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Daugaard Plays Word Games in IM 24 Pro Essay; Banning Minnesotans’ Campaign Donations Still Unconstitutional

Governor Dennis Daugaard himself steps out in favor of the easiest ballot measure to oppose, the patently unconstitutional Initiated Measure 24. In his Pro statement on Speaker G. Mark Mickelson’s folly in the official 2018 Ballot Question Pamphlet, Governor Daugaard himself appears to acknowledge that unconstitutionality with one little word shift:

Support initiated measure 24 to ban out-of-state financial contributions to ballot committees. Let’s protect a SOUTH DAKOTAN’s right to petition the people, but deny that privilege to New York, Massachusetts and California business interests [Gov. Dennis Daugaard, Pro statement on IM 24, 2018 Ballot Question Pamphlet, August 2018].

When talking about South Dakotans engaged in supporting a ballot question, Daugaard speaks of a right. When referring to the same speech activity conducted by a person from a different part of America, Daugaard shifts to privilege. No court will accept Daugaard’s claim that a Constitutional right applies to people from one state but not to people from the other 49.

Note also Daugaard’s attempt to shift the debate from people to businesses. He tries to paint IM24 as a question of protecting South Dakotans while opposing businesses from big bad far-away liberal states. He sounds almost like a liberal class warrior, ready to join me in fighting the oppressive and absurd notion of corporate personhood (yes! Dennis! join me for a podcast and a protest after Sutton’s inauguration!) But IM 24 doesn’t provide us the platform for that worthy debate. Read Mickelson’s petition: it bans people, not just business interests, from participating in the political process. 325 million Americans, including our friends and cousins in Minnesota, Iowa, Nebraska, Wyoming, Montana, and North Dakota, from speaking out on ballot measures in the state where they all love to come eat chislic on motorcycles.

Governor Daugaard has put his name on a patently unconstitutional measure. Even if IM 24 could withstand judicial scrutiny, its loopholes for clever corporations would only increases the proportion of big money in ballot question campaigns. Vote for the Constitution and democracy; vote against Daugaard and IM 24.


  1. Donald Pay 2018-09-21 08:37

    Given the conservative, business-oriented majority on the US Supreme Court and ample precedent in the other direction, this initiated measure has little chance to survive a court test. You would have to toss all the Republican-appointed members to the Court, not put Kavanaugh on it, appoint liberal justices who don’t equate money with speech and then hope the new Court would break 50 years of precedent in this area.

    Still, I would say it’s worth trying, because the initiative and referendum is a part of the Legislative process in South Dakota, and that process should be of, by and for state residents, not filthy rich out-of-state billionaires.

    But I’m suspicious that this is a cynical measure. I think it’s a set up to fail for the purpose of giving the Republican Party an excuse for their corruption. When the courts strike this down, they can say, “See we tried.” And then their next step will be to eliminate the initiative and referendum.

    I think this because the initiative goes against everything the Republican Party leadership actually believes and, more importantly, what it does every day of the week. Most clearly this was seen in the Lonetree Balefill issue, where out-of-state millionaires, out-of-state billionaire investors, and mostly out-of-state business interests financed a 4-year effort to bring millions of tons of out-of-state solid waste to a dumpsite in western South Dakota. They bought the Legislature, and a lawsuit and an initiative was the in-state response.

    By the way, it is not clear to me whether out-of-state opponents of an initiative or referendum could spend money opposing a ballot measure. Do you know this, Cory?

  2. Donald Pay 2018-09-21 10:19

    I notice that Steve Willard, a lifetime infection of the bowels of the Senate and House lobbies, wrote the Con statement. He’s doing so under the SD Broadcasters Association imprimatur, but he’s lobbied for many, many interests, and I think he was involved at some point with interests affiliated with the Lonetree Dump. The point being here is that we have well-connected Republican interests on both sides of this issue.

    Corruption in this state has many sources, but a big spigot of payoff money usually comes from out-of-state sources from businesses that want to use South Dakota for a dump or a hog manure pile or to create a Superfund site. Most in-state people generally have more pride in their state than to sell it out for a few extra bucks. Not so much of the Republican elite, whose pride is bought rather easily.

    Of course the in-state broadcasters have the most to lose by shutting off the corruption spigot, because most of that out-of-state billionaire money flows to them, after it flows through other mostly Republican political committees, and a few drops trickle down to mostly Republican apparatchiks and ends up paying off mostly Republican politicians.

    I agree the measure has lots of loopholes, but I’d be willing to let the Republicans spend the money to defend this initiative, and then propose measures that would close those later on.

  3. Cory Allen Heidelberger Post author | 2018-09-21 19:58

    Donald, you identify one way Mickelson can spin the Con statement: Willard’s industry doesn’t want to lose all that big ad money! That’s the real corruption!

    I would love to see the “money is speech” doctrine challenged. But that’s not why Mickelson and the GOP Club brought this initiative, and we can’t count on them to make that case for us. They will more likely roll over on some flimsy arguments, then pursue exactly the tack you describe, Donald: they’ll say the system is broken and can’t be fixed, so they’ll just keep piling on restrictions that make it practically impossible for us to put laws to a vote.

    I did have a good conversation today with a smart, media-savvy friend who said what we really should do to eliminate big-money influence is impose campaign finance limits. Alas, the Supreme Court has said the state can’t do that:

    Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)
    Significance: There can be no contribution limits to ballot initiatives.

    Summary: A companion case to First National Bank, this case saw the Court decide that state governments have no compelling interest in limiting speech, including money, about ballot issues. Recognizing that contribution limits help to limit quid pro quo corruption, the court ruled that “[w]hatever may be the state interest . . . in regulating and limiting contributions to or expenditures of a candidate . . . there is no significant state or public interest in curtailing debate and discussion of a ballot measure.” As a result, the California law that set contribution limits on ballot initiative campaigns was invalidated [NCSL, “Campaign Finance and the Supreme Court,” 2015.07.17].

    So G. Mark Mickelson leads the repeal of the campaign finance limits we passed in 2016 that would have curbed real corruption by politicians like Mickelson, then exerts himself to put a measure on the ballot tackling far lesser corruption in a way that won’t stand court scrutiny. We need to reject 24, then reject the Republicans who wrote it and elect some serious lawmakers who really want to fight big money (not just the big money that does things contrary to GOP talking points) and make democracy work.

  4. Donald Pay 2018-09-21 20:23

    I think they all got together and decided to put this up as a big smoke screen just so they could continue to hide all their corruption. But broadcasters do not want the end of initiative and referendum. They want the money generated from that profit center, and so they want the bureaucracy which cuts the little guy out because they can’t afford much advertising, and puts the billionaires and political operatives in charge, because that’s where the big money is. Similarly, the lobbyists/political operatives like Willard, who don’t get paid by the grassroots folks, “earn” their money from the billionaires.

    I think they were counting on a stooge as AG. If Seiler wins, we have a litigator who might be able to find a way through the maze of court cases that line up against the measure, although I think this is wishful thinking on my part.

    I think there may be a way around these cases, using state taxing authority.

  5. Cory Allen Heidelberger Post author | 2018-09-21 21:59

    Donald, maybe I’m completely off base, but what about an advertising tax like our Wayfair tax? The first $100,000 of ads you buy in a calendar year is free, but after that, you pay a progressive rate, up to 50% on ad expenditures over $500,000… all of which money goes to mail ballot question pamphlets and sample ballots to every registered voter and to fund multiple satellite early voting stations… or maybe just free public transit in every county on Election Day.

  6. Donald Pay 2018-09-22 06:50

    Bingo. There could many uses for this tax.

  7. Debbo 2018-09-22 21:06

    I love the tax idea. I’m sure there are plenty of very bright democrats (small “d” is intentional), in addition to you two, who can develop creative ways to choke off the Big Money that is damaging our democracy.

    Don, you gave me the best guffaw of the day!
    “Steve Willard, a lifetime infection of the bowels of the Senate and House lobbies,”

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