House State Affairs last week approved a measure to state officials from pressuring their minions to contribute to their campaigns. The committee also fixed one problem I identified and another that I missed!
On Wednesday, House State Affairs took up House Bill 1278, Representative Will Mortenson’s (R-24/Fort Pierre) proposal to prohibit the campaign committees of state officials from taking contributions from certain state officers and employees. The committee noticed that, as originally worded, HB 1278 would prevent legislators from taking donations from people who work for them at their regular jobs outside of government: for instance, Rep. Al Novstrup (R-3/Aberdeen) couldn’t take donations from the go-kart minders at his Thunder Roads. Prohibiting political “speech” by private-sector employees was apparently outside Rep. Mortenson’s intent: he offered an amendment changing “an individual who is employed or appointed by the official” to “a state employee who is employed or appointed by the official”.
On first reading, I missed that that the list of statewide officials to whom HB 1278 would apply omitted members of the Public Utilities Commission. Rep. Mortenson admitted during his rebuttal testimony that that omission was his drafting oversight. Rep. Spencer Gosch (R-23/Glenham) offered an amendment to add PUC members, thus applying HB 1278 to all statewide elected officials and legislators.
Two politicos testified against HB 1278. Mackenzie Rhoden, chief of staff for Governor Larry Rhoden, took off her blue lobbyist badge and testified on her own behalf. Decker said HB 1278 restricts First Amendment speech for a small group of public employees. (If only Decker would mount the same vigorous defense of the First Amendment to her boss.) She also complained that HB 1278 is “riddled with loopholes and loose ends”. She suggested that the restriction on contributions from people who report directly to a covered official could change at the whim of an organizational chart; for instance, Decker said the number of people who report directly to the Governor varies from one to five. Decker correctly noted that HB 1278 ignores the corruption that could happen under mayors and sheriffs. Finally, she said HB 1278 unnecessarily assumes that highly- qualified state employees cannot make their own decisions about whether to spend their money on their bosses’ campaigns. “People donate because they believe in a candidate, not to curry favor for a job, and they keep the job based on merit, not on contribution level.”
Former Republican legislator Caleb Finck, who now works for the Commission of School and Public Lands, also argued for his right to give his elected boss money. He said all five of Commissioner Brock Greenfield‘s small staff would be affected. He was steamed that the PUC wasn’t included (Gosch’s subsequent amendment fixed that). He also expressed concern that HB 1278 wouldn’t cover contributions to state officials who run for federal office.
In rebuttal, Rep. Mortenson challenged the First Amendment argument, saying state employees remain free to make independent expenditures, volunteer, and post on social media in favor of their bosses’ campaigns… at which point I have to wonder if HB 1278 will really achieve its purpose. A corrupt boss can just as easily take note of who shows up to call bank or knock on doors as who write a check. A chief of staff seeking job security could form an independent campaign committee and shake down everyone in the office to buy ads for the boss.
On including local officials, Rep. Mortenson said he prefers to leave that decision to local governments. Cities and counties that want to impose their campaign finance restrictions are free to do so.
Rep. Leslie Heinemann (R-25/Flandreau) asked the sponsor if HB 1278 would run afoul of federal case law that says money is speech. Rep. Mortenson was ready with his citations, saying that while Citizens United (2010) says money is speech, Buckley v. Valeo (1976) says the state has a defensible interest in restrictions on campaign contributions intended to prohibit quid-pro-quo corruption.
Rep. Tim Reisch (R-8/Howard) said that during his 17 years in the cabinet, “we were told pretty directly that a donation was expected” to the boss’s reëlection campaign. He said he felt the pressure even though “I was making pretty good money.” Thus, he said he could “strongly support” HB 1278.
House State Affairs voted for HB 1278 with the state-employee and PUC amendments 8–4. Yeas were Emery, Hansen, Healy, Heinemann, Jamison, Lems, May, and Reisch; nays were Bahmuller, Gosch, Odenbach, and Overweg.