South Dakota lawmakers advance bills limiting disclosure of nonprofit donor information

Last week, South Dakota state lawmakers advanced two separate bills limiting the disclosure of identifying information about donors to nonprofits: HB1079 and SB103. 

What the bills propose

HB1079 would prohibit 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." The legislation would 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.

SB103 would bar 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," which is 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 might 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.

Although the bills deal with similar subject matter, the bills are not companions. If enacted, they would be signed into law separately.

Legislative status  

HB1079: The House Judiciary Committee, at the request of Gov. Kristi Noem (R), introduced the bill on Jan. 22. The House approved it 62-8 on Feb. 2. The Senate approved an amended version 32-3 on Feb. 16. The amended bill is pending in the House. Republicans voted unanimously in favor of the bill. Democrats voted unanimously against it. 

SB103: Sens. Casey Crabtree (R) and James Bolin (R) and Reps. Kirk Chaffee (R), Tim Goodwin (R), and Tim Reed (R) introduced the legislation on Jan. 26. On Feb. 17, the state Senate voted 33-2 in favor of the bill. All Republicans and one Democrat voted in favor of the bill. Two Democrats opposed it. Sb103 is currently pending in the state House, where it has been referred to the House State Affairs Committee. 

Political context: South Dakota is a Republican trifecta, meaning that Republicans control the governorship and both chambers of the state legislature. South Dakota has been a Republican trifecta since 1995.

Arguments  

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." 

Rep. Ryan Cwach (D), who voted against 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."

What other states are doing: At least three other states are considering similar legislation this year: Iowa (HF309, HSB28, and SSB1036), Nebraska (LB370), and Tennessee (HB0159 and SB1608). All three states are Republican trifectas. 

What We're Reading

• News articles
  • Public News Service, "TN Bill Puts Spotlight on Nonprofit Donors and Public 'Right to Know,'" Feb. 16, 2021
  • South Dakota Public Broadcasting, "Nonprofit Privacy Legislation Could Hide Political Donors, Watchdog Group Says," Feb. 10, 2021
     
• Opinion and commentary
  • The American Prospect, "Noem Bill Would Make Dark Money Disclosure Illegal," Feb. 20, 2021
  • The Federalist, "South Dakota Bill Would Help Starve Cancel Culture By Letting People Donate Privately," Feb. 16, 2021

The Big Picture

Number of relevant bills by state: We're currently tracking 29 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. 

• New Hampshire HB105: This bill would require that political contributions from domestic or foreign limited liability companies be allocated to their individual members for the purposes of campaign finance reporting. 
  • Bipartisan sponsorship.
  • The bill died in committee after the House Election Law Committee reported it "inexpedient to legislate" on Feb. 17. 
• South Dakota HB1079: This bill would prohibit executive agencies and officials from requiring nonprofits to make disclosures beyond those required under state and federal law.
  • Republican sponsorship.
  • The Senate adopted an amended version of the bill on Feb. 16 and returned it to the House.
• South Dakota SB103: This bill would prohibit public agencies from requiring any person or nonprofit to provide identifying information about a nonprofit's donors. It would also prohibit the disclosure of any such information currently in the possession of a public agency.
  • Republican sponsorship.
  • The Senate adopted the bill on Feb. 17 and passed it to the House.

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