Ohio Telemarketers Didn’t Break Lobbying Law, Maybe Broke Campaign Finance Law If Kristi Paid… But Surest Bet Is to Impeach Noem!

South Dakotans, I encourage you all to call your legislators, especially the nine members of the House Select Committee on Investigation— Representatives Doug Barthel, Ryan Cwach, Spencer Gosch, Jon Hansen, Steven Haugaard, Kevin Jensen, Kent Peterson, Jamie Smith, and Mike Stevens—and urge them to stay focused on their mission and swiftly impeach killer and liar Attorney General Jason Ravnsborg.

Have I just broken the law? No. I have exercised my First Amendment right to express an opinion about public affairs and public officials, to encourage other citizens to do the same, and to persuade my elected officials to take what I view as a just and necessary action.

Now suppose Governor Kristi Noem encourages you all to call your legislators and convey the same message—impeach Jason Ravnsborg. Is she breaking the law? Of course not. If the Governor wants to rally citizens to join her in calling for Legislative action, she may do so.

Now suppose Noem hired a private telemarketing firm from Ohio to drive pro-impeachment calls to the House impeachment committee, as seems to be the case established by a recording of Grand Solutions Inc. CEO Angel Kane published by KSFY’s Austin Goss. What is the difference between Noem’s deployment of telemarketers to assist in pushing the impeachment of a morally, legally, and intellectually compromised yet unrepentant Attorney General?

We may analyze and attempt to indict Noem’s telemarketing activity under at least two legal lenses: lobbying and political communications.

South Dakota’s lobbying statutes—SDCL Chapter 2-12—say that to lobby is “to seek the introduction of legislation or to promote, oppose, or influence in any manner the passage by the Legislature of any legislation affecting the special interests of any agency, individual, association, or business, as distinct from those of the whole people of the state, or to act in any manner as a lobbyist in connection with any such legislation.” The source of that definition, SDCL 2-12-1, requires hired lobbyists to register with the Secretary of State. I don’t see any Ohio residents among the 648 hired lobbyists registered for the 2022 Session, so if Noem hired Grand Solutions Inc. to promote or influence the passage of legislation, Grand Solutions Inc. has broken the law.

Legislation makes laws. SDCL 1-1-22 defines “law” as “a rule of property and of conduct prescribed by the sovereign power.” In Dakotans for Health v. Barnett, the South Dakota Supreme Court ruled that Legislative resolutions are not laws, as they do not enact any such rule or conduct. Additionally, such resolutions require no signature by the Governor and are not subject to veto by the Governor.

The ongoing Special Session on impeachment is not considering legislation; it is considering the removal from office of Jason Ravnsborg. The report the impeachment committee will produce, any articles of impeachment the House may approve, any verdict the Senate may render, and the sole punishment the Senate may impose—none of those things are legislation. We may loosely use the term “lobby” to refer to hanging out in the lobby and encouraging legislators to vote one way or another, but statute and still-fresh-from-the-oven case law indicate that calling legislators to encourage impeaching Jason Ravnsborg is not lobbying in the strict legal sense that would put Angel Kane in stripes. (By the way, Chapter 2-12 prescribes no penalty for failing to register as a hired lobbyist, so even if you can make a case for stripes, the stripes are pretty thin.)

Even if clever litigators can come up with a way to define telemarketing calls encouraging impeachment as lobbying, Noem’s telemarketers themselves didn’t really lobby legislators. They contacted citizens and offered to transfer those citizens to speak directly to the legislators. The citizens did the direct lobbying, and lobbying statutes do not pertain to such communications, no matter who influences citizens to communicate.

However, campaign finance regulations may apply to such communications.

SDCL 12-27-15 requires that “Any printed material or communication made, purchased paid for, or authorized by a candidate or political committee that disseminates information concerning a candidate, public office holder, ballot question, or political party shall prominently display or clearly speak the statement: ‘Paid for by (name of candidate or political committee).'” The phone calls urging Ravnsborg’s impeachment are creating a fuss in part because not one of them stated who paid for them. If Kristi Noem used her Kristi for Governor campaign funds to pay for these phone calls concerning public official and candidate Jason Ravnsborg—as she used campaign funds to pay for this month’s national TV ad buy touting her discrimination against transgender kids to a national audience—then either she or Grand Solutions Inc. or both committed a Class 2 misdemeanor when the first phone ring and Class 1 misdemeanors on all subsequent calls.

While the language of SDCL 12-27-15 applies more clearly to this situation that do our lobbying statutes, I’m still not rushing to court with an indictment. Noem’s transgender ad clearly promoted Noem herself as a public official and candidate, so it makes sense that campaign finance law would require that she disclose her committee’s payment for that ad. But the telemarketing push for impeachment doesn’t really address Ravnsborg as a candidate competing for votes in an election. Noem herself has spoken about Ravnsborg and his impeachment many times; she hasn’t had to punctuate each of those statements with a Paid For By disclosure. She said nice things about Senator Mike Rounds a few days ago; is that political communication subject to disclosure requirements?

And more importantly, we don’t have the receipt showing Kristi for Governor or any other political committee in South Dakota paid for these phone calls. Angel Kane in her comments to her own workers sounds confused as to whether she’s talking about a Governor or a Senate candidate or what. It may seem obvious that no other Governor in the nation would get involved in a push to impeach South Dakota’s mostly unknown Jason Ravnsborg (though with Donald Trump now calling Ravnsborg’s name, maybe we should expect calls from other Governor’s pressing to keep Jason on the job), but if we’re going to court, we need more than one phone recording with no names mentioned. We need Angel Kane to roll over on her patron and hand us the contract and receipt with the buyer in black and white.

Absent that documentation, legislators don’t have any legal case to make against this round of phone calls. And even with documentation, good lawyers could argue (and Noem has money for good lawyers) that these phone calls were not campaign communications subject to campaign finance law. Even if Noem arranged these calls, you may only have sleazy, sneaky, and poorly executed politics and not a crime.

Maybe, legislators, if you are looking for a way to hang Noem for sleazy politics, you need to stop waiting for the cops and courts to put Noem in stripes and use your own unique power to paint her with one big stripe: impeachment.

The constitutional grounds for impeachment include not only crimes but “drunkenness… corrupt conduct, or malfeasance or misdemeanor in office.” If these phone calls smell like corrupt conduct or malfeasance in office, then you should be bowled over by the stench of Noem’s hiring her daughter and her son-in-law, firing the appraiser certifier who expected her other daughter to actually meet all requirements to become a real estate appraiser, spending taxpayer funds on a private Fox video studio and a sauna for herself, and traipsing all over the country with state troopers as taxpayer-funded bodyguards at her personal fundraising rallies for her Presidential campaign while she ignores South Dakota voters and South Dakota’s interests.

Ravnsborg’s impeachment hinges on one incident—granted a terrible, fatal incident, one involving inattention, lawbreaking, and subsequent lying that demonstrate unfitness for any law enforcement office. But it’s still just one incident, without which no Republican would be talking about impeaching Jason Ravnsborg. If we prove a connection between Noem and Grand Solutions Inc., these telemarketing calls are just one thread in a vast pattern of much worse decisions and behavior by Noem since she took office. Noem hasn’t killed anyone (well, actually, if we count coronavirus and lies and setting a bad example… but that won’t make it into any Republican articles of impeachment, and I won’t push them for it and don’t need to to win this argument), but the sum total of her corruption and incompetence would hold up in a properly prosecuted impeachment than anything some House members are blowing gaskets about with respect to these Ohio telemarketers’ encouragement of voter comment to legislators.

You want Noem’s head, legislators? Don’t pretend you’re Eliot Ness’s accountants busting Al Capone on tax evasion. Stop wringing your hands about campaign finance and lobbying laws; pull out your own gun and impeach Kristi Noem.

[This exhortation impeach Kristi Noem is a news article and commentary printed in a periodical not owned or controlled by any candidate or committee, and it is a communication made by me in the regular course and scope of my blogging business; thus, this communication is exempt from the independent communication disclosure requirements of SDCL 12-27-16. But I’ll tell you anyway: this blog post is paid for by me.]