Usually ballot question committees keep signature counts mum, limiting public comment on totals to, “We’re getting lots, but we need more, so circulators, keep pushing!” Represent SD must be feeling pretty confident that voters and circulators will put their petition well over the signature threshold by November 6. In a press release, ballot question co-chair Mitch Richter says, “The repeal of Initiated Measure 22 has not been forgotten…. South Dakotans are eager to vote on this strong anti-corruption and voter protection measure.”
Remember, the South Dakota Voter Protection and Anti-Corruption Amendment would write many of the campaign finance limits, and lobbying rules that voters approved last year into the state constitution, where the Legislature would not be able to repeal them as they repealed Initiated Measure 22 last winter. The SDVPACA nullifies the State Government Accountability Board the Legislature offered to mollify enraged voters last winter and replaces it with the stronger state ethics commission IM22 would have created. The SDVPACA does not include “Democracy Credits,” the public campaign financing system we approved in IM22. The SDVPACA goes beyond IM22 in protecting the initiative process from Legislative interference by requiring changes to initiated laws or the requirements for placing measures on the ballot to be approved by public vote, locking the vote threshold for passing initiatives and referenda at simple majority, and enacting voter-approved measures 60 days after the election.
As I told Greg Belfrage on KELO Radio Friday, the main problem with the so-called “replacement” bills is that IM22 was meant to check the power of the Legislature, but the “replacement” bills check the power of pretty much everyone but the Legislature. Legislators aren’t limiting their own campaign cash; in Senate Bill 54, they’re actually trying to expand their campaign resources by allowing businesses to donate directly to them. They are spending more time trying to limit the power of the people by trying to put new checks on our initiative and referendum rights.
Represent South Dakota, which fought hard against the repeal of IM22, sees a similar arrogance in the main Republican-pushed “replacement” bill, Senate Bill 54. Represent SD’s spokesman Doug Kronaizl says Republicans wouldn’t even take citizen input on the complicated new amendments slapped onto the bill in committee this week:
After repeated statements about respecting the people of South Dakota, the Senate State Affairs Committee barred public testimony on a campaign finance bill that would increase contribution limits and allow labor unions and corporations to donate directly to politicians. Yesterday, the committee held its final hearing on SB 54, a heavily-amended campaign finance overhaul brought forth by the Secretary of State. This comes on the heels of the total repeal of a voter-enacted anti-corruption law and many weeks of constituent engagement calling on legislators to honor lower campaign contribution limits.
Numerous legislators have pointed to SB 54 as evidence that they are committed to respecting the will of the people after completely repealing Initiated Measure 22, which was passed by voters in November and includes strong contribution limits. But where IM 22 lowered contributions limits and respected the pre-IM 22 ban on direct union and corporate contributions – a common prohibition in most other states and at the federal level – SB 54 would open the floodgates of contributions.
[Wednesday], the committee prohibited public testimony on SB 54 while adding multiple amendments to the bill, including Amendment 54oa, which doubles the amount of money a PAC can donate to a political party.
“They have been talking a big talk about ‘respecting’ the people, but these legislators once again showed their true, anti-voter colors yesterday,” said Doug Kronaizl, spokesperson for Represent South Dakota. “Not only have they repealed the entirety of a voter approved anti-corruption law, but now they are going so far as to silence the voters they purport to ‘respect.’”
Senator Bob Ewing, in an effort to justify the decision to bar public testimony, referenced earlier hearings as having provided adequate testimony. However, voters were only able to speak at the first hearing, which took place before a slew of amendments were made. During the second hearing on Wednesday, February 15, Senator Ewing stated: “I want to give everyone the opportunity to digest [the amendments] and we’ll act on it next Wednesday.” Despite that assurance, public testimony was ultimately barred during the final hearing on February 22, frustrating voters who had taken time out of their day to testify against the bill. “I thought the committee would at least give us time to read these amendments, but it looks like they had no intention to hear our voices the whole time,” said Roxanne Weber, a Pierre voter who hoped to testify against the bill.
“Calling SB 54 a ‘replacement’ of IM 22 is knowingly deceptive,” continued Kronaizl. “This bill does not represent the strong limits passed by the voters. Quite the contrary, it substantially weakens our campaign finance laws.” For example, IM 22 lowered the amount an individual can donate to a Secretary of State race to $1,000. SB 54, introduced by the Secretary of State’s Office, sets the limit at $4,000. But, even more egregious, SB 54 sneaks in a near-unprecedented change to pre-IM 22 law byallowing labor unions and corporations to give money directly to candidates, a practice currently banned in South Dakota and in most other states.
“If legislators were at all confused about why the voters are upset, they need not look any further than their behavior here,” continued Kronaizl. “Town halls have been packed, hundreds of emails have flooded their inboxes, and constituents have traveled miles to Pierre all so their elected officials can continue to ignore and disrespect them.”
SB 54 narrowly passed out of committee with a 5-4 vote. It moved to the full Senate on Thursday, where it passed 19-16 after legislators tabled an amendment from Senator Billie Sutton that would have reintroduced the lower limits set by IM 22 [Represent South Dakota, press release, 2017.02.23].
On the good side, another “replacement” bill, House Bill 1076, sponsored by Democratic Representative Karen Soli, may get us something like the ethics commission voters wanted to create with IM 22. In a helpful move away from Legislative oversight, House State Affairs changed the make-up of HB 1076’s Government Accountability Board from a six-member board with a majority appointed by legislators to a four-member board appointed by the Governor from among former or retired judges. HB 1076 passed the House 64–3 Thursday (who says Nay to an ethics commission? Republicans Spencer Gosch, Taffy Howard, and Chris Karr) and awaits Senate State Affairs attention.
If HB 1076 passes, we can only hope we’ll get more than gab from the GAB.
The best thing I heard Rick Weiland say at yesterday’s Brown County Democratic Forum is that his ballot measure organization, TakeItBack.org, is ready to refer any legislative attempt to repeal Initiated Measure 22 to a public vote.
In remarks to a couple dozen listeners here on the tundra, Weiland likened the battle for the Anti-Corruption Act to the battle over the minimum wage. In 2014, voters approved increasing South Dakota’s minimum wage and adjusting it upward for inflation each year. Hardly a month after that pay increase took effect, Republican legislators took action to undermine the voters’ will but cutting the minimum wage for workers under 18. We referred that Republican action to a vote, and in 2016, voters rejected the Republicans’ meddling by an even larger margin (71%–29%) than that by which they enacted the minimum wage increase in 2014 (55%–45%).
Perhaps wanting to avoid a similar popular rout this time, Republican legislators have focused on using the courts to beat back the voters’ will. Republicans have secured a circuit court injunction against IM 22 in its entirety. Professing his non-lawyer status, Weiland did not review in detail the legal arguments against the Anti-Corruption Act. He only repeated his assertion that TakeItBack.org’s lawyers, including Scott Heidepriem, feel they can prevail in a fair hearing before the state Supreme Court. Weiland also said he expects Republican legislators will wait until the Supreme Court rules before advancing any repeal legislation.
An impending proposal from Secretary Krebs poses a possible complication to any referral effort to preserve IM 22. Unless the Supreme Court throws out IM 22 in its entirety, writing Secretary Krebs’s reforms into campaign finance law would likely require striking any remaining IM 22 provisions. Krebs’s package would likely be an integrated repeal-and-replace measure. Referring that measure would mean asking voters to throw out an ethics commission to restore an ethics commission. That pitch differs greatly from the choice voters had in 2016 between IM 22’s ethics commission and no ethics commission.
Tinkering with the minimum wage was clearly a tactical error. Republicans are trying to avoid facing the wrath of the voters on IM 22. Fusing the Krebs reform package with an IM 22 repeal would insulate Republicans from such ballot box backlash.
Attorney General Marty Jackley announced his 2017 package of legislation last week. With these six bills, Jackley proposes more practical legislation for South Dakota than his opponent in the 2018 GOP gubernatorial primary, Congresswoman Kristi Noem, has passed in her entire time in Washington. (Marty, feel free to use that line.)
A.G. Jackley’s bills, in order, would do the following:
SB 25 lets the police release mugshots. We bloggers can’t wait!
SB 26 updates the Statewide Automated Victim Information Notification (SAVIN) system to allow victims to register directly for access and to provide automated notices of where defendants lock-up location and status.
SB 27 tells the Legislature they haven’t done enough to fight corruption (remember, Marty’s running for Governor) and defines using public office to “obtain any personal benefit or pursue any private interest” as a “direct criminal conflict of interest.” SB 27 calls that theft and throws these public thieves in prison instead of giving them probation as Class 5 and 6 felons usually get.
Krebs says she’s already drafted legislation establishing a state ethics commission for lawmakers to consider.
…“I’ve said for a long time that I do think South Dakota needs an Ethics commission, specifically when it comes to campaign finance laws or lobbying laws, so that there is some kind of oversight and checks and balances,” Krebs says. “When you look at state government as a whole, there would be room for that in the campaign finance area. And I would be in favor and support and be willing to work with language that the legislators are going to be proposing” [Lee Strubinger, “Secretary of State Krebs Favors State Ethics Commission,” SDPB Radio, 2017.01.03].
A.G. Jackley may leave the ethics commission to SOS Krebs, but he does take one more swing at corruption with a seemingly minor new provision in Section 3 od SB 27:
An employee may file a grievance with the appropriate governmental entity if the employee believes that there has been retaliation, because of reporting a violation of section 2 of this Act through the chain of command of the employee’s department, to the Office of the Attorney General, or to the Department of Legislative Audit. If no grievance process exists, a civil action may be filed in circuit court [Senate Bill 27, Section 3, posted 2017.01.05].
That doesn’t create a new place to report the corruption SB 27 tackles, but it at least clarifies that whistleblowers have the faint protection of being able to file a civil suit over retaliation for whistleblowing. Come on, Marty—you can do better than that! Tell the Judiciary Committee to hold this bill until Shantel’s bill goes through, then amend this bill to authorize Shantel’s ethics commission to hear whistleblowers’ retaliation complaints directly!
Much of our conversation revolved around the judicially-stymied Initiated Measure 22 and the voters’ desire to tackle corruption in Pierre. Belfrage agrees with voters, Marty Jackley, and Shantel Krebs that South Dakota needs an ethics commission. Yet in our conversation this morning, he contended that voters didn’t really want all the other parts of IM22, especially not the public campaign financing. Belfrage asserted that voters didn’t realize all that other stuff was in IM22.
Understandably, Belfrage works hard to assure his voting listeners that he’s not calling them stupid. As he said in November, voters were “hoodwinked“:
I’m not blaming voters. They were hoodwinked by scam artists who grossly misrepresented these proposed measures.
Proponents of IM 22 talked a lot about transparency of state government.
However, there was no transparency in their television ads.
The ads for IM 22 never once mentioned taxpayer funded political campaigns and the millions required to pay for them.
In our discussion of IM22 this morning, Belfrage also said the Attorney General’s explanation of IM22 may bear some responsibility for voters’ not knowing what all was in IM22 when they cast their votes.
Now let me back that truck up. “Publicly funded campaign finance program” on the 2016 general election ballot in both the title and the Attorney General’s explanation. In both spots, “publicly funded campaign finance program” appeared before “ethics commission.” In the IM22 Pro statement in the official Ballot Question Pamphlet, sponsor Don Frankenfeld spoke of the public campaign financing and didn’t mention the ethics commission. And while IM22 sponsors focused their ads on corruption and the ethics commission, the Koch Brothers spent great sums warning everyone about the publicly funded campaign finance program, which opponents blasted on multiple media as “welfare for politicians” months before the Pro ads hit the airwaves. If voters were watching ads and their mailboxes, they were at least as aware of IM22’s publicly funded campaign finance program, the Democracy Credits, as they were of the ethics commission. If voters tuned out the media and didn’t pay attention until they picked up their ballot, they saw the words “publicly funded campaign finance program” and a lot more words about it before they got to “ethics commission.”
Now don’t get me wrong: I’m with Belfrage, Jackley, and Krebs on creating a state ethics commission. If that’s the only portion of IM22 that the 2017 Legislature salvages, that’s still progress. I just don’t think the ethics commission stands a chance of passing in the Legislature, because the Legislature is run by the same Republicans who (a) voted to kill the ethics commission proposed by Rep. Peggy Gibson in 2015 and (b) sued to kill the ethics commission approved by voters two months ago. The Republicans won’t give a hoot and a half about what the people want as long as Republicans personally can count on getting reëlected.
But I don’t see evidence to support Belfrage’s assertion that voters only want the portion of IM 22 he likes and not the whole package. I think that, like me, they’d take an ethics commission by itself. But on Election Day, voters had plenty of information in front of them about the ethics commission, the public campaign financing, and other parts of IM22, and a majority voted to enact all of those things.
Oh yeah, and then Stace Nelson came on the radio! While I want to believe that Senator Nelson and his fellow arch-conservatives could do as much as Democrats to fight the cronyism of the Janklow-Rounds-Daugaard mainstream SDGOP, Nelson avoided Belfrage’s questions about what legislation he would propose to tackle corruption. He wouldn’t advocate an ethics commission. He rejected campaign finance reform, mistakenly projecting his own do-it-yourself approach to campaign finance onto his well-heeled GOP colleagues:
It gives the voters the wrong idea that their legislators are somehow in the back pocket of the special interests. At the national level, yeah, that’s the case, it’s ugly, it’s not the way things are supposed to be. But at the state level, 99% of their legislators struggle to get enough money to buy the newspaper ads, to put out the postcards…” [Senator-Elect Stace Nelson, on The Greg Belfrage Show, 2017.01.03].
At least Senator Nelson is willing to grind the EB-5 and GEAR UP axes and remind us that people died because of the GEAR UP corruption and Melody Schopp is still Secretary of Education.
Senator Nelson may excuse his unwillingness to bring an ethics commission bill by shifting the burden of tackling corruption to “an active, aggressive media.” He acknowledged Bob Mercer’s “instrumental” role in keeping South Dakotans informed on state government and wished him a speedy recovery.
Stace has something there. If we can’t get our Legislature to empanel an ethics commission, and if we can’t create one by ballot measure that will pass constitutional muster, then maybe our next-best ethics commission is a team of reporters who dig for dirt and take no prisoners.
But Stace—couldn’t you use some back-up on fighting corruption? We have commissions for sports and hairdressers. We can afford a commission for ethics, somebody to look through the campaign finance reports and help you hold the Pierre cronies accountable during the majority of the year that you’re back at the farm. Grab the ethics commission provisions from IM22, revise them to satisfy Judge Barnett, and introduce them as a standalone bill.
Don’t waste your money on lawyer bills or lobbying in Pierre. Go back to where you know you can win, the voters of South Dakota. Rewrite IM22 as a constitutional amendment that includes the following provisions:
Create the ethics commission as a permanent government watchdog attached to the judicial branch with members appointed by the Chief Justice from lists provided by legislative leaders and university presidents.
Fund the ethics commission and Democracy Credits by repealing the sales tax exemption on advertising (all advertising, not just political) and dedicating that money to the Democracy Credit Fund. (Wild math: Nationwide advertising expenditures in 2015 were $311.6 billion; South Dakota puts out 0.25% of national GDP; 0.25% of $311.6 billion is $789 million in advertising expenditures in South Dakota; 4.5% sales tax on that ad spending would generate $35.5 million a year, more than enough to give 540,000 registered voters each two $50 Democracy Credits.
Don’t ban those gifts from registered lobbyists and their employers. Just make them report their value, itemized by recipient public official and reported down to the last penny and pickle.
Take that tack, rally the voters to your side again, and you’ll enact anti-corruption reforms that Judge Barnett won’t overturn and the Legislature can’t touch.