Can a South Dakota candidate or officeholder use campaign committee funds to pay for childcare or personal security expenses that came up because of the campaign or the job?

Plain-English summary

Senator Larson asked the AG whether South Dakota candidates and officeholders can use money in their campaign committees to pay for childcare expenses (so they can attend campaign events) and personal security expenses (necessary because of threats arising from candidacy or public office). The Federal Election Commission has long allowed federal candidates to use campaign funds for childcare; fifteen states have written that into their state laws. South Dakota's statute is silent.

The controlling provision is SDCL 12-27-50. It limits campaign committee contributions to three uses: "a purpose related to a candidate's campaign," "expenses incident to being a public official or former public official," or donations to other candidates, political committees, or 501(c)(3) charities. The Legislature deliberately wrote those categories in general terms in 2017 SB 54, declining to list specific allowable expenses so it would not accidentally exclude one. The result is the ambiguity Senator Larson asked about.

AG Marty Jackley framed the answer around the "but for" test that's standard in this area: would the expense exist if there were no campaign and no public office? Childcare and security expenses that arise solely because the candidate or officeholder is doing campaign work or official duties have a plausible nexus and would likely qualify under SDCL 12-27-50(1) or (2). Pure personal expenses, including childcare a parent would need regardless of the campaign, fail the nexus test and would not qualify.

The AG also flagged a real litigation risk. The South Dakota Supreme Court said in Matter of Discipline of Hopewell (1993) that "a candidate should not use or permit the use of campaign contributions for the benefit of himself or members of his family." A trier of fact (a Government Accountability Board panel reviewing a complaint, an Ethics Committee, a court) might find that childcare for a candidate's own children is family benefit, even if the candidate was at a debate at the time. The AG's bottom line is that with a clearly documented campaign or office nexus and no personal benefit beyond what the activity itself produces, the expense is probably allowed, but candidates are operating in a statutory gray zone until the Legislature writes specific rules.

What this means for you

For South Dakota candidates and officeholders

Be conservative. If you decide to pay childcare or security expenses out of your campaign committee, document everything. Keep dated receipts, the specific event or duty that triggered the expense, and a contemporaneous note explaining why the expense would not have existed but for that activity. Itemize the expense on the campaign finance disclosure under SDCL 12-27-24 with a specific category description. A blanket "childcare" line item with no detail is the riskiest possible posture if anyone files a complaint.

For campaign treasurers

Set an internal rule that childcare and security reimbursements need a one-page nexus memo before payment: which event, why the candidate had to be there, why this childcare arrangement (rather than the candidate's normal arrangement) was needed. Save the memo with the receipt. If you have any doubt about whether an expense would have existed without the campaign, do not pay it from committee funds.

For sitting legislators and other officeholders

"Expenses incident to being a public official" under SDCL 12-27-50(2) gives you a separate category, but the same nexus test applies. Security details to handle threats received in the course of official duties have a clear nexus. A home security system you would have installed for general peace of mind does not. Track the trigger.

For candidates worried about being challenged

The AG opinion is non-binding and the Supreme Court has not weighed in. Anyone who relies on it is making an informed bet, not following a definitive rule. If you want certainty, the AG's parting suggestion is for the Legislature to amend SDCL 12-27-50 to list childcare and security expressly, the way fifteen other states have done. Until then, treat this area as live regulatory territory.

For political consultants advising clients

If your client wants to claim childcare or security as a campaign expense, your competence advice is: nexus, documentation, conservative limits, and a written disclosure rationale. Tell them the SD Supreme Court has not ruled on this, the Legislature has not spoken specifically, and the AG opinion is persuasive but not binding. They are accepting some legal risk in exchange for the operational benefit.

Common questions

Q: Does this opinion legally allow me to use campaign funds for childcare?
A: It doesn't grant a clear yes. The AG concluded that childcare expenses with a real campaign nexus and no personal benefit beyond the campaign activity would "likely be considered permissible." But the opinion is advisory. A complaint against you would still need to be defended on the facts of your specific spending.

Q: What's the "but for" test?
A: Would the expense exist if you weren't running for office or holding office? If the answer is "yes, you'd need childcare anyway, you have kids," that expense fails the test. If the answer is "no, this particular childcare bill exists only because I had to be at a fundraiser," it passes the test.

Q: Does this apply to ordinary household security too, like a home alarm system?
A: Probably not, unless you can document that the threat was directly tied to your candidacy or office and the security upgrade would not otherwise have been needed. A pre-existing alarm system has no campaign nexus.

Q: What about babysitting at a campaign event, paid by the committee?
A: Childcare specifically for a campaign event (a fundraiser, a town hall, a get-out-the-vote weekend) is the strongest case for permissibility. The nexus is concrete, time-bounded, and tied to a discrete campaign activity.

Q: Is the FEC's federal childcare rule binding in South Dakota?
A: No. The FEC governs federal candidates only. South Dakota state and local candidates are governed by Title 12 of the SDCL. The AG cited the FEC's rule and the fifteen states that have specific authorization as comparators, but the federal rule does not control SD elections.

Q: What happens if a complaint is filed against me for using committee funds for childcare?
A: The South Dakota Government Accountability Board has jurisdiction over campaign finance complaints. A finding against you could include civil penalties, repayment to the committee, and reputational damage. The strength of your nexus documentation is the central factor.

Q: What's the safest path?
A: Pay these expenses out of personal funds and don't reimburse from the committee. Or wait for the Legislature to amend SDCL 12-27-50. Either approach eliminates the legal risk; both come at the personal financial cost of using your own money.

Background and statutory framework

South Dakota's campaign finance law sits in SDCL Title 12, Chapter 27. SDCL 12-27-24 requires detailed recordkeeping and itemization. SDCL 12-27-50 specifies what campaign committee contributions can be spent on. The 2017 Legislature wrote SDCL 12-27-50 with intentionally broad categories ("purpose related to a candidate's campaign," "expenses incident to being a public official"), based on testimony from the bill's proponent that listing specific permitted categories risked accidentally excluding good-faith expenses.

The Supreme Court's only direct contribution to this area is Matter of Discipline of Hopewell (1993), which articulated the no-personal-benefit principle. Hopewell was an attorney discipline case but the campaign-finance principle was stated broadly.

The AG's opinion situates SD in the legal landscape of nearby states. Iowa, Nebraska, and North Dakota are like SD: silent. Minnesota and Montana have written authorization for childcare. The FEC's federal rule has been a model, but the question is fundamentally a matter of state campaign finance statutes, which differ.

The "but for" framing the AG uses tracks the federal personal-use rule under 11 C.F.R. § 113.1(g), which asks whether an expense would exist "irrespective of the candidate's campaign or duties as a federal officeholder." The AG borrowed that framework without explicit citation because South Dakota courts have not adopted it as state doctrine.

Citations and references

South Dakota statutes:
- SDCL 12-27-24 (recordkeeping)
- SDCL 12-27-50 (permissible campaign expenditures)

South Dakota cases:
- Matter of Discipline of Hopewell, 507 N.W.2d 911 (S.D. 1993)
- Farm Bureau Life Ins. v. Dolly, 2018 S.D. 28, 910 N.W.2d 196
- Moss v. Guttormson, 1996 S.D. 76, 551 N.W.2d 14
- Magellan Pipeline Co. v. S.D. Dep't of Revenue & Reg., 2013 S.D. 68, 837 N.W.2d 402
- In re Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D. 1984)

Other state statutes (cited as comparators):
- Arkansas, California (childcare and security), Colorado, Connecticut, Delaware, Hawaii, Illinois, Louisiana (security), Minnesota (childcare and security), Montana, New Hampshire, New Jersey, New York, Rhode Island, Utah, Washington

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1773
• 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