On October 10th, 2012, I sent a letter to Jason Gant our South Dakota Secretary of State asking him to investigate whether or not the South Dakota Municipal League’s use of public funds, labeled as “membership dues,” to advocate for political positions was a legal use of taxpayer dollars. Specifically, I questioned whether or not the SDML, a nonprofit corporation, was allowed to use public funds to influence election outcomes by encouraging South Dakota voters to vote “Yes on Referred Law 14”.
Secretary Gant, in turn, referred my inquiry to our Attorney General, Marty Jackley because he is charged with investigating campaign finance violations relating to a statewide ballot question and to prosecute any violation thereof. On November 1st, 2012, Attorney General Jackley issued an official opinion (No. 12-04) entitled South Dakota Municipal League Action on Referred Measures. My specific question was, “Whether the SDM’s use of funds, derived in part from the membership dues of its member municipalities, to advocate for South Dakota Referred Law #14 is a violation of law?”
Here is why I asked the question. In 2007 members of the South Dakota Legislature enacted SDCL 12-27-20 entitled Expenditure of public funds to influence election outcome prohibited. It states: “The state, an agency of the state, and the governing body of a county, municipality, or other political subdivision of the state may not expend or permit the expenditure of public funds for the purpose of influencing the nomination or election of any candidate, or for the petitioning of a ballot question on the ballot or the adoption or defeat of any ballot question. This section may not be construed to limit the freedom of speech of any officer or employee of the state or such political subdivisions in his or her personal capacity. This section does not prohibit the state, its agencies, or the governing body of any political subdivision of the state from presenting factual information solely for the purpose of educating the voters on a ballot question”. This statute specifically prohibits using public funds to influence an election outcome.
However, Attorney General Jackley states in his opinion that the Legislature should have repealed two more specific provisions regarding municipal authority-SDCL 9-17-1 and SDCL 9-17-3 before enacting the more general statute (SDCL 12-27-20). In other words, we have conflicting laws regarding whether or not the South Dakota Municipal League would be prohibited from using the annual dues from municipalities to advocate positions on ballot measures. AG Jackley states in his official opinion, “If it (the Legislature) intended to prohibit the Municipal League from advocating on such measures, it could have repealed SDCL 19-17-1 and 19-17-3 or specifically included “municipal organization” in the list of entities to which SDCL 12-27-20 applies. It did not do so.” Therefore, he concludes that the answer to my question is “no” because the more specific provisions of SDCL 9-17-1 (Formation of municipality organization authorized—Purposes) and 9-17-3 (Municipal payment of dues and delegate expenses for organization) authorize the SDML to advocate on measures beneficial to municipalities. Further he specifies that “These statutes supersede the more general provision of SDCL 12-27-20 prohibiting municipalities from expending public funds to advocate a position on a referred or initiated measure”.
Moreover, AG Jackley affirms that the Legislature is presumed to know the law in existence when it enacted SDCL 12-27-20. Clearly, there was a failure to eliminate conflicting laws during the 2007 Legislative Session. This is a situation that needs to be rectified in the 2013 Legislative Session. Thank you for your interest in State Government. Please feel free to contact me at (605) 352-9862
People visiting the Capitol during the legislative session notice a substantial number who are wearing a badge of some kind or another. The badge is designed to help identify the role that person plays in the process. Anyone wishing to testify before a Legislative committee must either be registered as a lobbyist or be speaking on their own behalf as an individual citizen. If the person is a lobbyist he must wear the badge to identify who it is they represent.
Some lobbyists represent private sector employers. There are others who work for the public sector. The public sector people are those who speak on behalf of the various agencies of state government. Their badge has a different appearance and can easily be differentiated from those working for one of the various organizations or interest groups.
The badge itself is not the key focus but the entity being represented is. The Secretary of State has the responsibility for maintaining a record of those who lobby. That information is accessible to the public. We have occasionally written about the role lobbyists play in the development of public policy. We look to them as a source of valuable information. When that information is reliable we develop trust in them. We quickly learn who is trustworthy and who is not.
The relationship between the legislative member and the lobbyist is a two-way street. It is gratifying when a lobbyist not only speaks but is willing to listen also.
Last session, I was contacted by a lobbyist representing a national organization. He asked me to be the prime sponsor of a bill that would promote the interest of his client. The subject of the bill was animals and since I was a member of the Agriculture Committee he thought I might be interested. In looking at the proposed piece of legislation it was easy to see the fingerprints of the Humane Society of the United States. I told him I was absolutely not interested in even having my name associated with it.
We then got into a conversation about the Humane Society of the United States (not to be confused with local animal shelters that might have similar names). He had been hired to represent them but did not know much about them. With a name like that he made some assumptions, but that was all. I pointed out that in my estimation they are one of the greatest threats currently confronting animal agriculture today. One should not be misled by their innocent sounding name.
I further went on to say how disappointed I was in him that he would even take such an organization as the Humane Society of the United States as a client. Agriculture is our number one industry and animal agriculture is an important part of it. It just makes no sense to be associated with an entity whose goal is the destruction of something so important to our state and our precious way of life.
After leaving me he apparently tried to get another member of the Senate Ag Committee to take the bill. That senator apparently delivered a lecture similar to mine.
The story does have a happy ending. A couple of days later he stopped to let me know that he and his partner had decided to inform the Humane Society of the United States that they would no longer be representing them as their lobbyist.