Initiated Measure 22, the Anti-Corruption Act, was law for 22 days. Judge Mark Barnett put the law on hold yesterday, saying he finds the law unconstitutional. IM22 can’t provide Democracy Credits, the public campaign financing component of IM 22, because only the Legislature, not the voters, can appropriate money. IM22 can’t empanel an ethics commission because it doesn’t assign that commission to one of the three branches of government and it improperly delegates legislative power to the commission. IM22 can’t limit gifts from lobbyists to public officials because it overbroadly defines “gift” to include “compensation” and thus unfairly impairs contracts.
Barnett is open to amending his injunctions to allow certain constitutional portions of IM 22 to stand, like campaign finance limits and disclosure requirements. But any unenjoined portions of IM22 are likely to be picked off by our Republican controlled Legislature, which sounds determined to repeal the whole kit and kaboodle.
Don Frankenfeld, Darrell Solberg, Rick Weiland, you guys lined up cross-partisan allies to stand up to the Koch brothers and the GOP establishment and get Initiated Measure 22 passed. Governor Daugaard and the Republican leadership are now pretending corruption doesn’t exist while using Greg Belfrage’s words to call you guys hoodwinkers and scam artists and call all of us voters gullible dupes. You shouldn’t stand for that guff.
But I offer the radical suggestion that you shouldn’t waste another dollar on Initiated Measure 22. Judge Barnett has found the most important anti-corruption reforms of IM22 unconstitutional. Contrary to Republican appointee Judge Barnett’s claim from the bench yesterday, you are not likely to get a substantially different opinion from the five Republican appointees on the South Dakota Supreme Court. You’ll make no headway with the current Republican Legislature—they are monkeys at a poop-throwing party (a sign of intelligence, yes, but not of willingness to surrender one bit of their power, privilege, or free pickle sandwiches). The only thing they’ll replace IM 22 with is a measure to allow businesses to contribute directly to their campaign funds.
Don’t waste your money on lawyer bills or lobbying in Pierre. Go back to where you know you can win, the voters of South Dakota. Rewrite IM22 as a constitutional amendment that includes the following provisions:
- Amend Article 12 Section 2 of the South Dakota Constitution to make explicit the people’s authority to appropriate funds by initiative.
- Create the ethics commission as a permanent government watchdog attached to the judicial branch with members appointed by the Chief Justice from lists provided by legislative leaders and university presidents.
- Fund the ethics commission and Democracy Credits by repealing the sales tax exemption on advertising (all advertising, not just political) and dedicating that money to the Democracy Credit Fund. (Wild math: Nationwide advertising expenditures in 2015 were $311.6 billion; South Dakota puts out 0.25% of national GDP; 0.25% of $311.6 billion is $789 million in advertising expenditures in South Dakota; 4.5% sales tax on that ad spending would generate $35.5 million a year, more than enough to give 540,000 registered voters each two $50 Democracy Credits.
- Don’t ban those gifts from registered lobbyists and their employers. Just make them report their value, itemized by recipient public official and reported down to the last penny and pickle.
Take that tack, rally the voters to your side again, and you’ll enact anti-corruption reforms that Judge Barnett won’t overturn and the Legislature can’t touch.