Initiated Measure 22, the voter-approved Anti-Corruption Act, includes one potentially unconstitutional section. Scroll to the bottom and read Section 68:
There is hereby appropriated from the general fund, on July 1, 2017, and every July first of each year thereafter, the sum of nine dollars, to be adjusted every year for inflation based on the Consumer Price Index for the Midwest Region, All Items, as determined by the United States Department of Labor, per South Dakota registered voter as most recently determined by the Secretary of State, to the democracy credit fund for the identified purposes of that fund [Initiated Measure 22, Section 68, approved by voters 2016.11.08; enacted 2016.11.16].
If that money were appropriated today, the Democracy Credit Fund would get $4,899,852.
The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the Legislature [South Dakota Constitution, Article 12 Section 2].
Here the state constitution appears to conflict with itself. Article 3 Section 1, on Legislative power, says “the people reserve to themselves the right to propose measures….” Note the absence of qualification on “measures.” Article 3 Section 1 doesn’t say “non-fiscal measures.” Article 11 Section 13 allows the voters to increase tax rates and valuations by initiative, and Article 11 Section 14 allows voters to impose or increase taxes by initiative, right alongside the restriction of the Legislature’s authority in such fiscal matters to a two-thirds vote. It seems odd that the constitution would empower the people to initiate laws, including the power to levy taxes, yet not empower them to spend money to enact their initiated laws.
But there that language is, saying we can initiate measures, clarifying that the two-thirds-vote requirement for new and increased taxes applies only to the Legislature and not the people, yet maintaining that all appropriations must come from the Legislature.
Well, not all appropriations. In 1906, we locked the Legislature into spending money on a hard fiber twine and cordage plant at the state penitentiary (Article 11 Section 1). In 1948, we ordered the Legislature to pay World War 2 veterans cash bonuses (50 cents per day of service, capped at $500 for service in the continental U.S., $650 for those who served elsewhere—see Article 13 Section 19). And over the past century, we voters have directed the Legislature to appropriate funds from fines back to the public schools (Article 8 Section 3).
Those spending measures are all constitutional amendments proposed by the Legislature, not statutes like the Anti-Corruption Act. But they were all approved by a simple majority vote of the public, and they all required the Legislature to spend public dollars on specific projects.
A strict reading of the Constitution may lead a judge to throw out Section 68. But if the people can raise money, shouldn’t they be able to spend that money?