South Dakota governor signs bill barring public agencies from collecting or releasing nonprofit donor information
South Dakota is the first – and to date only – state that has enacted donor disclosure legislation in 2021. It is one of seven states that have passed laws explicitly barring public entities from collecting or releasing information about a nonprofit’s donors (the others are Arizona, Louisiana, Mississippi, Oklahoma, Utah, and West Virginia)
What the bill does
SB103 prohibits any public agency (including state and municipal government units and courts) from:
- Requiring a tax-exempt nonprofit to provide a public agency with “personal affiliation information,” defined as “any list, record, register, registry, roll, roster, or other compilation of any kind that directly or indirectly identifies a natural person as a member, supporter, volunteer, or donor of financial or nonfinancial support to any nonprofit corporation.”
- Publicly disclosing any such information a public agency may already possess.
- Requiring a current or prospective contractor to provide a public agency with a list of the nonprofits “to which it has provided financial or nonfinancial support.”
The legislation does not bar public agencies from furnishing personal information about a nonprofit’s donors, supporters, etc., for:
- Campaign finance reporting requirements.
- A lawful warrant for personal affiliation information.
- A lawful request for discovery of personal affiliation information in litigation, if the requestor “demonstrates a compelling need” for the information and “obtains a protective order barring disclosure” of information to anyone not named in the litigation.
- A sales or use tax audit of a nonprofit by the Department of Revenue.
- An audit, examination, or investigation of a nonprofit corporation conducted under state law.
Other states considering similar legislation: Arkansas (SB535), Iowa (HF309, HSB28, and SSB1036), Nebraska (LB370), and Tennessee (HB0159 and SB1608). All four states are Republican trifectas. The map below shows these states in light green. States shaded in dark green have enacted laws to this effect.
Sens. Casey Crabtree and James Bolin and Reps. Kirk Chaffee, Tim Goodwin, and Tim Reed – all Republicans – introduced SB103 on Jan. 26. The state Senate approved the bill on Feb. 17, sending it to the South Dakota House of Representatives. On March 3, the House approved an amended version of the bill 55-13, with 55 Republicans voting in favor and eight Democrats and five Republicans voting against it. The Senate unanimously agreed to the amendments on March 8. Noem signed SB103 into law on March 21.
Political context: South Dakota is a Republican trifecta, meaning Republicans control the governorship and both chambers of the state legislature. South Dakota has been a Republican trifecta since 1995.
Other relevant legislation in South Dakota
HB1079, signed into law on March 3, prohibits any executive branch entity (e.g., the governor, the secretary of state, etc.) from requiring “any annual filing or reporting of a nonprofit corporation or charitable trust that is more stringent, restrictive, or expansive than that required by state or federal law.” It does not apply to information required “to determine eligibility for or compliance with a state grant or contract.” The bill also exempts information required for, or obtained during, a state fraud investigation or enforcement action.
Support and opposition
- Mark Miller, an attorney for Noem, said the following in support of HB1079: “What is this bill about? It’s really about the American way of life. … It’s also meant to return us to the traditional role of anonymity in support for certain causes that one believes in.”
- Dale Bartscher, executive director of South Dakota Right to Life, wrote in an op-ed for the Rapid City Journal: “With the passage of this legislation the privacy of South Dakota citizens would be protected, and information about the causes we support – whether it’s a church, local food bank, or social issue organization such as South Dakota Right to Life. This legislation would assure that our protected private information – would be kept away from the prying eyes of government officials, the media, and activists who want to target us for our beliefs.”
- Rep. Ryan Cwach (D), who voted against both SB103 and HB1079, said, “We expect accountability and we expect transparency from our government, and so the idea that we want to try and keep how people are influencing our government anonymous goes against the whole bedrock of our society.”
- Michael Beckel, research director of Issue One, said, “State agencies seeking to investigate politically active dark money groups would have less information available about such groups if there is no reporting of these groups’ donors to the state. Without being able to see the money flowing into these groups, it could be harder for investigators to connect the dots or to see the networks of wealthy individuals and special interests pumping cash into these groups.”
What we’re reading
- Fox News, “Democrats’ elections bill raises major free speech concerns, experts warn,” March 26, 2021
- Tax Notes, “Supreme Court Urged to Sustain California Donor Disclosure Decision,” March 26, 2021
- Bloomberg Law, “Challenge to California Donor Disclosure Law Unfounded, AG Says,” March 25, 2021
The big picture
Number of relevant bills by state: We’re currently tracking 36 pieces of legislation dealing with donor disclosure. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status:
Number of relevant bills by partisan status of sponsor(s):
Recent legislative actions
For complete information on all of the bills we are tracking, click here.
- Illinois HB3735: This bill would require a political committee to include a list of the committee’s top contributors (i.e., those who give $50,000 or more) on specified advertisements and communications.
- Democratic sponsorship.
- Re-referred to the House Rules Committee on March 27.
- Iowa HF309: This bill would prohibit a public agency from disclosing identifying information about a nonprofit’s donors.
- Sponsorship not specified.
- Senate Judiciary Committee reported favorably on March 24.
- Maine LD1284: This bill would repeal a law requiring communications financed by independent expenditures include a statement listing the top three funders of the entity making the independent expenditure. It would also specify that only party committees and political action committees, and not individuals, are required to file reports of independent expenditures aggregating in excess of $250 during any one candidate’s election.
- Republican sponsorship.
- Introduced and referred to the Veterans and Legal Affairs Committee on March 25.
- Tennessee SB1608: This bill would prohibit a public agency from disclosing identifying information about a nonprofit’s donors.
- Republican sponsorship.
- Senate State and Local Government Committee hearing scheduled for March 30.
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