Exclusive: Text of Proposed Voter Protection and Anti-Corruption Amendment!

Yesterday Represent South Dakota submitted a constitutional amendment to the Legislative Research Council for review. Here’s the full text of that amendment for our review. I intersperse my explanations and commentary:

Section 1. This amendment shall be known as the South Dakota Voter Protection and Anti-Corruption Amendment.

Section 2. That Article XXX of the Constitution of South Dakota be created by adding new sections to read as follows:

§1 Whereas the motto of the state of South Dakota is “Under God the People Rule” and whereas the Legislature inherently derives its power from the consent of the people, the people of South Dakota hereby find and declare that in order to protect the public trust:

1. Public officials, candidates, and lobbyists must be subject to robust ethics, conflict-of-interest, and anti-corruption laws;
2. A strong and independent citizen ethics commission is necessary to oversee and enforce those laws in the name of the people of South Dakota; and
3. The will of the people, especially when voiced to ensure the integrity, honesty, and accountability of their government, must be respected.

§2 The offenses of bribery and corrupt solicitation described in Article III, Section 28 shall be Class 4 felonies.

§3 A lobbyist may not knowingly give or offer a gift to an individual who they know or should know is a senior public servant. This prohibition does not apply if the lobbyist is the spouse, fiancée, or fiancé, or is, whether by blood or by marriage, a child, parent, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew of the senior public servant. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

The latter item seeks to toughen up the lobbyist gift ban passed in House Bill 1073. But I wonder: would this language prevent the Legislature from continuing to exempt food and drink from the definition of “gift”?

§4 No public official may knowingly use state resources for improper personal gain. Any public official who violates this section shall be guilty of a Class 1 misdemeanor, but a public official who knowingly uses state resources for improper personal gain in a way that is significantly exploitative of the state shall be guilty of a Class 2 felony.

This item cranks up Marty Jackley’s Senate Bill 27, which would define such misuse of state resources as theft and subject misusers to penalties ranging from Class 6 felony only up to Class 3 felony. This item’s Class 2 felony punishment is up to 25 years and $50,000.

§5 A foreign government, foreign corporation, foreign political party, or foreign national may not make a contribution or expenditure in connection with any state or local candidate or ballot-issue election.

§6 A candidate or person holding elected office may not knowingly use a campaign contribution for personal use. Any person who violates this section shall be guilty of a Class 5 felony.

This item amps up Bille Sutton’s amendment to Senate Bill 54, Section 41, which bans conversion of campaign funds to personal use but specifies no penalty.

§7 A labor union or corporation may not, directly or through an intermediary, make a campaign contribution to a candidate or political party.

There’s the undoing of the big, sneaky, yucky part of SB 54 that lets more big money into state politics. Yay, Item #7!

§8 A candidate may not knowingly solicit, accept, or receive a campaign contribution within the South Dakota capitol building. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

§9 A senior public servant may not become a lobbyist, other than a public lobbyist for state or local government, while they are a senior public servant and for a period of two years after they cease to be a senior public servant. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

The two-year revolving-door provision was in Initiated Measure 22; the Legislature enacted it in Senate Bill 131. This item thus represents the main thesis of this amendment that we can’t trust the Legislature to leave in statute the protections against corruption that we want and that to make those protections stick, we must write them into the state constitution, which only the people can change.

§10 A lobbyist may not knowingly deliver a campaign contribution made by another individual or entity. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

As used in this section, “deliver” means to transport, carry, transfer, or otherwise transmit, either physically or electronically. The prohibition in this section does not apply when a person delivers a campaign contribution to his or her own campaign, or to the campaign of his or her immediate family member, and shall not be interpreted to prohibit any person from making a campaign contribution or from encouraging others to make campaign contributions or otherwise support or oppose a candidate.

§11 A judge shall avoid the appearance of bias, and shall disqualify himself or herself in any proceeding where monetary or in-kind support related to the judge’s election or retention creates an appearance of bias to a reasonable person.

Judges! That’s a new item compared to the provisions of IM 22. I wonder if Judge Mark Barnett, who helped his Republican pals throw out IM 22, raised Represent South Dakota’s hackles.

§12 A candidate may not accept campaign contributions from a single source that, in total and per election cycle for the office sought, exceed:

1. $500 for the office of member of the South Dakota house of representatives, or for any other local, non-statewide elected office other than member of the South Dakota senate, including, but not limited to, county, municipal, and school board office;
2. $750 for the office of member of the South Dakota senate;
3. $1,500 for the office of attorney general, lieutenant governor, commissioner of school and public lands, auditor, treasurer, and secretary of state, or for any other statewide elected office other than Governor; and
4. $4,000 for the office of Governor.

The limits prescribed in this section do not apply to contributions made by a political party, or to contributions made by the candidate or the candidate’s spouse to the candidate’s own campaign. The dollar amounts in this section shall be adjusted for inflation by the secretary of state after each general election.

§13 A political party may not accept campaign contributions from a single source that, in total and per calendar year, exceed $5,000. For the purposes of this section, a state party and its affiliated local committees and/or subdivisions shall be treated as a single political party recipient. The dollar amounts in this section shall be adjusted for inflation by the secretary of state after each general election.

Specific dollar limits seem like policy nitty gritty better left to statute… but again, this amendment’s point appears to be that if we leave campaign finance limits in the hands of campaigners, we’ll never get good limits. Notice that the above two items relieve us of the burden of amending the constitution every decade or two to adjust to economic realities by directing the Secretary of State to adjust these amounts by inflation after every election.

§14 The Legislature shall regulate persons who are employed or otherwise gainfully compensated to act as a lobbyist to influence in any manner legislative, executive, or administrative action, and shall ensure that such persons promptly register with the state as lobbyists and disclose information pertinent to the public interest.

§15 (1) The people of South Dakota find and declare that the Legislature’s State Government Accountability Board did not fully respond to the people’s demand for strong and accountable ethics oversight, in that:

1. The Legislature exempted itself from oversight by that board; and
2. The oversight authority of that board was inadequate to protect the public trust.

Therefore, the people of South Dakota find and declare that they are best suited to create an ethics commission that can adequately protect the public trust, and hereby nullify the State Government Accountability Board created by the Legislature in 2017 in House Bill 1076 and in its place create a new State Government Accountability Board to serve as an independent citizen ethics commission.

Repeal and replace the Legislature’s GAB? There’s some sweet revenge there. Let’s hope the Democratic sponsors of HB 1076 don’t take this measure personally.

The State Government Accountability Board shall serve as an independent entity, notwithstanding any other provision of the Constitution of South Dakota, including Article II, and shall conduct itself in a nonpartisan manner with integrity, honesty, and fairness. All rules adopted, investigations conducted, and sanctions imposed by the board are subject to judicial review consistent with the Constitution.

(2) All South Dakota registered voters are eligible to apply for membership on the board. Only registered voters may be members. The board shall be directed by seven members appointed from those who have applied as follows:

1. Two members appointed by the South Dakota Supreme Court, each of whom shall be a former or retired judge, and each of whom shall be registered with a different major political party;
2. One member appointed by the Governor from a list of at least three registered voters provided by the speaker of the house of representatives;
3. One member appointed by the Governor from a list of at least three registered voters provided by the minority leader of the house of representatives; and
4. Three members, at least two of whom shall be nonlawyers, each appointed by majority vote of the four other members.

I’m a bit uneasy that this item gives members of the two major political parties (see definition below in §16) places of privilege on the committee. But one could argue that this provision avoids the partisan gambit Al Novstrup used to argue against Amendment T last year, the notion that Republicans could still capture an independent board by appointing the maximum number of Republicans, friendly Independents and Libertarians, and no Democrats. Checking one major political party may require ensuring that they are balanced by members of the other major political party.

No member may be registered as a lobbyist or may hold other local, state, or federal public office or political party office while a member. Each member shall have been continuously registered with the same political party, or continuously registered as unaffiliated with any political party, for the two years immediately preceding appointment. Each member shall serve for a period of four years, except that after the initial appointments are made, the secretary of state shall select, in a random public drawing, one member to serve a one-year term and two members each to serve two-year, three-year, and four-year terms, respectively, for their first term only, to achieve staggered ending dates. Members shall not serve more than two terms. Service of a term means service of more than two years of a term. Any vacancy shall be filled within seventy-five days in the manner in which that position was originally filled. If a vacancy is not filled within seventy-five days, the Supreme Court shall fill the vacancy within an additional sixty days. Initial members shall be appointed by September 1, 2019. If all seven initial members are not appointed by this date, the Supreme Court shall appoint the remaining members by November 1, 2019. The secretary of state shall impartially facilitate the member appointment process.

Members may be removed by the Governor, with the concurrence of the senate, only for substantial neglect of duty, gross misconduct, or inability to discharge the powers and duties of office, after written notice and an opportunity for response.

(3) The board shall have the power, notwithstanding any other provision of the Constitution, to:

1. Investigate allegations of bribery, theft, or embezzlement of public funds, or any other violations of this Article, ethics rules, or state law related to government ethics, campaign finance, lobbying, government contracts, or corruption by any elected or appointed official, judge, or employee of any state or local government, and to issue subpoenas requiring the attendance of witnesses or the production of books, records, documents, or other evidence relevant to an investigation;
2. Adopt ethics rules, subject to rulemaking procedures as defined by law, including, but not limited to, provisions on campaign finance, conflicts of interest, confidential information, use of position, contracts with government agencies, legislative recusal, and financial interest disclosure, to which all elected or appointed officials, judges, and employees of state or local government shall be subject. The process for adopting ethics rules shall include opportunities for public input and public participation. Nothing in this Article shall prohibit the Legislature from enacting laws that are not inconsistent with, or contradictory to, the ethics rules adopted by the board;
3. Issue advisory opinions, which may be relied upon by any person involved in the specific transaction or activity with respect to which such advisory opinion is rendered, and by any person involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion is rendered. Notwithstanding any other provisions of law, any person who relies upon any provision or finding of an advisory opinion in this regard and who acts in good faith in accordance with the provisions and findings of such advisory opinion shall not, as a result of any such act, be subject to any sanction provided by this Article;
4. Adopt rules of procedure for the board, including rules to prevent the abuse or overuse of the submission of complaints;
5. Hire and supervise staff, including such legal, investigative, and administrative and clerical employees as are necessary to support the functions of the board;
6. Conduct specific or random audits of disclosures required by state campaign finance, ethics, lobbying, and government contracting law;
7. Impose sanctions on any elected or appointed officials, judges, or employees of state or local government, including the power to issue orders, impose fines, and commence administrative actions. The board shall issue written explanations justifying such sanctions;
8. Refer information or complaints alleging violations of this Article, the board’s ethics rules, or state laws related to ethics, campaign finance, or corruption to the appropriate prosecutorial authority or to internal or outside counsel hired or selected by the board, before, during, or after an investigation;
9. Conduct educational programs for the benefit of the public and those subject to this Article; and
10. Exercise additional powers not inconsistent with this Article as may be conferred by law.

(4) The board shall convene at least once every quarter. The assent of four members shall be required for the consideration and resolution of matters that involve the exercise of the board’s duties and powers under this Article, including the adoption or approval of all motions, procedures, provisions, and appeals, the hiring of staff, the issuance of advisory opinions, the referral to the appropriate prosecutorial authority of complaints alleging potential violations, and the imposition of sanctions, except that the assent of three members shall be required for the convening of meetings, the initiation and carrying out of investigations, including the issuance of subpoenas, the approval of public education materials, the approval of minutes of previous meetings, and actions related to board contracts.

(5) Unless otherwise prohibited by federal or state law, any person acting in good faith may furnish information, or file a complaint, which may be anonymous, alleging a suspected, anticipated, or completed violation, and may request a status update to which the board shall respond in writing within sixty days. Any public employee may file a grievance with the Civil Service Commission, or other appropriate agency or entity, if the employee believes that there has been retaliation from his or her employer because of his or her reporting of a suspected, anticipated, or completed violation through the chain of command of the employee’s department, or to the board.

(6) All final reports and findings shall be made available to the public within ten days of completion. The board shall annually report to the people on its activities. The report shall include comprehensive information concerning the board’s activities, including the number of complaints received, complaints filed by separate persons, investigations conducted, hearings held, sanctions imposed, and advisory opinions issued.

(7) On an annual basis beginning in 2020, the board shall issue to the Legislature written recommendations for legislation that seeks to increase public trust, transparency, and accountability in government and elections and decrease the risk of corruption and conflicts of interest.

(8) Members shall complete financial interest disclosure statements.  Any member who has a personal, private interest in a matter before the board, or with a direct and substantially related interest in a matter, must disclose the fact of such interest and must recuse himself or herself from working on the matter, unless their vote would be necessary to resolve the matter.

(9) All provisions of this section shall be enforceable by any circuit court. The board may intervene as a matter of right in any civil action involving any government entity, agency, or instrumentality alleged to be in violation of any mandate or prohibition of this Article, and in any civil action relating to its powers or to the sufficiency of resources provided for the board’s implementation and operation.

(10) On July 1, 2019, and on every July 1 thereafter, the state treasurer shall transfer from the state general fund three hundred and eighty-nine thousand dollars, indexed to inflation, to a separate constitutional Ethics Law Enforcement Fund to be administered solely by the board. This transfer shall occur notwithstanding any other provision of the Constitution. The Legislature shall ensure that this amount of money is available in the state general fund for the state treasurer to make such transfer. Only the board may authorize the spending or transfer of moneys from the Ethics Law Enforcement Fund. The Legislature may appropriate additional funds to the Ethics Law Enforcement Fund or another fund for use by the board for its various expenses. While serving on business of the board, members shall receive reasonable travel expenses and per diem compensation. This provision shall be self-executing.

Recall that Judge Barnett said voters can’t appropriate money. The amendment here directs the Legislature to make money available. Constitutional scholars, is there a difference between appropriation by initiated law and appropriation by constitutional amendment?

§16 Terms used in this Article have the following meanings:

1. “Corporation,” any corporation, nonprofit corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity;
2. “Elected office,” a non-federal office elected by South Dakota voters;
3. “Gift,” any item, service, or thing of value not given for fair market consideration, but “gift” does not mean purely informational materials or campaign contributions;
4. “Local,” any subdivision of the state for governmental, political, or related purposes, including, but not limited to, a county, municipal, town, local, or school board subdivision;
5. “Major political party,” the two parties which polled for their respective candidates for the office of President of the United States the highest and the next highest number of votes at the last general election for such office;
6. “Personal use,” to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign;
7. “Senior public servant,” any person holding a non-federal office elected by South Dakota voters, or a non-elected individual who is an appointed officer, director, commissioner, head, or other executive or co-executive of a state agency, board, division, institution, or principal department, including, but not limited to, a member of the State Government Accountability Board and a gubernatorial cabinet member.

§17 Each provision of this Article is intended to be independent and severable, and if any provision is held to be invalid, either on its face or as applied to any person, entity, or circumstance, the remaining provisions, and the application thereof to any person, entity, or circumstance other than those to which it is held invalid, shall not be affected thereby.

LRC will say this severability clause is unnecessary. Judge Barnett said otherwise on IM 22, so Represent SD is using this clause to cover its bases.

In any case of a conflict between any provision of this Article and any other provision contained in this Constitution, the provisions of this Article shall control.

§18 This Article is self-executing and shall take effect sixty days after approval. Each provision shall be justiciable and enforceable by any circuit court. Laws may be enacted to facilitate, safeguard, or expand, but not to hamper, restrict, or impair, the powers this Article grants and the protections it establishes.

This enactment trumps Senate Bill 59, which sets the enactment date of initiated measures as July 1 after the general election.

Section 3. That Article III, Section 1 of the Constitution of South Dakota be amended to read as follows:

The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and. Such measures, if approved by a simple majority of those voting on the measure, shall become effective sixty days after approval. Legislation or other action that repeals, amends, or otherwise frustrates the effectuation or implementation of any such measure shall not go into effect until submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question.

The people also expressly reserve 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 and approved by a simple majority of those voting on the question 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, for which the Legislature shall state specific facts evidencing such necessity.

No law substantively changing the rules, requirements, or criteria governing the initiative or referenda process shall take effect until after that law has been submitted to a vote of the electors of the state and approved by a simple majority of those voting on the question. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.

This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measuresan initiated measure approved by the people or a measure referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature shall make suitable provisions for carrying into effect the provisions of this section.

There’s our protection of initiative and referendum. Instead of being able to flat-out repeal a measure we voters have approved, legislators must kick their repeals and tinkerings and “otherwise frustrations” back to us for our approval.

Section 4. Each provision of this Amendment is intended to be independent and severable, and if any provision is held to be invalid, either on its face or as applied to any person, entity, or circumstance, the remaining provisions, and the application thereof to any person, entity, or circumstance other than those to which it is held invalid, shall not be affected thereby.

LRC will review this proposal and offer its recommendations on style, form, and substantive matters by April 21.