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  • Represent South Dakota Rallies Against Legislative Arrogance: Shall We Refer?

    Citizens rally against corruption in Pierre, South Dakota. Photo by Roxanne Weber, Facebook, 2017.03.25.

    Citizens rally against corruption in Pierre, South Dakota. Photo by Roxanne Weber, Facebook, 2017.03.25.

    Represent South Dakota is still beating the drum over the Legislature’s arrogant reversal of the voter-approved Initiated Measure 22. The organization assembled a few dozen activists to march in downtown Sioux Falls and Pierre to protest the failure of our elected officials to respect the will of the people. Represent South Dakota co-founder Mark Winegar sends this note about why he’s still in the streets:

    A group of thirty concerned citizens gathered together in Sioux Falls on a cold Saturday morning  on March 25 to rally for a State Government worthy of their trust. That’s what IM 22 was all about.

    We chanted as we walked along Phillips Avenue, “Under God, the People Rule” and chatted with passersby. One women suggested South Dakota is a canary in a mine. This is a place where ideas can be floated to see if they register in a red state.

    Legislators in Pierre had a fit about the South Dakota Accountability and Anti-Corruption Act originating in Massachusetts. So did the idea of “no taxation without representation” and independence from Great Britain. Being the canary in the mine can be a good thing.

    We are the people of South Dakota and we aren’t going anywhere Mr. Mickelson. We are still waiting for legislation that honors the spirit of IM 22. You can choose to work with us or not. We will be here working toward a government worthy of trust. We were thirty today but there will be more tomorrow [Mark Winegar, letter to the editor, 2017.03.25].

    Massachusetts as birthplace of the Tea Party and one of the American Revolution’s best slogans—thanks for that reminder, Mark!

    With the Legislature wrapping up its dispiriting 2017 Session with Veto Day today, referendum season begins. Anyone wanting to refer any of the Legislature’s boneheaded bills to a public vote in 2018 can start circulating petitions after Speaker Mickelson and Lt. Governor Michels have both given their gavels the final bang.

    Will we see those Represent South Dakota ralliers trading their signs for clipboards and petitions? If so, what 2017 bills are odious enough to warrant the effort of a referendum drive?



  • IM22 Voters Wanted Less Big Money in Politics; Legislature Votes for More!

    Initiated Measure 22 ran 70 sections, 15,388 words, but achieved all of its main campaign finance reforms (not counting Democracy Credits and the ethics commission) in 30 sections totaling 8,810 words.

    Senate Bill 54, the main campaign finance reform bill signed by the Governor, runs 41 sections with 10,057 words and does less to reform campaign finance than IM 22.

    One of the main reforms voters approved in IM 22 last November was to lower the limits on campaign contributions for darn near everybody doing politics in South Dakota. The Legislature repealed those limits and, for all their professed zeal to “replace” IM 22, forgot to restore any of those lower limits. Individuals can still donate up to $4,000 to statewide candidates and up to $1,000 to legislative and county candidates each year. PACs, parties, and candidate committees may once again donate unlimited sums to South Dakota campaigns…. meaning if Kristi and Marty had just held their horses, they could have formed their gubernatorial committees, transferred all the money they wanted from their other campaign funds, and declared their candidacies according to their own timetables instead of rushing their declarations last November before IM 22 was briefly enacted.

    Rather than putting more limits on big money in their campaigns, the Legislature opened a new door for even more big money: following Secretary of State Shantel Krebs’s recommendationSenate Bill 54 allows businesses, unions, and other “entities” to contribute directly to candidates. The FEC won’t let businesses do that for Shantel’s campaigns for U.S. House, but the folks who run for Shantel’s job and all other South Dakota offices can now double dip: get their favorite local business people to make personal contributions, then dip into the company cookie jar to double the cash.

    Our legislators and the Governor didn’t vote for less money in South Dakota politics; they voted for more. Far from replacing IM 22 and respecting the voters’ will, our legislators and Governor have done the opposite.

    *     *     *

    Senate Bill 54 does much more than allow businesses to contribute directly to candidates. Here’s my election-nerd list of SB 54’s notable changes to campaign finance law:

    1. SB 54 Section 41 bans converting campaign funds to personal use. Candidates can spend money on their campaigns, on other campaigns, or on charities. Unclear is whether Section 41 allows candidates to pay themselves a salary, as federal candidates may under FEC rules.
    2. SB 54 raises the penalty for repeat violations of campaign finance laws to Class 1 misdemeanor—one year in jail, $2,000 fine. First violations Class 2 misdemeanors—30 days, $500.
    3. Right now, political ads must identify their bankrollers if they “expressly advocate for or against” a candidate, public office holder, ballot question, or political party. SB 54 expands the disclaimer requirement to include material that “disseminates information concerning” such subjects.
    4. Campaign committees still need not give names of donors who give $100 or less each year; however, SB 54 requires candidates to keep records of those small donors and running totals of their donations.
    5. SB 54 bans “miscellaneous” as an expense category on campaign finance reports. We still don’t get itemized lists of expenses, but at least candidates have to indicate somewhat clearly what they used their money for.
    6. Right now, candidates have to submit pre-primary and pre-general campaign finance reports by the second Friday before the election and report all receipts and spending through the 15th day prior to the election. SB 54 moves those submission deadlines four days earlier, to that 15th day prior, and requires the pre- reports to cover all activity through the 20th day prior to the election.
    7. Right now, the Secretary of State can fine committees that fail to file timely reports $50 a day, up to a maximum fine of $3,000. SB 54 raises that penalty to $200 a day, with no maximum. (Under that rule, 2014 delinquent filer extraordinaire Chad Haber would owe the state $175,400.)
    8. County parties face a similar increase in their delinquent-filing penalties, up from $10 a day to $50 a day, with no more $600 maximum.
    9. Right now, campaign finance rules apply to county races (candidate and ballot question) in counties with population of more than 5,000. SB 54 raises that threshold to 10,000, possibly exempting 18 counties from these campaign finance requirements.
    10. Candidates must state the office they are seeking on their statements of organization.
    11. Candidates may maintain both one legislative campaign committee and one statewide candidate committee (because nothing says “Vote for me!” like shouting, “I can’t make up my mind!”).
    12. SB 54 exempts polling from communications subject to campaign finance rules if the polling question “does not expressly advocate for or against a candidate, public office holder, ballot questions, or political party.”
    13. SB 54 adds “certified as a candidate by a political party” as a criterion satisfying definition of “candidate.” I assume this ensures that replacement candidates picked by their party committees are included in the campaign finance reporting requirements from Day One.
    14. SB 54 clarifies that donors can’t launder contributions by buying items from political committees for more than fair market price.
    15. SB 54 includes “political party” in the definition of “political committee,” thus alleviating wordiness in several statutes (i.e., a rule need not spell out that it applies to both political committees and political parties).
    16. SB 54 restores the cosmic balance of wordiness by replacing “in-kind” with “donated good or service.”
    17. For all their determination to choke the flow of money to ballot question committees, legislators still struck the Class 1 misdemeanor penalty for ballot question committees accepting contributions from illegal sources, because, with the new “entity” language of SB 54, I’m hard-pressed to think of anyone who can’t contribute to ballot question committees.
    18. If we make oopsies, current law gives us three days to fix them by filing amendments to our campaign finance reports. SB 54 gives us seven days.


  • Daugaard Overstates IM 22 “Replacement” Offered by Four Approved Bills

    Governor Dennis Daugaard cheers final passage yesterday of four bills relating to corruption:

    House Bill 1052, HB 1073, HB 1076, and Senate Bill 27—do they really replace portions of the voter-approved, Legislature-repealed Initiated Measure 22?

    HB 1052 purports to protect state employees who blow the whistle on “a violation or suspected violation of a law or rule, an abuse of funds or abuse of authority, or substantial and specific danger to public health or safety….” HB 1052 allows state employees who feel their superiors have retaliated against them for reporting such malfeasance may file a grievance with the Civil Service Commission. Section 41 of IM 22 provided a telephone hotline and website through which anyone could anonymously report corruption to the IM 22 ethics commission, thus reducing the risk of incurring any retaliation in the first place. HB 1052 does not replace IM 22.

    HB 1073 caps gifts from lobbyists to public officials and their immediate family members at $100 per year. Section 31 of IM 22 also capped lobbyist gifts at $100. HB 1073 adjusts that cap for inflation each year. HB 1073 exempts a variety of things of value, including food, entertainment, and beverage. An earlier version of HB 1073 at least capped meal value at an exorbitant $75; the final version of the bill allows unlimited wining and dining. HB 1073 is a pale replacement for Section 31 of IM 22.

    HB 1076 creates a State Government Accountability Board. Section 3 of HB 1076 limits SGAB’s purview to conflicts of interest, misuse of public funds, bribery, and malfeasance. The IM 22 ethics commission would have had the authority to investigate those instances of corruption as well as violations of campaign finance law and lobbying gift restrictions.

    HB 1076 empowers SGAB to investigate and punish violators. Section 8 limits that “punishment” to issuing a public or private reprimand, directing a violator to “engage in coursework or community service,” or making a recommendation to the Governor. The IM 22 ethics commission could seek civil enforcement of legal violations, monetary penalties, and orders requiring corrective action. The IM 22 ethics commission could also impose fines for violations of campaign finance law.

    SGAB and the ethics commission overlap, but characterizing HB 1076 as a replacement for part of IM 22 is like serving French fries to replace mashed potatoes.

    SB 27 is the Attorney General’s bill clarifying that misusing public funds for direct personal financial gain is not just a conflict of interest but theft. No provision of IM 22 dealt with this particular legal definition. SB 27 is thus not a replacement for anything voters approved in IM 22.

    The biggest identifiable replacement for portions of IM 22, the campaign finance reforms of SB 54, remain in conference committee. The four bills Governor Daugaard highlights from yesterday’s action barely replace portions of IM 22, if at all.



  • SB 131: Republicans Pass Lobbying Restrictions to Assuage Voter (Mis)Perceptions

    After repealing the voter-approved Initiated Measure 22, the Legislature has thrown voters a bone in the form of Senate Bill 131, which mostly restores the two-year revolving-door lobbying ban in Section 65 of IM 22. Current law restricts only elected officials from leaving office to lobby, and that ban lasts only one year. SB 131 adds department or agency heads, division directors, and the highest paid employee reporting to each of those people to the ban and makes them sit out for two years. SB 131, like IM 22, clarifies that restriction only applies to taking pay for such lobbying… since, as I think about it, it’s probably a violation of the First Amendment to ban any private citizen, no matter what job she was doing yesterday, from going to Pierre and jawboning legislators.

    Of course, this revolving-door rule passed in part because some Republicans think it’s an empty gesture:

    Rep. Larry Rhoden

    Oh, you silly voters…

    “Perception is reality to the citizens of this state,” [Rep. Larry] Rhoden [R-29/Union Center] said. “It provides assurances to the people of this state that we are listening, that we abide by their wishes.”

    …Rep. Thomas Brunner, R-Nisland, asked what the problem has been. Rhoden said he could think of one or two examples in the 16 years he’s served in the Legislature.

    Rhoden said the main point is that the two-year ban reflects the perceptions of voters on IM 22.

    Brunner said it really hasn’t been a problem. He said many legislators came back after one year to lobby.

    “I don’t think it’s been a problem for anybody,” Brunner said. “I submit to you the one year is plenty.”

    …Rep. Tim Rounds, R-Pierre, called it “a solution looking for a problem.” Rep. Larry Zikmund, R-Sioux Falls, said in his 27 years of involvement in state government he’s never seen a problem [Bob Mercer, “Legislature Expands Lobbying Ban to More Officials and Doubles Length,” Aberdeen American News, 2017.02.28].

    Senator Bob Ewing (R-31/Spearfish), who voted for SB 131 a couple weeks ago, insists that lobbyists don’t influence votes, anyway:

    As far as lobbyists go … they have a large base of knowledge. I try to listen to what constituents want on a bill, but what I ask is, ‘Is it legal? Is it good for Lawrence County? Is it good for the state?’ I have voted against things that are good for the state, but are bad for Lawrence County. I try to do what’s best for the community where I live. As far as influence, I don’t let them (lobbyists) influence my votes [Sen. Bob Ewing, in Jaci Conrad Pearson, “Cracker Barrel Attendees Talk SB 176,” Black Hills Pioneer, 2017.02.27].

    So one could conclude that in restoring Section 65 of IM 22, Republicans are just messing with voters’ heads. They still think we voters are wrong. They don’t think recent government officials or any other lobbyists have any undue influence on their decisions. They’re just passing this particular IM 22 “replacement” bill to assuage our incorrect perceptions.

    Gee, thanks.

    SB 131 passed the House yesterday 51–17, following a 34–1 vote in the Senate February 8. The bill now goes to Governor Daugaard, who probably won’t mind signing this peace offering to all of us hoodwinked voters.



  • Legislators Resist Checks on Own Power and Public Input on IM 22 “Replacements”

    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.



  • Dakota Free Press Podcast—The Trial Run!

    Let’s try this—the first Dakota Free Press Podcast!

    I met Aberdeen comedian Spencer Dobson at last Saturday’s crackerbarrel. I’m not nearly as funny as Spencer, and we’re neither one as funny as our District 3 Senator, but we got to talking about putting together a Dakota Free Press show. Above is our first trial at a podcast, just two guys sitting at the table (with Spencer’s really cool audio gear!) talking about South Dakota politics.

    In this episode, we touch on the Pledge of Allegiance, guns, and Al Novstrup’s Sharia bushwah, then go deep on the Legislature’s repeal of Initiated Measure 22 and the pale replacement bills Republicans have offered… plus a closing shot at the Mathew Wollmann Legislative sex scandal.

    Let us know what you think! Your feedback will help decide what to do for our next podcast. If you like it, we may be able to make the Dakota Free Press Podcast a regular production, maybe even with some live shows here in the Hub City and around our great state!



  • SB 131 Restores IM22 Revolving-Door Restriction on Lobbying

    Another IM22 replacement bill, Senate Bill 131, made it through Senate State Affairs unanimously yesterday.

    IM22 Section 65 would have toughened the revolving-door restriction on lobbying by extending the period that elected officials must wait between the end of their elected term and the beginning of their work as paid lobbyists from one year to two years. IM 22 Section 65 also added appointed officers, state agency and division directors, and the single highest-paid aides/staffers to those officials to the revolving-door restriction.

    The wimpy original draft of SB 131 from Senator R. Blake Curd struck most of the new people IM22 targeted from the restriction and, oddly, reworded the sit-out period from two years to twenty-four months. The revised version approved by Senate State Affairs applies the revolving-door restriction to every “department or agency head, or division director, or the highest paid employee reporting to such person” along with elected officials. It also restores the two-year sit-out period that the Curd-led repeal of IM22 reduced back to one year.

    As with HB 1073, the only reason to oppose SB 131 is that you are so upset over the Republican Legislature’s affront to the voters in repealing IM22 that you won’t stand for any replacement bills. But SB 131 restores almost exactly what IM22 Section 65 would have achieved. (Passing SB 131 separately also shows that Judge Barnett’s argument that a revolving-door ban was practically inseverable from the other provisions of IM22 was nonsense!)

    Go ahead, IM22 supporters, tell your legislators that SB 131 is fine. Then give them a chance to try out SB 131 in 2019 and 2020 by voting them out and making them wait to lobby until 2021!



  • HB 1073 Offers Weaker $100 Lobbyist Gift Cap Than IM22

    No one hit the panic button on House Bill 1073 yesterday, House State Affairs approved HB 1073 unanimously with amendments.

    HB 1073 is one of the replacement bills the Legislature is offering as a consolation prize to voters who saw their Initiated Measure 22 repealed last week by Republican legislators and a Republican Governor who think they know better than us rabble. File that arrogance for reference in the next election, and let’s look at the merits of HB 1073.

    HB 1073 specifically replaces IM22’s Section 31, the infamous $100 cap on gifts from lobbyists and employers of lobbyists to any “elected state officer, legislative official or staffperson, or executive department official or staffperson” or those officials’ immediate family members. IM22 defined “gift” as “any compensation, reward, employment, gift, honorarium, beverage, meal, food, or other thing of value.”

    HB 1073 also caps gifts at $100. The givers subject to that cap are lobbyists and “principals,” which includes both people and organizations who employ, compensate, or authorize lobbyists to lobby on their behalf. That definition of “principals” arguably restricts more givers than IM22, which only spoke of “employers” of lobbyists and thus may not have encompassed people and groups authorizing but not paying their lobbyists. However, HB 1073 clarifies that the giver cap applies only to board members or officers of organizations, not regular members.

    HB 1073 restricts fewer recipients than IM22. It doesn’t mention legislative or executive staff. HB 1073 only limits gifts to statewide officeholders, executive branch agency heads, legislators, and individuals newly elected and appointed to such positions but not yet sworn in. Like IM22, HB 1073 includes gifts to those officials’ “immediate family.” HB 1073 defines “immediate family” as spouse and minor children; IM22 struck the campaign finance chapter’s (SDCL 12-27) overarching definition of “immediate family” (see Section 4), so we can only assume IM22 would have used the same definition, spouse and minor children, found elsewhere in state election law (perhaps SDCL 12-25-27).

    Extremely sensitive to Republicans’ tears over IM22’s restrictions on free meals, HB 1073 exempts from the definition of “gift” “any food or beverage provided for immediate consumption under seventy-five dollars per meal.” $75? I feel a little embarrassed taking a meal that costs over $20; $75 is extravagance ill-suited to “citizen legislators” (the term Al Novstrup and other Republicans use constantly to brag up their humble status).

    HB 1073 explicitly exempts campaign contributions from “gifts”. This exemption was implicit in IM22’s gift limits: campaign contributions go to campaign committees, not to elected officials as individuals. Campaign contributions thus are not “gifts” to individuals in either legal framework.

    Like IM22, HB 1073 creates restrictions on gifts from lobbyists to elected officials where South Dakota currently has none. It’s not what voters wanted (again, remember that when you vote for legislators and Governor in 2018), but since IM22 is dead, something is better than nothing. HB 1073 is a weaker but tolerable replacement for one small portion of IM22.



  • IM22 Repeal Goes Over Poorly at Aberdeen Crackerbarrel

    Senator Brock Greenfield, bracing for Aberdeen crackerbarrel, 2017.02.04.

    Senator Brock Greenfield, bracing for Aberdeen crackerbarrel, 2017.02.04.

    The single truest statement of today’s Aberdeen crackerbarrel came from Senator Brock Greenfield (R-2/Clark):

    Every time someone’s made a comment today that’s anti-Legislature, it’s been cheered for.

    During the crackerbarrel, Senator Greenfield, asserted that no one he’s talked to supports “Democracy Credits,” the public campaign financing portion of IM22. Aberdeen musician and teacher Joe Berns rose, said he supports Democracy Credits, and asked if the Legislature would let stand a voter-approved ballot measure establishing nothing but public campaign finance. Greenfield said to Berns, “Your voice is heard,” but that strangely passive construction, along with Greenfield’s subsequent non-answer, indicated that he himself did not want to hear that voice.

    Greenfield’s northern neighbor, Senator Al Novstrup (R-3/Aberdeen), offered his own rhetorical trick to win the Democracy Credits debate. Referring to his bill raising taxes to increase pay at community support providers and nursing facilities, Novstrup asked the audience how they would choose to spend millions of dollars, on Aspire or on politicians. Apparently stacked with logicians, the audience erupted in shouts of “False! False dilemma!” (shouts which I did not start but heartily joined). I suggested from the floor that we raise taxes like Novstrup does and do both.

    From the non-logicians’ table, Brock’s mom Lana (Rep. Lana Greenfield, R-2/Doland) tried out the new Curd-Cronin electoral math, saying she justified her vote by the vote to repeal IM22 on her constituents. Rep. Greenfield said Hamlin and Clark counties voted against IM22. She noted that Spink and Brown counties voted for IM 22 but dismissed their totals by noting how many did not vote at all in those counties. She did not mention the abstainers in Hamlin or Clark as delegitimizing their vote, nor the basic fact of elections that abstentions count for nothing and are thus irrelevant in determining the outcome.

    The lack of logic and listening from our Republican legislators explains the fuming distrust they heard from today’s Aberdeen crackerbarrel audience. Now let’s see if that mistrust will stick around to support ballot measures and new legislators in 2018.



  • GOP/Dem Nexus of Dissent on HB 1069

    Governor Dennis Daugaard signed House Bill 1069 yesterday, thus making the “emergency” repeal of Initiated Measure 22, the Anti-Corruption Act, the first enacted bill of the 2017 Legislative Session.

    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.

    The Democratic dissenters support the Republican dissenters’ argument about conflict of interest for the litigants, who include my District 3 Senator Al Novstrup. The Democrats raise the other major constitutional problem with HB 1069, its constitutionally and factually bogus emergency clause.

    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.

    Initiated Measure 22 is dead. The old law is the new law. As I recommended in December, it’s time to turn our outrage and resources (boosted by national media attention roiling readers far and wide) toward fighting the remaining bills (thirteen, maybe more by day’s end!) that our arrogant Legislature is using to subvert the power of the people.

    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:

    Sen. Stace Nelson

    Sen. Stace Nelson

    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.

    God bless & Semper Fidelis.
    Senator Stace Nelson





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