The Koch Brothers are probably going to sue to overturn Initiated Measure 24, G. Mark Mickelson’s ban on out-of-state money in ballot question campaigns. As I have pointed out since before IM 24 was even a petition, a lawsuit against such a ban will win, because, no matter how much Mickelson says out-of-state money screws up South Dakota’s politics, money is speech and states can’t restrict that speech on ballot questions.
Now remember: if Mickelson had wanted to push out-of-state money out of South Dakota politics, he could have promoted a ban on out-of-state contributions to candidates, because the courts have recognized a unique potential for corruption from donations to candidates that does not arise from donations to ballot question committees:
University of Chicago Law School professor William Baude said he doubts it would survive a court challenge.
The U.S. Supreme Court declared in a 1981 decision that limits on contributions to ballot measure committees are unconstitutional under the First Amendment, said Paul S. Ryan, a vice president at the Washington watchdog Common Cause, which opposes big money in politics.
The high court has said that contributions to candidates can be limited to prevent the corruption of public officials, Ryan said. But, he said, the court found that with a ballot measure, unlike a candidate, there is nobody to corrupted, so there’s no legal justification for limiting donations [emphasis mine; James Nord, “South Dakota Tries to Limit Outsiders’ Money in Initiatives,” AP via Pierre Capital Journal, 2017.02.15].
A ballot question committee comes and goes; after the election, it goes away, so there’s not really anyone to corrupt. A candidate wins, and she goes to the Capitol, where she can do the bidding of her out-of-state donors for years. That’s where the real corruption is. Why didn’t G. Mark Mickelson sic his IM 24 against out-of-state money given to candidates and public officials?
Because his pals have a party to run:
Organizers of South Dakota Gov.-elect Kristi Noem’s inaugural celebration have raised at least $162,500 from roughly 30 large donors including major health systems, big energy companies and state industry groups.
Top-tier donations to the city of Pierre’s inaugural committee include $12,500 from Avera Health, $10,000 from biofuels producer POET and $10,000 from Keystone XL oil pipeline developer TransCanada.
…A Noem spokeswoman says the incoming governor is grateful for the generosity of contributors. Noem says she’s ready to get to work for South Dakota [“Organizers Raise $162K from Big Donors for Noem Inaugural,” AP via KSFY, 2019.01.04].
Canadian company TransCanada pays for $10K worth of smokies and poutine (that’s what they served Saturday, right?). Our new Governor says thank you so much. TransCanada says no, thank you, Madam Governor. Now, about that bill doubling fines for pipeline safety violations….
Other out-of-state supporters of Noem’s party are NextEra Energy ($10K), BNSF Railway ($10K), Pfizer ($5K), and Avangrid Renewables ($5K).
Ballot measures change one law at a time. Governor Noem will sign a couple hundred new laws over the next few months, dispatch her lobbyists to kill several others, and then be there to dispatch Highway Patrol troopers to help cart any pesky protestors 190 miles away to the Faulk County jail.
IM 24 won’t stop the real corruption in Pierre. Even if the Koch Brothers and the courts let IM 24 take effect on July 1, the big out-of-state money corrupting our laws is already in the pockets and tummies of our powerful lawmakers and will keep on flowing.