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Gosch Money Cap Dead, But Mickelson’s Marsy Meddling May Move to June!

The Legislature has finally stopped House Bill 1216, Rep. Spencer Gosch’s recycled attempt to restrict out-of-state contributions to South Dakota ballot question committees. Senate State Affairs killed it yesterday on a 5–4 vote, because, as Rep. David Lust and I have explained, capping contributions from Minnesotans at $100,000 while leaving contributions from South Dakotans unlimited violates the Constitution:

“The Supreme Court has not gone in this direction because they’ve clearly laid down the marker that, unless there is that corruption—that quid pro quo corruption element—that it’s an unconstitutional restriction of speech to prohibit out of state money,” Lust says.

So the question that’s unanswered is state sovereignty versus free speech in the form of money.

Lust says he disagrees with it on a free speech principle. He says the presumption for limiting out of state money is that South Dakotans can’t sift through speech.

“That somehow we would be duped by a message coming from somewhere else. So that’s really the heart of the matter, that we as a legislature feel we have to protect South Dakotans from themselves,” Lust says. “That is something that is just anathema to my views on South Dakota citizens and my confidence in South Dakota citizens in being able to sift through speech—be it out of state or in state—and make a prudent determination” [Lee Strubinger, “House Bill Goes After Unanswered Question in Money as Free Speech,” SDPB Radio, 2018.02.28].

While legislators struggle to come up with ways to limit the influence of big money in South Dakota ballot questions, the Senate took another step to make it easier for big money to dominate debate over one newly contested ballot measure. The Senate voted 22–13 yesterday to amend House Joint Resolution 1004 and finally give Speaker G. Mark Mickelson a little bit of his original wish to give one of his ballot measures special treatment. HJR 1004 would now put Mickelson’s snowflake-surrender to the out-of-state Marsy’s Law lobby on the primary ballot, separate from the four measures already approved for the November ballot.

One can make a case that the out-of-state crime victims bill of rights is costing counties money and that the sooner we fix it, the more money we save. But by calling that election for June instead of November, the Senate would give grassroots proponents and opponents only a month to organize and launch campaigns that could advertise and canvass during the entire 45-day voting period. That short timeframe gives wealthy groups (e.g., Mickelson’s new out-of-state pal Henry T. Nicholas, the California behind this vanity amendment) a big advantage in that campaign.

So don’t believe our Republican legislators when they say they want to get big money out of South Dakota politics. They just want what they want, and HJR 1004 shows that they’ll do their rich out-of-state friends favors at the expense of South Dakota grassroots organizers.


  1. Darin Larson 2018-03-01 08:09

    What’s telling is the committee was informed that HB 1216 is unconstitutional but one less than a majority still supported the proposed law. Spending tax payer money to defend unconstitutional laws is a past time that too many of representatives in the SD legislature seem to enjoy. I think that it is way past the time for citizens to know the details of how much money we are spending to defend specific laws passed by the legislature. Hiding the details of what our state spends on legal defense costs in line items that encompass many lawsuits only serves to insulate idiots and true believers alike from the costs of their unconstitutional handiwork.

  2. Nick Nemec 2018-03-01 08:12

    The details are getting a little fuzzy but back in the 1990s there was a Supreme Court ruling that shut down the video lottery system, declaring that it violated the SD Constitution. The video lottery industry convinced a majority of the legislature to support a non general election vote on a constitutional amendment to fix the problem. I think it was in the primary election but it might have been a special election specifically for a vote on the proposed amendment. The strategy backfired, the anti gambling people had much more passion and turned out to a person. The vast majority of people who didn’t have much of an ax to grind didn’t show up to vote, the proposal failed. A slightly different amendment was then proposed in a special legislative session and presented to the electorate in the next general election. It passed when everyone showed up to vote.

    I think this might have been 1994.

  3. Donald Pay 2018-03-01 08:30

    Yes, Lust is right about the Supreme Court’s reasoning. However, that argument assumes that money is speech. That’s the missing part of the argument you have to swallow. Righty justices have swallowed that argument with lust, or Lust, as the case may be.

    If I take a couple dollars out of my wallet on my soapbox on the corner, it doesn’t say anything. In order to be heard I have to, well, talk or take out a petition and ask people to sign it and submit it to the Secretary of State. Now that’s free speech!!!! Talk costs nothing. Yeah, I need a little money to print the petition, but not much. But that low-cost, old-fashioned way of speaking truth to power seems out of favor with the Legislature. They gavel down people who say something they don’t want to hear.

    Contrary to all the caterwauling on this issue, Republican legislators have been pushing up the costs to free speech by lengthening out the timelines for the initiative process, making it needlessly bureaucratic. When they do that, they squeeze out the little guy, and make it more costly. I think that is what they want, actually: only people with lots of money get to speak in Republicanland. So, in Lust’s context, the Supreme Court’s decision basically allows the people with money to out-shout people with little. When one side is shouting in both your ears, you aren’t likely to hear the guy on the soapbox, and that guy on the soapbox may have the better argument.

  4. Doug Kronaizl 2018-03-01 08:33

    The last time the Legislature placed a amendment on a June ballot was in 2002. Amendment A was an attempt to roll-back the corporate farming ban passed as an initiated constitutional amendment in 1998 (Amendment E). That election year was similar to 2018 – a midterm election with a term-limited Governor moving on, leaving an open field – except for one glaring difference: in 2002, both major parties had competitive statewide primaries in the House and Gov races. In 2018, only one party is slated to do so.

    Let’s look at turnout: in 2002 – with all of the above factors in mind – at least 181,075 voters weighed in on the primary ballot, according to the SoS office (they do not include a hard, actual turnout number for primaries, but this total reflects all votes cast on Amendment A). The 2002 General Election saw an actual turnout of 340,407 voters. That is nearly double the turnout for the primary.

    Legislators have spent a lot of breath this session talking about the sanctity of our constitution. If they truly believed that, though, they would look at these figures and circumstances and realize that a primary vote on a constitutional amendment is not the way forward. If our legislators truly believe our constitution is a sacred document, they must also believe that having as many voters weigh in as possible is the only real option; knowingly ignoring that fact casts all of their prior statements into doubt.

    As a side note: this strategy of sneaking a legislative amendment onto a primary ballot to roll back an initiated amendment enacted earlier backfired: Amendment A failed to receive a majority vote in June 2002.

  5. Donald Pay 2018-03-01 09:44

    Yup, Doug. Same thing happened with the nuclear waste compact vote in 1985. That was a special election. The Legislature and Governor thought a special election would favor nuclear waste. It backfired. The people who really cared came out to vote and buried the compact set up to favor Chem-Nuclear’s dump.

  6. Cory Allen Heidelberger Post author | 2018-03-01 13:17

    You’re right, Darin. A lot of these Republicans breathe fire over the sanctity of the Constitution until they get some wild idea to promote their own agenda.

    You know, Donald, I’d love to see Gosch and Mickelson challenge Lust by saying Citizens United was wrong and money isn’t speech. But they won’t go there. The best they could offer was their argument that since they aren’t limiting independent expenditures, there’s nothing unconstitutional about their bill. Thus, their argument for constitutionality hinged on their bill being completely feckless about keeping big out-of-state money out of ballot question campaigns.

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