A problematic statute?

Daniel Willard’s attorney, outgoing Rep. R. Shawn Tornow, insisted prosecutors are wrong in both their facts and their legal interpretation in bringing charges against Willard.

In particular, I’m interested in his objections to the law, which Tornow said include but aren’t limited to First Amendment concerns.

"A minimum that’s a problematic statute that the state’s going to have to deal with," Tornow said, saying the problems exist "on a number of levels."

Attorney General Marty Jackley wasn’t too concerned about this when I asked him yesterday.

"Those are issues for the Legislature, which (Tornow) was within, and for the courts," Jackley said. "My job as attorney general is to the best of my capabilities enforce the statutes and laws contained within the constitution, and our legislative statutes."

Tornow didn’t go into details about his objections to SDCL 12-27-16. But take a look at the text. Everyone, and especially my attorney readers, does Tornow have a point? Is there something here that’s over-vague, constitutionally subject or otherwise problematic? Something the Legislature should clean up or a court should throw out?

12-27-16.   Statements to be filed regarding independent expenditures for communications advocating for or against candidate, office holder, ballot question, or political party—Time for filing—Contents—Exceptions. The following apply to independent expenditures by individuals and organizations related to communications advocating for or against candidates, public office holders, ballot questions, or political parties, and expenditures by individuals and organizations within sixty days of an election that clearly identify a candidate or public office holder but do not expressly advocate the election of the candidate or public office holder:

             (1)      Any person or organization that makes an independent expenditure for a communication which expressly advocates for or against a candidate, public office holder, ballot question, or political party, regardless of the amount of the expenditure, shall append to or include in each communication a disclaimer that clearly and forthrightly:

             (a)      Identifies the person or organization making the independent expenditure for that communication;

             (b)      States the address or website address of the person or organization; and

             (c)      States that the communication is independently funded and not made in consultation with any candidate, party, or political committee.

                  A violation of this subdivision is a Class 1 misdemeanor;

             (2)      Any person or organization that makes an expenditure, including the payment of money or exchange of other valuable consideration or promise, for a communication that clearly identifies a candidate or public office holder, but does not expressly advocate the election or defeat of the candidate or public office holder, and that is disseminated, broadcast, or otherwise published within sixty days of an election shall append to or include in the communication a disclaimer that clearly and forthrightly:

             (a)      Identifies the person or organization making the expenditure for that communication; and

             (b)      States the address or website address of the person or organization.

                  A violation of this subdivision is a Class 1 misdemeanor;

             (3)      Any organization which is not a recognized business entity and which makes an expenditure for a communication described in subdivision (1) or (2) shall file a statement within forty-eight hours of the time that the communication is disseminated, broadcast, or otherwise published;

             (4)      Any person or recognized business entity that makes expenditures in excess of two thousand dollars during any calendar year for communications described in subdivision (1) or (2) shall file a statement with the secretary of state that is received within forty-eight hours of the time that the person’s or organization’s expenditures exceed two thousand dollars, and thereafter, within forty-eight hours of the time that any such subsequent communication is disseminated, broadcast, or otherwise published during the remainder of that calendar year;

             (5)      The statements required by this section shall include the name, street address, city, and state of the person or organization and, for any expenditures made for communications described in subdivision (1) or (2) during that calendar year but not yet reported on a prior statement, the name of each candidate, public office holder, ballot question, or political party mentioned or identified in each communication, the amount spent on each communication, and a description of the content of each communication.

                  For an organization, the statement shall also include the name and title of the person filing the report, the name of its chief executive, if any, and the name of the person who authorized the expenditures on behalf of the organization;

             (6)      For an organization whose majority ownership is owned by, controlled by, held for the benefit of, or comprised of twenty or fewer persons, partners, owners, trustees, beneficiaries, participants, members, or shareholders, the statement shall identify by name and address each person, partner, owner, trustee, beneficiary, participant, shareholder, or member who owns, controls, or comprises ten percent or more of the organization;

             (7)      An organization shall also provide supplemental statements, as defined in subdivision (5), for any of its partners, owners, trustees, beneficiaries, participants, members, or shareholders identified pursuant to subdivision (6) which are owned by, controlled by, held for the benefit of, or comprised of twenty or fewer persons, partners, owners, trustees, beneficiaries, participants, members, or shareholders, until no organization identified in the supplemental statements meets the ownership test set forth in subdivision (6);

             (8)      For the purposes of this section, the term, communication, does not include:

             (a)      Any news articles, editorial endorsements, opinion, or commentary writings, or letter to the editor printed in a newspaper, magazine, flyer, pamphlet, or other periodical not owned or controlled by a candidate, political committee, or political party;

             (b)      Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate, political committee, or political party;

             (c)      Any communication by a person made in the regular course and scope of the person’s business or ministry or any communication made by a membership organization solely to members of the organization and the members’ families; and

             (d)      Any communication that refers to any candidate only as part of the popular name of a bill or statute.