SB 67 changes the initiative process to require petitioners to gather nearly 25,000 more signatures—88% more than the current requirement—to place a constitutional amendment on the ballot. SB 67 also contains an unconstitutional emergency clause: enacting this signature hike immediately does not satisfy any urgent funding need for the support of state government; it only serves as a way for the Legislature to stifle our ability to suspend and refer this bad change and raise the bar right now for any citizens who try to circulate an amendment petition this spring.
Senate State Affairs passed HB 1069, the IM22 repeal, on a 7–2 vote last Wednesday, with only Democrats Billie Sutton and Troy Heinert standing for the voters. Expect a similar outcome today… but don’t let grim expectations stop you from making your voice heard! Get those last-minute messages in to the committee, and let them know our constitution already has enough checks and balances—most importantly, the vote of the people—to protect its integrity.
So I have an interesting perspective to share on what transpired today in the Capitol. IM22 has been adjoined by a judge back in December. This means IM22 is not in affect and hasn’t been for over a month. IM22 was the law after the election but is not available for enforcement because of the Judge’s ruling. The old laws regarding campaign finance and ethics were gutted by the passage of IM22.
The end result right now is; we do not have enforceable campaign finance or ethics laws in place in SD today.
We are trying to repeal IM22 and put at least the old campaign finance and ethics laws back into statute so we have a rule book that is not in the courts for us to follow. That IS an emergency. That is why we need something to pass right away [emphasis mine, grammar errors Deb’s; Senator Deb Peters, Facebook post, 2017.01.26].
Senator Peters is plaintiff #2, right behind her Majority Leader R. Blake Curd, on the Republican lawsuit against IM22. (Yes, Republicans are using all three branches of government—judicial, legislative, and executive—to kill IM22.) She should thus be keenly familiar with what Judge Mark Barnett said when he ruled in Peters and Curd’s favor:
“The motion for preliminary injunction is granted, and implementation and enactment of IM22 is therefore stayed in its entirety,” ordered Judge Barnett.
IM22 consists of 70 sections, ordering that several sections of South Dakota Codified Law be amended or stricken. When IM22 became law on November 16, it amended and struck those sections. When Judge Barnett issued his injunction (orally on December 8, in print on December 21), he rolled back everything IM22 did, including all that amending and striking.
The core logic here: If we were to accept Senator Peters’s suggestion that, say, SDCL 12-27-17 on political communications is no longer law, then we would be accepting that Section 17 of IM 22, which sought to repeal that statute, has been implemented. Judge Barnett enjoined that implementation; therefore, SDCL 12-27-17 has not been repealed.
Neither the plaintiffs, the defendants, nor the judge said anything about the injunction creating a legal vacuum. The Secretary of State, who studiously avoids taking any action not explicitly authorized by law, has sent out notices to candidates and committees reminding them of their legal obligation to file campaign finance reports, per sections of Codified Law that IM22 would have modified, and Senators Peters, Jim Bolin, and Justin Cronin, all litigants against IM 22, have complied with campaign finance law by filing their year-end reports. (Cronin just filed his Wednesday.) Campaign finance law remains in effect.
Senator Peters and her Republican colleagues sound a lot like David Novstrup last year when he tried to convince me that his attempt to undo the voter-approved minimum wage was anything other than an affront to the voters. Republicans are claiming that campaign finance law has disappeared, when in fact Judge Barnett only erased changes and reset campaign finance law to its pre-IM22 state. Republicans are claiming there is an emergency, when in fact there is none. Republicans are claiming HB 1069 is constitutional, when in fact it by their own logic is not.
Republican are cloaking their repeal of IM22 in concern for the constitution and the will of the voters, when in fact HB 1069 embodies no such concern.
Both SB 67 and HB 1069 include emergency clauses, which will insulate them from popular referendum. Voters could still initiate measures to repeal these odious bills, but while a referendum would suspend those bills until after the 2018 election, an initiative effort would leave those measures in place until the 2018 election, meaning petitioning and campaigning in this election cycle would take place under the Legislature’s preferred anti-democratic, anti-anti-corruption rules.
Article 3 Section 1 of the South Dakota Constitution specifies which laws the Legislature may exempt from referendum with emergency clauses:
However, the people expressly reserve to themselves… 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 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 [SD Const. Art. 3 Sec. 1].
An emergency clause for the immediate preservation of public peace, health, or safety… is generally used when a bill is regulatory in nature and it is necessary to begin the regulation immediately to preserve the public safety.
Both SB 67 and HB 1069 invoke the latter criterion:
Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval [SB 67 Section 2;HB 1069 Section 35].
SB 67 does not deal with taxation, raising of revenue, or appropriations. It does not enact any funding for government activities. By the LRC’s own explanation, SB 67 is not addressing emergency needs for support of state government.
HB 1069 mentions appropriations by repealing the voter-approved funding for the Democracy Credits program. However, that funding has been enjoined by Judge Mark Barnett and remains in limbo until the South Dakota Supreme Court hears and rules on the lawsuit against IM22. HB 1069 is not providing funding to any government operation; it seeks to repeal funding that is already blocked. HB 1069 thus does not address any emergency needs for support of state government.
TakeItBack.org, Represent South Dakota, and others who supported IM22 are raising heck over HB 1069. They should add SB 67 to their agenda, since constitutional amendments are apparently the only way South Dakota voters can guarantee their will will stand as law without Legislative interference. TakeItBack.org and Represent SD should prepare their legal briefs now on the improper emergency clauses, be ready to file suits the moment Governor Daugaard signs those laws, and have referendum petitions ready to go the moment the judge overturns those bogus emergency clauses.