As I read through the court documents in Curd et al. v. South Dakota, the GOP legislators’ lawsuit to overturn Initiated Measure 22, I find one remarkable passage in the plaintiffs’ response to the state’s arguments against the preliminary injunction that Judge Mark Barnett may consider at this afternoon’s hearing in Pierre. The plaintiffs contend that precedent cited by the state to defend the constitutionality of limitations on gifts from lobbyists and campaign contributions came from contexts that do not apply in South Dakota:
And Ognbine v. Parkes, 671 F.3d.174 (2nd Cir. 2011) dealt with a city’s campaign finance reform limitations and subsequent reforms in response to a wave of local scandals. Id. at 177-82. That is not the case here [Plaintiffs’ Reply Brief, Curd et al. v. South Dakota, 32CIV16-000230, 2016.12.07].
Read those last six words carefully. That refers, apparently, to “reforms in response to a wave of local scandals.”
Consider Bob Mercer’s evaluation of why the voters passed IM 22 last month:
The Nov. 8 result was a backlash against the corruption we have seen come to public light since 2013, with the shotgun death of former state Secretary of Tourism and State Development Richard Benda in the EB-5 immigrant investor visa scandal, and with the 2015 shotgun deaths of Scott Westerhuis and Nicole Westerhuis and their four children at their family home at Platte, in the state Department of Education’s Gear Up scandal [Bob Mercer, “Enticed and Accepting While Running State Government,” Pure Pierre Politics, 2016.12.07].
That voters passed the lengthy and complicated Initiated Measure 22, against the united, vocal, and well-funded opposition of the South Dakota Republican Party and the Koch Brothers, while passing over simpler political reforms not branded as anti-corruption measures, still puzzles me. Mercer offers the most logical explanation: voters are conscious of a wave of state scandals and want to do something about that surging corruption.
Yet 24 Republican legislators say, “That is not the case here.” They see no wave of scandals in South Dakota.
Perhaps that blindness explains why these legislators cannot see the corruption that voters plainly recognize in unchecked gifts from lobbyists and unlimited campaign contributions from PACs, some of the problems they voted to fix with Initiated Measure 22.
Republican appointee Judge Barnett probably won’t rule on Republicans’ inability to see corruption. But we can hope he will respect the public’ interest in rooting out corruption with the constitutional reforms of IM22.
It’s difficult to see the wave when you’re already submerged. Just as, you can’t see the forest because there’s too many trees in the way.
republicans have been in charge of running this state for over 40 years, we have no idea how many scandals were not noticed and reported.
It took murder to reveal EB-5 and Gear Up and the legislature and governor still did nothing, all we got was a whitewashed GOAC hearing that said the dead guy did it.
Perhaps if the republicans had taken action against these two major scandals they would not be facing the IM22 backlash voters handed them.
You can’t help but wonder precisely why the republicans are so strongly opposed to IM22. What else are they covering up?
Mercer is right. Voters want the corruption addressed; however, that does not make IM22 magically Constitutional or a feasible tool to deal with the problem. I personally did not think a lawsuit by elected officials was the way to go at this point. I do believe our Secretary of State and attorney general should’ve taken those actions when it was presented and it was obvious that it violated numerous provisions of South Dakota’s constitution, instead of providing a half page synopsis for 30+ page measure. I think the legislature should move to emergency suspend the measure, break it up into individual measures with tax increases attached to those parts requiring funding, and send each subject back to the voters for confirmation, clarification, and constitutionality. The deceptive and unconstitutional omnibus approach by those who push this is no less wrong and what establishment did in the past with set a bill 70 and 2013 and House Bill 1234 before that.
There is none so blind
That is he who will not see
We must not close our minds
We must let our thought be free
Suck it up, wingnuts. The voters has spoken.
Voters want the corruption addressed, and voters addressed it after failure after failure for the Legislature to nip it in the bud. This is exactly what initiatives are for: when the Legislature fails to act, the people may. It happens a lot: special interests buy the Governor and the Legislature and then they fail to address the issues their constituents want addressed. This initiative gets to the heart of the problem, and may lessen the need for initiatives and referendums. I wish I would thunk of this one long ago.
What was EB5? NOT a scandal? NOT corruption? What was MidCentral/GearUp? NOT a scandal? NOT a tragedy of enormous proportions? NOT corruption? I was born and raised and have lived all my life in SD. I’m just beginning to fear I will never understand why people elect these legislators. They are not only blind, they are soul-less.
The question before the court is not whether or not there have been scandals or corruption or whether this is a proper response or whether the voters grasped the detail of the proposal.
The question before the court is whether the Initiated Measure is Constitutional.
T. Jones … The things you say every Friday after 4:00 suggest you’ve spent the afternoon in the men’s bar at Westward Ho. Merry Christmas, buddy. ????⛳️
lol .,, And sometimes on Thursday, too.
Barnett was attorney general when we passed the stop corporate farming bill on the ballot. He never enforced it at all which was his job, then when it went to the Supreme Court he did a lousy job and lost, which he probably wanted to. Then he ran for governor on the premise that he had defended the anti corporate farming bill. He never was for it and it disappeared and he acted like he was for it. He is to deceitful to do this and have it come out right if he is wrong.
The republicans got their choice on this judge.
The IM22 was a huge victory for all South Dakotans that are sick and tired of corruption. There were no progressives to push this through, as they have no power and are not at all effective in the argument. Nope, the citizens revolted. That is exactly what is going to happen more often than not to make for an honest government. The idea that the powers to be can shell out 25 grand on a simple district election is preposterous for a state like South Dakota. Governor Hypocrite is gonna have to build a taller wall.
Why did Mark Barnett risk the wrath of the South Dakota voters by putting this on hold? I used to think he was a pretty decent guy, but now I have my doubts.
The opponents are not blind, they are hopeful that their payday shows up. They are not doing this for $6,000, they want the big, no taxable gym bag full of ka-Ching…
Plus they love thumbing their noses at the very people that elected them.
The omnibus nature of the bill did not figure into the State’s response or the plaintiffs’ response. I’m not sure Judge Barnett mentioned it today, either, or felt he needed to. He felt the separation of powers, appropriations, and “gift”/contracts arguments were enough.
Judge Barnett also said, “I credit fully and positively the motives of the voters.”
Who are the republicans that delivered that bag of cash or wrote the check for Judge Barnett to rule against South Dakota voters?
“I credit fully and positively the motives of the voters.” but I will ignore their will anyway. If this is unconstitutional, then just like the Marcie’s law amendment, where the hell was the Attorney General before the election?
Lanny, call me naive, but I’m going to cut Judge Barnett some slack. The state and federal constitutions are supreme. If a judge finds the voters’ will runs counter to either constitution, the judge must repeal the voters’ will.
If Judge Barnett’s ruling holds, it’s up to us to write a more constitutional initiative in 2018.
The opponents could have moved for a change of judge . . . jez saying.
This “opinion” lends credence to the dogma that judges are politicians in a robe.
So it’s unconstitutional to have ethics in SD government and limits on the largess that lobbyists’ can dole out and limits on PAC contributions? This I have to see! If this holds up on appeal, then it is time for a constitutional amendment because the law is an ass.
How’s it playin’ out in the press?
Cory what about getting the Republicans to write it? Right they won’t.
Have you ever seen these guys move so fast on anything like they have on this? Disgusting.
Owen, this may be a record. Can anyone find an instance in which the courts have more quickly blocked an initiated measure in South Dakota?
of course it’s unconstitutional to have ethics in South Dakota governance . . . South Dakota appoints judges without legislative review or oversight. Unfortunately this taints all, though not all allow themselves to be tainted.
Shouldn’t constitutional challenges to a well-publicized and reviewed measure come before the voters decide? Marty Jackley will never get a pass on this failure in office, and that won’t bode well for any of his future political ambitions.
Owen, What about how quickly they moved on EB-5? Don’t you remember how when Kathy Tyler challenged the legislature 3 years ago this month to start an investigation into EB-5 now before the legislature started in January of 2014? Oh that’s right they gave it about 22 minutes at the end of the session and that was a closed door meeting besides.
Well said CAH, but I would argue that they aren’t blind to the corruption. What we see as a flaw they see as a feature and an opportunity that is only bad when exposed.
If I’m not mistaken, as the AG, it is Marty Jackley’s job to vigorously defend the vote and will of the people on IM22. Why am I not encouraged?
On the other hand, if IM22 loses, can we appeal based on an incompetent defense?
Go get em Marty and show us all your legal chops and willingness to stand up for the people of South Dakota!
You mean like EB5 AND coop scandal he won’t do doodly never and never will.
Jana–I believe the answer to your question is “yes,” at least if the AG doesn’t appeal.
I’m with Cory on Judge Barnett. I may or may not agree on his final ruling–we’ll see–but I have no doubt that, however he rules, it will be because it’s his honest view of the law. In 2002, when the Johnson/Thune Senate race was going hammer and tong, Judge Barnett–who was then the SD Attorney General–could easily have inserted himself into the race by a well-placed comment or two (on a voter registration issue that had nothing to do with the Johnson campaign), and he refused to do so, despite enormous pressure from some members of his political party. He is an honest and courageous man, and I don’t believe that however he rules will be because of political pressure.
If I read Mercer’s tweets right, he moved quickly because the gift language was so broad, the legislators are breaking the law if they have a spouse who works for a firm that has a lobbyist, including several Democrats.
I believe that it is not so that opponents cannot see the recent wave of scandals so much as they do not wish to face up to them. Some may well be complicit while others wish to protect their monopoly on power.
The good people of South Dakota have spoken at the polls. Is it now our patriotic responsibility to honor their decision.
Jana, I’m not sure we can make such an appeal… although we can choose not to hire Jackley for another state job in 2018… and we can elect a Democrat to replace him in the A.G.’s office!
South Dakotans for Integrity, the IM22 committee, also submitted briefs for the defense.
Troy, indeed, Judge Barneet indicated the word “compensation” in the “gift” definition in Section 31 was key to his decision on that point. The state’s response on that point was fuzzy at best.
Why is it bewildering to see Barnett’s grant of a stay? Good lord, he said that decisions required in this suit are well above his pay grade? Granting the stay is the only thing he could have done to meet the legislative timing to deal with the Constitutional Issues. There is no loss here? This thing is going to the Supreme Court where it needs to go and it is doing it more quickly than if there had been added maneuvering at the District level. Barnett’s ruling does not mean that IM-22 is unconstitutional. It just means that such questions necessarily are more adequately addressed and answered by the Supreme Court. I don’t agree with Stace’s assessment that each peace of the measure should have been separated out by the legislature, reworded and then sent back to the people next November. We should have no trust that the legislature would do anything other than declare the whole measure dead and move on without debate. What is likely to come out of this is that the Court will indeed find some constitutional conflicts by virtue of the language used but it should also provide some directive to fix such things. Other parts of the measure will be fully constitutional and remain in tact.