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Emergency! Peters Argues Injunction of IM22 Deleted Prior Campaign Finance Law

By Cory Allen Heidelberger on 2017-01-27

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:

Senator Deb Peters
Republicans abhor a vacuum…

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:

Judge Mark Barnett, Order Granting Preliminary Injunction and Denying Motion to Intervene, Curd et al. v State of South Dakota, #32CIV16-000230, 2016.12.21, clips from pp. 2–3.
Judge Mark Barnett, Order Granting Preliminary Injunction and Denying Motion to Intervene, Curd et al. v State of South Dakota, #32CIV16-000230, 2016.12.21, clips from pp. 2–3.

“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.

 

Published in South Dakota

21 Comments

  1. Darin Larson 2017-01-27 07:47

    Just the Alternative Facts we needed here, Senator Peters. They will literally do or say anything to cover up their rejection of the people’s right to enact ethics laws.

  2. Rorschach 2017-01-27 08:52

    Trickle down alternative facts.

  3. Rebecca Terk 2017-01-27 09:01

    I heard this new talking point on SDPB on my way home from Pierre last night. One assumes the immediate release of this new spin after the deferral vote yesterday will give Republican legislators time to practice their lines before they’re confronted by citizens at cracker barrels this weekend.

  4. Mark Winegar 2017-01-27 09:07

    Rest easy. There aren’t any campaigns for awhile. And, while I am not a lawyer, I do believe the law IM 22 would replace is still in effect.

  5. Cory Allen Heidelberger Post author | 2017-01-27 09:28

    Rebecca, maybe I’d have more respect for the SDGOP if, instead of practicing their propaganda, they just admitted their autocracy and said exactly what they’re doing: “We’re repealing IM22. We don’t care what you voters say. Get out of our way.”

  6. Porter Lansing 2017-01-27 10:14

    George Orwell would be proud of Peter’s backstroking. Create a crisis by challenging a law and then label the implications an emergency? C’mon, lady.

  7. Jerry Sweeney 2017-01-27 10:21

    A friend from Texas, where the voters are familiar with a legislature that ‘goes its own way’, is after wondering if the purpose behind the legislative rush is that they’re afraid IM22 isn’t as unconstitutional as they claim. By the by, ‘alternative facts’ are to lies as ‘ocular moistness’ is to tears.

  8. Darin Larson 2017-01-27 10:30

    Jerry, I have had the same thoughts as your friend. I still question the claims of unconstitutionality.

  9. John 2017-01-27 10:31

    Who elects these simpletons; McFly, er, Hartford, Hartford, are we getting through, Hartford?!

  10. Curt 2017-01-27 10:46

    Sen Peters practices accountancy when she is not employed as a legislator. I hope for her sake she is a more competent accountant than lawyer.

  11. Roger Elgersma 2017-01-27 12:12

    If the judge declared the new law not constitutional then it is not replacing the old one so the old one is in effect. Also not right to declare it unconstitutional if only one part may not have been. Maybe if you do not like gubmint, just declare all laws unconstitutional and void.

  12. Mary Perpich 2017-01-27 16:32

    Republicans can’t go a day without a rationalization. And this one is a doozy.

  13. Lora Hubbel 2017-01-27 20:09

    Cory, I need your insight here. So what do you call it when someone sues the state and then co-sponsors and votes for legislation which will influence the case to her advantage? I just wrote the legislature telling them to table IM22 and all co-legislation because its not their duty according to the SD Constitution to help out the Judiciary Branch with legislation in an on-going case.

  14. Cory Allen Heidelberger Post author | 2017-01-27 20:30

    Lora, I’d call it a clever way to cut my lawyer bills. The only cleverer way would be to just drop the lawsuit.

  15. Lora Hubbel 2017-01-27 20:51

    ….or something closer to insider trading, undue influence, conflict of interest….you are so nice tonight

  16. Cory Allen Heidelberger Post author | 2017-01-27 21:19

    I’m nice like this every night. Pass me another Cherry Coke.

  17. Cory Allen Heidelberger Post author | 2017-01-27 21:26

    Jerry, Darin, that’s an interesting thought. If the Republicans were sure they would prevail in court, they wouldn’t need to take all this risk. Let the old law stand (a law they were happy to leave in place and fight for before IM 22), let the court case run its course in a sheltered, hard-to-understand forum where Represent SD and TakeItBack.org and other activists can’t rally and make noise and get lots of free media.

    I can think of three plausible reasons to rush are (1) the lawsuit is doomed, and the GOP wants to make sure it has IM22 off the books before Session ends; (2) the GOP wants to clear the books and implement just enough confusing quasi-reform measures to dampen enthusiasm for any initiatives this year; or (3) the GOP wants to use this opportunity to really grind Dems faces in their defeat and remind them of the majority party’s ability to do whatever it wants through any branch of government whenever it wants.

    I invite other plausible hypotheses.

  18. Darin Larson 2017-01-27 22:17

    As to (1) I will say the GOP likes sure things. The lawsuit is not a sure thing by any means and the parts that could be ruled unconstitutional could or should be severable. I think the GOP is hoping to make the lawsuit moot so 3 or more Justices that haven’t been to caucus don’t ruin their party.

    As to (2), they are also trying to do enough or make it look like they are doing enough to cover for their action in repealing IM22 and dampen support for another initiative and try to keep from losing their job.

    As to (3), they do whatever they want and probably don’t think twice about grinding Democrats. An elephant doesn’t worry about the fleas on its back.

    So, I would say it is a combination of the three reasons.

  19. Bob Kolbe 2017-01-28 10:01

    Ah yes a vacuum has been created !
    It exists in the space tween the ears of
    Curd,Peters etal.
    Seems some one sucked out a bunch
    of brain cells. This happens to Legislators every session when they drink the water from the Bad River, especially when it’s spiked with Lobbists Moon Juice.

  21. Cory Allen Heidelberger Post author | 2017-01-31 06:31

    Jeremy’s link to the Cornell Law definition of preliminary injunction is helpful:

    A temporary injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment.

    “preserving the status quo”—that’s campaign finance law as it stood before IM22 was enacted. Judge Barnett did not suspend IM 22 and separately annul prior campaign finance law. He preserved the status quo. No emergency.

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