In South Dakota, can a candidate or officeholder pay for childcare or personal security out of their campaign account?

Plain-English summary

South Dakota Senator Liz Larson asked the AG whether candidates can pay for childcare and personal security out of campaign funds, when those costs come up because of campaigning or holding office. SDCL 12-27-50, the statute that lists permissible uses of campaign contributions, does not name childcare or security as allowed or disallowed.

Attorney General Marty Jackley concluded:

• The statute is ambiguous. A trier of fact could go either way.
• The cleanest rule is a "but for" test: would the candidate be paying this expense anyway, regardless of the campaign or office? If yes, it is a personal expense and the campaign account cannot pay for it. If the expense only exists because of the campaign or office, and is reasonably connected to campaign duties or officeholder duties, it is more likely permissible.
• Childcare and personal security incurred because of campaigning or because of the threat profile that comes with holding office probably qualify as permissible expenditures under SDCL 12-27-50(1) (campaign-related) or (2) (incident to being a public official). But the candidate needs a clear nexus, not just a label.
• Real clarity is for the Legislature, not the AG. Federal candidates have explicit FEC permission for childcare; fifteen states have written similar rules into statute. South Dakota has not. Until it does, candidates take a calculated risk.

This is an unusually tentative AG opinion. It tells candidates the AG's view but warns them that a different fact-finder could reach a different result.

What this means for you

If you are a South Dakota candidate or officeholder thinking about using campaign funds for childcare

Ask one question first: would I be paying for this childcare regardless of running for office? If your child is in daycare full-time anyway, those costs are personal and the campaign account cannot pay them. If you are hiring an evening sitter so you can knock doors, attend a constituent meeting, or sit in committee, that expense exists because of the campaign or office, and is the kind of "but for" cost the AG opinion treats as permissible.

Document the nexus. For each childcare reimbursement, keep a receipt and a note tying the time to a campaign or officeholder activity (event, calendar item, meeting). The opinion explicitly says SDCL 12-27-50 does not list childcare, so if the disclosure is ever challenged, your record of nexus is the defense.

Do not use campaign funds for routine ongoing childcare arrangements that would exist with or without the campaign. The AG opinion specifically warns that childcare otherwise classified as a personal expense is "impermissible personal use" absent a campaign nexus.

If you are a candidate or officeholder considering campaign-funded personal security

Same "but for" framework applies. If you have an existing alarm system at your house, paid by you for ordinary safety reasons, the campaign account cannot reimburse that. If you are paying for additional security because credible threats arose because of the campaign or office (and you can document those threats, the threat assessment, or the security provider's billing tied to specific events), that is closer to the campaign- or office-related side of the line.

Note that very few states (California, Louisiana, Minnesota) have written explicit security-expense rules into law. South Dakota has not. The opinion is more cautious about security than childcare because the case law and statutes give less to anchor a security claim to.

Tools to reduce risk:

• Ask your campaign finance accountant or the Office of the Secretary of State for guidance on the specific expenditure before booking it.
• Keep the security service invoice itemized by event date and threat circumstance.
• If you are an incumbent, consider whether the Department of Public Safety or your office's security budget can cover the cost instead.

If you are a campaign treasurer

You are the one filing the disclosure under SDCL 12-27-24, and you are the first line of defense against a personal-use complaint. The AG opinion does not protect you from a finding that a particular expenditure failed the "but for" test. Build a process:

• A short written test the candidate has to satisfy before any childcare or security expense gets reimbursed: what is the campaign or office activity, what time period does it cover, would this cost exist absent that activity.
• Photocopy receipts, calendar entries, and any threat documentation into a single folder per expenditure.
• Itemize childcare and security expenditures distinctly on disclosure reports; do not bundle them with general expenses, because if a complaint is filed you want the question litigated on a clean record.

If you are a campaign finance attorney advising clients

The opinion is unusually candid that the statute is ambiguous and that the AG's "permissible if nexus is clear" conclusion could be rejected by a trier of fact. Advise clients accordingly: this is calculated-risk territory, not safe-harbor territory. Tell legislators clients to push for a clarifying statute. Matter of Discipline of Hopewell, 507 N.W.2d 911, 915 (S.D. 1993) is the case to know; it sets the rule that campaign contributions are not for the candidate's personal benefit or the candidate's family's benefit, and the AG's analysis turns on whether the expense crosses that line.

If you are a South Dakota legislator

The opinion ends with an invitation to the Legislature to draw a line. Fifteen states already have. A bill that simply lists childcare and security as permissible when "directly incurred as a result of campaign activity or holding public office, which would not exist but for the campaign or officeholder duties" tracks the AG's analysis and would give candidates a clean rule. Without that fix, every cycle there is risk of a complaint that the Government Accountability Board has to sort out on incomplete records.

Common questions

Q: Does SDCL 12-27-50 say anything about childcare or personal security?
A: No. It lists three permissible categories (campaign-related purposes, expenses incident to being a public official, donations to other candidates or charities) and leaves specific expense types unaddressed. The drafters in 2017 deliberately avoided enumerated categories out of concern they would miss legitimate expenses.

Q: How is South Dakota different from federal candidates?
A: The Federal Election Commission has explicitly approved childcare expenses for federal campaigns (when caused by the campaign), through advisory opinions and rule guidance. Federal candidates have a clearer rulebook than South Dakota candidates.

Q: Which states have explicit statutes allowing campaign-funded childcare?
A: The opinion lists fifteen: Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Minnesota, Montana, New Hampshire, New Jersey, New York, Rhode Island, Utah, and Washington. South Dakota neighbors Minnesota and Montana have such rules; Iowa, Nebraska, and North Dakota do not.

Q: Which states have explicit statutes allowing campaign-funded security?
A: Fewer. The opinion identifies California, Louisiana, and Minnesota.

Q: If I make a permissible-but-borderline expenditure and someone files a complaint, what happens?
A: A complaint goes to the South Dakota Government Accountability Board or to the state's attorney depending on the route. The trier of fact applies SDCL 12-27-50 to the specific expenditure with the documentation you provided. The AG opinion's "but for" framework will be persuasive but is not binding. Civil and potentially criminal exposure depends on findings of personal benefit.

Q: Does this opinion bind a court or a future AG?
A: No. South Dakota AG opinions are not binding precedent. They are persuasive, especially because the AG enforces some of these statutes, but courts have rejected AG opinions before. A new AG could revisit this analysis.

Q: What documentation should I keep for childcare reimbursements?
A: At minimum: receipt or invoice; date and time block covered; the campaign or officeholder activity that occurred during that time block (with a calendar entry or event flyer); and a short note that the childcare was needed because of that activity. The same logic applies for security: the threat or event tied to the expense.

Background and statutory framework

SDCL 12-27-50 was rewritten as 2017 Senate Bill 54. The bill's proponent explicitly told the Senate committee that the drafters did not want enumerated lists, because any list would risk excluding categories that should be permissible. The result is a statute with three broad permissible categories and no specifics. This is normally a deliberate design choice in favor of flexibility; the cost is exactly the ambiguity at issue in this opinion.

The "but for" test the AG endorses tracks federal personal-use analysis under 11 C.F.R. § 113.1(g) and Matter of Discipline of Hopewell's rule that candidates may not use campaign contributions for personal benefit. The framework is: would the expense exist independent of the campaign or office. If yes, personal. If no, campaign or office-related.

Recent neighbor-state activity is relevant context. The opinion notes that as of the date of issue, Illinois House Bill 576 (amended December 12, 2025) and a Minnesota statutory amendment (effective January 1, 2026) both continue to permit campaign-funded childcare. Montana, Minnesota's other neighbor, also permits the practice. South Dakota's silence is increasingly a regional outlier.

Real-world drivers of this question: rising security threats against state legislators in the post-2020 period; growing share of female and younger-parent candidates for whom childcare is a load-bearing campaign cost; and federal-state divergence as the FEC's clear permission contrasts with state-level silence. These factors will likely force the Legislature to act, but until they do, the AG's "tentative permission with documentation" framework is the practical floor.

Citations and references

Statutes:
- SDCL 12-27-24 (campaign finance reporting)
- SDCL 12-27-50 (permissible uses of campaign contributions)

Cases:
- Matter of Discipline of Hopewell, 507 N.W.2d 911 (S.D. 1993) (no personal-benefit use of campaign funds)
- Farm Bureau Life Ins. v. Dolly, 2018 S.D. 28, 910 N.W.2d 196 (plain-language statutory interpretation)
- Magellan Pipeline Co. v. S.D. Dep't of Revenue & Reg., 2013 S.D. 68, 837 N.W.2d 402 (statutory interpretation)
- Moss v. Guttormson, 1996 S.D. 76, 551 N.W.2d 14 (statutory interpretation)

Comparative state statutes referenced by the opinion (childcare):
- Ark. Stat. Ann. § 7-6-203
- Cal. Govt. Code § 89513
- Colo. Rev. Stat. § 1-45-103.7
- Conn. Gen. Stat. §§ 9-601, 9-607
- Del. Code Ann. tit. 15, § 8020
- Hawaii Rev. Stat. § 11-381
- Ill. Rev. Stat. ch. 10, § 5/9-8.10
- Minn. Stat. § 10A.01
- Mont. Code Ann. § 13-1-101
- N.H. Rev. Stat. Ann. § 334:2
- N.J. Rev. Stat. § 19:44A-11.2
- N.Y. Election Law § 14-130
- R.I. Gen. Laws § 17-25-7.2
- Utah Code Ann. § 17-16-202
- Wash. Rev. Code § 42.17A.445

Comparative state statutes referenced by the opinion (security):
- Cal. Govt. Code § 89517.5
- La. R.S. § 18:1505.2
- Minn. Stat. § 10A.01

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2026-01.pdf

Original opinion text

OFFICIAL OPINION 26-01

Re: Official Opinion Concerning Campaign Expenditures for Childcare and Security Expenses

Dear Senator Larson,

In your capacity as a South Dakota Senator, you have requested an official opinion from the Attorney General on the following question:

QUESTION:

Are childcare expenses and security expenses, incurred as a direct result of campaign activity and/or holding public office, permissible expenditures of candidate campaign committee contributions?

ANSWER:

South Dakota statutes do not explicitly permit or forbid candidates from using campaign committee contributions for childcare or security expenses.

FACTS:

Current South Dakota law requires that candidates for public office abide by specific guidelines related to contributions to political campaigns. Candidates must maintain detailed records of all expenditures through campaign finance disclosure statements, and all expenditures must be itemized by specific expense categories. SDCL 12-27-24. There are limitations on the use of campaign committee contributions. SDCL 12-27-50. However, as you stated in your request, it is unclear whether childcare or security expenses incurred as a direct result of candidacy or public office are considered permissible expenditures of campaign contribution funds.

IN RE QUESTION:

Current law requires that contributions received by a candidate's campaign committee can be used only for:

• A purpose related to a candidate's campaign;
• Expenses incident to being a public official or former public official; or
• Donations to any other candidate, political committee, or nonprofit charitable organization.

SDCL 12-27-50. When reviewing statutes, we must "assume statutes mean what they say and that legislators have said what they meant." Farm Bureau Life Ins. v. Dolly, 2018 S.D. 28, ¶ 9, 910 N.W.2d 196, 199–200 (quoting In re Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984)). "When interpreting a statute, we begin with the plain language and structure of the statute." Magellan Pipeline Co. v. S.D. Dep't of Revenue & Reg., 2013 S.D. 68, ¶ 9, 837 N.W.2d 402, 404. "When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed." Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted).

The phrases "[a] purpose related to a candidate's campaign" and "incident to being a public official" are clear and unambiguous, but broad descriptions. Based on my research, it appears the exclusion of specific categories, such as advertising and mailings, in SDCL 12-27-50 was intentional. When it was initially introduced to the Legislature as 2017 Senate Bill 54, the bill's proponent stated they did not want to put specific expense categories in the statute for fear of possibly excluding a category that should be considered permissible. The result, however, is the issue you have now raised — the inability to know whether an expense which could be considered either campaign-related or personal is permitted or not.

South Dakota is in the majority of states that don't specifically permit childcare and security expenses as allowable campaign expenses. Our statutes, like those of our neighbors in Iowa, Nebraska, and North Dakota, do not specifically allow or forbid childcare or security expenses, so there is ambiguity on whether these expenses are permissible. Some jurisdictions, in contrast, have defined permissible expenditures with specificity. For example, as you correctly noted in your request, the Federal Election Commission explicitly permits candidates for federal office to use campaign contributions for childcare expenses incurred during the candidate's political campaign. As of the date of this letter, fifteen states have enacted similar laws. These states, including our neighbors Minnesota and Montana, permit a candidate to use campaign funds to pay reasonable and necessary childcare or dependent care expenses incurred because of the campaign. See Ark. Stat. Ann. § 7-6-203; Cal. Govt. Code § 89513; Colo. Rev. Stat. § 1-45-103.7; Conn. Gen. Stat. §§ 9-601, 9-607; Del. Code Ann. tit. 15, § 8020; Hawaii Rev. Stat. § 11-381; Ill. Rev. Stat. ch. 10, § 5/9-8.10; Minn. Stat. § 10A.01; Mont. Code Ann. § 13-1-101; N.H. Rev. Stat. Ann. § 334:2; N.J. Rev. Stat. § 19:44A-11.2; N.Y. Election Law § 14-130; R.I. Gen. Laws § 17-25-7.2; Utah Code Ann. § 17-16-202; and Wash. Rev. Code § 42.17A.445. A smaller number of states explicitly let candidates pay for security costs with their campaign funds. See Cal. Govt. Code § 89517.5; La. R.S. § 18:1505.2; Minn. Stat. § 10A.01.

When considering whether these are permissible expenditures, the key question is whether such expenses are considered a personal benefit or for personal use. Of course, "[a] candidate should not use or permit the use of campaign contributions for the benefit of himself or members of his family." Matter of Discipline of Hopewell, 507 N.W.2d 911, 915 (S.D. 1993). It is possible that a trier of fact could determine that childcare expenses are not for a political purpose related to the candidate's campaign. Similarly, they could determine that personal security detail are not related to the candidate's responsibilities as a public officeholder. Thus, these expenses would likely be considered a personal benefit and therefore prohibited.

On the other hand, a reasonable trier of fact could determine that childcare and security expenses incurred as a direct result of campaign activity may be considered a "purpose related to a candidate's campaign." SDCL 12-27-50(1). Similarly, they could be considered "expenses incident to being a public official." SDCL 12-27-50(2).

States with similar statutes that do not specifically grant permission for childcare and security expenses may prohibit the use of campaign committee contributions for these expenses, treating such as impermissible personal expenses rather than legitimate campaign or official duties expenditures. The critical distinction across jurisdictions appears to be whether the expense would exist "irrespective of" or "but for" the campaign or officeholder duties. Childcare payments, specifically, are considered impermissible personal expenses unless directly tied to campaign-related activities or officeholder duties, thus qualifying as prohibited personal use of campaign contributions. Courts uniformly emphasize the necessity of maintaining public confidence in the proper use of political contributions. So, while some jurisdictions consider these expenses nonpersonal if directly connected to campaign activity, the prevailing view requires a clear campaign or officeholder nexus to avoid classification as an impermissible personal expense.

In summary, SDCL 12-27-50 does not explicitly address or list these as allowable expenses. Thus, absent further legislative guidance, I conclude that childcare and security expenses directly incurred as a result of campaign activity or holding public office, which would not exist but for the campaign or officeholder duties, would likely be considered permissible expenditures so long as there is a clear nexus to the campaign or office and are not for personal benefit.

CONCLUSION

In my opinion and based on the plain reading of the statute, there is ambiguity on whether childcare and security expenses directly incurred as a result of campaign activity or holding public office are considered permissible expenditures, or whether they are a personal benefit and thus prohibited. Based on my research, childcare and security expenses directly incurred as a result of campaign activity or holding public office, which would not exist but for the campaign or officeholder duties, would be considered permissible expenditures so long as there is a clear nexus to the campaign or office and are not for personal benefit. The Legislature has the power to create and revise statutes and has the duty to clarify the relevant statutes if desired.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL

MJJ/SLT/dd