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Jackley Tells Nelson Vote-Trading and Carcass Bills Are Perfectly Normal and Legal

By Cory Allen Heidelberger on 2017-03-01

A couple weeks ago, Senator Stace Nelson [R-19/Fulton] and eleven Legislative colleagues raised a stink about carcass bills and vote-trading. In a Valentine’s Day letter to Marty Jackley, Nelson and friends requested an official Attorney General’s opinion on the legality of trading votes on legislation.

On Monday, A.G. Jackley announced that he had issued the requested opinion, explaining that, as I suspected, “vote-trading” is not just perfectly legal but standard operating procedure in government:

“Vote trading,” also known as “horse trading” or “logrolling,” is not prohibited by existing law.  It is defined as “[t]he trading of influence or votes among legislators to achieve passage of projects of interest to one another.”  American Heritage Dictionary Second College Edition 403 (1983).  Those acts are “the swap of one official act for another.”  United States v. Blagojevich, 794 F.3d 729, 735 (7th Cir. 2015).  For example, “Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution.”  Id.  The Blagojevich court explained, “Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”  Id.  Our Legislature implicitly recognizes the propriety of “vote trading” as its Joint Rules do not prohibit such conduct [Attorney General Marty Jackley, Official Opinion 17-02: “Whether ‘Vote-Trading’ and ‘Vehicle Bills’ Are Prohibited,” 2017.02.23].

The Nelson-12 letter mentioned the anti-transparency unseemliness of carcass bills, but the letter did not explicitly ask Jackley to address the legality of carcass bills. The Attorney General nevertheless decided to turn that stone as well:

Attorney General Marty Jackley explains vote-trading and carcass bills to Senator Stace Nelson and friends.
Attorney General Marty Jackley explains vote-trading and carcass bills to Senator Stace Nelson and friends.

“Vehicle bills” are constitutional in South Dakota.  Both the House of Representatives and the Senate may freely amend bills that are passed by the other chamber.  S.D. Const. Art. 3, § 20.  In South Dakota, an amendment is defined as “to change ‘by modification, deletion, or addition.’”  Taylor Properties, Inc. v. Union County, 1998 S.D. 90, ¶ 17, 583 N.W.2d 638, 641 (quoting Black’s Law Dictionary 81 (6th Ed. 1990)).  A special type of amendment, known as an “amendment by substitution,” may occur during the legislative process.  That special amendment is undertaken “by striking out and inserting [language] that replaces an entire main motion or a paragraph or other readily divisible part within a main motion[.]”  Black’s Law Dictionary 98-99 (10th Ed. 2014).  As the Georgia Supreme Court recognized, amendment by substitution is a universally accepted parliamentary procedure.  Shadrick v. Bledsoe, 198 S.E. 535, 543 (Ga. 1938) (citing Mell’s Parliamentary Practice, § 136; Jefferson’s Manual of Parliamentary Practice, § 467; Manual of the General Assembly of Georgia, 1935–36, p. 159, Rule 95).

Our Legislature, like Georgia, recognizes amendment by substitution.  South Dakota Legislature’s Student Guide: Glossary of Legislative Terms (“Student Guide”).[3]  Joint Rule 6E-2 allows “hoghouse amendments:” “Any substitute bill shall be treated as an amendment and shall be governed by the rules governing amendments.”  Reference Book.[4]  “Hoghouse amendments” are “a procedure used in the Legislature whereby a committee or a member from the floor will move to strike everything after the enacting clause of a bill and insert in lieu thereof the substance of an entirely new bill.”  Student Guide.[5] [Jackley, 2017.02.23]

If you’re a Jackley fan, you give the A.G. bonus points for rebuffing Senator Nelson by citing the Student Reference Series twice. If you’re a Stace fan, you are steamed that Marty whacks your query by citing Legislative info written for kids.

But hey! Roll those logs! Trade those horses! That’s what makes the Legislature hum!

Published in South Dakota

9 Comments

  1. Darin Larson 2017-03-01 12:33

    Carcass bills are an abomination. Except under extraordinary circumstances, all bills need to be heard in committee to give the people a direct voice on the issues that are important to them. Carcass bills circumvent the public hearing process and shut the people out. As Senator Nelson has pointed out, the proper procedure for considering a bill that has not been considered in committee is a suspension of the rules. This requires a two-thirds vote and should not be entertained lightly.

    Carcass bills are also a crutch that legislators can fall back on, instead of meeting the deadlines for proper bills to come out of committee. Procrastination should not be rewarded.

    The rules allow for carcass bills, apparently, but that does not make the rules proper or advisable. In this case, the rules make a mockery of proper procedure and due input and consideration of proposed laws.

  2. grudznick 2017-03-01 14:02

    Carcass bills are law bills that were placed on the table to be dead and then a blindside resurrection allows them to be gutted and changed into something else entirely and then passed.

    Vehicle law bills are ones used transparently as a holding spot for some future need.

    Both are just fine and grudznick approved.

    The Attorney General thinks so too and he’s the biggest attorney in the state. Mr. Russell disagrees and he is a disgraced attorney. Mr. Nelson disagrees and he is not an attorney.

  3. Adam 2017-03-01 19:12

    Ya know what – I might be cool with Marty Jackley as our Governor. If it’s gotta be a Republican, I think I could deal with Jackboots.

    I’m just so damn tired of all the stupid. Kristi doesn’t ever make enough sense. Our legislature is full of fools. Like Daugaard, at least Jackley would veto the crazy bills the legislature puts on his desk. He’d be a bit more stern about reality than Daugaard’s been, which would be better – I think.

    Kristi Noem would be very worst Governor of a U.S. state that I could ever even imagine. Seriously people. Seriously. Think about it, I think people have got to be able to see this – in time, perhaps. You don’t have to be a fan of Jackley to agree on this.

  4. Adam 2017-03-01 19:15

    I truly fear the idea of Noem in the Governor’s office. If you think I’m silly, I think your crazy.

  5. the lowly independent 2017-03-01 21:37

    Adam – I would only hope that Jackley comes out of the primary for the R’s… as far as the general election, I will be looking for 3rd party candidates before I consider any R’s, and I’ll usually vote for a D before an R, or HEY how about “None of the Above”!!!

  6. Adam 2017-03-02 00:22

    R primary decides SD Governor. It has since before I was born, and recent elections show a hardening of conservative culture statewide. For a non-R candidate (for SD Governor) to say that he/she, ‘thinks they can win’ is dishonest about the facts of the matter. Additionally, if they were to say “I want to represent you,” my immediate question is, “then why didn’t you run a as a Republican?” and “you must not want to win enough to be willing to run as a Republican” and “maybe I don’t believe that you think you can win or actually even want to.”

    You’ve got to get over, before you go under.

  7. Adam 2017-03-02 00:34

    Why couldn’t a Republican candidate for SD Governor (a secret under-cover reasonable human being) speak at Independent and Democratic Party fundraisers to talk about the importance of a loyal opposition party? – how important it is to have one in South Dakota – and how democracy is broken when one party rules for so god damn long… like it has here.

    Why would that be so wrong? SD Reasonables have got to develop a new game.

  9. Cory Allen Heidelberger Post author | 2017-03-02 14:54

    John, Stace’s commentary seems to express an over-sensitivity to typical hardball politics. I’m less surprised that the Governor would press legislators for votes and more surprised that some snowflake legislator would come out of that meeting in tears. I wish Stace would name names so that district’s voters could know who the weak one is and elect someone who’s able to stand up to the Governor…

    …not that I’m eager to trade that young man’s vote for the teacher pay increase. ;-)

    Darin, I agree with your statement: carcass bills are technically allowable but democratically and morally abominable. As your next Governor, I promise to veto any bill that starts as a carcass.

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