Anti-abortion group sues South Dakota over campaign finance requirements

A Virginia anti-abortion group wants a federal judge to strike down a South Dakota law that requires nonprofit organizations to list their top five donors on political messaging.

Students for Life of America is a nonprofit advocacy group launched in 2006, with an aim to educate and connect anti-abortion students with messaging tools and one another. Students for Life Action is an associated group, but is a different type of nonprofit allowed to engage in political activities.

On Monday, Students for Life Action filed a lawsuit in the U.S. District Court in South Dakota alleging that the state’s donor disclosure requirements violate the First Amendment of the U.S. Constitution. The litigation names Attorney General Marty Jackley and Secretary of State Monae Johnson as defendants.

The lawsuit comes with the backdrop of an impending political battle over abortion in South Dakota. Advocates are collecting signatures for a ballot question that would codify the right to an abortion into the state constitution.

The lawsuit notes that Students for Life Action intends to send political messaging in 2024, the year voters may be asked to overturn the state’s near-total abortion ban.

“Plaintiff Students for Life Action has engaged in independent expenditures in South Dakota in the past and intends to do so again in future elections, including the 2024 election,” the lawsuit says.

The group engaged in “independent expenditures” highlighting the abortion views of 12 candidates on South Dakota’s primary election ballot in 2022. Among them were Rep. Greg Jamison, R-Sioux Falls, Rep. Jess Olson, R-Rapid City, and Rep. Tim Reed, R-Brookings. The lawsuit does not say whether the group disclosed its top five donors in those communications, and Students for Life Action has not provided South Dakota Searchlight with copies of the communications. 

According to the lawsuit, the communications took aim at the candidates’ “voting records on banning chemical abortions” and their responses to surveys from the group. The group spent $116.62 on each race.

That price tag triggered the requirement to list the organization’s top five donors. The requirement has the effect of chilling speech, the lawsuit alleges.

Such disclosures amount to “doxxing” donors, the group says. The term refers to the release of personally identifying documents or information that might subject people to harassment and physical danger. 

In 2021, the lawsuit says, a Texas Right to Life staffer received death threats when his home address was leaked on the internet.

“South Dakota’s on-ad disclosure law discourages donors from making contributions to nonprofits like Students for Life Action that advocate positions with which they agree, for fear that their names will be highlighted in public advertisements,” the lawsuit reads.

Jacob Huebert, the Chicago lawyer representing the student group in the lawsuit, told South Dakota Searchlight that the group had not been accused of violating the law by any officials in the state as a result of its campaign spending.

The problem, he said, is the existence of the law and its potential penalties – up to 30 days in jail and a $500 fine for a first offense and up to a year in jail and a $2,000 penalty for repeat offenses.

The law violates the rights of any nonprofit that seeks to communicate its views, he said.

“This law is on the books. They have to comply with it. If they don’t comply with it, they are subject to being criminally prosecuted. They don’t want to have to disclose their donors, and so the way to deal with this is to challenge the law, like we’re doing, for violating the organization’s First Amendment rights,” Huebert said. 

The law in question passed in 2013 as part of a broader campaign finance reform bill. It’s unclear how many times it’s been enforced since former Gov. Dennis Daugaard signed it into law. Representatives from Secretary of State Johnson’s office did not return an email seeking comment on the lawsuit.

Attorney General Jackley did not have a comment on the allegations in the lawsuit, but pledged to defend the law as necessary through spokesman Tony Mangan.

“The Attorney General has not been served with the lawsuit,” Mangan said in an emailed statement. “In the event, the Attorney General, or a proper state official is served, the Attorney General will undertake its responsibility to defend our state statutes, Constitution, and officials.”

EDITOR’S NOTE: This story has been updated since its original publication with a correction and additional information. A statement incorrectly attributed to Jacob Huebert has been removed. Information has been added regarding Students for Life Action’s 2022 independent expenditures in South Dakota.