The Constitution is the supreme law of the land. Period. When any law violates the Constitution, every government official should work to fix the problem. That includes voter-passed initiatives.
This is the case with Initiated Measure 22. It narrowly passed this November on a wave of misinformation. Supporters of the measure promised that the Initiative would “prevent political bribery, improve transparency, and increase enforcement of South Dakota’s ethics laws.” The reality is different.
The measure’s supporters failed to mention that campaign contributions are already transparent in South Dakota. The so-called “improved transparency” includes a maze of new rules on nonprofit groups that have little or nothing to do with politics.
Supporters neglected to point out that IM 22’s “increased ethics laws enforcement” meant a new government bureaucracy to enforce the new, complex rules against citizen groups. Instead of patrolling lawmakers and lobbyists, there’s a good chance such an agency would pester grassroots groups.
And “prevent political bribery”? Under IM 22, that means the government would give candidates $5 million in taxpayer dollars to run their campaigns. Don’t like a particular politician? Doesn’t matter, they still use your money to promote themselves.
This isn’t to say that every aspect of the measure was bad. But on its key provisions, the measure was a classic bait-and-switch. Many voters in South Dakota saw past the sparkly-sunshine rhetoric. Unfortunately, as Governor Dennis Daugaard explained, 51 percent of voters “were hoodwinked by scam artists who grossly misrepresented these proposed measures.”
If this were just a bad law, then South Dakotans would have to live with the result. But it’s more than bad, it’s unconstitutional. This measure burdens free speech and free association by forcing nonprofit groups to complete reams of paperwork before they engage in basic speech. If they are unaware of these rules, they can be fined thousands of dollars.
How ridiculous are the rules? Imagine the South Dakota Farm Bureau Federation asks the Governor to speak at a charity event. If they spend $100 promoting the event, then the Farm Bureau would have to include a lengthy disclaimer on public invitations, listing their top five supporters. They’d probably also have to hire a campaign finance attorney to comply with all necessary filings imposed by IM 22. That’s absurd.
It’s also unconstitutional. The Constitution requires the government to have a compelling reason to restrict speech – and knowing who gives to the Farm Bureau for a charity event doesn’t cut it.
In the past year, the Center for Competitive Politics has completed law suits in Colorado and Utah against similar unconstitutional laws. In both cases, our clients won. Judges in both states ruled that overly broad rules on small non-political speakers and vague laws are unconstitutional. Courts are not fond of violations of the Constitution – both states have pay out six figure fees for enacting laws that restricted the First Amendment.
Some lawmakers have responded to this the wrong way. They’ve proposed capping donations for future ballot initiatives. But even if we don’t like what supporters of an initiative are saying, the First Amendment stops us from restricting their ability to say it. We can’t fight unconstitutional laws with more unconstitutional laws.
Other legislators are acting responsibly. They are repealing IM 22 before any damage can be done. This is triply valuable to the citizens of South Dakota. $5 Million in revenue that would have gone to politicians can now be put to better use. The Attorney General need not waste time defending an unconstitutional bill that could’ve cost the state hundreds of thousands of dollars. And most importantly, South Dakotans will once again be free to express opinions without retaliation from state bureaucrats.
The same forces that distorted the effects of IM 22 are now attacking these legislators for going against the “will of the people.” That’s wrong. These lawmakers are doing their most important and fundamental duty: upholding the Constitution.
After repeal, lawmakers have an opportunity. They can respond to the will of the people and pass a real ethics law that protect free speech. One that focuses on making sure all of South Dakota’s rules on campaign finance comply with the Constitution.
This post originally ran in The Argus Leader on January 30th 2017.