PIERRE, S.D. (KELO) — A federal judge’s ruling this week that South Dakota Initiated Measure 24 violated the U.S. Constitution has made Marty Jackley a prophet of sorts.
Two years ago Jackley, while still state government’s attorney general, officially warned South Dakota voters about the peril of passing Initiated Measure 24.
He pointed out the inconsistency of banning some businesses and people from contributing to South Dakota ballot-measure campaigns, while allowing donations from other businesses and individuals.
Since 2006, a state law has required the attorney general to tell voters “the likely exposure of the state to liability” if a ballot measure is approved.
That’s what Jackley did.
“The measure is likely to be challenged on constitutional grounds,” Jackley wrote in his official statement’s last sentence.
Read the official attorney general’s statement from 2017 https://sdsos.gov/elections-voting/assets/2018_IM_ProhibContBQ_AGStatement.pdf
Voters nonetheless approved IM 24 in the November 6 general election, 56 percent to 44 percent.
Had it taken effect July 1, the measure would have prohibited contributions to statewide ballot question committees by people who weren’t South Dakota residents. It also would have prohibited contributions by political committees organized outside South Dakota and, perhaps just as significantly, by entities that hadn’t filed with the South Dakota Secretary of State for the four years prior to making a contribution to a ballot committee.
“I don’t think the public was given all the information on what it did to new businesses,” Jackley said. “In other words, it could affect economic development.”
Jackley meanwhile had lost the June primary for the Republican governor nomination to U.S. Rep. Kristi Noem.
He returned to private practice in Pierre in January and took on the role of representing five South Dakota groups — broadcasters, newspapers, retailers, chamber of commerce political action committee and the statewide chapter of a political organization — and a former South Dakotan who now makes Florida home, in their challenge against the coming new law.
U.S. District Judge Charles Kornmann ruled Thursday that IM 24 violated several provisions in the U.S. Constitution. Jackley said the judge’s decision presents the chance for a second attempt at changes that, if properly worded, would treat everyone fairly.
“Now lawmakers or citizens can address or improve campaign finance in South Dakota,” Jackley said.
One step would be setting contribution limits in state law similar to those for candidates, according to Jackley.
Currently state law doesn’t limit the amount of a contribution to a South Dakota ballot-measure campaign.
Another step would be requiring more transparency from South Dakota ballot-measure committees on their sources of money.
State law requires some identification requirements only for entities contributing more than $10,000.
“And you can do it in a constitutional way,” Jackley said.
Jackley said his perspective on strengths and weaknesses of South Dakota campaign-finance laws came through his two runs for attorney general and one for governor.
The main sponsor of IM 24 was then-House Speaker Mark Mickelson, R-Sioux Falls, who carried the petition for months gathering signatures after he couldn’t convince the Legislature to put it on the ballot.
At one point Mickelson, a Harvard-educated lawyer and the son and grandson of two past governors, jumped into the battle for the Republican nomination for governor with Noem and Jackley, but he later withdrew and returned contributions to all who wanted their money back.
The lawsuit named as defendants Governor Noem, new Attorney General Jason Ravnsborg and new Secretary of State Steve Barnett. Noem didn’t send a lawyer to represent her at the trial in Aberdeen.
Judge Kornmann, 82, was a long-time lobbyist at the Legislature, including for then-giant Homestake Mining Co., before his appointment to the federal bench in 1995 by President Bill Clinton. Kornmann served as South Dakota Democratic Party executive secretary from 1963 to 1965.
Jackley said Friday that IM 24 didn’t address transparency of donations to ballot campaigns. “It is a solution that discriminated and didn’t solve the problem,” he said.
Hearing the views of Nathan Sanderson, the executive director for the South Dakota Retailers, and David Owen, head of the South Dakota Chamber of Commerce, during the lawsuit broadened Jackley’s understanding of “the true effect” of IM 24 on businesses.
“The suit maybe opened my eyes to that a little bit more,” Jackley said.
For county-by-county votes on IM 24: http://electionresults.sd.gov/resultsSW.aspx?type=BQ&map=CTY