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Lobbyists sue SD officials over ban on out-of-state contributions to ballot measure committees

PIERRE, S.D. -- Several lobbying groups are suing South Dakota state officials over a voter-approved ban on out-of-state contributions to ballot measure committees, claiming that money is speech, and the ban thus infringes upon Constitutionally protected free speech.

Former-Attorney General Marty Jackley, among others, filed the complaint in the federal court in the district of South Dakota against defendants Secretary of State Steve Barnett and Attorney General Jason Ravnsborg on Wednesday, April 17.

In it, six plaintiffs -- the South Dakota Newspaper Association, Retailers Association, Broadcasters Association and Chamber Ballot Action Committee, as well as Americans for Prosperity and individual Thomas Barnett, Jr. -- argue that the ban violates the First and Fourteenth Amendments and the Commerce Clause of the U.S. Constitution, and "discriminates against their economic activity."

Ironically, the ban itself was via ballot measure in November 2018's midterm election. South Dakota voters approved Initiated Measure 24 by a 56-44% margin. It is scheduled to take effect July 1.

Americans for Prosperity (AFP) is a Virginia-based libertarian lobbying group backed by Charles and David Koch, and Barnett is a former South Dakotan who now resides in Florida but remains invested in South Dakota politics. According to the lawsuit, both are prohibited from making financial contributions to South Dakota ballot measure committees because they are located out-of-state.

According to the suit, the in-state plaintiffs -- the Newspaper Association, Retailers Association, Broadcasters Association and Chamber Ballot Action Committee -- will "suffer significant civil penalties" under IM 24 if they accept financial contributions from out-of-state lobbyists like AFP or Barnett.

"The Out-of-State Plaintiffs want to engage in debate on public issues in South Dakota by contributing to the South Dakota Plaintiffs," reads the complaint. "The South Dakota Plaintiffs want to engage in debate on public issues by receiving contributions from the Out-of-State Plaintiffs and other out-of-state persons to fund their advocacy efforts, but the Ban prohibits them from exercising their free speech rights and bans their political association rights."

Plaintiffs also argue that the ban "establishes a governmental preference for in-state speech as opposed to out-of state speech," and that it violates the Constitution's Commerce Clause by attempting to regulate interstate commerce.

Out-of-state political contributions, they argue, are a form of interstate commerce not to be regulated by state government.

"Plaintiffs wish to engage in interstate commerce by making and receiving financial contributions across state lines," reads the complaint. "The Ban discriminates against Plaintiffs by prohibiting them from engaging in this form of interstate commerce because the contribution is not from a South Dakota resident or political committee."

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