SB 123 Gets Worse, Delays Initiative Petitioning Another 20 Days

Never underestimate the Legislature’s ability to take a mediocre bill and make it worse.

Senate Bill 123 seeks to incorporate public comment into the process of composing the attorney general’s statement on ballot measures. As I noted in my initial review of the original bill, I’m all for more public participation (that’s why I love initiative and referendum!), but SB 123 invites comment on the wrong thing at the wrong time. Comment on the attorney general’s statement doesn’t address the merits of the ballot measure itself, and it doesn’t come in time for the ballot question sponsors to revise and improve their initiative language to accommodate what they learn from the public.

But I figured hey, as long as SB 123 delay the approval process and deny initiative sponsors any more time to circulate their petitions, SB 123 wouldn’t hurt.

Now SB 123 hurts. On February 10, Senate State Affairs amended the bill to delay the public comment period until after the already inflated 60 days the attorney general gets to compose the title and explanation. The public gets ten days to comment, and the attorney general gets another ten days to revise and publish the final draft of the title and explanation. SB 123 thus takes another 20 days away from initiative sponsors to circulate their petitions and actionably communicate with the voters about their ballot questions.

House State Affairs also amended SB 123 to drastically reduce the amount of public input A.G.’s statements would receive by requiring all comment to be submitted on paper, either by hand or postmarked mail. SB 123 won’t even entertain faxed comments, never mind emails or a nice, easy online form.

What?! The Attorney General can take thousands of calls and emails from concerned citizens as reason to join Supreme Court litigation, but he can’t take comment on his explanation of a state ballot measure electronically?

[…Let us pause and level a stony gaze of skepticism on the Attorney General… while I resist the impulse to invoke profuse oaths on the topsy-turviness of the “thinking” behind SB 123….]

SB 123 is now damaging the process for the sake of the few inside-baseballers who pay attention to the attorney general’s statement. Sponsors and lobbyists get hot and bothered about A.G. statements—sometimes ballot question opponents sue over the A.G.’s language, usually just to gum up the works and make sponsors sweat—but campaigns usually drown out those limited 200 words, and the debate centers on what initiatives actually entail, not how the attorney general summarizes them. The vast majority of voters and potential petition signers want to talk about the initiatives themselves, not about what the attorney general says about the initiatives. But SB 123 now takes away 20 days from that vital conversation between petitioners and voters and mis-dedicates them to the handful of deeply interested parties and their lawyers who want to fuss over the A.G.’s statement.

The proper response to this new, worse form of SB 123 is to kill it dead and protect a popular initiative process already gravely threatened by Legislative intrusions. But in the interest of compromise and the hope that maybe the Legislature could, for the first time in the last 20 years, pass a bill to actually improve the initiative process, I propose this hoghouse:

1. Insert the public comment period to come between the Legislative Research Council’s initial review of the first draft of the initiative and the sponsors’ submission of the final draft to the attorney general. Invite the public to submit comments on the proposed initiative itself via a public website maintained by the LRC. This is the time when public comment can make a difference in the quality of the ballot measure. Public comment at this point may help the sponsors discern which harms are most pressing in the minds of the voters. Public participation at this point may unearth contradictions or omissions in the initiative that the sponsors can fix. I will entertain motions for the length of this public comment period to run from 10 days up to 30 days.
2. Require the sponsors to submit a second draft of their proposal after the public comment period to the LRC for review. Give LRC the same 15 days to complete this review and respond to the sponsors with further suggestions that LRC gets for its review of the initial draft.
3. Once the sponsors receive the LRC’s comment on their second draft, the sponsors may submit their final language to the attorney general.
4. Reduce the attorney general’s timeline for writing titles and explanations of proposed initiatives from 60 days to 15. (Perspective: in the last 15 days, I’ve written explanations of over 40 bills on this blog, complete with snappy titles. I’m writing this one in an hour, and I could boil it down to 200 words in another hour. I’m neither a lawyer nor a legislator, and I’m holding a full-time job outside of my blogging. So don’t tell me the Attorney General of the State of South Dakota needs 60 days to write a piddling 200 words about one ballot measure, or ten. The LRC can review initiatives in 15 days; so can the A.G.)
5. Strike the idea of public comment on the attorney general’s explanation. People who want input on the attorney general’s statement can already call the A.G. or drop by his office to give him that input; there’s no need to legislate a separate and dilatory comment period for that purpose.

The current initiative review process allocates 15 days to the nonpartisan Legislative Research Council, 60 days to the partisan attorney general, and zero to the public. My proposed hoghouse allocates 30 days to the LRC, up to 30 days to the public, and 15 to the A.G.

With the above changes, SB 123 could incorporate real, broad-based public participation in the process of crafting better initiatives. Without the above changes, Senate Bill 123 won’t just miss its mark; it will harm the initiative process.

Senate Bill 123—change it or kill it, but don’t pass the mess it has become.