot question committee is “a person or entity that raises, collects, or disburses contributions for the placement of any ballot question on the ballot or the adoption or defeat of any ballot question.” Draft #166 makes clear that that definition includes both “proponents” and “opponents” of the “placement of any ballot question on the ballot.” The thinking there is that, technically, one could read the existing definition to say that opponents don’t have to form a committee and file campaign finance reports until after the question is certified for the ballot, not during the petition stage. But that would hinge on saying “defeat” does not include sabotaging the petition drive to keep the ballot question off the ballot in the first place.

Draft #153, the most poorly written draft on Monday’s agenda, attempts to undo the unnecessary and onerous requirement, passed in 2016, that ballot question committees terminate at the end of each election cycle. Draft #153 would allow ballot question committees to file a statement of intent after each election to remain organized for the next election, thus satisfying part of what the Chamber of Commerce has asked for.

Finally, Draft #210 softens the possible blow to anyone who might run afoul of our state campaign finance laws… not that we have any campaign finance cops to run after any such fouls. Section 2 would add a new section to Chapter 12-27 declaring, “Any person who has made a good faith attempt to comply with the requirements of this chapter may not be convicted of a Class 1 or Class 2 misdemeanor under this chapter.” It also adds “knowingly” to a new 2017 statute punishing false allegations of campaign finance violations—which change I would appreciate but which doesn’t do anything about the other weaknesses in the whistleblower law passed last winter.

Draft #176, with its new campaign finance limits and reversal of corporation’s new freedom to back candidates, would be the most sweeping change. But since it reinstates a crucial part of IM22, it won’t make it past Chairman Youngberg and his Republican friends.

Other than that, Draft #206 is an urgent reporting requirement, perhaps worth a special session (perhaps in December, when legislators gather for the Governor’s budget address?) to avoid any more dark corporate money sliding into our governor’s race. Draft #210 is a boon for non-professional campaigners who perhaps shouldn’t pay fines or sit in jail for making an honest effort to comply with the state’s sometimes confusing forms and conflicting advice. Draft #166’s ongoing ballot question committee would be nice, but one could argue that, practically, it only changes the heading on one required filing.

I may have missed something in the seeming wordplay of Drafts #134 and #209; tune in tomorrow to the Government Accountability Task Force feed via SDPB at 10:30 a.m. CDT to see what surprised legislators may find in these drafts!