Wealthy Sioux Falls doctor and part-time legislator Senator R. Blake Curd (R-12) is lead plaintiff in the new lawsuit challenging the new Anti-Corruption Act, the law South Dakota voters passed in the form of Initiated Measure 22.
Wait—South Dakota voters passed that law? Not in R. Blake’s world:
Senator Blake Curd calls the new law a “constitutional crisis.” Curd says IM 22 was forced onto South Dakota by out-of-state activists [Angela Kennecke, “Lawmakers, Lobbying Group Wants Court Order to Stop IM-22 Before Session,” KELOLand.com, 2016.11.23].
That’s funny: on Election Day, I didn’t see any out-of-state lobbyists following my neighbors and me into the polls and forcing our hands to check Yes on IM22.
Senator Curd perpetuates the disrespect South Dakota Republicans show for South Dakota voters when voters don’t go Republicans’ way. In 2012, when we rejected two of Governor Daugaard’s proposals via referendum, our Republican Governor called us voters tired and stupid. Now when we enact a law to check Republicans’ rampant corruption, Republican (evidently that’s what the “R.” stands for) Blake Curd says we’re too weak to make up our own minds.
Voters, how do you keep electing guys like this who hold you in such contempt?
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The suit lodges ten counts of unconstitutionality against the Anti-Corruption Act, plus two counts arguing for the immediate injunctive relief of throwing out all seventy sections of the law, including the eight that don’t kick in until 2018. Let’s nutshell the arguments:
- The state ethics commission created by Section 32 is not properly assigned to the executive, legislative, or judicial branch and thus is an illegal fourth branch of government.
- Section 34, which says ethics commission members shall be named from lists prepared by Legislative leaders and the presidents of USD and SDSU improperly restricts the Governor’s authority to appoint executives for each department.
- Section 40 gives the ethics commission authority to “replace or modify the requirements established in sections 43 to 62, inclusive, of this Act” governing the public financing portion of the Anti-Corruption Act (the Democracy Credit Fund). That’s an “unlawful delegation of legislative power.”
- Section 40(9) empowers the ethics commission to set rules concerning the qualification and certification of candidates, which violates the Legislature’s unique authority to determine the qualification of its members.
- Section 68 appropriates a specific sum each year to fund the public campaign finance portion of the Anti-Corruption Act. Only the Legislature can appropriate funds, not voters through the initiative.
- Section 31 prohibits lobbyists and employers of lobbyists from giving more than $100 worth of gifts—”any compensation, reward, employment, gift, honorarium, beverage, meal, food, or other thing of value”—to any “elected state officer, legislative official or staffperson, or executive department official or staffperson” or to their immediate family members in one year. Legislators and their spouses thus cannot collect salaries from entities that employ lobbyists. Section 31 thus infringes on the Contract Clause of the U.S. Constitution and the South Dakota Constitution.
- Gifts from employers of lobbyists are campaign contributions. Section 31 thus caps campaign contributions for this particular class of donors to $100 a year while allowing other individuals and groups to make far larger contributions. This $100 cap on gifts/political contributions violates the free speech rights of employers of lobbyists.
- The Democracy Credit Fund violates the Equal Protection Clause by not appropriating enough money to give every voter full Democracy Credits and by capping the amount of Democracy Credits that candidates and groups of candidates can receive.
- The donor disclosure requirements of Section 16 improperly exempt letters to the editor and editorials and unduly burdens the free speech rights of organizations like co-litigant Family Heritage Alliance.
- IM 22 violates the single-subject and title rule.
Curd et al. start strong, but then fall to throwing spaghetti on the wall. A third of the way in, the noodles stop sticking.
I like Count One. It’s my kind of technical argument, like good Topicality in high school policy debate. Constitutionally, Count One may be hard to beat. Conceptually, though, it only makes sense that the voters, alarmed at corruption in their government, would want an ethics commission not beholden to any of those corrupt branches to carry out the voters’ will in checking corruption. Hmm… can we argue that the voters are a fourth branch of government who can empower their own agency to challenge the other three branches?
Count Two also appeals to my technical side. But note that affirming Count Two negates Count One: we can only rule that the Governor’s powers are being usurped if we rule that the ethics commission is part of the executive branch, not separate from all three branches. And conceptually, we run into the same conundrum: if we have an interest in checking corruption, especially in the executive branch, then how can we allow the Governor absolute authority to appoint those corruption checkers?
Count Three is definitely problematic. No commission can rewrite or ignore statute. Section 40 grants the authority to replace of modify its own statutory charge “Only if necessary to address an unforeseen problem or a change in circumstances that arises in the ethics commission’s implementation or operation of the Program” (i.e., strictly within the operation of the Democracy Credit Fund), but even that step goes too far. Rule-making authority for state entities cannot step beyond statutory bounds.
Count Four is bunk. Section 40(9) allows the ethics commission to regulate “The qualification and certification of candidates, committees, registered representatives, treasurers, and other persons involved or participating in the Program”—i.e., in Democracy Credits. It does not address qualification to serve in the Legislature.
We tackled Count Five in a blog post Monday. Commenter Donald Pay submits an excellent precedent from Massachusetts that upheld a public campaign finance law by saying that if a voter-approved law remains on the books, the Legislature has to fund it. Curd et al.’s argument on Section 68 ignores the fact that the ethics commission still carries out other functions beyond public campaign finance. The mere statutory existence of the ethics commission compels the Legislature to appropriate funds to carry out its functions. If voters can create a government agency to carry out statutory functions, it seems absurd that the Legislature could decline to fund those functions and effectively abrogate the will of the people. It thus seems absurd that the voters cannot exercise their will and require the fiscal action necessary to realize their will.
Count Six pleads a false dilemma. Dr. Curd, nurse Senator Deb Soholt, and others wrapped into this complaint don’t have to quit their jobs or quit the Legislature. Their deep-pocketed employers could stop employing lobbyists. And really, if you have legislators or spouses of legislators on your staff, how much more lobbying firepower do you need?
Count Seven is wrong. Personal “gifts” to candidates and elected officials are not campaign contributions. Consider my own situation: folks who give me money through my Blog Tip Jar are giving me personal income, which I must declare on my income tax return. Folks who donated to the Heidelberger Campaign Fund were giving a separate legal entity money to support my District 3 Senate campaign, which I do not declare as personal or business income on my 1040. Section 31 is thus not a unique cap on campaign contributions.
Count Seven does raise a broader campaign finance question. Curd et al. are arguing that we cannot set different campaign contribution limits for different groups. Curd et al. do not expand on this argument, but by their logic, the Anti-Corruption Act cannot set different contribution limits for individuals and PACs. Nor can we revert to the pre-IM 22 system that capped individual contributions but not PAC contributions. If Count Seven’s logic holds, individuals and PACs must have the same contribution caps or no caps at all.
Count Eight hilariously reverses Count Five: instead of complaining that the voters are appropriating money, Curd et al. are now complaining that the voters aren’t appropriating enough money. Senator Curd and his fellow Legislative litigants could provide their own relief from the first part of Count Eight by appropriating more money for the Democracy Credit Fund, as allowed in Section 42. But more importantly, Curd et al. need to demonstrate that there is any propensity for voters to use the Democracy Credits program in such great numbers as to reach any of the funding limits.
Count Nine is remarkably weak. Curd et al. fail to establish that Family Heritage Alliance (or the Koch Brothers, or any other interested party) cannot fulfill the disclosure requirements. They fail to argue that being able to donate anonymously to a PAC inheres to free speech. And on their strange argument about the media exemption (what? Do you really want to make newspapers report expenditures on letters to the editor?), they fail to point out that the offending “media exemption” language of IM 22 Section 4(11) is really just borrowed from existing language in SDCL 12-27-16(6). If Curd et al. really want to argue about the media exemption, they are inviting the South Dakota Newspaper Association to come barging in with an amicus curiae on behalf of IM 22.
Count Ten falls on precedent set by the Legislature. In 2013, the Legislature had no qualms about passing Senate Bill 235, an omnibus bill tackling education, infrastructure, housing, and corporate welfare (er, economic development). That same year, the Legislature didn’t blanch at Senate Bill 70, which under the nondescript title of “improve public safety” managed to throw election reforms under the rubric of criminal justice reform. We could even reach back to 2012 House Bill 1234, the voter-killed education reform bill for an example of a bill that tries to do lots of different things (imposing merit pay, forcing schools to adopt centrally dictated teacher evaluation procedures, ending continuing contract rights). If we can justify doing all of those things in one bill under the single subject of “student achievement,” we can justify campaign finance reform, lobbying reform, and an ethics commission as components of the overarching subject of “fighting corruption.”
Curd et al. make great hay in Count Eleven of arguing that the Anti-Corruption Act’s 70 sections are all interdependent and cannot function if any provision is invalidated. But at best, all the litigants are winning is the argument that the ethics commission must be considered part of the executive branch, must be appointed by the Governor, and must get the Legislature to revise any statutes pertaining to the Democracy Credit Fund that turn out not to meet public needs. Absent more arguments about the First Amendment, anonymous donors, and rights to hire lobbyists, Attorney General Marty Jackley (who had better be working at least as hard over this holiday weekend as I am) should be able to beat back this legal challenge.