Guess who agrees with me that banning out-of-state contributions to ballot question committees violates the First Amendment?
The South Dakota Newspaper Association, the South Dakota Retailers Association, the South Dakota Broadcasters Association, the South Dakota Chamber of Commerce (via its ongoing ballot question committee), long-time South Dakotan turned Floridian Thomas Barnett, Jr., and the Koch Brothers, all represented by former South Dakota Attorney General Marty J. Jackley.
On Tuesday, acting at the behest of the Institute for Free Speech*, Jackley filed a lawsuit on behalf of the above named plaintiffs in federal court seeking the repeal of Initiated Measure 24, to be enacted as SDCL 12-27-18.2 on July 1.
Jackley puts together for his plaintiffs arguments against the out-of-state money ban similar to those posed by my counsel in SD Voice v Noem et al.: telling Floridians they cannot donate money to support a ballot question in South Dakota violates the First Amendment. Jackley emphasizes the same point my counsel does, that the “only legitimate state interest in restricting campaign finances” is preventing quid pro quo corruption, which simply cannot exist in a ballot question campaign.
Like my counsel, Jackley also argues that IM 24 violates the Commerce Clause. Jackley says “commerce” includes “making and receiving contributions across state lines,” and South Dakota cannot enact a law like IM 24 that interferes with interstate commerce. You may think commerce and campaign finance are separate beasts, but Jackley provides case law overlapping those Venn circles:
109. The Supreme Court has held that transferring money across state lines is interstate commerce. United States v. Shubert, 348 U.S. 222, 226 (1955) (interstate commerce is the “continuous and indivisible stream of intercourse among the states involving the transmission of large sums of money….” (internal quotation marks and citation omitted)); see also United States v. Bailey, 115 F.3d 1222,1230 (5th Cir. 1997) (noting that nothing could be more commercial than “the transfer of money from one hand to another.”).
110. The Eighth Circuit Court of Appeals held that contributions to non-federal political committees is commerce and can be regulated by Congress under the Commerce Clause. See Egan v. UnitedStates, 137 F.2d 369,372-75 (8th Cir. 1943) (“The proposition that political contributions are not commerce and are not subject to regulation by Congress is not a valid objection to the Act.”) [Marty J. Jackley, writing for plaintiffs, Complaint, SD Newspaper Association et al. v Barnett and Ravnsborg, Case #3:19-cv-03010-RAL, 2019.04.17p. 19].
Adding an angle to my own lawsuit, Jackley argues that IM 24 constitutes “viewpoint discrimination” against out-of-state viewpoints. Jackley argues that viewpoint discrimination demands strict judicial scrutiny. meaning the state must show the out-of-state money ban is “narrowly tailored to meet a compelling government interest.” The plaintiffs’ complaint also emphasizes that IM 24 infringes on associational rights—i.e., the right of individuals to work together with their money to advocate positions on ballot measures.
Also signing Jackley’s complaint are his Gunderson Palmer Nelson Ashmore colleagues former Republican legislator David E. Lust and Republican litigator extraordinaire Sara Frankenstein. No word yet on whether Sara, David, and/or Marty will come visit me here in Aberdeen and join me in the courtroom for Judge Kornmann’s first hearing on SD Voice v. Noem.
But please, friends and neighbors, enjoy the spectacle of poor Jason Ravnsborg trying to defend the state against First Amendment arguments from liberal Democrat Cory Allen Heidelberger and conservative Republican Marty J. Jackley. These lawsuits may be the most political fun you’ll see in South Dakota all year!
*The Institute for Free Speech visited us South Dakotans last fall to campaign against IM 24 and Amendment W. They’re a bit radical about campaign finance laws, but on this issue we agree: the Constitution won’t let South Dakota ban out-of-state contributions to ballot questions committees. IFS provides this press release:
“The ban is an affront to the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson. “States cannot prevent speech simply because it is funded in part by Americans who live in other states. This law denies South Dakotans the right to hear messages from their fellow Americans.”
Plaintiffs in the case are the South Dakota Newspaper Association, the South Dakota Retailers Association, the South Dakota Broadcasters Association, the South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity.
The lawsuit says contributions in support or opposition to ballot measures are an important form of free speech protected by the First Amendment. Courts have long recognized that contributions to ballot measure campaigns promote robust debate about public issues. This is no less true for contributions from Americans from other states, the lawsuit explains.
Many state issues have national or regional implications, and voters may wish to hear from non-state residents or businesses who will be affected by state policy. Voters may also wish to hear from national organizations with expertise in specific policy areas.
Banning out-of-state contributions prevents groups like the Sierra Club from supporting ballot measures to enhance environmental protections, and stops groups like the NRA from contributing to ballot measure campaigns that affect gun rights. The result is less speech and less information for voters.
The complaint cites the Supreme Court’s Buckley v. Valeo decision, which noted that government cannot restrict the speech of some segments of society in order to bolster others. The First Amendment requires that voters decide for themselves which views to give weight. State governments have no legitimate reason to prohibit Americans from other states from contributing to ballot measure campaigns, the lawsuit says.
“The Out-of-State Plaintiffs’ contributions to the South Dakota Plaintiffs have no risk of giving them control over an officeholder’s official duties and, therefore, do not give rise to quid pro quo corruption,” the complaint explains. “There is also no risk that the Out-of-State Plaintiffs’ contributions to the South Dakota Plaintiffs will help them garner influence over or access to elected officials or political parties either in fact or in appearance. Fundamentally, ‘there is no significant state or public interest in curtailing debate and discussion of a ballot measure'” [Institute for Free Speech, press release, 2019.04.18].