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Newspapers, Retailers, Chamber, Koch Bros, Jackley Agree: Heidelberger Right, IM 24 Wrong!

Jackley and Heidelberger, on the same side of the First Amendment!
Jackley and Heidelberger, on the same side of the First Amendment!

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].


  1. Debbo 2019-04-18 15:03

    Nothing gets through the lege unless the SDGOP leadership wants it to. That leadership is not stupid, so why this law, knowing it would be challenged and lose? SD taxpayer dollars will go down the drain of useless litigation with nothing gained.

    My first guess is that they think they’re hoodwinking gullible SDans into thinking they’re being protected, that the SDGOP wants to keep non SD $ out of SD.

    Of course, these are the same legislators who attend Koch Brothers’ ALEC meetings in mass for their legislative marching orders. Last I looked, Chuckie and Davy are not SDans.

  2. leslie 2019-04-18 15:22

    The $82M non profit Koch corp, AFP, after the 2009 inauguration of President Barack Obama, helped transform the Tea Party movement into a political force. It organized significant opposition to Obama administration initiatives such as global warming regulation, the Patient Protection and Affordable Care Act, the expansion of Medicaid and economic stimulus. It helped turn back cap and helped turn back cap and trade, the major environmental proposal of Obama’s first term. AFP advocated for limits on the collective bargaining rights of public-sector trade unions and for right-to-work laws, and it opposed raising the federal minimum wage. AFP played an active role in the achievement of the Republican majority in the House of Representatives in 2010 and in the Senate in 2014.

    In the 2014 mid-term election cycle, AFP led all groups, other than political action committees (PACs), in spending on political television advertising. AFP’s scope of operations has drawn comparisons to political parties…. As a tax-exempt nonprofit, AFP is not legally required to disclose its donors to the general public.[9] Wiki

    Jackley law firm sees a slam dunk, big fees and Koch brothers largess. Simple. Tax payers gonna pay for Republican ideology. Ouch.

  3. Cory Allen Heidelberger Post author | 2019-04-18 16:46

    And here I am, on their side. I feel a little dirty… but this is what Mark Mickelson has brought upon the state.

  4. leslie 2019-04-18 17:40

    No criticism intended Cory. I applaud your activism. The Dems would be lost without you!

  5. Cory Allen Heidelberger Post author | 2019-04-18 17:47

    No criticism taken; I’m just keenly aware of the strange nexus of interests in these lawsuits. Just Jackley and me on the same side of the aisle in front of a judge is absolutely amazing.

  6. Donald Pay 2019-04-18 22:04

    I don’t see it as so amazing, Cory. There is a history here that makes their positions squarely in culture and custom of decades-long South Dakota corruption. The intervenors are simply protecting their stake in corruption, a perfectly normal South Dakota Republican position. Clearly, corruption is the M.O of the ilk of people associated with ALEC. Lusting after out-of-state bribery is the Republican Way, and it fits with crony capitalism long championed by the SD Chamber of Commerce.

    Of course the SD Newspapers and the SD Broadcasters get the lions share of the leftovers, after the politicians, and certain other potentates get their fill.

    The history is particularly damning. When garbage came with payoffs, Republicans voted for it. When nuclear waste came with campaign donations, they supported it. When campaign checks were excreted in corporate pig feces, the Republicans were so attracted to the pheromones they rooted around in the manure piles to pick up the money with their mouths. Republicans and their corporate johns are steeped lust for bribery.

    When South Dakota citizens stood up against this corruption and petitioned ballot measures, they faced more corruption from out of state money. And the media raked in the money from all sides. Of course they want to continue the corrupt money flow.

    The idea that money can’t corrupt a ballot measure election is ridiculous. Anyone who has brought an initiative and faced massive amounts of foreign and out-of-state money knows that distorted TV spots and newspaper ads and now internet ads corrupts the people’s legislative process. The fact is the court precedents are as bad as the Dred Scott decision: massively evil and totally twisted in the arguments.

    I have no hope that you will lose, however. Corruption is the way of the court system, as it is with the Legislative and Executives in South Dakota. Judge Kornmann was part of that corrupt system, participated in a anti-initiative campaign using not just out-of-state, but foreign money. You will win.

  7. Clyde 2019-04-18 22:30

    I haven’t been on this forum for a while but since the subject of first amendment rights has come up I’m wondering if anyone in South Dakota has noticed that Julian Assange has been arrested. An affront to the first amendment. A PUBLISHER of news the powerful doesn’t believe citizens ought to be aware of. As one wag commented. “If you don’t have the first amendment, you might as well tear up the rest of the Constitution .”

  8. Cory Allen Heidelberger Post author | 2019-04-19 07:07

    The newspapers and broadcasters do make clear the commerce angle of this case.

    Donald, I kind of hope Jason Ravnsborg is listening. You offer him a seemingly more consistent route by which to the state’s compelling interest in abridging First Amendment rights than expressed in their April 10 response to my complaint. Ravnsborg is spending too much time focusing on “foreign influence” and the fallacious and legally unsupported analogy between foreign nationals donating to candidate campaigns and citizens from other states donating to South Dakota ballot question committees. That in-state/out-of-state distinction will only spring Jackley’s trap of “viewpoint discrimination.” He needs to get off “foreign” and focus on expanding the scope of “corruption” that the courts will allow as a basis for abridging First Amendment rights from the narrow realm of “quid pro quo” corruption to the broader concept of wealthy interests corrupting the democratic process. Team Ravnsborg suggests that idea under its focus on foreigners, but it never uses the word “corruption.” Jackley and I do, and we use it in the same way, focusing on case law’s narrow definition.

    To win, Ravnsborg needs to plow two fields that he’s only throwing a few seeds at right now:

    (1) He needs to expand the scope of corruption to include what Donald talks about.

    (2) He needs to argue that money is not speech (right now, the state only says that money is less central to the First Amendment than actual speech).

    In both situations, the state has to get the court to reverse standing precedent.

  9. Cory Allen Heidelberger Post author | 2019-04-19 07:12

    Yeah, I noticed, Clyde. Wikileaks probably has too much on its plate trying to keep Assange out of prison to focus on our First Amendment fight here in South Dakota. But I would welcome their support against the South Dakota establishment’s effort to insulate its own power and privilege from the people.

  10. Cory Allen Heidelberger Post author | 2019-04-19 07:18

    Even as I make that comment to Clyde, I have to acknowledge the dissonance between my statement and Donald’s statement, with which I somewhat agree. I can see IM 24 as an effort by one side of the SD establishment to beat down initiative and referendum to protect the Legislature’s and special interests’ power: they know that the four-year corporate registration loophole leaves the door open for big-money operations like the Kochs to keep funneling money into ballot measures when necessary to beat down the occasional hardy grassroots group who can get some anti-corporate measure on the ballot. But, strangely, I can also see Donald’s point, that suing to overturn IM 24 is an effort by another not mutually exclusive wing of the establishment to protect its influence.

    Does this lawsuit represent a real split between establishment factions that could lead to a substantial rift through which reformers could drive a truck, or at least a few successful candidates and ballot measures? Or is IM 24 just a distraction, a trap laid by Mickelson to allow his lawyer friends to squeeze a little more money out of the state in the form of the lawyer fees Team Jackley will win from the court when it rules IM 24 unconstitutional?

  11. Donald Pay 2019-04-19 08:31

    Foreign influence is an important part of this, Cory. Judge Kornmann, before he became a judge, worked for foreign mining interests and against South Dakota citizens’ efforts to prevent the Superfund Site that Jackley’s office (the one Ravnesborg now heads) corruptly signed over to a foreign mining interest to “re-mine!!!!” All that foreign money beat back our initiative to impose a small tax that would have created a fund to take care of such problems as developed at the Gilt Edge Mine. Jackley reaping big dollars to lead this charge is just more out-of-state funded corruption on his part.

    If Ravnesborg is serious about his arguments, he might want to find a way to void Jackley’s corrupt Settlement Agreement in the Gilt Edge Mine Superfund Site.

  12. Cory Allen Heidelberger Post author | 2019-04-19 08:46

    Just to be clear, Donald, the foreign interests you speak of were real foreign interests, as in from outside the USA, right?

    If Ravsnborg got serious about fighting these lawsuits, he could unravel all sorts of establishment corruption.

  13. Cory Allen Heidelberger Post author | 2019-04-19 08:47

    …if Jason Ravnsborg could get serious about doing his job… which leads me to the suddenly chilling thought: imagine how much harder these lawsuits would be to win if Randy Seiler were handling the state’s defense.

  14. Donald Pay 2019-04-19 09:57

    Cory, the foreign entities and individuals controlling mining interests are often ingeniously hidden or protected. I’m sure it’s the same with a lot of the large business entities. Look at Uranium One, the company righties like to scream about. Who controls that company? Essentially the Russian government, ie., Putin. Notice Trump hasn’t lifted on finger to shut that company down, while the righties still scream about Hillary Clinton. Trump could have acted on Day One of his Presidency.

    Of course, these companies have subsidiaries that are incorporated in the USA. Some naive people make the argument, then, that these are companies under the laws of the United States. Dig further, however, and most of these are just shell companies. In the case of Brohm Mining (Gilt Edge), the controlling foreign interests siphoned funds in and out of the subsidiary. The subsidiary was a shell that they could “bankrupt” while the funds were sent to Canada, Australia, and wherever. If they wanted to make a political contribution, they would siphon money to or leave money in whatever US company could legally make the contribution to a ballot measure committee.

    It’s not just companies. My theory is Russian government money has found its way into South Dakota politics, even funding Ravnsborg’s hate crusade and the county Republican parties’ hate gatherings in South Dakota. In order to protect democracy against enemies, foreign and domestic, we need to get away from the idea that money is speech. Speech is speech.

  15. Cory Allen Heidelberger Post author | 2019-04-20 07:20

    If Jason Ravnsborg could help us document that money and demonstrate the clear and present threat to the sovereignty of the people of South Dakota, he could win this case and set the stage for sweeping reforms in campaign finance and regulation of corporations in South Dakota.

    Did Mark Mickelson have any sense of the revolutionary potential his initiative carries?

  16. leslie 2019-04-20 11:46

    Notice the state spokesman justifying instituting state ownership of “reclaimed” superfund mines in the northern hills because the Feds forced the state DENR to clean up the those bankruptcies and resultant pollution. Daugaard tried to take over ownership of SFC for the new DAUGAARD STATE PARK in his last few years. The state wants into the land business in He’ Sapa. Any thoughts?

  17. Michael L. Wyland 2019-04-20 18:33

    See the U.S. Supreme Court decision in McCutcheon v. FEC. Quoting Chief Justice Roberts: “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”


    Are There Two Sides of Out-of-State Money in Politics? About those Embattled Ballot Questions

  18. Cory Allen Heidelberger Post author | 2019-04-21 17:19

    Michael, I am intrigued by your conclusion that “Out-of-state money donated for political campaigns, especially U.S. House and Senate campaigns, is far more reasonable in candidate elections than it is when applied to statewide ballot initiatives,” due to what you contend is the greater interstate impact of Congressional candidates versus state ballot measures. Do you feel that “reasonability” weighs on the Constitutional question at hand, or do you only apply that reasonability to the opinion voters may form when evaluating candidates and ballot questions supported by out-of-state money?

  19. Michael L. Wyland 2019-04-22 09:47

    Far more the latter than the former. I doubt the distinction I make will have any effect on the legal basis for a court’s decision on the question of out-of-state money.

  20. Cory Allen Heidelberger Post author | 2019-04-22 19:48

    Thanks, Michael. It is an interesting distinction, one worth hashing out in conversations with voters. But the distinction you make is political, dealing with effects on policy and elections, not legal, which is why I suspect you’re right about the argument not having much weight in court. Corruption is a more tangible threat, and it exists in candidate races in ways it can’t in ballot question campaigns.

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