More campaign finance stuff.. Spending tax dollars to tell people we need to keep a tax?

I caught this one in the No on 8 committee report. The No on 8 people are reporting that they received $45,766 from the South Dakota Association of County Commissioners.

No SDACC PAC, but the SDACC itself. Except I'm wondering how in the heck they did that. Especially when their donation constitutes over half of the group's receipts.

From a check of the Secretary of State's PAC list and PAC reports, there's no political action committee set up for the group where individual members can donate to a cause of their choice, unless this report is yet to be filed. Why is this important?

For starters, the South Dakota Association of County Commissioners is an entity authorized by law and paid for by tax dollars:

7-7-28 Formation of association of county commissioners and elected officials--Powers of association--Appropriations for dues.
The county commissioners and elected officials of any county may join with the commissioners and elected officials of other counties in formation of an association of county commissioners and elected officials of this state for the purpose of securing concerted action among the counties in behalf of such matters, measures and county affairs as the associations deem to be beneficial to and in the common interest of the counties. Such associations may hold meetings for the discussion and consideration of matters as affect the welfare of the counties.
The board of county commissioners may annually appropriate funds for the payment of reasonable annual dues in any such association.

The group is authorized by law, and their dues are paid for out of tax revenues. That means unless they've formed a PAC and paid for it out of their pockets, I question whether there is a legal way they can can cut an association check for a ballot issue.

Who says they can't? The attorney general for one. Check out Attorney General opinion 88-28:

You have requested an official opinion from this office on the following questions:

1. Can a municipality, county, or school district expend public funds to advocate a position on an election measure?

2. Can a municipality, county, or school district expend public funds to provide information as to the impact of an election measure on the respective entity?

QUESTION NO. 1:

Although the courts of this State have not yet addressed the question, a review of court decisions in other jurisdictions leads me to conclude that municipalities, counties, and school districts may not expend public monies for purposes of promoting or advocating a particular position on an election measure.

... lots of case citations you can read in the opinion for yourself ...

Upon review of the South Dakota statutes I can find no statutory provisions that may in any manner be construed as explicitly giving a division of local government the authority to expend public monies for purposes of influencing election results. In fact, any claim that the expenditures are impliedly authorized under statute would be unreasonable. Accordingly, the answer to Question No. 1 is "no."

QUESTION NO. 2

On the other hand, the use of the public funds by local governments solely for purposes of informing or educating the voters on an election issue may be proper depending on the circumstances.

... lots of case citations you can read in the opinion for yourself ...

Whether such expenditures are impliedly authorized requires close review of the initiated or referred measure and a review of those powers expressly granted under statute. The expenditures would have to be judged on an individual, case-by-case basis. Certainly, local governments may not expend public funds to provide information on all election issues, however, if passage or rejection of the ballot measure would significantly affect the ability of the municipality, county, or school district to carry out its express powers, the use of public funds for strictly informational purposes may be authorized.

Assuming that the use of public funds for such purpose is authorized, to avoid any claim of misappropriation the governing board involved must be careful to ensure that the published information constitutes a fair presentation of the relevant facts on both sides of the election issue. Along such lines, it would not be sufficient to merely refrain from exhorting a yes or no vote. Other language or statements prepared and designed to influence public opinion would also be improper. Any determination of the propriety or impropriety of the publication and ultimately the expenditure would turn on a consideration of various factors, including the style and tenor as well as the timing of the publication. Stanson v. Mott, supra at 12.

Respectfully submitted,
Roger A. Tellinghuisen
Attorney General

"I can find no statutory provisions that may in any manner be construed as explicitly giving a division of local government the authority to expend public monies for purposes of influencing election results." This AG opinion would seem to imply that on an individual basis they can't do this. And this is coming from Tellinghuisen, whom I considered taking a more laissez faire position on election issues.

It's why the Pennington County Commission had to play it safe when they were promoting a drink tax.

But with the SDACC therein lies another question - with tax dollars being paid to them in the form of it's dues - does passing them through this organization suddenly make it legal? Especially in light of the fact that the organization was created (or at least enabled) through legislation?

If the case is "yes" - what is there to stop the organization from raising dues to build a taxpayer funded warchest for any measure they choose, such as the drink tax? In effect, they'd be spending property tax and wheel tax revenues to convince people they need another tax.

Because in this case, it sure looks like they could be spending tax revenues to convince people to keep being taxed. And I don't know that their taxpayers would think about that.