Two of Senator Russell’s comments stand out in the context of how he will attempt to distinguish himself in what is now a four-way race among legal pals for the Republican A.G. nomination.
First, Senator Russell says the big criminal justice reform bill of 2013 (that year’s Senate Bill 70, Governor Daugaard’s 83-section beastie now known as the Public Safety Improvement Act) has actually made work harder for the Attorney General and all law enforcement. Senator Russell says the PSIA hasn’t saved money so much as shift costs from the state to counties, which now must warehouse more prisoners who used to go to the state pen. Senator Russell blames the statewide increase in crime, especially violent crimes, what he sees as caps on jail sentences that release drug-using convicts before they can get treatment, meaning they return to the streets sooner and commit more crimes to get their fixes. Senator Russell joined six other hard-conservative House Republicans in voting against SB 70 in 2013; he says we need to remove the presumptive probation that ties judges’ hands and results in too many offenders released from county jails too soon without treatment for drug addiction.
Second, Senator Russell noted that the Attorney General lacks the tools to prosecute public corruption that could have allowed A.G. Marty Jackley to sniff out the EB-5 and GEAR UP corruption scandals sooner. Senator Russell supports this year’s Senate Bill 27, one of the Attorney General’s bills, which clearly defines public corruption as theft. However, Senator Russell points to a bill he offered in 2009, House Bill 1288, which he says would have gone further in helping the Attorney General tackle public corruption. That bill, proposed during the Rounds Administration before any corruption in the Rounds-approved EB-5 or GEAR UP came to light, was killed in House State Affairs.
A programming note: my co-host for seventeen episodes of the Dakota Free Press Podcast, Spencer Dobson, is stepping away from our political podcast to focus on his other projects. Spencer provided excellent commentary and good balance to my often arcane Legislative wonkiness. Thanks for your hard work on the podcast, Spencer!
Senate Bill 151 shows how differently two legislative chambers can view a issue. This anti-corruption measure, creating new provisions for reporting and investigating public corruption, breezed through the House with less than a handful of nays, yet it barely got out of the Senate alive, passing Friday 18–17.
During the floor debate (timestamp 5:35:20), Senator Lance Russell pointed out that SB 151 actually makes it harder for citizens to bring complaints against public officials than it is to bring complaints against other criminals. Senator Russell, a former state’s attorney, said a normal complaint just requires contacting the police and maybe filling out a form, while SB 151 requires complainants to file a sworn affidavit.
Senator Stace Nelson, who like Russell has some law enforcement experience, noted that Section 3 requires folks complaining to the Division of Criminal Investigation of fraud, bribery, and violations of gift limits to send a copy of their affidavit to the person about whom they are complaining.
One of the highest levels of information when I was an NCIS agent in our manual was we were to treat anonymous complaints, anonymous informants, with the highest of credibility. I didn’t always understand that as a young agent, but I can tell you that in my experience, often times those folks who provided the anonymous information had a lot of motivation to do so, and they often times did so with great trepidation.What we’re trying to do here, I think, we’re defeating the actual cause of it. If our intent is to combat corruption in our state government, requiring someone to come forward and provide that information and identify themselves to the person they’re providing information on is contrary, as my good seat mate pointed out, to good law enforcement practices. I think it’s important that these witnesses have identity protection and allow their information to come forward and be vetted on the merits of the complaint not on who’s providing it, and definitely not making them a target for retaliation.
Robbery and rape victims aren’t required to notify their robbers and rapists that they are speaking to the police. Is there a good reason for SB 151 to require corruption whistleblowers to contact the subjects of their complaints?
With SB 151, legislators seem to be holding those who would challenge their sterling reputations to a higher, riskier standard than those who would complain about criminal activity by other, lesser beings. The close Senate vote on SB 151 indicates that many Senators share Russell’s and Nelson’s recognition that SB 151 doesn’t tackle corruption as seriously as it ought.
SDPB is playing live video from the Senate today. As I listen to Senator Lance Russell (R-30/Hot Springs) ask whether South Dakotans can trust the Legislature to keep any of its promises, I notice that, over his shoulder, out the window, one can see it snowing in Pierre.
Senator Russell is expressing his concerns about SB 172, the bill to build the animal disease lab at SDSU.
Senator Stace Nelson doesn’t want to get snowed.
“Do-Guard your wallet,” says Senator Nelson, lamenting the taxes he sees disguised as fees in SB 172. He wants to tap the REDI Fund to pay for the building. Senator Deb Peters says the REDI Fund is for revolving loans to help private business development, not fund state buildings.
We folks watching at home can’t really follow the debate, since the conference committee reports on SB 176 and other important bills (like SB 176, the Governor’s anti-protest bill, targeting those darned Indians who make noise about pipelines) aren’t available online. So we watch the snow out the window and wonder how much shoveling we’ll have to do later.
And hey! I check the journal from yesterday and find that the Senate showed some good sense and killed SB 134! Prime sponsor Senator Lance Russell tried to save the bill with an amendment limiting the public school resources restricted from use for political purposes and exempting school board members and administrators, but that amendment only made clearer that Russell’s target all along was us darn teachers. The full Senate voted SB 134 down 8–27. Good riddance!
One of the losing Yeas was my fellow substitute teacher Brock Greenfield. Come on, Brock! Show us some professional solidarity! And now, without SB 134, think of all the fun things you can say about me when you sub in social studies!
Senate Education amended Senate Bill 134 yesterday. What was originally a blanket ban on any political speech in public schools is now a slightly more targeted but still problematic ban on political advocacy.
Proponent testimony in committee yesterday revealed that SB 134 really is just backlash against those darn teachers and the sales increase we passed last year to raise their pay. A clutch of Black Hills conservatives clucked about teachers and administrators sending e-mails and messages from their students urging legislators to vote for last year’s sales tax hike.
Prime sponsor Senator Lance Russell (R-30/Hot Springs) brought an amendment to committee that got rid this overly broad sentence:
No public school resources, including personnel time, supplies, communication systems, or facilities may be used to affect the outcome of any political vote [SB 134 original].
…and replaced it with this only slightly less overbroad sentence:
No public school resources, including personnel time, supplies, or written electronic communication systems may be used to advocate for an outcome of any partisan election or any vote of the Legislature [SB 134 amended].
Now I’m not sure about the full legal import of the word including, but grammatically, I contend that “No public school resources” is still the governing phrase. “Including” gives examples, but it does not exclude other public school resources. Russell’s amendment may not mention “facilities,” but facilities are still public school resources and are still banned from use for advocacy by the amended SB 134.
“Advocate” appears to alleviate the concern that SB 134 would ban civics class and debate tournaments, which educate students and affect the outcome of all of their future votes by making them smarter, more articulate citizens. However, SB 134 still prevents any public school from hosting a crackerbarrel or candidate forum at which participants might advocate for votes one way or another.
SB 134 still bans students from presenting papers or speeches in school advocating for political candidates or Legislative issues. It might even ban students from wearing their favorite candidate’s t-shirt to school, since students would still be taking advantage of the school’s space and time to advocate for their choice for Senate or Governor.
The new language also creates an odd gap that exposes the partial redundancy of SB 134. As amended, SB 134 seems to say it’s o.k. for teachers, administrators, and students to campaign on school time for school board, city commission, judge, and sanitary district candidates. Of course, such advocacy, along with partisan campaigning, is already sufficiently covered by SDCL 12-27-20, which bans the expenditure of public funds to influence elections.
SB 176: “to accommodate legislation relating to the protection of public safety”; Passed by Senate State Affairs but referred back today!
HB 1114: “to accommodate legislation on medical services”; awaiting House State Affairs
HB 1115: “to enhance South Dakota”; awaiting House State Affairs
HB 1137: “to accommodate legislation relating to education in South Dakota”; awaiting House State Affairs
HB 1175: “to revise the method of establishing certain interest rates”; in House Commerce and Energy today!
HB 1177: “to accommodate legislation regarding certain big game depredation”
HB 1188: “accommodate legislation to promote agricultural development”; awaiting House Appropriations
HB 1190: “to accommodate legislation relating to the protection of public safety”; awaiting House State Affairs
Along with SB 107, SB 165, and HB 1058, which were killed in committee last week, these bills are this Session’s carcass bills, bills written as blanks into which legislators may stuff last-minute ideas past the usual deadlines for submitting bills or passing them out of their originating chambers. Some at least suggest their topics (education, public safety, tax increment districts), but SB 106 and HB 1115 tell us nothing but their cryptic intent to “enhance South Dakota.”
I’ve posted my umbrage over carcass bills before, primarily over the fact that carcasses deny the public the chance to present testimony in committee and organize lobbying efforts against (or, conceivably, for) such bills. Such public testimony, along with proper timely notice of the real contents of bills, is essential to informed deliberation. Yet SB 106, a completely empty carcass, has passed Senate State Affairs and the full Senate without any public discussion of its real purpose.
We could enhance South Dakota by banning carcass bills and making legislators stick to their own rules, including a calendar that says all bills had to be submitted by February 3. If legislators have an idea for a bill to address an evolving situation for which not all facts are known yet, they should still file a bill with a clear outline of the policy they seek. If an unexpected situation arises suddenly, they should muster a two-thirds vote to suspend the rules. In either situation, if they can’t address a problem according to the regular Session calendar, they should call themselves into a special session to deal with the problem after they’ve had a chance to alert the public to the problem and explain the solution.
Senator Stace Nelson is not happy with the carcass process. Following the Senate’s approval last Tuesday of SB 106, he and troublemaking colleague Senator Lance Russell filed a formal Dissent and Protest:
The body of SB 106 simply states: “The Legislature shall pursue opportunities to enhance the state.” The bill as it passed the Senate has no substantive effect except that it circumvents Chapter 17 of the Joint Rules relating to the deadline for the introduction of bills and Senate Rule 5-1 and Joint Rule 11-1 relating to the suspension of rules, which would have allowed the introduction of a bill after the deadline. Consideration and passage of the bill in this form relinquishes the legislative power and authority of the Senate and cedes such power and authority to the House of Representatives and deprives the people an opportunity to address the actual intent of the bill in a Senate committee hearing.
SB 106 is duly in contravention of South Dakotans’ rights under South Dakota Constitutional Article III Section 15 providing for an open legislative process for the people of South Dakota. By hiding the intent of these empty “vehicle bills” and passing them to the House, it denies South Dakotans the open government they are entitled to as a right in South Dakota.
In addition, Article III, Section 21 of the South Dakota Constitution states: “No law shall embrace more than one subject, which shall be expressed in its title.” Since the intended effect of SB 106 is not clearly stated and is unknown, the title does not accurately express the purpose or effect of the bill [Sen. Stace Nelson and Sen. Lance Russell, Dissent and Protest: Passage of SB 106, Senate Journal, 2017.02.07].
These dissents and protests are fine, but I’d like to see Nelson organize a coalition to vote SB 106 down when it comes back from the House or follow his leadership’s example and sue to stop SB 106 from becoming law.
But who needs that trouble? Carcass sponsors, put up your real ideas. Let the people know what you’re trying to do. Who knows—instead of stitching your creatures together in your locked dungeon, you could invite the public to bring your carcasses some brains and lightning.
Update 08:06 CST: My original headline cited eight carcass bills; Kathy Tyler and others helped me identify four more active carcasses.
Update 2017.02.15 06:00 CST: Another eager reader finds three more, bringing our total to fourteen active as of the original posting, three withdrawn/killed.
In trivia from yesterday’s Aberdeen crackerbarrel…
Senator Brock Greenfield (R-2/Clark) compared his anti-refugee bill to his mom’s anti-nuclear waste bill, saying both are simply measures to expand the Legislature’s oversight. It’s funny that Republicans are working hard to expand government power. It’s not funny that Senator Greenfield views refugees the same way he views nuclear waste.
Best friends against the Muslim ban in West Palm Beach.
Senator Greenfield boasted that legislators don’t attack each other, then noted wryly that a couple of his Republican colleagues may try to prove him wrong. Brock didn’t say names, but we know who he meant, don’t we, Stace and Lance?
Addressing a questioner’s concern with transparency, accountability, and Joop Bollen’s big smile, rookie Representative Drew Dennert (R-3/Aberdeen) said the root of the corruption problem with EB-5 and GEAR UP was federal money. Hmmm… that’s like saying the root of South Dakota’s meth problem is acetone manufacturers.
Since Republicans struggle with simile and subtlety, let’s just say it: No, Drew, the root of EB-5 and GEAR UP corruption was corrupt friends of friends who thought they could take money from the till because nobody in Pierre was watching.
And in participation awards:
Representative Burt Tulson drove 120 miles to get 85 characters, including spaces.
Hmmm… 75 characters, 10 empty spaces… that’s darn near a description of the Republican caucus in Pierre.
Two Republicans voted against HB 1069, Senator Stace Nelson (R-19/Fulton) and Senator Lance Russell (R-30/Hot Springs). Immediately after the Senate’s vote Wednesday to overturn the will of the people, Senators Nelson and Russell filed a formal dissent and protest, placing on the record arguments they made during floor debate that HB 1069 violates the U.S. Constitution by infringing on anonymous campaign speech and violates the South Dakota Constitution by addressing multiple subjects. They also contend that the seventeen Senators suing the state to overturn IM22 violated Legislative Joint Rules by voting on a bill that would allow them to escape further legal costs:
Pursuant to Joint Rule 1-10, we, the undersigned Senators, do hereby respectfully dissent from, and protest against, the rulings of the President of the Senate, Lt. Gov. Matthew Michels, in ruling against Senator Nelson’s point of orders that 17 Senate members be excused from voting due to their personal conflict of interest in the legislation to overturn IM22 due to their admitted public record of personal pecuniary interest in a lawsuit to overturn IM22, violating Joint Rule 12-1 and Section 521 (2)(3) & Section 522 (1) of Mason’s Manual of Legislative Procedure (enacted as SD Legislative Joint rules via Joint Rule 11-3). Lt. Gov. Michels’ ruling, in the face of such conflict of interests, promotes a practice that undermines the very foundation of our State Constitution, weakens the rule of law, and besmirches the reputation of the South Dakota Senate. Furthermore, we, the undersigned Senators, do hereby respectfully dissent from, and protest the passage of House Bill 1069 in that it clearly violates Article III, Section 21 of the South Dakota Constitution (which 17 Senators acknowledge in section 10 of their lawsuit contesting the mirror image of HB1069, IM22 was unconstitutional for violating this constitutional provision) states: “No law shall embrace more than one subject, which shall be expressed in its title.” Members voted to pass House Bill 1069 knowing that provisions of it contained sections which require citizens to declare their names, address, etc., on campaign material, which the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)). We therefore believe that the passage of House Bill 1069 is in contravention of both the United States Constitution, South Dakota’s Constitution, and is therefore null and void. We thus dissent from, and protest against, the erroneous rulings, the unconstitutional aspects of House Bill 1069, and the appearances of improprieties used to pass House Bill 1069. We respectfully request that this dissent and protest be printed in the Senate Journal as required by Joint Rule 1-10 [Sen. Stace Nelson and Sen. Lance Russell, Dissent and Protest to Passage, Senate Journal, 2017.02.01].
Democratic Senators Billie Sutton (D-21/Burke), Troy Heinert (D-26/Mission), and Jason Frerichs (D-1/Wilmot) followed suit but took a little longer to type. Their dissent and protest appears in yesterday’s Senate Journal:
Joint Rule 1B-2 states the legislators must comply with all Constitutional and statutory requirements regarding conflicts of interest. Voting upon HB 1069 presents a conflict of interest because the legislators currently in litigation against the implementation of Initiated Measure 22 would thereby receive a pecuniary interest due to the passage of HB 1069. Thus, they will no longer have to pay to continue the lawsuit and will thus receive a financial benefit with the repeal of IM 22.
In addition, the South Dakota Constitution, Article III, Section 1 has been used by the courts as the standard to determine when an emergency exists. Article III, Section 1 of the South Dakota Constitution allows a referral of a legislative act to a public vote before going into effect unless it is necessary for the immediate preservation of the public peace, health, or safety or the act is necessary for the support of the state government and its existing institutions. Since this law is enjoined we contend that no emergency exists, and the use of the Emergency Clause is unconstitutional in HB 1069. We therefore believe the passage of this act is in contravention of the Constitution of South Dakota and the Joint Rules and is such null and void.
We respectfully request this dissent be printed in the Senate Journal.
Nelson and Russell’s argument about anonymous speech is not really an expression of support for IM22. Both IM22 and current campaign finance law require disclaimers and disclosure of sources of campaign communications. The 1995 Supreme Court case they cite said that Ohio’s ban on anonymous speech was too broad but still allowed states and the federal government to impose disclaimer and disclosure requirements tailored to meet overriding state interests. For over two decades, states and the FEC have done just that, and the courts have not thrown out “Paid for by….”
The conflict-of-interest argument tantalizes but probably gets nowhere. Passing HB 1069 appears to end the lawyer bills for Novstrup and the other IM22 plaintiffs, but HB 1069 was not the only vehicle at their disposal for reaching that goal. They could have dropped their lawsuit at any time.
The state constitutional arguments on multiple subjects and the bogus emergency clause are the most solid. The IM22 plaintiffs themselves agreed in their anti-IM22 brief that IM22 addressed multiple subjects; they are logically bound to agree that a bill doing the exact opposite of IM22 also addresses multiple subjects. And for all their rhetorical gymnastics, not one Republican has addressed the 1996 LRC Issue Memorandum that clearly explains the funding requirement for the emergency clause HB 1069 invokes.
But are those two constitutional arguments worth taking HB 1069 to court? Get a court to overturn HB 1069 on the multi-subject argument, and we grant the court grounds on which to overturn IM22.
Get a court to overturn the emergency clause, and we may only delay enactment of HB 1069 until July 1, like a normal bill. IM22 would still be enjoined, and the South Dakota Supreme Court might not rule on the IM22 case before July 1, so even for the next few precious months, we’d still be laboring under the status quo that HB 1069 affirms.
The only impact of a no-emergency-clause delay is the opportunity to refer HB 1069 to a public vote. But that referral would be a disaster. We would place the exact text of HB 1069 (the inverse text of IM22) on the ballot. The South Dakota Supreme Court would then rule a line or two of IM22 unconstitutional (and I’m confident the plaintiffs will win at least one of their claims). Our campaign would then be in utter confusion, as we’d be voting on a Swiss-cheesed bill that includes provisions that we cannot constitutionally enact.
A key part of that pivot is for Nelson Republicans and Sutton Democrats to look for ways to turn their cooperation in protesting HB 1069 into practically constructive and/or obstructive collaboration.
Update 11:26 CST: Senator Stace Nelson expands on his dissent with this op-ed, circulated today:
February 1st was a “dark day” for the South Dakota legislature. The passage of House Bill 1069, brought to repeal the voters’ enacted Initiated Measure22, culminated the ugliest partisan bums-rush of legislation since Obamacare. I publicly opposed IM2 during the election for many reasons. The solution to bad government is not more government, and IM22 did nothing to combat the ugly corruption of the last two governor’s EB5, and Gear Up scandals. Circumstances made me a grudging opponent of HB1069.
Early on I encouraged Senators to go slow repealing IM22. We govern at the permission of the people. While the people give us permission to act on their behalf by electing us, we shouldn’t be so arrogant as to act rashly with out proper respect for their will. I suggested 5-6 single subject constitutional bills to review IM22 and afford the many subjects the proper, respectful, deliberate public hearings that voters deserved. That sage advice was cast aside and HB 1069, the mirror image of IM22 (which they contested was unconstitutional because it was multi-subject), was brought forth to repeal IM22. Immediately streams of dishonest rhetoric was pushed spinning the repeal and claiming a contrived “emergency” demanding the immediate passage of HB1069. Politicians who blithely voted for unconstitutional multi-subject bills previously, now claimed they must repeal IM22 to protect the people’s constitution, from the people!
Despite 24 legislators being personally involved in the lawsuit against IM22, they refused to recuse themselves from the obvious conflict of interest of pushing HB1069 through the legislature. They did everything possible to bend to breaking every rule possible to rush HB1069 through. To add injury to insult, Senators voted to knowingly keep unconstitutional provisions within HB1069, which require personal identifying information the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334(1995)). IM22 was allowed on the ballot by the Governor, Attorney General, and Secretary of State. That tacit support, in my opinion, removes blame of unconstitutionality from citizens who brought IM22. Legislators brought the unconstitutional HB 1069 mess. They were obligated to abide by legislative ethics rules and our US & SD Constitutions. The inappropriate conflicts of interests, the gross appearance of improprieties used to pass HB1069, and the provisions of HB1069 which were in explicit contravention of both the United States Constitution, and South Dakota’s Constitution, showed who was the real threat to our Constitutions. Principle demanded that I was duty bound to oppose HB1069, which I did.
The manner in which HB1069 was passed was disgraceful, and a “dark day” as Senator Lance Russell (R-Hot Springs) appropriately lamented. Politicians claimed there is no corruption in SD, in support of their rush to pass HB1069. The EB5 corruption and death of Richard Benda; the Gear Up corruption and deaths of Scott, Nicole, Michael,Connor, Jaeci, & Kailey Westerhuis; the recent scandal of a two year legislative cover-up of a legislator sexually preying on pages & interns; and, the same legislators repealing the will of the voters in such a corrupt fashion, refute those assertions upon utterance.
In that “dark day” there was a ray of principled sunshine. The honorable gentleman, Senator Lance Russell (R), stood tall on the Senate floor and opposed the partisan stampeding herd. In the end, we earned the wrath of politicians for refusing to compromise the ethical principles of your government in their demands we go along to get along. The good news is, Senator Russell and I sleep like babies at night and we can look each one of our constituents in the eyes when we go home.
Such is the apparent thrust of Senate Bill 134, freshly filed this a.m., to “prohibit the expenditure of certain public school resources for political purposes and to provide a penalty therefor.”
Section 1 says, “No public school resources, including personnel time, supplies, communication systems, or facilities may be used to affect the outcome of any political vote.” That would seem to outlaw any election-season candidate meetings, forums, or debates on school grounds. It could ban holding crackerbarrels at your local school auditorium or cafeteria, since plenty of citizens come to those events hoping to influence their legislators’ votes on bills.
And if you want to get technical—or cosmic!—SB 134 bans any civics education, since the whole point of government class, and arguably of the entire public K-12 curriculum, is to shape our kids into responsible, literate citizens, thus affecting the outcome of every political vote for the better.
SB 134 would punish public school politickers with a $250 civil fine, plus a possible fine for the school that would host such nefarious activity. SB 134 would also authorize any taxpayer in the school district to file suit to recover “recover funds misused under section 1 of this Act,” plus reimbursement for expenses.
Senator Russell is just jerking teachers’ chains here, trying to scare them into absolute silence about political matters. Teachers might not even dare talk about current events or assign students to write papers or make speeches about any current or recent election, for fear that partisan hacks around town might perceive even student speech about Trump, Noem, Jackley, or the Legislature may affect the outcome of a political vote.
I’ve been in several school buildings. I haven’t seen whatever problem Senator Russell thinks SB 134 will solve. Local school boards already have clear policies about political activity by staff on school time and use of facilities for political events. We already have SDCL 12-27-20 prohibiting the expenditure of public funds (school, city, county, state, conservation district…) to influence elections. We don’t need SB 134.
Bob Mercer analyzes the grudge match between the mainstream SDGOP leadership in the Legislature and the arch-conservative wing led by Senator-Elect Lance Russell (R-30/Hot Springs) and Senator Brock Greenfield (R-2/Clark).
Russell ally Senator-Elect Stace Nelson (R-19/Fulton) posts the card that Aberdeen-based Prairie Country PAC has mailed to Mercer and other important figures to advocate for the election of Russell and Greenfield to leadership positions in the Republican caucus:
The card, alas, peddles the false line with which Nelson-wing Republcians slag their fellow party members by branding them Democrats. Please, spare me: I know the Republicans, like my neighbor Al Novstrup, who voted for the tax increases listed (though Al did buck the debt collection center and the muni-tax option), and they are no Democrats. They are opportunists and toadies and unprincipled non-statesmen, but they certainly aren’t Democrats.
Nonetheless, I do enjoy seeing the Prairie Country PAC agreeing with me that the Republicans in charge don’t act like Republicans when it comes to voting for tax increases:
Funny: the ultra-conservative Prairie Country PAC, which used my good name (in alternative inattentive spellings) and various distortions of my words to raise money this year, actually agree that we need to de-horn the RINOs in the Legislature.