I will not stand in the way of any facts you readers wish to provide on the efforts of Mickelson or any other Republican leaders to raise serious and ongoing objections to Marsy’s Law during their pal Jason’s 2015 petitioning or the 2016 campaign.
My subcomplaint is invalid. As Legislative Research Council director Jason Hancock reminds me in an e-mail, authority over Legislative travel reimbursements does not rest with the Executive Board. It rests solely with the Speaker of the House and the Senate President Pro-Tempore.
(9) Allocate funds to the House of Representatives and the Senate to pay for out-of-state travel and salary or per diem costs incurred by members, and to pay for in-state travel and salary or per diem costs incurred by members, excluding costs associated with any legislative session. The Legislative Research Council shall make payments to representatives for costs and travel approved by the speaker of the House of Representatives, from the funds allocated to the House of Representatives, and shall make payments to senators for costs and travel approved by the president pro tempore of the Senate, from the funds allocated to the Senate. No funds may be paid beyond the amounts allocated to each body [emphasis mine; 2015 HB 1145, Section 3, as engrossed 2015.03.04].
In 2016, House Bill 1238 added a clause allowing appeals of the Speaker’s and the Pro-Tem’s travel reimbursement decisions to the Executive Board as a whole.
When Rep. Elizabeth May wrote to President Pro-Tem Brock Greenfield asking for reimbursement for traveling to watch hearings of committees of which she is not part, she was not asking for action by the E-Board. When PPT Greenfield read that request aloud at the end of the August 28 E-Board meeting and discussed it with Speaker G. Mark Mickelson, he was not seeking and did not need a vote by the E-Board. Once the E-Board allocates funds, the Speaker and the Pro-Tem have full authority to dish that money out however they see fit, until they run out or until someone appeals.
May’s spectator pay is a new policy, but not a new policy of the E-Board requiring placement on the public agenda. May’s spectator pay is a new policy adopted entirely at the discretion of Speaker Mickelson and President Pro-Tem Greenfield, two fiscally conservative Republicans who are exercising their power to spend more taxpayer dollars on perks for their colleagues.
By the way, as worded, SDCL 2-9-4 appears to grant the Speaker and the Pro-Tem power to give themselves money for their travels. A system under which one official can approve a payment to himself, without any initial check or countersigner, is a bad system. Yet in 2015, the only member of the House who voted against giving their Speaker such power was Lance Russell.
South Dakota’s House speaker says he doesn’t plan to pursue an initiative that would have forced nonprofit advocacy groups to reveal top donors if they make big contributions to ballot question campaigns.
It would have required disclosure of the 50 largest contributors to such groups, including labor organizations, business leagues and social welfare organizations, if they give $25,000 or more in a year to a ballot measure committee [“State House Speaker to Drop Donor Disclosure Ballot Measure,” AP via KSFY, 2017.08.18].
I can understand Mickelson’s choice from a practical perspective. He submitted the disclosure initiative two weeks after the outside money ban and tobacco tax. That delay kept Mickelson from getting his third petition out in time to circulate at the Sioux Empire and Turner County Fairs. He’s had a tough enough time recruiting enough past Republican interns to handle his two petitions this month; perhaps the signing rate he’s seen so far and the expense of hiring new circulators to replace those he might lose when summer ends and college starts just didn’t add up to enough signatures in the time remaining before the November 6 deadline to justify the added administrative hassle of running three committees and carrying three clipboards.
But Mickelson has also abandoned the initiative for which he could make the best case. He tried to expand campaign finance disclosure in the Legislature this year with House Bill 1200. That bill failed, so Mickelson logically turned to the initiative, as we citizens do when we see the Legislature fail to act on important issues. Mickelson has not tried out a tobacco tax for vo-techs with his colleagues. Rep. Spencer Gosch (R-23/Glenham) proposed restrictions on non-South Dakota money in ballot question campaigns this year in his unworkable and unconstitutional House Bill 1074, but that bill was not the total ban that Mickelson is proposing now. Mickelson thus has abandoned the only one of his three petitions about which he can truly say, “Hey, the Legislature shot this proposal down, so I’m taking it to the people.”
Perhaps most significantly, Mickelson is abandoning the measure that would most likely chap his big-business and fake-family-values conservative pals. The Koch Americans for Prosperity and the Sharia-for-Jesus Family Heritage Alliance are terrified of having to tell us who gives them money. They don’t care if Mickelson uses a tobacco tax that targets the poor to further subsidize job-training for corporate interests. And they can probably get around any out-of-state money ban: as the LRC’s prison impact statement for Mickelson’s ban says, in six years the state hasn’t busted anyone for violations of the statute Mickelson’s ban would amend. Even if we implemented Mickelson’s ban, it only imposes an “administrative misdemeanor,” and LRC says, “An offense is likely to be rare and not likely to be criminally prosecuted.” The Kochs, the Christianists, and other campaigners could keep pouring out-of-state cash into ballot measure campaigns, just not tell us, and live in little fear of prosecution or crushing penalty.
Thus, we may easily speculate that Mickelson has found a happy compromise with certain key Republican backers: by dropping the initiative that could really crimp their style, Mickelson may gain those backers’ neutrality on two initiatives that at most only minorly annoy Big Money and Big Jesus.
Speaker G. Mark Mickelson has collected at least 160 signatures on his ballot initiative petition to ban out-of-state contributions to South Dakota ballot question committees.
How would I get this usually closely held data? By paging through some of Speaker Mickelson’s petition sheets, which his “Protect Our Ballot SD” team left lying out at their Brown County Fair booth unattended last night:
After yesterday’s drizzle, I took my first walk through the Brown County Fair on a cool and humid evening. While everyone else focused on carnival rides, For King and Country playing the grandstand, and beer in Centennial Village, I went looking for ballot question petitioners. (Such are the fair pleasures of election nerds.) I found none, not even at Speaker Mickelson’s booth. Two clipboards lay on the “Protect Our Ballot SD” table, holding nine partially or full signed sheets between them, turned outward toward passersby with pens beside them inviting folks to sign, but there were no circulators there to explain the petition (there appeared only to be Mickelson’s definitely unconstitutional ban on out-of-state contributions to ballot question committees, not his possibly unconstitutional tobacco tax for vo-tech tuition subsidies), hand out the required disclosure form (which was on the table), keep the petitions secure, or legally witness any signatures.
Which failure is most grievous?
Petitions don’t sell themselves. Having a petition sitting out by itself says nobody is interested enough in your issue to sit there and promote it.
Leaving petition unsecured means honyockers like me can walk up, riffle through the pages, and read every name and address of everyone who has signed so far. Petitions are ultimately public documents, but not until the ballot question submits them to the Secretary of State.
Signed petitions are precious documents. Speaker Mickelson is spending good money (at least on booth space—the only circulator disclosure forms I saw on the table indicated that whoever was supposed to be working the table was a volunteer) on this petition. Leaving Mickelson’s petition unattended (and when I made a final pass by the table around vendor closing time at nine p.m., the petition sheets were still lying out on the table, as if to be left in the open overnight) allows political enemies like those out-of-state Koch brothers or mere pranksters to steal those petitions. Voters’ signatures, just like their votes, are sacred and deserve protection.
State law requires that circulators witness every signature. If I had scribbled my name on any of those attended sheets, I’d have rendered that sheet invalid. If any of the names I saw on those unattended sheets were added by citizens without a witness, then any circulator who signs the circulator’s oath on those sheets will commit perjury and end up in court and in the news like Annette Bosworth.
Protect Our Ballot? Ha! Mickelson needs to start with Protecting His Petition.
I understand that, as a legislator protecting his prerogative, Speaker Mickelson is more used to attacking the initiative process rather than conducting it properly. But lest he end up with an embarrassing invalid petition or circulators with Bosworth felony raps, perhaps Speaker Mickelson should work with some experienced petitioners who can provide dedicated, well-trained circulators who understand the petition process.
Update 08:04 CDT: I did notice last night that, after my first pass, someone did Speaker Mickelson a minor favor and turned his clipboards over so the signed petition sheets weren’t visible. An interested party checks this morning and finds those flipped clipboards and all other materials on Speaker Mickelson’s table undisturbed.
SOS Krebs stamped Mickelson’s petition form “Received” yesterday, August 2, 2017. On August 1 SOS Krebs approved Mickelson’s circulator handouts, which SDCL 2-1-1.1 requires to include the Attorney General’s explanation; the ballot measure sponsor’s name, phone, and e-mail; and a declaration of what the circulator is being paid. Mickelson filed multiple forms for volunteers and for paid circulators at a variety of wage levels:
$10, $11, $12, $13, $14, or $15 per hour;
$50, $75, or $100 per day;
$2,000, $2,500, $3,000, or $3,500 per month.
If you’d like to apply to circulate an unconstitutional measure for those wages, you can contact Mickelson at the contact info listed on those sheets and on the statement of organization for his first ballot question committee, Protect Our Ballot SD, which he filed on July 24. Mickelson’s petition with at least 13,871 signatures is due this November 6; he won’t have to report who funds his petition drive (including any out-of-state contributions!) until January 26, 2018.
Strangely, that document indicates that Mickelson has formed Protect Our Ballot SD in support of Referred Law 19:
This reference to Referred Law 19 could be an error, in which case I might mirthfully argue that it invalidates Mickelson’s statement of organization and prevents him from collecting any signatures until he fixes the error. (I’m not sure law says this explicitly, but Secretary Krebs’s official guidance on circulating ballot question petitions says you’ve got to have a statement of organization on file before circulating.)
However, I might also grant Mickelson leave for responding to confusing verb tense on the form:
If you are a Ballot Question Committee, indicate which measure the committee was involved with during the reporting period and whether the measure was supported or opposed [Statement of Organization form, SOS, as used by POB-SD, 2017.07.24].
Was involved with? Was supported or opposed? Sponsors are filing statements to create organizations; they have no past tense. The question refers to “the reporting period,” which means right now, present tense. A ballot question committee can’t have been involved with past ballot measures, because in 2016, the Legislature followed the Board of Election’s bad advice and passed a law mandating termination of every ballot question committee after each election. Even if Mickelson had formed a committee to support Referred Law 19 in 2016 (he didn’t; Republicans essentially surrendered on RL 19), that committee could not be the one he’s organizing now. The Secretary of State should rewrite this form to make clear the information it is seeking.
Mickelson is willing to risk this constitutional challenge to block wealthy out-of-state interests who “want to come in and screw around with things” in South Dakota elections. Yet while Mickelson’s initiative would restrict out-of-state meddling with laws on the ballot, Mickelson seems unwilling to prevent out-of-state meddling with our lawmakers. As I contended during my testimony to the Legislature’s Initiative and Referendum Task Force in June, if rich out-of-staters can harm South Dakota by buying the passage of one law on the ballot, they could do at least as much harm by buying a legislator, or several legislators, or a Governor who can change multiple laws.
Mickelson complains that out-of-state donors spent over $10 million on ballot measures in South Dakota’s 2016 election. But two of the ballot measures that passed—Mickelson’s favored Amendment R on vo-tech governnance and the grassroots Initiated Measure 21 capping payday loan interest—passed with supporters spending very little money, in-state or out-of-state. If I were a rich out-of-stater like California billionaire Henry T. Nicholas with $2.1 million to blow on South Dakota elections and if I wanted to have a more lasting impact on South Dakota law than writing one vanity project into the state constitution, I’d form PACs to funnel $58,000 each to 36 legislative candidates—12 in the Senate, 24 in the House—who would form one-third blocs who could make or break votes in each chamber. If I could recruit one equally rich buddy, we could buy ourselves a supermajority and set the agenda in Pierre for two years. Why would Mickelson mobilize and initiative against dreaded out-of-state influence on ballot measures but not against the arguably larger threat of out-of-state influence in candidate elections?
Speaker Mickelson accepted $7,100 pre-general and $500 post-general from out-of-state or federal PACs. Senator John Thune, whose campaign committee Mickelson’s wife Cynthia chairs, received 78% of his itemized individual contributions and 99% of his PAC contributions from out-of-staters.
Oh—that’s why. Mickelson is happy to lead a conversation about the influence of wealthy out-of-staters on ballot measures that threaten his legislative authority, but he doesn’t want to talk about the out-of-state money that helps him and his Republicans grab that legislative authority.
Oh well. Mickelson now must gather 13,871 signatures to put this hypocritical measure to a vote. Then he’ll need to beat back the beaucoup bucks that his out-of-state friends the Koch Brothers will spend to beat his measure. And then if he wins our vote (and he might, because his anti-out-of-stater message will play well to South Dakota’s bunker mentality), he’ll have to go to court, where his unconstitutional measure will lose before any sober judge.
South Dakota may see more ballot measures in 2018 than in 2016, thanks in part to Republican Speaker G. Mark Mickelson. Ten measures made the 2016 ballot; right now, petitions for five ballot measures are circulating, and nine more distinct proposals may hit the streets. That’s fourteen total, three of which come from the leader of the party that has tried to stifle ballot measures.
If a ballot question committee receives $25,000 or more from a single political action committee or an “entity” (remember, that’s the new term of campaign finance art created by 2017 Senate Bill 54 to refer to businesses, unions, and other donors other than natural persons, candidate committees, political parties, and PACs), the ballot question committee must file a report listing the names and addresses of that PAC or entity’s 50 largest contributors.
Any PAC or entity spending $25K or more on independent campaign ads must report its 50 largest contributors.
If any of those 50 largest contributors is a PAC or entity that doesn’t have to report its contributors, then the ballot question committee or entity or PAC must also go find out and report that contributor’s top fifty contributors.
Reporting committees don’t have to disclose 501(c)3 nonprofits; entities “from which any part of the net earnings inure to the benefit of a private shareholder, partner, member, or person;” or donors giving less than $5,000.
Failure to report brings up to a $5,000 civil penalty. Ballot question committees may have to pay an additional fine equal to a quarter of an undisclosed donor’s aggregate contributions. Entities and PACs may have to pay an additional fine equal to a quarter of what they spent on independent communications. Any violation would also be a Class 1 misdemeanor, meaning up to a year in jail and $2,000 fine.
Any violating committee is banned from contributing to any other ballot question committee or making any other independent communication expenditure for five years.
All ballot question committees created, funded, or run by the same outfit “are affiliated and share a single contribution limit.”
Sections 6 and 7 together interest me. If one reads Section 6 as a “limit”—and indeed, Section 6 sets a contribution limit of zero on a violator—then Section 7 appears to close the loophole that would let a violator get around Mickelson’s ban by forming a new committee.
…”When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption.” Citizens United v. F.E.C., 567 U.S. 516 (2012).
Further, the Supreme Court of the United States directly addressed the issue of limits or prohibitions on contributions to ballot question committees and found them to be an unconstitutional restraint on the rights of association and free speech…
However, the Supreme Court has not directly addressed the issue of whether a state may prohibit independent expenditures or contributions to a ballot question committee as part of a criminal penalty. With regard to other protected rights, however, the Court has upheld a prohibition only as against those who have committed felonies, not misdemeanors [Jason Hancock, LRC director, letter to Rep. G. Mark Mickelson, 2017.06.30].
Concerns about constitutionality didn’t stop Speaker Mickelson from getting this bill through the House 42–25, but the Chamber of Commerce, the Retailers, the fundagelicals, ALEC, and the Koch Brothers all ganged up on HB 1200 to kill it in Senate Judiciary on March 1. As with his proposal to ban out-of-state money from ballot question campaigns, Speaker Mickelson is bringing to the people a measure that he couldn’t muscle past the big-money lobbyists in Pierre.
I’ll admit I’m torn in evaluating Mickelson’s initiative efforts. I appreciate his newfound faith in the voters, especially after he pushed the lawsuit and legislation that overturned the voter-approved Initiated Measure 22. But I feel a little uneasy about a legislator resorting to the people’s initiative process to pass his bills. I guess I didn’t complain about Rep. Rev. Steve Hickey using the initiative process to place his 36% payday loan rate cap on the 2016 ballot, but Hickey resigned from the Legislature during the petition process, and he never enjoyed the sort of power that Mickelson does as Speaker of the House, leading the supermajority party in the Legislature and thus in a position to pass almost anything he wants in Pierre.
And now instead of using that unique power, the chance he gets every January in Pierre to cajole and horsetrade his way to legislative wins on the floor of the House with a few dozen of his closest friends, Speaker Mickelson is coming into our clubhouse and crowding the already arduous petition process with his three proposals, every one of which has clear constitutional problems.
But even the mighty Speaker Mickelson may not be able to overcome the power of big money in Pierre. If he really can’t move campaign finance transparency among his privileged Pierre pals, maybe he has to come to us for approval. And even though he spurned us with his repeal of IM22 (and don’t let him forget that), maybe we can hear him out on his three petitions.
Speaker G. Mark Mickelson is proposing a second ballot initiative, this one to ban out-of-state financing of campaigns for and against ballot measures. Just like his colleague Rep. Spencer Gosch’s failed House Bill 1074, which tried to cap out-of-state contributions to ballot question committees, Speaker Mickelson’s proposal is unconstitutional.
The Supreme Court of the United States has not directly addressed the issue of limits or prohibitions on out-of-state contributions to ballot question committees. Please be advised, however, that closely related rulings by the court about contribution limits to ballot question committees indicate the prohibition in this draft may be subject to constitutional scrutiny. Political contribution limits are generally upheld by the court for “‘the prevention of corruption and the appearance of corruption.”‘ See Nixon v. Shrink Missouri Government PAC, 528 U.5.377,388 (2000), quoting Buckley v. Valeo, 425 U.S. 1,25 (I976t.. contribution limits to ballot question committees, however, have been viewed by the court as a restraint on the rights of association and free speech. see Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290,300 (1981) [Jason Hancock, LRC, letter to Speaker G. Mark Mickelson, 2017.06.04].
Ben Lee, state director of Americans for Prosperity, said aiming to outlaw businesses or groups is the wrong approach when many entities span across geographic borders. The former director of the campaign to defeat Initiated Measure 22 said the measure could profoundly limit individuals’ free political speech.
Aaaarrgghh—G. Mark! Don’t go forcing me to agree with Ben Lee!
Alas, for the moment, on this point, I agree with Ben Lee. Mickelson’s proposed initiative is a step in an unconstitutional direction. Mickelson gave IM22 sponsors grief for pushing what LRC warned might be unconstitutional; if Mickelson is consistent, he will heed the advice of LRC and even his AFP pals and back off this ban on contributions to ballot measures by Minnesotans and other strangers.
Speaker G. Mark Mickelson (R-13/Sioux Falls) wants us voters to decide whether to raise our wholesale tobacco tax to reduce tuition at our regionally uncompetitive vo-tech schools. Speaker Mickelson has submitted two ballot initiatives to the LRC, one raising the wholesale tobacco tax from 76.5 mills per cigarette to 101.5 mills, the other raising that tax to 126.5 mills. Each measure would create a new “postsecondary technical institute tuition reduction and workforce training fund” (PTITR-WTF? Come on, G. Mark! You can do better than that…) to which $15 million to $20 million would be appropriated.
Wait—did somebody say “appropriated”?
An Act to increase the tax on cigarettes and other tobacco products and to appropriate the revenues.
And now, strangely, when Speaker G. Mark Mickelson presents two initiated measures with provisions by which voters would (in Mickelson’s and Barnett’s minds, unconstitutionally) appropriate money, LRC Director Hancock says not one word about Article 12 Section 2. LRC only offers style and form revisions.
In this week’s episode, Green Aberdeen leader Enno Limvere tells us about Green Aberdeen’s local environmental efforts, the Earth Day Fair his group is hosting Saturday, and the theology behind his environmentalism. Plus, co-host Spencer Dobson and I talk about fallout from the Clare Lopez anti-Islam show, backlash against South Dakota’s discriminatory adoption law, Speaker Mark Mickelson and the cost of vo-tech education, and our Congressional delegation’s aversion to town halls.