Virginia-based Students for Life Action evidently broke South Dakota campaign finance law last year when it sent out information about 12 Republican legislators’ votes on 2022 House Bill 1208, failed gubernatorial candidate Steven Haugaard’s ban on abortion medication, and didn’t disclose its top five financial supporters, as required by SDCL 12-27-16(1)(c).
Evidently neither former Secretary of State Steve Barnett nor current Secretary of State Monae Johnson has taken any action to enforce this law:
Jacob Huebert, the Chicago lawyer representing the student group in the lawsuit, acknowledged that the nonprofit did not follow the law in 2022.
…Huebert told South Dakota Searchlight that the group had not been accused of violating the law by any officials in the state as a result of its campaign spending [John Hult, “Anti-Abortion Group Sues South Dakota over Campaign Finance Requirements,” South Dakota Searchlight, 2023.06.06].
Rather than simply comply with the law, and rather than take a chance that any of the Republicans in Pierre will channel their inner Chris Nelson and remember that Republicans are supposed to be the party of law and order, Students for Life Action is suing South Dakota in federal court for trying to dox and cancel its donors:
On Monday, Students for Life Action filed a lawsuit in the U.S. District Court in South Dakota alleging that the state’s donor disclosure requirements violate the First Amendment of the U.S. Constitution.
…Such disclosures amount to “doxxing” donors, the group says. The term refers to the release of personally identifying documents or information that might subject people to harassment and physical danger.
In 2021, the lawsuit says, a Texas Right to Life staffer received death threats when his home address was leaked on the internet.
“South Dakota’s on-ad disclosure law discourages donors from making contributions to nonprofits like Students for Life Action that advocate positions with which they agree, for fear that their names will be highlighted in public advertisements,” the lawsuit reads [Hult, 2023.06.06].
Oh, Students—don’t let fancy modern woke/anti-woke-Webspeak warp your understanding of the First Amendment. It’s not “doxxing” to require people funding political campaigns to reveal their names. While citizens have some right to anonymity in their political speech, the money going into campaigns for and against candidates creates the possibility of quid pro quo corruption. Courts have recognized that the state has a compelling interest in preventing such corruption via limits on contributions and campaign finance disclosure requirements to make sure schemers don’t use groups like Students for Life Action to break those limits. Voters have a right to know who is funding the communications that are attempting to influence their votes, and voters have as much right to criticize those donors as Governor Kristi Noem has to try “canceling” Target for funding the NDN Collective, which thinks Indians ought to repossess the illegally seized Mount Rushmore (and Target and the NDN Collective aren’t even funding candidates or messages for or against candidates).
In their complaint, Students for Life Action incorrectly cite Dakotans for Health v. Noem, in which the U.S. District Court of South Dakota and the Eighth Circuit overturned a South Dakota law that required public disclosure of the names and contact information of petition circulators. That case dealt with ballot question petitioners, not campaign finance.
Students for Life Action also appeal to Governor Kristi Noem’s 2021 House Bill 1079, her bad idea to help non-profits like Students for Life Action keep the sources of their funds secret. But the plaintiffs don’t read Noem’s law any better than they read case law: 2021 HB 1079, now SDCL 47-24-19, says the state can’t impose a disclosure requirement that is “more stringent, restrictive, or expansive than that required by state law”. As long as state campaign finance law requires nonprofits making political communications to disclose their top five donors, Noem’s dark money law is irrelevant to this case.
Students for Life Action are peddling the strangely unconservative that their and their donors’ speech, their actions, should not have consequences. And the legal bike they are pedaling into the federal courthouse in Sioux Falls is pretty wobbly. Defendant and Attorney General Marty Jackley should have no trouble smacking down this weak First Amendment challenge… assuming he’s willing to try a little harder than his Republican colleagues in the Secretary of State’s office have been to pursue campaign finance transparency.
Allowing this sort of law-shirking proves laws are only meant to make the lawmakers feel important, the law enforcers feel mighty, the lawyers rich, and only apply when a lawbreaker is needed for show to keep the performance going.