Spending public funds on political campaigns is illegal under SDCL 12-27-20. But that statute doesn’t specify any penalty, so right now, if your school board member sneaks into the high school office and uses the copier to run off a thousand campaign flyers (assuming your school board member even faces a campaign), you can’t call the cops or Marty Jackley to do anything. You can maybe file an affidavit with the Secretary of State, and if she has bothered to read anything other than election-conspiracy websites, she might figure out that she can impose a civil penalty under SDCL 12-27-47.
Thinking bad behavior ought to have clearer consequences, Attorney General Marty Jackley asked Senator David Wheeler (R-22/Huron) to propose Senate Bill 207, to make any violation of SDCL 12-27-20 a Class 1 misdemeanor. One year in jail, $2,000 fine—sure, why not?
But on February 8, Senate State Affairs complicated that penalty, erasing Jackley and Wheeler’s simple one-sentence addition and replacing it with three sloppily written levels of misuse of public funds for political campaigns:
It is a Class 1 misdemeanor if the state, an agency of the state, or the governing body of any county, municipality, or other political subdivision expends one thousand or more in public funds in violation of this section. It is a Class 6 felony if ten thousand or more in public funds is expended in violation of this section [Senate Bill 207, amended text added to SDCL 12-27-20, approved by Senate State Affairs 2023.02.08].
The slop comes in the statements “one thousand” and “ten thousand or more in public funds”. One thousand or ten thousand what? Dollars? Cents? Bitcoin? CBDC? We may assume that Senator Michael Rohl (R-1/Aberdeen) had dollars in mind when he proposed this amendment, but assuming makes for fuzzy law that smart lawyers can sharpen into weapons against our good sense.
There’s additional slop in SB 207’s failure to identify whom it will punish. As Commissioner Darin Seeley of the Bureau of Human Resources told House State Affairs Wednesday, SB 207 doesn’t say whether the penalties would fall on the public employee who misspends the money, the public official who authorizes that misspending, or the whole public governing board. Putting the entire school board in jail for a year might be fun (although you’d have to keep them separate at lunch so they didn’t form an illegal quorum), but I don’t think we can charge entire governing bodies with misdemeanors and felonies.
The philosophical problem comes in suggesting that we should have different levels of penalties for different amounts of public expenditures for campaign purposes. The use of any public resources for personal political advantage violates the public trust; any such violation should be smacked hard so that all public servants understand and respect the sacredness of the resources we trust them to manage responsibly.
The related practical problem comes in the bill’s excuse of some small public expenditures to influence political campaigns. SB 207 now says public servants have to misappropriate (we could say steal) at least a thousand (and we’re assuming dollars) to qualify for any criminal penalty. School boards could run off 9,999 flyers urging citizens to vote Yes on an opt-out or to vote against the anti-CRT/anti-DEI moonbats trying to co-opt local government, and that expenditure of (ten cents per copy) $999.90 would not incur any punishment. Attorney General Jackley told House State Affairs that exempting the first $999.99 of public expenditures on political campaigns gives wiggle room for innocent errors, but in this case, I’m not sure we should deem any errors “innocent”. The campaign finance statute already protects public officials exercising First Amendment rights as private citizens and public bodies presenting factual information. If public officials go beyond that with our tax dollars, we should hold them accountable from dollar #1.
SB 207 made it out of House State Affairs and now waits for the House’s attention on its busy Monday calendar. The House thus has the last chance to fix this bill:
- At the very least, insert “dollars” in the necessary places.
- Restore the original language that would treat any violation of any level with the same clear criminal penalty.
- Clarify who pays the penalty and serves any jail time for misusing public resources.