Speaker of the House G. Mark Mickelson (R-13/Sioux Falls) announced this week that he is abandoning one of the three ballot measures he has proposed for 2018:
South Dakota’s House speaker says he doesn’t plan to pursue an initiative that would have forced nonprofit advocacy groups to reveal top donors if they make big contributions to ballot question campaigns.
It would have required disclosure of the 50 largest contributors to such groups, including labor organizations, business leagues and social welfare organizations, if they give $25,000 or more in a year to a ballot measure committee [“State House Speaker to Drop Donor Disclosure Ballot Measure,” AP via KSFY, 2017.08.18].
Speaker Mickelson is still pushing his two initiative petitions to ban out-of-state money from ballot measure campaigns and raise tobacco taxes to subsidize vo-tech tuition.
I can understand Mickelson’s choice from a practical perspective. He submitted the disclosure initiative two weeks after the outside money ban and tobacco tax. That delay kept Mickelson from getting his third petition out in time to circulate at the Sioux Empire and Turner County Fairs. He’s had a tough enough time recruiting enough past Republican interns to handle his two petitions this month; perhaps the signing rate he’s seen so far and the expense of hiring new circulators to replace those he might lose when summer ends and college starts just didn’t add up to enough signatures in the time remaining before the November 6 deadline to justify the added administrative hassle of running three committees and carrying three clipboards.
But Mickelson has also abandoned the initiative for which he could make the best case. He tried to expand campaign finance disclosure in the Legislature this year with House Bill 1200. That bill failed, so Mickelson logically turned to the initiative, as we citizens do when we see the Legislature fail to act on important issues. Mickelson has not tried out a tobacco tax for vo-techs with his colleagues. Rep. Spencer Gosch (R-23/Glenham) proposed restrictions on non-South Dakota money in ballot question campaigns this year in his unworkable and unconstitutional House Bill 1074, but that bill was not the total ban that Mickelson is proposing now. Mickelson thus has abandoned the only one of his three petitions about which he can truly say, “Hey, the Legislature shot this proposal down, so I’m taking it to the people.”
Furthermore, Mickelson has abandoned the proposal for which he could have made the best constitutional argument. The courts will throw out his out-of-state money ban as a violation of the First Amendment. Mickelson’s tobacco tax violates his own state-constitutional Article 12 Section 2 reasoning (and Judge Mark Barnett’s) that voters can’t appropriate money. The disclosure initiative he’s abandoning raises its own constitutional issues about chilling effects on speech and association, but mandating that voters know who’s paying to speak in political campaigns is far less of a restriction than forbidding certain entities from paying to speak at all.
Perhaps most significantly, Mickelson is abandoning the measure that would most likely chap his big-business and fake-family-values conservative pals. The Koch Americans for Prosperity and the Sharia-for-Jesus Family Heritage Alliance are terrified of having to tell us who gives them money. They don’t care if Mickelson uses a tobacco tax that targets the poor to further subsidize job-training for corporate interests. And they can probably get around any out-of-state money ban: as the LRC’s prison impact statement for Mickelson’s ban says, in six years the state hasn’t busted anyone for violations of the statute Mickelson’s ban would amend. Even if we implemented Mickelson’s ban, it only imposes an “administrative misdemeanor,” and LRC says, “An offense is likely to be rare and not likely to be criminally prosecuted.” The Kochs, the Christianists, and other campaigners could keep pouring out-of-state cash into ballot measure campaigns, just not tell us, and live in little fear of prosecution or crushing penalty.
Thus, we may easily speculate that Mickelson has found a happy compromise with certain key Republican backers: by dropping the initiative that could really crimp their style, Mickelson may gain those backers’ neutrality on two initiatives that at most only minorly annoy Big Money and Big Jesus.