Senator Larry Tidemann (R-7/Brookings) moved to not concur with the House version of Senate Bill 35, which sets zero increase for K-12 funding and eliminates the Schoenbeck Amendment that dedicates 63% of last year’s half-cent sales tax hike to teacher pay. In brief remarks, Senator Tidemann said SB 35 “needs further discussion.” Presiding in the absence of Lt. Gov. Michels, Senate Pro-Tem Brock Greenfield noted from the podium that House members had said they were willing to have that discussion and that the bill setting general state aid for education almost always ends up in conference committee. The motion to not adopt passed without audible dissent.
Senator Tidemann has the pleasure of serving on the conference committee with five fellow Appropriations Committee members: Senator Deb Peters (R-9/Hartford), Senator Billie Sutton (D-21/Burke), Rep. Dan Ahlers (D-25/Dell Rapids), Rep. David Anderson (R-16/Hudson), and Rep. Hugh Bartels (R-5/Watertown). Ahlers spoke strongly against the sales tax raid in the House Tuesday; Anderson and Bartels voted for it. Peters, Sutton, and Tidemann all voted for the sales tax/teacher pay plan last year.
As one metric of how much protecting the teacher pay plan matters to South Dakotans, my initial Tuesday evening Facebook post on the sales tax raid has “reached” 10,931 people and been shared 100 times. If a similar volume of calls and e-mails reach Peters, Sutton, Tidemann, Ahlers, Anderson, Bartels this morning, we may be able to get SB 35 back to the deal we made last year to make a long-term commitment to raising our teacher pay to regionally competitive levels.
When Senate State Affairs took up House Bill 1073 Wednesday, Senator Ryan Maher moved and Senator Billie Sutton seconded Amendment 1073cb, which every year would adjust both the $100 gift cap and the $75 meal exemption by the consumer price index.
I listened to the audio (SSA PM—hear timestamp 68:40) hoping to hear an explanation of why legislators would want to include a cost-of-living adjustment on this particular set of restrictions. So far they’ve included no COLA on campaign finance limitations (see SB 54). Are they (or the lobbyists who educate them) really so concerned about all the little freebies they receive throughout the year will be eaten up by inflation?
No one appeared eager to answer that question. After a few seconds of silence, committee chairman Bob Ewing called for a vote on the amendment. Senator Sutton called point of order, saying he’d seconded the amendment for discussion purposes, and by gum, he wanted discussion.
After some hemming and hawing from Senate prime sponsor Ernie Otten, House prime sponsor Speaker G. Mark Mickelson dragged himself to the microphone to say he’d never witnessed any problems in the absence of a gift cap. He acknowledged that IM22 had offered a gift cap but was “written pretty poorly.” He said he’d looked at lobbying restrictions in Nebraska and Minnesota to come up with HB 1074 with its “pretty reasonable exemptions” spelled out in Section 4. But on the cost-of-living adjustment, Speaker Mickelson passed the buck, saying it arose from “a couple concerns” Senator Kris Langer had, “so I’ll let her talk about the amendment.”
Committee member Langer then offered this statement, which I quote in full:
I do think this helps some of my concerns—I will just say “helps,” it doesn’t alleviate all of them, but, um, I would ask you to support the amendment [Sen. Kris Langer, discussion of 2017 HB 1073, in Senate State Affairs, PM meeting, 2017.03.01, timestamp 75:26].
To be clear, Senator Langer told Senate State Affairs nothing about why she wants a cost-of-living adjustment on the lobbying gift cap. Chairman Ewing called for a vote, and the amendment passed 6–3.
Following the amendment, South Dakota Chamber exec David Owen came to the mic and offered Senator Sutton and his colleagues no explanation of the COLA, either. But he did stroke his Republican friends’ sense of superior morality and martyrdom:
This is a well-written good limitation on gifts that replaces a completely unworkable version drafted and approved by the people, and here’s the tragedy that will befall all of you: the repeal of that unworkable work made page 1, dominated the news. This is a more workable solution, and I’ll bet it doesn’t make page 6 [David Owen, testimony, Senate State Affairs, PM meeting, 2017.03.01, timestamp 79:30].
Novstrup said the only point of the election-year hearing was to “shine the light of sunshine upon the issue by asking good questions.”
Senator Billie Sutton noticed that the pre-circulation hearing had no deadline. I had flagged that omission as an opportunity for the Legislature, which has demonstrated notable antipathy toward the voters’ initiative power, to indefinitely delay petitioning. Senator Sutton moved to amend HB 1130 to require the Senator Novstrup deemed that amendment friendly, and the Senate adopted the Sutton amendment without objection.
Senator Craig Kennedy expressed concern about the use of the term “hearing.” “They’re not hearings at all,” said attorney Kennedy, since the purpose of a hearing is “to enable a body to make a decision.” The HB 1130 hearings “aren’t hearings at all,” said Kennedy, “because there’s no decision-making being done.” HB 1130 would be “spending state money for in essence two media events.”
Senator Troy Heinert then rose to urge defeat of HB 1130 runs counter to the sentiment he’s heard at all of his crackerbarrels: “Don’t mess with the initiative process.” Hmmm… sounds like clever petitioners would find fertile ground for my proposed “Don’t Mess with Us” Amendment!
Speaking from an appropriators’ perspective, Senator Jeff Partridge said the public comment provision would put a costly burden on the Secretary of State’s website and the Executive Board hearings would eat up further unknown funds.
In closing, Senator Novstrup portrayed this bill as “an open government bill” and “a bill of transparency. Arrogantly presuming to know the mind of the voters, Novstrup said, “The voters will not look upon this as an infringement upon their right but with a thank you to the Legislature for providing the opportunity for a complete discussion for the pros and the cons. The alternative to this is a 30-second ad.”
Sorry, Al: this voter saw HB 1130 as a net infringement. You may get all of your information from 30-second ads between your Fox News blurbs, but we already have numerous alternatives, like good local discussion of initiatives and referenda in our local media.
Novstrup’s comments won him just six other votes—Tapio, Rusch, Netherton, Jensen, Greenfield, and Cammack. My thank you goes to the 28 Senators who voted to kill HB 1130.
By the way, the Senate passed the HB 1141 task force at the close of the day on a 28–7 vote. Senator Kennedy expressed suspicion that a task force usually signals an intent to make changes. He said even the summer study is “somewhat insulting” to the will of the voters and led most of his caucus (except for Minority Leader Sutton) in opposing the I&R task force. Senator Sutton cleverly amended the task force bill to remove the seat the original bill saved for the Chamber of Commerce. Unfortunately, there are still only two regular citizens, appointed by the Governor, one from business, one from ag, which leaves out an entire swath of the population—teachers, journalists, factory workers, retirees, stay-home parents. There’s still one poli-sci prof (who now must be a non-Republican!) and two Board of Elections members, but the other eight members are all legislators or elected officials whose power is checked by initiative and referendum.
Contributions received by a candidate campaign committee may not be used for any purpose other than a purpose related to a candidate’s campaign. Contributions received by a candidate campaign committee that are not used for any purpose related to a candidate’s campaign may be donated to any other candidate, candidate campaign committee, or nonprofit charitable organization [Senate Bill 54, Amendment 54ff, approved 2017.02.15].
Right now, candidates for statewide, legislative, and lower offices can spend the campaign funds on groceries, beer, home mortgages, flowers for their secret lovers, whatever they want. The only restrictions on such conversion of campaign funds to personal use would be (a) public scorn, (b) torqued-off donors, and (c) IRS requirements that such conversions be declared as taxable income. Senator Sutton’s amendment would end such personal conversion.
Unclear is whether the Sutton amendment would prevent candidates from paying themselves a salary from their campaign funds. FEC rules allow Congressional candidates to write themselves a check, although that salary cannot exceed the salary of the office for which the candidate is running or the income the candidate earned the previous year, which is less. Sutton’s amendment doesn’t address the salary question and thus could leave a door open for candidates to pocket their campaign funds for personal use.
Two Republicans voted against HB 1069, Senator Stace Nelson (R-19/Fulton) and Senator Lance Russell (R-30/Hot Springs). Immediately after the Senate’s vote Wednesday to overturn the will of the people, Senators Nelson and Russell filed a formal dissent and protest, placing on the record arguments they made during floor debate that HB 1069 violates the U.S. Constitution by infringing on anonymous campaign speech and violates the South Dakota Constitution by addressing multiple subjects. They also contend that the seventeen Senators suing the state to overturn IM22 violated Legislative Joint Rules by voting on a bill that would allow them to escape further legal costs:
Pursuant to Joint Rule 1-10, we, the undersigned Senators, do hereby respectfully dissent from, and protest against, the rulings of the President of the Senate, Lt. Gov. Matthew Michels, in ruling against Senator Nelson’s point of orders that 17 Senate members be excused from voting due to their personal conflict of interest in the legislation to overturn IM22 due to their admitted public record of personal pecuniary interest in a lawsuit to overturn IM22, violating Joint Rule 12-1 and Section 521 (2)(3) & Section 522 (1) of Mason’s Manual of Legislative Procedure (enacted as SD Legislative Joint rules via Joint Rule 11-3). Lt. Gov. Michels’ ruling, in the face of such conflict of interests, promotes a practice that undermines the very foundation of our State Constitution, weakens the rule of law, and besmirches the reputation of the South Dakota Senate. Furthermore, we, the undersigned Senators, do hereby respectfully dissent from, and protest the passage of House Bill 1069 in that it clearly violates Article III, Section 21 of the South Dakota Constitution (which 17 Senators acknowledge in section 10 of their lawsuit contesting the mirror image of HB1069, IM22 was unconstitutional for violating this constitutional provision) states: “No law shall embrace more than one subject, which shall be expressed in its title.” Members voted to pass House Bill 1069 knowing that provisions of it contained sections which require citizens to declare their names, address, etc., on campaign material, which the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)). We therefore believe that the passage of House Bill 1069 is in contravention of both the United States Constitution, South Dakota’s Constitution, and is therefore null and void. We thus dissent from, and protest against, the erroneous rulings, the unconstitutional aspects of House Bill 1069, and the appearances of improprieties used to pass House Bill 1069. We respectfully request that this dissent and protest be printed in the Senate Journal as required by Joint Rule 1-10 [Sen. Stace Nelson and Sen. Lance Russell, Dissent and Protest to Passage, Senate Journal, 2017.02.01].
Democratic Senators Billie Sutton (D-21/Burke), Troy Heinert (D-26/Mission), and Jason Frerichs (D-1/Wilmot) followed suit but took a little longer to type. Their dissent and protest appears in yesterday’s Senate Journal:
Joint Rule 1B-2 states the legislators must comply with all Constitutional and statutory requirements regarding conflicts of interest. Voting upon HB 1069 presents a conflict of interest because the legislators currently in litigation against the implementation of Initiated Measure 22 would thereby receive a pecuniary interest due to the passage of HB 1069. Thus, they will no longer have to pay to continue the lawsuit and will thus receive a financial benefit with the repeal of IM 22.
In addition, the South Dakota Constitution, Article III, Section 1 has been used by the courts as the standard to determine when an emergency exists. Article III, Section 1 of the South Dakota Constitution allows a referral of a legislative act to a public vote before going into effect unless it is necessary for the immediate preservation of the public peace, health, or safety or the act is necessary for the support of the state government and its existing institutions. Since this law is enjoined we contend that no emergency exists, and the use of the Emergency Clause is unconstitutional in HB 1069. We therefore believe the passage of this act is in contravention of the Constitution of South Dakota and the Joint Rules and is such null and void.
We respectfully request this dissent be printed in the Senate Journal.
Nelson and Russell’s argument about anonymous speech is not really an expression of support for IM22. Both IM22 and current campaign finance law require disclaimers and disclosure of sources of campaign communications. The 1995 Supreme Court case they cite said that Ohio’s ban on anonymous speech was too broad but still allowed states and the federal government to impose disclaimer and disclosure requirements tailored to meet overriding state interests. For over two decades, states and the FEC have done just that, and the courts have not thrown out “Paid for by….”
The conflict-of-interest argument tantalizes but probably gets nowhere. Passing HB 1069 appears to end the lawyer bills for Novstrup and the other IM22 plaintiffs, but HB 1069 was not the only vehicle at their disposal for reaching that goal. They could have dropped their lawsuit at any time.
The state constitutional arguments on multiple subjects and the bogus emergency clause are the most solid. The IM22 plaintiffs themselves agreed in their anti-IM22 brief that IM22 addressed multiple subjects; they are logically bound to agree that a bill doing the exact opposite of IM22 also addresses multiple subjects. And for all their rhetorical gymnastics, not one Republican has addressed the 1996 LRC Issue Memorandum that clearly explains the funding requirement for the emergency clause HB 1069 invokes.
But are those two constitutional arguments worth taking HB 1069 to court? Get a court to overturn HB 1069 on the multi-subject argument, and we grant the court grounds on which to overturn IM22.
Get a court to overturn the emergency clause, and we may only delay enactment of HB 1069 until July 1, like a normal bill. IM22 would still be enjoined, and the South Dakota Supreme Court might not rule on the IM22 case before July 1, so even for the next few precious months, we’d still be laboring under the status quo that HB 1069 affirms.
The only impact of a no-emergency-clause delay is the opportunity to refer HB 1069 to a public vote. But that referral would be a disaster. We would place the exact text of HB 1069 (the inverse text of IM22) on the ballot. The South Dakota Supreme Court would then rule a line or two of IM22 unconstitutional (and I’m confident the plaintiffs will win at least one of their claims). Our campaign would then be in utter confusion, as we’d be voting on a Swiss-cheesed bill that includes provisions that we cannot constitutionally enact.
A key part of that pivot is for Nelson Republicans and Sutton Democrats to look for ways to turn their cooperation in protesting HB 1069 into practically constructive and/or obstructive collaboration.
Update 11:26 CST: Senator Stace Nelson expands on his dissent with this op-ed, circulated today:
February 1st was a “dark day” for the South Dakota legislature. The passage of House Bill 1069, brought to repeal the voters’ enacted Initiated Measure22, culminated the ugliest partisan bums-rush of legislation since Obamacare. I publicly opposed IM2 during the election for many reasons. The solution to bad government is not more government, and IM22 did nothing to combat the ugly corruption of the last two governor’s EB5, and Gear Up scandals. Circumstances made me a grudging opponent of HB1069.
Early on I encouraged Senators to go slow repealing IM22. We govern at the permission of the people. While the people give us permission to act on their behalf by electing us, we shouldn’t be so arrogant as to act rashly with out proper respect for their will. I suggested 5-6 single subject constitutional bills to review IM22 and afford the many subjects the proper, respectful, deliberate public hearings that voters deserved. That sage advice was cast aside and HB 1069, the mirror image of IM22 (which they contested was unconstitutional because it was multi-subject), was brought forth to repeal IM22. Immediately streams of dishonest rhetoric was pushed spinning the repeal and claiming a contrived “emergency” demanding the immediate passage of HB1069. Politicians who blithely voted for unconstitutional multi-subject bills previously, now claimed they must repeal IM22 to protect the people’s constitution, from the people!
Despite 24 legislators being personally involved in the lawsuit against IM22, they refused to recuse themselves from the obvious conflict of interest of pushing HB1069 through the legislature. They did everything possible to bend to breaking every rule possible to rush HB1069 through. To add injury to insult, Senators voted to knowingly keep unconstitutional provisions within HB1069, which require personal identifying information the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334(1995)). IM22 was allowed on the ballot by the Governor, Attorney General, and Secretary of State. That tacit support, in my opinion, removes blame of unconstitutionality from citizens who brought IM22. Legislators brought the unconstitutional HB 1069 mess. They were obligated to abide by legislative ethics rules and our US & SD Constitutions. The inappropriate conflicts of interests, the gross appearance of improprieties used to pass HB1069, and the provisions of HB1069 which were in explicit contravention of both the United States Constitution, and South Dakota’s Constitution, showed who was the real threat to our Constitutions. Principle demanded that I was duty bound to oppose HB1069, which I did.
The manner in which HB1069 was passed was disgraceful, and a “dark day” as Senator Lance Russell (R-Hot Springs) appropriately lamented. Politicians claimed there is no corruption in SD, in support of their rush to pass HB1069. The EB5 corruption and death of Richard Benda; the Gear Up corruption and deaths of Scott, Nicole, Michael,Connor, Jaeci, & Kailey Westerhuis; the recent scandal of a two year legislative cover-up of a legislator sexually preying on pages & interns; and, the same legislators repealing the will of the voters in such a corrupt fashion, refute those assertions upon utterance.
In that “dark day” there was a ray of principled sunshine. The honorable gentleman, Senator Lance Russell (R), stood tall on the Senate floor and opposed the partisan stampeding herd. In the end, we earned the wrath of politicians for refusing to compromise the ethical principles of your government in their demands we go along to get along. The good news is, Senator Russell and I sleep like babies at night and we can look each one of our constituents in the eyes when we go home.
Senate Minority Leader Billie Sutton and Senator Jim Peterson (from District 4, where abortion-distraction politics is a blood sport) forgot where they hang their hats and voted for the now 22-week abortion ban. But the rest of the Democrats and eight Republicans voted against SB 72. Republican Senator Deb Peters channeled my thoughts nicely:
“I will tell you that we have no businesses passing pieces of legislation like this, that gets in the way of family decisions, and the family decision between the mother, and the family, and the doctor,” Peters says. “This is personal folks. Yes, we’re trying to protect that unborn child. But I will tell you that families in this state are also trying to protect that unborn child. This bill has no business being here today” [Jenifer Jones, “Senators Pass Bill Banning Abortions After 22 Weeks,” SDPB Radio, 2016.02.23].
Thank you, Senator Peters, for being willing to push back against the abortion distractors who would have government intrude on families’ medical decisions and impose one group’s anti-sex agenda on every woman in the state.
AG Jackley says he is responding to “the State Senate and House Minority Leaders request for a statement from the Attorney General on the State Gear-up Program.” But I don’t recall Senator Sutton or Rep. Hawley asking for a “statement” on GEAR UP, the now scandal-plagued grant program taken away from the Mid-Central Educational Cooperative for which Scott and Nicole Westerhuis worked. Their November 4 statement notes that AG Jackley had “refused to comment” on the financial investigation into GEAR UP and MCEC. They “encourage the Attorney General to conduct a more thorough investigation into the GEAR UP grant and provide more answers to the public than were provided with EB-5.”
As part of the legislative oversight, the Office of Legislative Audit conducted an Audit for fiscal year ending June 30th, 2014. At no time during the process did any individual or entity bring concerns of potential state criminal law violations to the Attorney General [Office of the Attorney General, press release, 2015.11.09].
Really? Somebody has to break the law before state officials do something? And, as with concerns about petition violations, the Attorney General and South Dakota law enforcement in general have to wait for someone else (who? private citizens? bloggers? Magnum P.I.?) to point out suspicious behavior before they say, “Something smells fishy—we’d better take a look”?
Besides, Senator Sutton and Rep. Hawley didn’t mention criminal activity. Their November 4 release speaks of conflicts of interest, self-dealing, accountability, and checks and balances. Is there no such thing as corruption that doesn’t rise to criminality but still ought to alarm the Attorney General right along with the rest of us?
By his own words, the Attorney General makes clear that even he is not focused exclusively, Vulcanly, on statute and criminal behavior. He turns his response into a political argument about who authorized GEAR UP:
…I respect that other governmental bodies have the authority and decision making over spending in legislative programs,” said Jackley.
During the 2007 legislative session, the State Legislature approved significant increases in the State budget for the Gear-Up Program and with the support of both Minority Leaders authorized continued appropriations for the Gear-Up Program (2011- HB1251, Sutton yea, Joint Appropriations Committee; 2012 -HB197, Sutton yea, Joint Appropriations Committee; 2013-HB1185, Hawley yea, Sutton yea; 2014-HB187, Sutton yea; 2015-HB1208, Hawley yea, Sutton yea) [links added; Attorney General, 2015.11.09].
Sutton, Hawley, and the rest of us aren’t talking about 2007 (although send me MCEC’s offline minutes from 2007 through 2011, and I will). Neither Sutton nor Hawley was in the Legislature of 2007. The Attorney General took the time to dig up a scattering of Sutton’s and Hawley’s votes on later budget bills (what, did someone bring concerns of potential state criminal law violations in the House and Senate chambers to the Attorney General?) The first two are general appropriations bills on which Jackley cites committee votes but ignores the final votes, in which both Sutton and Hawley both voted against those appropriations. He can’t pin Yeas on Sutton and Hawley until he gets to the final appropriations vote in 2013.
Jackley implies that by voting or the general state budget, legislators bear moral culpability for the corruption by an educational cooperative running a federal grant under a contract with the Department of Education. I won’t just ignore that implication; I might embrace it and quote the Attorney General when I go hunting for incumbents next year.
If Attorney General Marty Jackley can read me back the line in the Joint Appropriations testimony or floor debate in any of the years he cites where Sutton, Hawley, or any other legislator says, “I am cognizant of incompetence at Mid-Central, so I’m going to vote to keep sending Mid-Central money and add some technical support” (you know, the way Secretary Schopp did), I will cede the point and shine Marty’s shoes with Billie Sutton’s hat.
The point escaping our Attorney General is that Democratic leaders aren’t trying to score political points (although if Marty wants that game, his party will lose). Senator Sutton (who represents Charles Mix County, where the Westerhuis deaths occurred and where Mid-Central screwed an as-yet untallied number of pooches) and Rep. Hawley asked, quite sensibly, for answers and accountability for corruption. Even from the political perspective of a guy angling to be Governor, the proper response to concerns about corruption is not, “Nobody told me, and you guys voted for it!” The proper response is, “I agree completely. We will find the devils and string ’em up!”
And we are going to string ’em up, regardless of what party they’re in, right, Marty?
Tornberg joined District 21 Senator Billie Sutton from Burke, former District 4 Representative Kathy Tyler from Big Stone City, former (and it sounds like future!) District 1 Representative and 2014 gubernatorial candidate Susan Wismer from Britton, and Santema’s Aberdeen blog neighbor me to discuss GEAR UP, EB-5, the Blue Ribbon K-12 panel, and other topics of interest to local Democrats and other interested South Dakotans.
Santema broke out his new camera and found he can get 90+ minutes of quality video on one battery. He breaks that 90+ minutes into three segments for your YouTube pleasure. I commend Santema for taking the time to document this public event and share the views of an opposing party with the general public. Watch, comment, and share!
Boy, forget pot policy, Lynn! Hanging out with a political blogger like me ought to ensure defeat for the party, right?
Actually, Thursday night’s “Front Porch Conversations” here in Aberdeen should be good fun for area Democrats and everyone else who’s like to spend a pleasant evening with neighbors talking politics. The Brown County Democrats have assembled the following panel:
Senate Minority Leader Billie Sutton (D-21/Burke)
South Dakota Democratic Party Chair Ann Tornberg from Beresford
Former District 1 Rep. Susan Wismer from Britton
Former District 4 Rep. Kathy Tyler from Big Stone City
Dakota Free Press blogger Cory Allen Heidelberger
The forum starts this Thursday, November 5, at 7:30 p.m. at the AmericInn, just east of the mall. The Brown County Democrats are also hosting a pre-event fundraising social hour at 6:30 p.m. with hors d’œuvres and a cash bar for $25. Come on out Thursday, talk teacher pay, Medicaid expansion, EB-5, Election 2016, and whatever else is on your mind!