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Jackley Argues Sales Tax at Supreme Court Next Week; Issue Playing Well Against Noem

Marty Jackley, outside U.S. Supreme Court
Just a casual vacation shot, in a suit, gazing manfully off-camera….

Attorney General Marty Jackley heads to the United States Supreme Court next week to argue for more sales tax. At the bottom of his report on State of South Dakota v. Wayfair, Overstock and Newegg, Bob Mercer notes that the Internet sales tax lawsuit plays into Jackley’s gubernatorial primary contest in two ways. First it gives Jackley a chance to succeed where Noem has failed:

Adding to the case’s significance is the June 5 primary election for the Republican nomination for governor of South Dakota. The two candidates are Jackley and U.S. Rep. Kristi Noem. She wasn’t able to convince the U.S. House to act on the issue during the seven years and three months she’s been there [Bob Mercer, “South Dakota Prepares for Sales Tax Showdown in U.S. Supreme Court,” Rapid City Journal, 2018.04.09].  

Jackley has been rubbing that failure in Noem’s face in his campaign. If he fails to persuade the Supreme Court, we probably won’t get that ruling until later in June, after the primary, meaning, for the moment that matters, the Internet sales tax issue plays mostly in Jackley’s favor, allowing him to play offense while Noem defends her failure.

Second, the briefs allow Jackley to trickily say that Noem supports the arguments of our corporate opponents in this case:

The companies’ lawyers in their response quote Noem on the potential impact of the decision.

According to their filing, she told The Hill, a Washington, D.C., political newspaper: “If the Supreme Court rules in South Dakota’s favor, it could become a marketplace free-for-all. A South Dakota small business, for instance, could be forced to comply with 1,000 different tax structures nationwide without the tools necessary to do so” [Mercer, 2018.04.09].

Sure enough, Noem is right there on page 6 of the respondents’ March 28 brief. The original quote comes from Noem’s January 12 press release on the case, in which she argues for her sales tax legislation. Her intent is to promote legislation that would work hand in hand with an overturning of the Quill precedent and facilitate interstate remote sales tax collections, not to make an argument for the retailers to keep the precedent and not pay the sales tax. But viewed just in that closing snippet in Mercer’s article or the full retailers’ Supreme Court brief, Noem’s quote could lead readers to believe that Noem and Jackley are on opposite sides on this issue.

That’s exactly the message Team Jackley should send, since it will keep Noem on defense. The best she can say is that she supports Jackley’s effort and wanted to back it up with legislation, which only invites the question of why she failed to move that legislation. And since no one is bringing up the question of why Republicans are climbing all over each other on this case to collect more taxes, this case, right now, absent big boogery sneezing fit in the courtroom next week, is nothing but positive campaign press for Marty Jackley.


  1. Donald Pay 2018-04-10

    One thing South Dakota politicians are good at is looking past the obvious solution. Fixing the sales tax is not possible at the national level, unless you want the feds to dictate what states’ taxing structure should be. Right now states use sales taxes for various purposes. South Dakota is one of a few states that uses sales tax as its main tax, so it has a broad sales tax. Wisconsin uses sales tax much more narrowly, because it has a tax on income. Wisconsin exempts a lot of of stuff. If you rectify South Dakota’s system by making Wisconsinites pay taxes it doesn’t have to legally pay, you are taxing without representation. You would have to allow Wisconsin residents a vote in South Dakota elections. How would you like it if we make South Dakotans pay Wisconsin’s income tax?

    The state-based sales tax made sense in the 19th and part of the 20th century. With mail order and now internet-based sales, the tax is approaching the end of its practical existence as a fair means to raise revenue, and that’s not even touching its regressive structure. Noem is right. Unless you federalize the sales tax, it ain’t gonna work fairly and easily. But an even better solution is to end the sales tax, tax on income and estates.

  2. South DaCola 2018-04-10

    IMO, I don’t think the Supreme Court is going to overturn this, and I hope they don’t. Sales taxes are extremely regressive and this may force SD and several other states to look at a different way to tax us. I would like to see an elimination of most sales taxes and go towards an income tax.

  3. Donald Pay 2018-04-10

    Ah, yes, the photo: the intertwined fingers, the mid-distance gaze. “That’s ‘gaze,’ g-a-z-e, not ‘gays,’ g-a-y-s,'” as Dr. Michael Jay McClure says in our class on post-modern art that studies the photos of Cindy Sherman and Richard Prince and others. Prince did an appropriative pastiche on the Marlboro man set in a dirty subway hallway. Sherman often sent up the idea of fashion and Hollywood ideas of femininity and masculinity.

    In this photo, Jackley wants us to consider him “a hard man,” but not in the sense that you dirty-minded South Dakotans might think. That gaze was perfected in fashion ads that emoted uncaring and haughty masculinity. Fashion, you see, has never been given the OK to be a masculine pursuit, though the fashion industry has been dominated by men. Thus, Jackley, our male model, is posed to show uncaring and haughtiness to help establish an appropriate maleness. He looks past us, his male, female or transgender wife, to the task at hand. He has his head slightly outstretched, the hint of a bulging carotid artery pulses and throbs. Now that is masculine. The loosely folded hands imply God is on his side, but he is unsure. Thus, he prays to something in the mid-distance. It may even be God, otherwise known as Ruth Bader Ginsberg.

    The setting makes one think this an appropriation of much historical painting, except, Jackley, our hero, sits in contemplation. Sitting is not the hero’s pose, it is the pose of contemplation, perhaps of the thought of defeat. Yet, he is slightly above us, as if sitting does not diminish his dominion over us. The battle is not yet won, it has to be imagined. Then he has a thought. The carotid artery throbs. And through half-opened lips comes a breathy whisper, “RBG.”

  4. John Kennedy Claussen, Sr. 2018-04-10

    Isn’t it interesting that a Republican Party, or a Republican Attorney General, wants to allow states to be able to tell businesses in other states what to do. It is like creating 50 federal governments; and ironically leave it to the South Dakota GOP to give us 50 federal governments, isn’t one enough?

  5. Cory Allen Heidelberger Post author | 2018-04-10

    Donald, I love that analysis of the image. The sitting does throw me—it’s out of place with the rest of the symbols, definitely not fitting with the otherwise heroic pose.

  6. Cory Allen Heidelberger Post author | 2018-04-10

    JKC, just as you are, I’m enjoying razzing the Republicans about the philosophical contradictions between their platform and their embrace of the remote sales tax cause.

    But once we’ve had our laugh, I’m keenly interested in pursuing Donald’s observation, that the Internet may have made sales tax—or any tax based on the physical location of a transaction—obsolete. Perhaps our newly fluid boundaries and virtual presence render states’ rights obsolete: how can any one state claim to govern a transaction taking place between two entities in two different jurisdictions, using “money” that exists only as electrons, transferring “goods” that may have no physical existence?

    Say, if a guy from Illinois driving an RV through Minnesota picks up a hitchhiker from Alabama in Worthington, and then after riding west into South Dakota, the hitchhiker orders a new backpack from an outfitter in Oregon as the RV cruises past Mitchell, which state gets the sales tax?

  7. grudznick 2018-04-10

    The RV was probably licensed in Box Elder, so South Dakota gets the tax, and the Worthington police get the fine money from the RV driver for pickup up the escaped jail inmate in a town with an anti-hickhiker bent.

  8. Debbo 2018-04-10

    Donald Pay, you are my newest hero and art prof. Thank you.

  9. Lori Stacey 2018-04-11

    Have they both lost their minds? Fighting for more taxes as Republicans?

    Oh, nevermind. Keep right on going with it. These 2 make any other candidates look great!

    As you were. Good luck with all that!

  10. John Kennedy Claussen, Sr. 2018-04-11

    Cory, I would argue that no one in that scenario has jurisdiction. It is further proof of how cyberspace is beginning to erode the concept of sovereign as we know it. The world is obviously changing at a faster rate, which necessitates that we think out of the box, in order to finance government going forward. That is why I support the idea of using some of the interest from all of our trust funds to fund state government instead of continuing to tax the little guy and gal in this state through a regressive tax system.

  11. Debbie 2018-04-11

    Seriously I will take one dumb bimbo over a constitutional lawyer any day of the week- You all have given up on your democracy so easily to this man without a single challenge, and now you are cheering him on over someone who is a useless idiot at best, but hasn’t taken any of your democracy away.

  12. Cory Allen Heidelberger Post author | 2018-04-13

    Debbie, what is your problem, coming on here and telling all of us that we’re all wrong about this or that? I’m not sure whom you hear cheering for Marty Jackley on this blog, but it’s certainly not all of us. Have you not counted all the Sutton voters here?

    Useless idiots erode democracy as surely as corrupt politicians. Noem pushes mindless image politics over intelligent policy discourse. That takes away democracy.

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