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Virginia Group Continues Suit Against South Dakota to Repeal Independent Communication Reporting Law

Back in October, the Institute for Free Speech sued South Dakota to keep from being ticketed for publishing materials claiming that Amendment W and Initiated Measure 24 violated free speech rights. The Virginia think tank was concerned that the state would bust IFS under SDCL 12-27-16, our statute requiring that any such “independent communication expenditures” worth more than $100 “concerning candidates, public office holders, ballot questions, or political parties” be reported to the Secretary of State and include disclaimers listing the communicating entity’s top five donors. In court, Attorney General Marty Jackley said the state had no intention of enforcing SDCL 12-27-16 on IFS, but Judge Roberto Lange was like, promises schmomises, and issued an injunction saying that publishing an analysis of ballot measures on one’s website and alerting the media thereto are not subject to South Dakota’s campaign finance reporting laws.

But now that its analysis is published and the election is over, the Institute for Free Speech is still in court. Headed by former FEC commissioner Bradley A. Smith, who deep down wants to repeal all campaign finance laws, IFS filed an amended complaint on December 7 seeking permanent overturnal (my term, not theirs) of our allegedly unconstitutional laws requiring reporting of independent communication expenditures:

IFS v Jackley & Krebs, Amended Complaint, US District Court of South Dakota #3:18-cv-03017-RAL, 2018.12.07, p. 2.
IFS v Jackley & Krebs, Amended Complaint, US District Court of South Dakota #3:18-cv-03017-RAL, 2018.12.07, p. 2.

IFS can’t simply argue that the state is banning their speech (they made that argument separately in their October analysis on Initiated Measure 24, and they’re right). IFS has to argue that the reporting requirements invade associational privacy and chill their speech. IFS does that and adds that the language in Chapter 12-27 is too vague, subjecting any speech “concerning” a ballot measure to reporting requirements and potential legal penalty.

As a side note, the lead lawyer signing this amended complaint is Representative-Elect Jon Hansen, who could satisfy his clients concerns and put a swift end to this lawsuit by pushing a law to repeal SDCL 12-27-16 and strike that vague definition of “independent communication expenditure” from SDCL 12-27-1. But why would a legislator want to pass a bill that would mean his clients could end their lawsuit and stop paying him $170 an hour?

One Comment

  1. Donald Pay 2018-12-14 20:15

    These guys are fighting in court to uphold the righty “out-of-state oligarchs’ money is speech” argument. I bet they aren’t funded by $10 checks from South Dakota retirees. Maybe they should open up their books so we could see who funds them. I’d like to see Bradley A. Smith’s bloody head on a pike on Welcome to South Dakota signs. That’s the kind of free speech I like, and it didn’t cost me a nickel. Can I get an Amen, G. Marky?

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