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Tom Barnett Sues to Overturn IM24 Because “I… Care Deeply About South Dakota and Its Governance”

Marty Jackley filed four affidavits from his clients yesterday in the lawsuit he’s arguing to overturn Initiated Measure 24. Nathan Sanderson of the South Dakota Retailers, Steve Willard of the South Dakota Broadcasters Association, David Bordewyk of the South Dakota Newspaper Association, and Thomas Barnett, former director of the South Dakota bar and now a Florida resident, all explain to the U.S. District Court of South Dakota why they want to overturn our impending and unconstitutional ban on out-of-state contributions to ballot question campaigns.

The single best statement in these affidavits comes, perhaps as we might expect, from barrister Barnett:

Thomas Barnett, Plaintiff's Affidavit, SDNA et al. v. Barnett (the other one—Steve), 2019.05.01.
Thomas Barnett, Plaintiff’s Affidavit, SDNA et al. v. Barnett (the other one—Steve), 2019.05.01.

Why does Thomas Barnett want to overturn a new law that would prevent him, as a lifelong South Dakota activist newly turned Floridian retiree, from contributing to ballot question committees in South Dakota? “Very simply, I care,” says Barnett. He cares about South Dakota. He cares about good government back home (and you ex-pats know that South Dakota ex-pats always think of South Dakota as home, to a degree that other states’ ex-pats seem not to).

Caring by itself does not answer constitutional questions, but Barnett’s caring explains why South Dakota’s effort to bunkerize and Balkanize itself from the rest of the world doesn’t make sense. What happens in South Dakota matters to many more people than we few, we happy few, who live here. Thomas Barnett wants his home state to operate well, to respect people’s rights, and to remain a good and constitutional place to live for his family and friends.

We may get a sense of how much Judge Charles Kornmann cares about Thomas Barnett’s caring tomorrow morning, 10:30, in federal court here in Aberdeen.


  1. Porter Lansing 2019-05-02

    My question, Cory. “We Out Of Staters” … Do they (Republicans) hate us or do they fear us?

  2. Donald Pay 2019-05-02

    Here’s my problem with Tom Barnett’s “I care.” I care, too, but I don’t need to use an out-of-state megaphone to drown out the speech of soft-spoken South Dakotans. I feel my screeds here on DFP or On The Other Hand communicate facts and opinion on any issue I want. If I wanted to, I could write a letter to the editor, or to the Governor. My speech is in no way curtailed by not being able to send money to an initiative committee. In fact, I think I think my sending money to a ballot issue or candidate campaign would distort the process that South Dakota citizens have set up to elect their own representatives and decide on their own ballot measures. I care enough to provide my input with speech, as God and the Founders intended, but not with bribes of money. Money isn’t speech. Mr. Barnett ought to have a right to speak, but not to throw money around to distort the process.

  3. Debbo 2019-05-02

    So well put, Don. Exactly.

  4. Jeff Barnett 2019-05-02

    As a Constitutional question, I don’t see how this is even close. Like it or not, the US Supreme Court has already ruled multiple times that campaign contributions are a form of speech, thus protected by the First Amendment. And as a practical matter, it feels deeply unfair for all the instances when an out-of-stater might have a reason for “caring” that we all can support, e.g. a divorced parent whose child(ren) live in the state, an owner of a SD-based business, or even hunters who enrich SD coffers year after year. Or in this case, a retiree. (Full disclosure – I know this particular retiree, and his heart is on the Dakota prairie, now and forever.)

  5. Old Spec.5 2019-05-02

    Don, Don, Don Your spiel I once saw on Leave it to Beaver……….. no The Robert Young Show. Does not fly anymore.

  6. Cory Allen Heidelberger Post author | 2019-05-02

    Porter, they hate and fear you unpredictable non-corporate out-of-staters who might all gang up and help the grassroots defend their rights against our corporate overlords. IM 24 helps them control the gate.

  7. Donald Pay 2019-05-02

    Jeff Barnett, Just because the US Supreme Court says something, doesn’t make it right. The anti-abortion folks didn’t give up because they ruled on abortion. Jim Crow didn’t end by people bowing and scraping forever after Plessy v. Fergeson. Eventually there is going to be a judge with enough common sense that he or she will take different denominations of US currency, and some Russian rubles, put them on the witness stand and ask them some questions. My guess is the currency won’t say a goddamn thing. So much for money being speech.

  8. mike from iowa 2019-05-02

    in 2013 CJ of the Scotus basically declared racism was dead and immediately red states introduced new laws to allow voter suppression of minorities. Voter suppression is supposed to be illegal and yet it is pervasive in red America states. Whitey wants special rights. And equality with people of color is not one of them.

  9. leslie 2019-05-02

    You don’t really care, Floridian frmr bar pres.

    Time magazine’s annual “100 Most Influential People” list, in the “Icons” section was a blurb on Christine Blasey Ford, written by Sen. Kamala Harris, who described her subject as a woman who “had a good life and a successful career—and risked everything to send a warning in a moment of grave consequence.”

    In the “Leaders” section, Sen. Mitch McConnell described now–Justice Kavanaugh as “one of the most qualified Supreme Court nominees in modern history.”

    Then, Levin Report–Kamala Harris Guts Barr Like a Fish, Leaves Him Flopping on the [Senate Republicans’] Deck

    If you are not ashamed of your party now, why would we South Dakotans listen to you?

  10. Debbo 2019-05-02

    Ford, Anita Hill, and many others. Nothing to gain, a great deal to lose. They are portraits of heroic Americans. I don’t see ANY in the GOP. Some looked like possibilities, but they eventually caved.

    That grifter’s party needs to fold up their tent and slink shamefully away. The ones who still have heart and head and soul and are real conservatives need to create a new party because the USA does need an ethical conservative political party.

  11. Cory Allen Heidelberger Post author | 2019-05-03

    Donald, what if I offered a compromise to your moral objections?

    Two key rulings lie at the foundation of the challenge to IM24:

    1. Buckley v. Valeo 1976 gives us the concept that money is speech.

    2. Citizens United v. FEC 2010 ties to that principle the idea that corporations are people and that we thus can’t limit their spending.

    I am definitely bothered by the idea that corporations are people. Corporations are legal constructs that can live forever, can’t be put in jail, can’t vote, can’t be discriminated against, and can’t write poetry.

    I am more tolerant of the idea that money is speech. Our ability to speak is severely impaired if we do not have money available to disseminate our speech. At peril of slipping into a different argument, freedom of the press assumes you can go to Ye Olde Presse Shoppe and buy a press, ink, and parchment. I can’t imagine a court putting limits on how much I can spend on producing and disseminating my blog.

    So is there a compromise here: could we say that, yes, we should overturn Citizens United and overturn the 19th-century lie of corporate personhood, but that we should keep Buckley v. Valeo and accept that individuals like Tom Barnett and I have the right to spend as much of our own money as we want advocating for or against ballot questions and candidates?

  12. mike from iowa 2019-05-03

    Money is speech is nothing more than freedumb to bribe politicians and to buy outcomes in important court cases.

  13. mike from iowa 2019-05-03

    In the “Leaders” section, Sen. Mitch McConnell described now–Justice Kavanaugh as “one of the most qualified Supreme Court nominees in modern history.”

    Translated into human speech- Kavernmouth is bought and paid for. Kavernmouth is deliciously super extreme, right wing ideologue who doesn’t believe in precedence as a guide for his own rulings.

  14. leslie 2019-05-03


    If ALEC ect didn’t write most of the national republican idealogy that gets turned into binding SDCL/ARSD/NW2d precedent every year, we wouldnt have to lean on national funding sources to stay above the surface and breath. Republicans would throw everyone of us into weighted bags off the bridge.

    Corporations are not people. Money is not speech. Gerrymandering is not representative government, and the unobstructed democratic vote is sacred. Well unless you are Rupert Murdoch. The Republic and the electoral college have been played beyond recognition by the Republicans. As said Cory, i salute YOUR effort, but not Kochs ect. I am on your side.

    Focus is important. How’s this?

    Your lawsuit would not exist if bright, qualified HRC were in office.

    Post Bluman 2011. I’d be happy to read it, with a grain of salt. Kavanuagh (never practiced) may be as good a lawyer as Barr and may have a good decision when his politics have not interfered. Musicians can be technically profound yet lack soul of the heart in the rendition, which is what matters. Barr, Kavanaugh and Barnett (ever practiced?) are political hogs in the CAFO, suckling Mama Koch. Truth. Important.

  15. bearcreekbat 2019-05-03

    On the “corporations as people” debacle, the apparent intent is to provide a loophole by which an individual can avoid statutory restrictions on individual campaign contributions and give himself two or more opportunities to donate money, that is otherwise prohibited, simply by filing incorporation paperwork for himself alone or for a group of individuals. Of course, the newly formed corporation could then create additional so-called subsidiary corporations. The result – the individual and each corporation he has created are classified as individually distinct people under laws restricting campaign contributions from a single distinct person.

    Thus if I, as an individual, or as part of a group, want to donate more than the maximum permitted by law to my favored political candidate, I apparently can get around this statutory maximum by creating a corporation. Then I become two “persons” and each “person” can then contribute the maximum.

    I suppose there is the argument that, yeah but this isn’t unfair since anyone of us has an equal right to incorporate under the law. What seems quite odd, however, is what possible public interest is advanced or even served by such a loophole over campaign contribution limits?

  16. Debbo 2019-05-03

    Mike said, “Money is speech is nothing more than freedumb to bribe politicians and to buy outcomes in important court cases.”

    And I couldn’t agree more.

    BCB said, “what possible public interest is advanced or even served by such a loophole over campaign contribution limits?”

    I refer you back to Mike’s quote.

  17. o 2019-05-03

    Debbo, equivocating money to speech has also been used by the right to make an argument of “compelled speech” against unions.

  18. mike from iowa 2019-05-03

    O, is “compelled speech” similar to loyalty oath for Drumpf’s oafs? You wanna job, you gotta sign.

  19. Debbo 2019-05-03

    Or similar to the SDGOP loyalty oath? “Compelled speech,” I’d say for sure.

  20. leslie 2019-05-03

    It seems Bluman is squarely in your camp: “the fact that those other non-voting groups of U.S. citizens are free to contribute and make expenditures does not mean that foreign nationals are similarly entitled.” Seems like a lazy citation by Stacey but Kavanaugh’s involvement is incidental. I don’t rember if strict scrutiny was involved, but Bluman is limited to foreign nationals which we don’t have here, necessarily.

  21. Cory Allen Heidelberger Post author | 2019-05-03

    Rock solid, Leslie: Bluman deals strictly with foreign nationals and explicitly excludes the argument the state is making in defending a ban on contributions from non-South Dakotan American citizens.

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