While trying to sort out the chaos wrought by the Legislature’s repeal of Initiated Measure 22 and its subsequent multipronged tinkerings, I just discovered a significant problem with Senate Bill 59, the new law that will delay the enactment of any voter-approved ballot measure until July 1 following the statewide vote.
The intent of SB 59 is to allow the Legislature to fiddle with, hamstring, or dispose of any voter-approved initiative before it can take effect. Logically, victorious ballot question committees will want to stick around through the Legislative Session immediately following the election in case they need to rally supporters and lobby legislators not to undo the will of the people.
The 2017 Legislature’s willingness to sue and bogusly invoke the emergency clause to repeal IM 22 shows that ballot question committees can’t stand down until after the Legislative Session. Delaying the enactment date of ballot measures to July 1 provides all the more reason that ballot question committees must be allowed to remain operative past the current statutory deadline.
In another blow to people power, the House voted 53–14 Monday to pass Senate Bill 59. This attack on our ability to make laws through initiative moves the enactment date for any ballot measure from the day after the official statewide canvass of the election results (usually mid-November) to July 1 of the year following the vote.
Representative Spence Hawley (D-7/Brookings) tried to check this arrogant power grab by offering an amendment that would have forbidden the Legislature’s use of an emergency clause on a bill amending or repealing an approved initiative within one year of the public vote. The emergency clause matters, because right now, the Legislature can use emergency clauses to protect their bills from referral. Remove the emergency clause, and voters would have the chance to stop an initiative repeal by petitioning to put that repeal to a vote in the next general election. But the Republican majority would have none of that.
House Republican leader Lee Qualm of Platte argued against it.
“The way the constitution is set up the Legislature has the discretion to use the emergency clause any time they see fit,” Qualm said.
Hmm… if legislators can respond to “emergencies” and set whatever enactment date for their bills they want, why can’t we the people do the same? When we want to respond to a problem that the Legislature won’t fix, we have to start our initiative process a good year and a half before the election. Why make us wait over seven more months to enact our solutions?
Representative Hawley led the ten-Dem caucus in standing for people power over legislator power. Four Republicans joined them in voting Nay on SB 59: both of my District 3 House members—Dan Kaiser and Drew Dennert—plus similarly conservative Isaac Latterell and Chip Campbell. SB 59 now goes to the Governor…
But the South Dakota Legislature’s effort to strip voters of their constitutional right to legislate and make Pierre the sole lawmaking authority is not limited to fast-tracked House Bill 1069. Here is the list of bills filed so far that either tinker with voter-approved laws or revise petition and election law to weaken voter power. I mark in red the worst bills, those that definitely deserve a NO vote.
Tinkering with Voter-Approved Laws:
HB 1069: An Act to repeal and revise certain provisions related to campaign finance and to declare an emergency.
Intent: Repeal IM22’s $100 limit on gifts from lobbyists to lawmakers and immediate family and replace it with a soft $100 cap on gifts riddled with exceptions (including all those free meals on the Legislative Social Calendar).
HB 1175: “An Act to revise the method of establishing certain interest rates.”
Originally a carcass bill, HB 1175’s title suggested possible tinkering with the 36% rate cap on payday lending. An amendment offered Monday, Feb. 13, showed the bill targets the interest rates used to figure damages in court cases. No harm, no foul.
SB 131: An Act to revise certain provisions concerning the period of time elected officials are prohibited from lobbying after leaving office.
Intent: now nearly replicates IM 22 Section 65 lobbyist revolving-door limits; originally offered a significantly weaker replacement. Forbids any “No elected officer, department or agency head, or division director, or the highest paid employee reporting to such person” from lobbying for two years after leaving government service.
HB 1034: An Act to establish certain fees for receiving electronic files of petitions, to revise certain provisions concerning filing petitions and other documents, and to revise certain provisions concerning elections and voting.
Intent: mixed bag!
On the bad side, HB 1034 strikes the Secretary of State’s obligation to include Pro and Con statements from interested parties on the official state ballot question pamphlet. While these Pro/Con statements can include utter bushwah, they are also one opportunity for honest, low-budget grassroots campaigns to reach every voter in the state with a few paragraphs explaining their measure.
On the good side, HB 1034 improves openness by establishing fixed, affordable fees for obtaining copies of petitions that citizens can review for fraud and grounds for challenges.
HB 1074: An Act to provide for limits on certain out-of-state contributions to ballot question committees.
Attacking: funding for ballot measure campaigns.
Intent: Amended to cap contributions from out-of-state residents to ballot question committees to $100,000; originally imposed an unworkable and unconstitutional limit on out-of-state contributions to ballot question committees.
SB 77: An Act to provide for a fiscal note for any initiated measure or initiated amendment to the Constitution that would have a fiscal impact on the state.
Attacking: initiative process.
Further delay circulation of initiative petitions by making sponsors wait for Legislative Research Council to complete a fiscal analysis;
Make it harder to circulate initiative petitions by requiring circulators to “provide notice to any person who signs the petition that the initiated measure or initiated amendment to the Constitution may have an impact on revenues, expenditures, or fiscal liability of the state or its agencies and subdivisions”;
Deter voters by cluttering ballot with fiscal impact statement; committee amendment limits statement to 50 words.
SJR 2: A Joint Resolution proposing and submitting to the electors at the next general election amendments to Article XXIII, of the Constitution of the State of South Dakota, relating to amendments to the Constitution.
Attacking: process of passing constitutional amendments.
Raise the vote required for the Legislature to put a constitutional amendment to a public vote from simple majority to two thirds of each chamber;
Raise the vote required by the public to amend the constitution from simple majority to 60%.
There a couple faintly pro-democracy measures in the hopper. One such exception to the Legislature’s anti-democratic rampage: Senator Stace Nelson has proposed a constitutional amendment that may increase voter power a smidgeon. Senate Joint Resolution 1 would put on the 2018 ballot an amendment to make the Secretary of Veterans Affairs an elected office instead of a gubernatorial appointment.
SB 171 would create a task force to study “government, campaign finance, lobbyist restrictions, and ethics,” the subjects of IM 22. (Status: passed Senate, referred to House State Affairs.)
I’m no fan of task forces, but I would prefer to see killed all of the above proposals on I&R and perhaps all of the “replacement” bills offered to compensate for the Legislature’s hasty repeal of IM 22 in favor of empaneling these task forces and conducting public hearings statewide to give voters another chance to tell legislators what they really want.
Still, Trump’s people-power exhortations weren’t enough to convince Senator Curd to vote against what’s left of SB 59, which delays the enactment date of measures approved by the voters from November to July 1:
The date change is an operational consideration only-to try and ensure all concerned with these measures have the time and resources to comply-as regular legislatively passed questions do [Senator R. Blake Curd, e-mail to Dakota Free Press, 2017.01.22].
I have replied thus:
I appreciate your attention to Senate Bill 59. Even with Section 2 gone, Section 1, the July 1 enactment provision, is a solution in search of a problem. Approved ballot measures have caused no insurmountable problems for government or business when we have enacted them in November. With measures requiring more implementation time, sponsors have been wise enough to include later enactment dates (like the minimum wage increase, passed in November 2014 but enacted on January 1, 2015).
There are already enough barriers to the people’s exercise of their constitutional right to legislate. Please consider either voting NO on SB 59 or amending it to enact voter-approved measures on January 1 following the election.
SB 59 is not scheduled for floor debate in the Senate. But when it pops up, let’s be conservatives and vote against unnecessary legislation. Short of that, let’s compromise and amend the delay down six months to ensure the swift realization of the people’s will.
Tony Venhuizen, chief of staff to Governor Dennis Daugaard, showed up to testify in favor of the bill; citizen activists Charlene Lund and John Fiksdal testified against this Legislative power grab. The opponents actually made progress: they convinced Senate State Affairs to strike Section 2, the constitutionally unworkable portion of SB 59 that would have subjected our initiatives to Legislative vote, gubernatorial veto, and other complications that run afoul of the people’s will as expressed in 1988’s Amendment A that removed the Legislature from the initiative process.
But SB 59 still has Section 1, which delays enactment of voter-approved ballot measures (initiative, referendum, or constitutional amendment) from the week after the election to July 1 of the following year. Prime sponsor Senator Jim White and Venhuizen testified this provision simply allows the state time to figure out what needs to be done to implement the new laws.
Opponent Charlene Lund said she opposes any effort to undermine initiatives but has no problem with the later implementation date. However, this delay does undermine our ability to enact ballot measures by making it easier for the Legislature to overturn the voters’ will.
Opponent Jon Fiksdal agrees with my analysis of how this delay could have affected the 2014 minimum-wage vote. He told Senate State Affairs that it would have been easier for them to tinker with a minimum-wage hike that had not yet been implemented because they could have sold the change as a smaller increase than an actual cut in wages. If voters haven’t gotten to see the benefits of a ballot measure in action—in the case of the minimum wage increase, if they don’t see the real dollars in their pocket—it’s easier for the Legislature to take those benefits away by repealing that ballot measure. That means more power for the Legislature and less power for the people.
Senate State Affairs approved the reduced SB 59 6–1 (Yea: Bolin, Langer, Maher, Novstrup, Netherton, and Ewing; Nay: Sutton; Excused: Curd and Heinert).
SB 59 now heads to the Senate floor. We won half the battle today; now, fellow believers in direct democracy, finish the job. Call your Senators and tell them to respect President Trump’s wishes (!!!), leave power in the hands of the people, and vote NO on SB 59.
District 19 makes all sorts of news! District 19 ballot measure organizer Melissa Mentele sends this message to legislators (including those hearing SB 59 in Senate State Affairs this morning at 10 a.m.) urging them to reject Senate Bill 59, the opening effort to weaken voters’ right to legislate via initiative:
We are writing to encourage you to vote no on SB 59. As a ballot question committee we feel it is imperative for you to Vote No on this bill. Anyone who has ever run a ballot initiative in this state can tell you how incredibly hard work it is to get out there and collect the required amount of signatures to make the ballot. There are hundreds of man hours and thousands of dollars raised for these initiatives. It is the true “by the people for the people way” of democracy in South Dakota. Undoing the premise of the initiative process is wrong and is against everything our state stands for.
Many responses we have received from Senators and Representatives have stated “All it does is change the effective date” this is untrue. This proposed bills section 2 takes the voice and vote of the people and leaves it vulnerable to legislative editing and possibly a veto AFTER the people of SD have voted on it. If you remember back in 1988 SD voters voted yes on Amendment A to remove legislators from the ballot initiative process. I think we spoke clearly then and are speaking clearly now.
Ballot initiatives are already subject to following the constitution of South Dakota. When receiving edits back from the LRC they are very upfront about constitutional conflicts and advise sponsors to seek legal clarification. This allows us to do our due diligence prior to spending hundreds of hours pounding the pavement collecting signatures. Section 2 is unnecessary and opens a can of worms for direct democracy in SD.
We ask you to please Vote No on SB 59.
Ballot measures are hard enough—the Legislature doesn’t need to make them harder. Vote No on SB 59!
The sponsors of SB 59 will contend that we need to delay the enactment of ballot measures because state and local governments, businesses, and others need more time to study and prepare for the consequences of those laws, even though ballot initiatives are available for public reading 12, 18, sometimes 25 months before we get to vote on them. Yet the sponsors made SB 59 available for public review on Tuesday, just two days ago, and they are already rushing it to committee, with barely a day’s notice of the hearing.
SB 59 violates both the letter and the spirit of Amendment A, which voters approved 52.2% to 47.8%. As I explained Tuesday, the sloppy, vague language of Section 2 of SB 59 attempts to re-insert the Legislature in the process of approving ballot measures for the ballot. Section 1 of SB 59 delays enactment of initiatives in an attempt to re-assert Legislative authority that South Dakota voters clearly did not and, I will argue, do not want over their constitutional right to legislate.
Senate Bill 59 is another attempt by the thwart the will of the public, this time in the form of a sneaky statute trying to unravel a Constitutional protection. No wonder legislators want to rush this bill through while folks are distracted by the Presidential Inauguration and the Legislature’s own sex scandal.
SB 59 subjects all initiated measures “to the same constitutional requirements that apply to any measure proposed by the Legislature.”
Section 1 is, obviously, a power grab. The Legislature doesn’t want our laws going into effect before they have a chance to tinker with them. Recall that in 2014, we passed Initiated Measure 18, which raised the minimum wage from $7.25 to $8.50. That wage increase took effect on January 1, 2015, before the Legislature convened. Undoing that wage increase was a lot harder for Republicans because thousands of South Dakota were already seeing more money in their pockets. If that wage hike had been delayed to July 1, 2015, David Novstrup’s youth minimum wage would have looked like a smaller increase rather than an actual pay cut. That would have made a difference in rallying the opposition that put that measure on hold, on the ballot, and ultimately in the trash can.
A post-Session enactment date for ballot measures makes it easier for the Legislature to overturn them, because South Dakotans will not have the chance to see those ballot measures in effect before legislators try to take them away. Section 1 thus strengthens the Legislature at the expense of the people.
Section 2 is stranger slop. Initiated measures are already subject to the South Dakota Constitution, as made clear by the ability of 24 Republican legislators to sue for the annulment of Initiated Measure 22 on constitutional grounds. The constitution is the law of the land; we citizens understand that we can’t write initiated laws that override the constitution.
Section 2 appears to create several problems that either weaken citizens’ initiative power or create constitutional snafus:
Article 4 Section 4 requires that any bill receive the signature of the Governor. SB 59 thus requires that the Governor approve any initiated measure.
Article 4 Section 4 requires that bills be subject to veto by the Governor. SB 59 thus appears to allow the Governor to veto an initiated measure.
Article 4 Section 4 grants the Governor line-item veto power. SB 59 thus appears to grant the Governor the power to strike sections of initiatives.
Article 4 Section 4 requires that the Legislature reconsider any vetoed bill. SB 59 thus requires the Legislature to take up any initiated measure vetoed by the Governor.
Article 4 Section 4 requires that any vetoed bill receiving a two-third vote from each chamber of the Legislature become law. SB 59 thus makes it possible for the Governor and either 24 Representatives or 12 Senators to overturn the will of hundreds of thousands of South Dakotans.
Article 3 Section 17 requires that every bill be read twice in the Legislature. SB 59 thus requires the Legislature to include readings of initiated measures before we can vote on them… which conceivably offers an opportunity to use procedural tricks (or deliberate forgetfulness) as a technicality by which to stop initiated measures cold.
Article 3 Section 18 requires that every bill receive majority approval from each chamber to become law. SB 59 thus appears to render the people’s vote redundant.
Article 3 Section 18 also requires that “the yeas and nays shall be entered” in the Legislative Journal. SB 59 thus could be read to require a roll call vote of all citizens marking ballots for initiated measures.
Article 3 Section 22 requires that no law take effect until 90 days after adjournment of the session at which it passed. That requirement makes no sense for initiatives, which are passed by the people, unless we assume that SB 59 intends to make enactment of any initiative contingent on Legislative approval after the election.
Article 3 Section 22 requires a two-thirds vote to pass a measure with an emergency clause. SB 59 thus raises the possibility that the state constitution would render SB 59 ‘s absolute July 1 enactment date unconstitutional.
Article 3 Section 1 speaks exclusively of submitting measures proposed by the people “to a vote of the electors of the state.” No Governor, no Legislature, nobody else—just the people. The only way we can read our constitution consistently is to conclude that this exclusive reservation of legislative power to the people renders SB 59’s effort to subject initiatives to the Legislature’s procedural and voting requirements invalid.
In short, we should not do Section 1 of Senate Bill 59, but the state constitution says we cannot do Section 2.
Wow—and some of SB 59’s sponsors say IM 22 was poorly drafted?