South Dakota Republicans really don’t care about the people’s will. But they care deeply about keeping us from thinking that they don’t care about the the people’s will.
To avoid the charge that repealing Initiated Measure 22 is the equivalent of telling voters to stick it where the sun don’t shine, Senator Deb Peters (R-9/Hartford) publishes the newest rationalization for House Bill 1069:
So I have an interesting perspective to share on what transpired today in the Capitol. IM22 has been adjoined by a judge back in December. This means IM22 is not in affect and hasn’t been for over a month. IM22 was the law after the election but is not available for enforcement because of the Judge’s ruling. The old laws regarding campaign finance and ethics were gutted by the passage of IM22.
The end result right now is; we do not have enforceable campaign finance or ethics laws in place in SD today.
We are trying to repeal IM22 and put at least the old campaign finance and ethics laws back into statute so we have a rule book that is not in the courts for us to follow. That IS an emergency. That is why we need something to pass right away [emphasis mine, grammar errors Deb’s; Senator Deb Peters, Facebook post, 2017.01.26].
Senator Ryan Maher (R-28/Isabel) made a similar claim on SDPB Radio yesterday that the IM 22 injunction has created some strange campaign finance anarchy that justifies the emergency clause on the IM 22 repeal vehicle.
Senator Peters is plaintiff #2, right behind her Majority Leader R. Blake Curd, on the Republican lawsuit against IM22. (Yes, Republicans are using all three branches of government—judicial, legislative, and executive—to kill IM22.) She should thus be keenly familiar with what Judge Mark Barnett said when he ruled in Peters and Curd’s favor:
“The motion for preliminary injunction is granted, and implementation and enactment of IM22 is therefore stayed in its entirety,” ordered Judge Barnett.
IM22 consists of 70 sections, ordering that several sections of South Dakota Codified Law be amended or stricken. When IM22 became law on November 16, it amended and struck those sections. When Judge Barnett issued his injunction (orally on December 8, in print on December 21), he rolled back everything IM22 did, including all that amending and striking.
The core logic here: If we were to accept Senator Peters’s suggestion that, say, SDCL 12-27-17 on political communications is no longer law, then we would be accepting that Section 17 of IM 22, which sought to repeal that statute, has been implemented. Judge Barnett enjoined that implementation; therefore, SDCL 12-27-17 has not been repealed.
Neither the plaintiffs, the defendants, nor the judge said anything about the injunction creating a legal vacuum. The Secretary of State, who studiously avoids taking any action not explicitly authorized by law, has sent out notices to candidates and committees reminding them of their legal obligation to file campaign finance reports, per sections of Codified Law that IM22 would have modified, and Senators Peters, Jim Bolin, and Justin Cronin, all litigants against IM 22, have complied with campaign finance law by filing their year-end reports. (Cronin just filed his Wednesday.) Campaign finance law remains in effect.
Senator Peters and her Republican colleagues sound a lot like David Novstrup last year when he tried to convince me that his attempt to undo the voter-approved minimum wage was anything other than an affront to the voters. Republicans are claiming that campaign finance law has disappeared, when in fact Judge Barnett only erased changes and reset campaign finance law to its pre-IM22 state. Republicans are claiming there is an emergency, when in fact there is none. Republicans are claiming HB 1069 is constitutional, when in fact it by their own logic is not.
Republican are cloaking their repeal of IM22 in concern for the constitution and the will of the voters, when in fact HB 1069 embodies no such concern.