Senate Bill 67, our democracy-fearing Legislature’s attempt to make it 88% harder for South Dakotans to amend their constitution without Legislative interference, goes before Senate State Affairs tomorrow (Wednesday) at 10 a.m., alongside House Bill 1069, the Legislature’s fast-tracked repeal of Initiated Measure 22. (Wow—House State Affairs approved HB 1069 just yesterday afternoon; it hasn’t received full House support yet, although it’s on this afternoon’s House calendar.)
Both SB 67 and HB 1069 include emergency clauses, which will insulate them from popular referendum. Voters could still initiate measures to repeal these odious bills, but while a referendum would suspend those bills until after the 2018 election, an initiative effort would leave those measures in place until the 2018 election, meaning petitioning and campaigning in this election cycle would take place under the Legislature’s preferred anti-democratic, anti-anti-corruption rules.
Article 3 Section 1 of the South Dakota Constitution specifies which laws the Legislature may exempt from referendum with emergency clauses:
However, the people expressly reserve to themselves… the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions [SD Const. Art. 3 Sec. 1].
In Issue Memorandum 96-29, the Legislative Research Council explains these criteria:
An emergency clause for the immediate preservation of public peace, health, or safety… is generally used when a bill is regulatory in nature and it is necessary to begin the regulation immediately to preserve the public safety.
An emergency clause for the support of state government… is used when a bill relating to taxation, the raising of revenue, or appropriations needs to go into effect immediately since the revenue is needed to continue to operate the activities of the government [Legislative Research Council, Issue Memorandum 96-29: “Constitutional Foundation of the Two-Thirds Vote Requirement,” 1996.11.20].
Both SB 67 and HB 1069 invoke the latter criterion:
Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval [SB 67 Section 2;HB 1069 Section 35].
SB 67 does not deal with taxation, raising of revenue, or appropriations. It does not enact any funding for government activities. By the LRC’s own explanation, SB 67 is not addressing emergency needs for support of state government.
HB 1069 mentions appropriations by repealing the voter-approved funding for the Democracy Credits program. However, that funding has been enjoined by Judge Mark Barnett and remains in limbo until the South Dakota Supreme Court hears and rules on the lawsuit against IM22. HB 1069 is not providing funding to any government operation; it seeks to repeal funding that is already blocked. HB 1069 thus does not address any emergency needs for support of state government.
TakeItBack.org, Represent South Dakota, and others who supported IM22 are raising heck over HB 1069. They should add SB 67 to their agenda, since constitutional amendments are apparently the only way South Dakota voters can guarantee their will will stand as law without Legislative interference. TakeItBack.org and Represent SD should prepare their legal briefs now on the improper emergency clauses, be ready to file suits the moment Governor Daugaard signs those laws, and have referendum petitions ready to go the moment the judge overturns those bogus emergency clauses.