Judge Mark Barnett ruled yesterday that his injunction against enactment of Initiated Measure 22, the Anti-Corruption Act, stands against the entire law. Judge Barnett thus rejected the state’s severability argument, which sought to lift the injunction from 28 sections not yet deemed unconstitutional by the court.
Here is Judge Barnett’s six-page ruling (well, five pages and a signature):
Judge Barnett does not address the fact that the sponsors included a severability clause in their original draft of the initiative and removed it only on the recommendation of Legislative Research Council director Jason Hancock, who wrote in a July 29, 2015, letter, “Severability clauses may be used in other states; however, severability is a long-established doctrine of the South Dakota Supreme Court” and the severability clause sponsors include in the draft submitted to his office “should be deleted.” Judge Barnett does not dispute that constitutional sections could “stand alone and be effective” even without IM 22’s unconstitutional ethics commission [p. 5, parag. 20]. However, Judge Barnett contends that “I.M. 22 was presented to the voters as a self-contained, comprehensive package of reform” [p. 2, parag. 5] and that voters thus would not have voted for any of the new campaign finance limits without the new ethics commission to enforce them.
*****WARNING to Sensitive Readers: Reporting Ends—Rebuttal Begins!*****
Judge Barnett’s argument is shaky at best. First of all, he cites no evidence that voters intended an “all or nothing” outcome. Judge Barnett uses phrases like “voters believed,” “one must assume,” and “This does not appear to be what voters intended.”
Judge Barnett then resorts an incomplete reading of IM 22. Let’s start with paragraph 8, where he says overturning the Democracy Credits program requires that he also throw out IM 22’s general campaign finance limits:
When voting, in part, for public funding of campaigns, one must assume that the voters saw that public funding as a way to lessen the influence of “non-democracy credits” or private sector funds flowing into campaigns. in other words, as the voters tightened money from the private sector, via donation limits found in the first 29 sections of the Act, they also created funding from the public sector, in Sections 32–68. This suggests once again that the entire scheme was one package… one comprehensive way to get private money out, and public money in, to campaigns. Under the act, candidates would be steered away from private funding and made dependent on public funding [emphasis original; Judge Mark Barnett, Order on Severability, Curd et al. v. South Dakota, #32CIV16-000230, p. 2, parag. 8].
That paragraph leaves me wondering if Judge Barnett is reading the same IM 22 as I am. IM 22 did not seek to steer candidates away from private-sector funding. Section 53 requires candidates to obtain private funding before they can qualify for public funding. Section 59 limits the amount of public funding qualifying candidates can receive. IM 22 places no comparable limit on the amount of private funding that any candidate can receive, only on the amount that a candidate can receive from a single source. IM 22 does not mandate participation in public campaign finance; thus recognizing that candidates could choose to continue business as usual, IM 22 thus included provisions to change that business as usual.
I contend it seems more logical, looking at what IM 22 actually says, that voters intended to enact two reforms: first, a nice little voluntary public campaign finance system to encourage candidates to seek more small donations, public and private, in order to connect with more voters; and, second, a tightening of existing campaign finance limits to check the corrupting influence of big money. Even if the public financing system was a complete bust—either because no candidate participated or because some judge threw it out—we’d still have reforms that would apply to every candidate.
Judge Barnett says it’s not just his blocking of Democracy Credits that requires him to enjoin the campaign finance limits; it’s also his annulment of the ethics commission. See paragraphs 9 and 10:
The voters agreed to make the Commission independent of the rest of state government…. Thus, the voters expressed a distrust of all existing state offices to enforce all of the new duties and prohibitions set forth in the first 29 sections of the Act.…
The voters intended that the Ethics Commission police all of the campaign finance limits and reporting requirements set forth in the first 29 sections of the Act. However, since the Commission violates the Constitution in the manner in which it was created, and depends on an unconstitutional appropriation, one must wonder whether the voters really want those who are to be more closely regulated by the Act, to also be the police for enforcement of that Act…. If “that system does not properly prevent corruption or its appearance” as state in Section 2, then to leave the first 29 sections of the Act in place would be to put the proverbial foxes… and allegedly corrupt system… in charge of policing themselves. This does not appear to be what voters intended [emphasis original; Barnett, 2016.12.21, p. 3, parags. 9–10].
Again, Judge Barnett appears not to be reading IM 22 Sections 24–27:
Section 24: That § 12-27-29.1 be amended to read as follows:
12-27-29.1. In addition to any other penalty or relief provided under this chapter, the secretary of state or the ethics commission, after notice and opportunity for hearing pursuant to chapter 1-26, may impose an administrative penalty for the failure to timely file any statement, amendment, or correction required to be filed by this chapter….
Section 25: That § 12-27-35 be amended to read as follows:
12-27-35. The attorney general shall investigate violations of the provisions of this chapter
relating to a legislative office, statewide office, or statewide ballot questionand prosecute any violation thereof….
Section 26: That § 12-27-36 be amended to read as follows:
12-27-36. The attorney general and ethics commission may, for the purpose of enforcing the provisions of this chapter, inspect or examine any political committee or political party records required to be maintained by this chapter….
Section 27: That § 12-27-37 be amended to read as follows:
12-27-37. The attorney general and ethics commission shall keep each record inspected or examined confidential except when the records are used to enforce provisions of this chapter associated with a criminal or civil action….
These four sections add investigation and enforcement authority to the ethics commission while leaving in place authority of the secretary of state and attorney general. Furthermore, Section 39(4) allows the ethics commission to investigate violations of IM 22 itself or “refer the matter to the secretary of state or the attorney general, as appropriate….” Voters reading and approving that text didn’t discount the possibility of our foxy SOS and AG doing their duties, but in case the SOS and AG don’t, voters created one more agent of accountability. IM 22 voters didn’t throw away their belts; they just put on suspenders.
Judge Barnett says, “Without the commission and funding, I.M.22 is a horse without a rider. The court is unable to say the voters would so direct” [parag. 12]. But Judge Barnett could read the text of IM 22 and see the voters did not so direct. They didn’t make all of their desired reforms depend solely on Democracy Credits and the ethics commission. They created new campaign finance limits, restrictions on shell committees used to evade contribution caps, new limits and reporting requirements on independent communications, an extension of the lobbyist revolving-door sit-out period, and an increase in the legal penalty for bribes and threats to influence legislation and legislators, most of which Judge Barnett does not mention (his order focuses on campaign finance) and all of which IM 22 allows to be enforced by existing mechanisms.
To justify his refusal to sever IM22 and allow certain provisions to stand, Judge Barnett has ignored legal precedent and conjured a voter intent unsupported by the actual text that voters read and approved. Attorney General Jackley, we trust you’ll appeal this order to the Supreme Court, beat down this injunction, and restore to law at least some of what we the voters wanted.