What we didn’t know was that task force member and gubernatorial chief of staff Tony Venhuizen, who’s usually pretty clever, would contradict his party’s line on why it was o.k. to repeal an initiative the voters supported:
Gov. Dennis Daugaard, a Republican, signed the IM 22 repeal. Tony Venhuizen, his chief of staff, was a task force member. Venhuizen said Monday his perception of IM 22 was the reduced contribution limits were intended to work with a public campaign financing system.
Kennedy’s proposal Monday called only for the lower limits.
“If we’re going to do half without honoring the other half, we are not honoring the will of the voters,” Venhuizen argued. Venhuizen said he voted against IM 22.
Tony! Get on message! Your own party says that restoring parts of an overturned law is acceptable practice. I’m willing to bet lots of voters would take a similar, practical, glass-half-full perspective, that at least restoring the campaign finance limits in IM22 would be better than nothing.
A piece of pie is better than no pie. Serve it up, Senator Kennedy!
With her President trying to take away South Dakotans’ air service, rural water, and food security, Kristi Noem is going to have to spend a lot of her gubernatorial campaign trying to make South Dakotans forget about all the time she’s spent in Washington. Her primary opponent, Attorney General Marty Jackley, has been here in South Dakota, deeply involved in day-to-day South Dakota issues. How does Noem overcome her detachment from South Dakota?
Aside from not doing the job we elected her to do, Noem will probably look for a good South Dakota running mate who doesn’t have Washington on the brain. Specifically, she’ll probably look for an old pal from her Legislative days to serve as her Lieutenant Governor.
Another possibility is Representative Larry Rhoden from Union Center. Rhoden was Noem’s majority leader during her rookie term in Pierre; he then bounced over to the Senate to serve as whip. Rhoden would bring statewide campaign experience to the Noem ticket: he finished an arguably surprising second in the 2014 U.S. Senate primary over a more voluble, base-stirring Stace Nelson on a relatively thin budget. Rhoden would make the perfect cowboy partner for Noem’s ongoing cowgirl act.
Of course, having run for D.C. before, Rhoden might be a harder horse to tame than Gosch for a Pierre sidekick spot. A genuine West River rancher, he might outshine Noem’s part-time, pageanty spurs; she might prefer to be the country girl complemented by Rapid City lawyer Gosch.
Noem doesn’t need to make this choice until and unless she beat Jackley in the 2018 primary. However, if the race is tight, Noem might derive some advantage from naming her lieutenant early, to court allies and prove she can pick good people to help her do the job. Whether Gosch, Rhoden, or someone else, Noem will need someone with Pierre experience to fill in the gaps in her memories of Pierre. And for this executive position, she’ll need someone who, unlike Noem, is used to accomplishing something beyond simply winning an election.
The key exchange over the Legislature’s cancellation of its promise to dedicate 63% of last year’s half-cent sales tax increase to teacher pay came in House floor debate between two veteran legislators who were not in the chamber last year to vote on that sales tax.
Rising to address Senate Bill 35, Representative Dan Ahlers (D-25/Dell Rapids) said the Legislature has an obligation to keep its promises. Representative Larry Rhoden (R-29/Union Center) said schools should be thankful they aren’t getting worse treatment:
Representative Ahlers (speaking at 1:46:40) said the recurring theme of the 2017 Session has been trust. Ahlers said voters have asked him throughout this Session if that half-cent tax is going to stay in education. He has told voters he hopes so, SB 35 changes that.
Ahlers said this Legislature has an obligation to uphold the previous legislature’s commitment. He noted that the Legislature has certainly expressed such an expectation of the school boards that benefited from last year’s sales tax deal. Just last week, House Appropriations rejected a bill (SB 92), which would have extended the time school districts have to spend down their reserves. Opponents of that bill argued that spending down reserves by the end of the 2017–2018 school year was part of the deal that secured passage of the Blue Ribbon sales tax and funding formula, and schools now have to hold up their end of the deal. “But today in this bill,” said Ahlers, “we’re going back on our deal. We’re telling the school districts that you need to abide by the rules but we don’t, and we can change them.”
“We can find ways to fund this $2.4 million if we really want to,” Representative Ahlers concluded. “Your vote today will demonstrate whether or not this is really an honorable body.”
Representative Larry Rhoden rose (timestamp 1:50:10) with a noticeably hot response. He labeled Representative Ahlers’s comments “absolutely ridiculous.” Rhoden said past Legislatures make commitments based on the economy at that time… from which we are to conclude that no Legislative commitment lasts beyond the next monthly revenue and employment reports.
Rhoden said his fellow ranchers would be “tickled pink” to have a zero decrease in their budgets this year. Ditto rowcroppers. With agriculture pouring out $25 billion in gross product, ten times more than the second largest industry, claimed Rhoden, (Darin! Here are the political implications of our argument about measuring industry size!), “80 to 90 percent of our budget shortfall is directly at the feet of agriculture,” said Rhoden. “So then to get up here and beat your chest and say that we have no right to hold education level I think is ridiculous and quite frankly it makes me a little upset!”
“I had noticed,” muttered Speaker Mickelson from the chair.
Representative Rhoden said that, “given the increase from last year,” the education community “should feel extremely fortunate that they aren’t taking a cut.”
Representative Ahlers highlights a public trust issue that may cut as deeply among voters as the repeal of Initiated Measure 22. The 2016 Legislature made a deal. The 2017 Legislature is now backing out of that deal. And Representative Rhoden’s best response is, essentially, be glad we aren’t doing worse to you.
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.
“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.”
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.
Representative Larry Rhoden’s criminal political stunt Monday—hitting the panic button in a Capitol committee hearing room just to see how long it would take the Highway Patrol to respond and thus justify his vote for a bill allowing concealed firearms in the Capitol—has gone remarkably underreported and unpunished. A sitting legislator broke the law to make a political point—where’s the arrest?
Senators and representatives shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same; and for words used in any speech or debate in either house, they shall not be questioned in any other place [SD Const., Article 3, Section 11].
However, an eager reader points us toward the Issue Memorandum 96-28, in which the Legislative Research Council explains that legislative immunity doesn’t legislators can commit criminal acts and go scot free:
The phrase “treason, felony or breach of the peace” can be traced back to Parliamentary England. Since the framers adopted those exact words from England, it follows that they must have intended the well understood and accepted meaning of those words in England at the time. The words as used there were well understood as excluding from the parliamentary privilege all arrests and prosecutions for criminal offenses, confining the privilege to arrests in civil cases. The United States Supreme Court, citing this rationale, held that the exemption applied only to civil arrests and not to criminal charges.
This provision in state constitutions has generally been given the same interpretation. For example, a legislator was held not to be exempt from arrest for the charge of the criminal offense of battery [Legislative Research Council, Issue Memorandum 96-28: “Legislative Immunity”, 1996.11.19, p.2].
The LRC gives criteria for determining whether an act qualifies for legislative immunity:
Two requirements must be met in order for there to be legislative immunity. The act must be legislative in character; that is, it must involve policymaking on a broad scale affecting a large number of people. The act must also be procedurally legislative. The act must have been undertaken by established legislative procedure. The action of voting and participating in committee are acts that are procedurally legislative. For example, a hearing held by a state legislative committee was within the scope of legitimate legislative action since investigations by legislative committees are an established part of representative government. Those acts that go beyond broad policymaking and are accomplished without legislative procedure fall outside the bounds of legislative immunity. Also outside the scope of legislative immunity are those acts which are deemed administrative, like a legislator’s actions as an employer. Finally, the privilege does not extend to political acts [LRC 1996.11.19, p. 4].
Pushing the panic button is not a legislative act: it was not part of a vote or a result of a vote. Anyone in the room, not just a legislator, could have pushed the button to summon law enforcement (which, don’t forget, was already in the room, in the form of an armed plainclothes Highway Patrolman). Rhoden was engaging in a political act, trying to make a political point with a juvenile stunt that backfired.
Now there are statutes saying we can’t prevent a legislator from attending Session (SDCL 2-4-7) or try a legislator during Session (SDCL 15-11-5). But Representative Rhoden committed a Class 1 misdemeanor Monday. He should be arrested, tried, and punished as surely as would have been any HB 1069 protestor last week who had pulled a fire alarm to clear the Capitol during debate on the Legislature’s repeal of IM 22.
While chairing House State Affairs this morning, Representative Larry Rhoden (R-29/Union Center) hit the literal panic button. In the midst of debate on House Bill 1156, a bill to allow individuals with enhanced permits to carry concealed firearms in the Capitol, Chairman Rhoden activated whatever alarm legislators have available in the committee rooms:
A South Dakota lawmaker whose committee was considering a bill to allow concealed guns in the Capitol says he hit a panic button during debate just to see how quickly authorities could respond.
False reporting to authorities is a Class 1 misdemeanor, worth up to one year in jail and a $1,000 fine.
Rhoden predicated his conclusion, that law enforcement took longer than he thought they would, on the false assumption that the South Dakota Highway Patrol would fall for his trick. The Highway Patrol did not:
The South Dakota Highway Patrol superintendent says authorities were properly notified seconds after a lawmaker whose committee was considering a bill to allow concealed guns in the Capitol hit a panic button to test the response time.
Superintendent Col. Craig Price said Monday that after the notification, a supervisor looked at the video monitoring system and saw that an armed plainclothes state trooper was already in the room. He says a uniformed officer responded to verify there was no emergency [AP, 2017.02.06].
So not only did Chairman Rhoden break the law for the sake of political theater, but he also knocked a hole in the thesis that we need civilians prancing around the Capitol with guns. Highway Patrol had a trooper in the room who probably would have drawn a bead on a real troublemaker before Chairman Rhoden could find his button. In today’s illegal drill, Highway Patrol was able to assess almost immediately that there was no need to mobilize deadly force.
I won’t risk a Class 1 misdemeanor, but I’ll ask you to consider this hypothetical: suppose Chairman Rhoden or another proponent of HB 1156 had decided to test law enforcement’s response by shouting “Gun!” instead of hitting the panic button. Suppose some concealed-carrier had been in the committee room and, eager to put his pistol to use, had drawn and whirled around looking for the fake threat. Suppose that plainclothes trooper sees that gun. Imagine all that can go wrong in those two seconds.
Alas, the committee, falsely alarmed on multiple levels, voted 10–3 to advance HB 1156 to the House.
Rookie Representative Drew Dennert (R-3/Aberdeen) brought House Joint Resolution 1001, a proposal to have us vote on adding the following language to our state constitution:
Hunting, fishing, and trapping wildlife is a valued part of our heritage that shall forever be preserved for the people; water, wildlife, and other natural resources held in the public trust shall be managed by law and regulation for the public good but do not create a right to trespass on private property except as allowed by law, regulation, easement, or contract [HJR 1001, Section 2, introduced 2017.01.20].
Useless macho bang-bang legislation usually gets a warm reception in Pierre. But after the National Association for Gun Rights, South Dakota Bowhunters, South Dakota Wildlife, and the South Dakota Izaak Walton League spoke in favor of HJR 1001, Big Ag raised its voice via the Farm Bureau, the Stock Growers, and the Corn Growers to oppose the hunt-fish-trap amendment on grounds of superfluity and unintended consequences to property rights.
Rep. David Lust (R-34/Rapid City) “quizzed” Rep. Dennert and asked, based on his Legislatively engaged family’s commitment to hunting and agriculture, which is more important to the Dennert family, the ability to work the land or the ability to hunt and fish. Rep. Dennert equivocated, saying both are equally important fundamental rights and that to this day some people still rely on hunting and fishing as their main source of food. Rep. Lust followed up, noting that “your grandfather is probably listening,” and insisted that Rep. Dennert choose. Thus boxed, Rep. Dennert acceded to the primacy of property rights.
In his later remarks, Rep. Lust acknowledged the “pleasure of putting a new legislator on the spot,” then explained his opposition to the NRA’s language:
There’s nothing in our constitution right now that guarantees someone the right to farm. There’s nothing in our constitution that guarantees someone the right to be a lawyer, nor to be a fireman, policeman. All of those we would all argue are foundational to—maybe not the lawyer part—is foundational to our society, right? If we don’t have something in our constitution on farming, on some people’s right to farm—and I think Representative Dennert answered the question properly and his grandfather would be proud—we don’t need to put things like this in our constitution [Rep. David Lust, remarks on HJR 1001, House State Affairs, 2017.01.25, timestamp 24:58].
Rep. Isaac Latterell (R-6/Tea?), a great fan of trivial constitutional grandstanding, tried to save his young Aberdeen friend’s constitutional diddling by amending HJR 1001 down to just its first 20 words. Rep. G. Mark Mickelson (R-13/Sioux Falls) stepped with a substitute motion to kill HJR 1001, and House State Affairs followed the Speaker. HJR 1001 failed 9–4, losing four sponsors (Bartling, Beal, Lust, and Qualm). Eight Republicans and one Democrat voted for a cleaner constitution and Bs on their NRA report card; three Republicans and one Democrat voted in favor of NRA-stroking constitutional clutter.
Representative Larry Rhoden adds Ethics Lite to the mix of legislative proposals competing to tell South Dakota voters how they should have done ethics reform. House Bill 1089, sponsored exclusively by Republicans, creates no new ethics panel but assigns new investigative and enforcement powers to mostly partisan entities.
Section 1 of HB 1089 authorizes the Secretary of State to impose an addition up-to-$500 fine on folks who violate campaign finance law. (The Koch Brothers, who poured at least $627,000 into campaigning against IM22, would consider $500 shrinkage.)
Section 2 makes clear that any interested person may file a complaint with the Secretary of State alleging campaign finance violations. Upon receiving such a complaint, the SOS shall investigate and may seek civil penalties in court or refer the complaint to the Division of Criminal Investigation.
Section 3 makes clear that any person may file a complaint with DCI about fraud by public officials, bribery of public officials, or violations of the lobbyist gift ban (what? we can’t file such complaints already?).
Section 4 says that if DCI doesn’t find a prosecutable criminal case in a Section 3 complaint, it may (may? not shall?) refer evidence of lesser wrongdoing by executive branch officials to the State Board of Internal Control (which consists mostly of members of the executive branch) and wrongdoing by legislators and legislative employees to the Government Operations and Audit Committee (which consists entirely of legislators).
Unlike the bipartisan-sponsored HB 1076 and IM 22, whose repeal HB 1089 is meant to excuse, Rep. Rhoden’s proposal makes no effort to minimize partisan influence in the entities investigating unethical conduct. Section 4 makes clear that Rep. Rhoden and his co-sponsors maintain that the Legislature can police itself, even though the Wollmann sex scandal strongly suggests the contrary.
Related Legislation: Bob Mercer notes that six Republicans and two Democrats, led by Senator Phil Jensen (R-33/Rapid City), are sponsoring Senate Concurrent Resolution 8, calling on the Attorney General to appoint a special prosecutor “to prosecute, both civilly and criminally, all losses that the South Dakota taxpayers have sustained as a result” of the EB-5 and GEAR UP scandals.