Join LEAD at the Oak View Library in Sioux Falls to hear from our state Legislators. They’ll be sharing how they work across the aisle and put partisan politics aside in the name of serving their constituents and the interests of our state. Come on out and get an inside look at how it all works! This event will be moderated by Megan Myers of the American Heart Association of South Dakota.
Representative Karen Soli
Senator Deb Soholt
Senator Kris Langer [LEAD, Facebook event post, retrieved 2017.06.24]
It’s good to see legislators getting out during the interim to keep us informed about the work our government is doing.
But if a legislator is going to communicate in writing, he should try to write well. Rep. Schoenfish fails to demonstrate the basic composition skills I would expect of a high school graduate. Let’s start with his introduction, paragraph #1:
I was invited to speak at the Memorial Day Service in Canistota this year. We have the freedoms we have today because of the sacrifices our veterans have made. Memorial Day is the day we honor those who gave their lives fighting for our country. Last year my dad, Randy Schoenfish, gave the Memorial Day address in Menno. He served 21 years in the National Guard until he retired as a Lt. Colonel. The seven core values of the National Guard are loyalty, duty, respect, selfless service, honor, integrity and personal courage. I see my dad exemplify those core values when he’s interacting with his friends and family, serving his clients and the taxpayers as a certified public accountant and serving in church and the community [Rep. Kyle Schoenfish, “Core Values; A Special Session,” Yankton Press & Dakotan, 2017.06.19].
I use the term paragraph lightly. A paragraph is a collection of sentences flowing in logical sequence to develop one topic. One of its sentences—the topic sentence—will explicitly state that topic, thus serving as the one-line summary of the paragraph’s intent. These seven sentences neither flow nor develop any unified topic. Schoenfish says he spoke in Canistota on Memorial Day, then doesn’t tell us what he said or what happened there. He interrupts his thinking about Memorial Day to issue a standard formula about freedom, sacrifice, and veterans. He returns to Memorial Day to describe its general purpose, to honor those who died fighting for America, then bounces to talk about his dad, who didn’t die fighting for America. Schoenfish switches topics to talk about the National Guard and its values. Then the National Guard disappears, and Schoenfish just tells us what great values his dad exemplifies at the office and around town. No one sentence on the page summarizes what this block of words is trying to do. Instead, Schoenfish rambles through three ideas—my dad and I make speeches; soldiers sacrifice for America; my dad’s a great guy—none of which is sufficiently developed to qualify this introduction as a paragraph.
I also use the term introduction lightly. An introduction is not just the first words out of one’s mouth. An introduction introduces the thesis of the essay. It tells readers the main idea that the writer is going to develop with the following paragraphs. A review of the subsequent paragraphs indicates there is no main idea.
I attended the retirement party for the superintendent of Freeman High School, Don Hotchkiss. The importance of quality, dedicated administrators like Hotchkiss in our schools cannot be overstated. It’s vital to have communication between school officials and legislators and Hotchkiss is a passionate advocate for our schools [Schoenfish, 2017.06.19].
Memorial Day, military service, Dad’s values—poof! All gone! And—spoiler alert—they aren’t coming back. Now Schoenfish praises Don Hotchkiss and (O, blind irony!) the importance of communication. “Passionate advocate” is a nice note, but “cannot be overstated” is a cliché. We can overstate the importance of school administrators: Without quality, dedicated administrators, our kids will all become criminals! Cliché indicates Schoenfish is thinking about details to develop his point; he’s just recycling fancy-sounding phrases he’s absorbed from other speakers and writers to fill space. For a retirement party, Rep. Schoenfish could have brought at least a couple sentences with specific details about Hotchkiss’s service.
But we mustn’t linger on any one topic too long. On to Rep. Schoenfish’s actual job as Representative:
A special session was called to address the issue of non-meandered waters. A study committee came up with a compromise that opens up the lakes that were closed due to a Supreme Court decision while also giving landowners rights that they did not have before the court ruling. This issue has been ongoing for years. The bill was HB1001; I voted yes, it passed 52 to 16. It was amended in the Senate to sunset in 2018; when it came back to the House; I voted yes again; it passed 54 to 12. Due to the sunset clause, it will likely be dealt with again in the 2018 session. The bill was an emergency, so it required 47 votes to pass [Schoenfish, 2017.06.19].
Here I give Schoenfish credit: this paragraph hangs together, focusing on the Legislature’s response to the complicated issue of access to new lakes that have flooded private land. However, nonmeandered waters and the new law are so complicated that Schoenfish should have dedicated several paragraphs—let’s say the entire column—to this topic. What lakes were opened—any in District 19? (Answer: yes! Island South in McCook County!) What new rights do landowners have? (Answer: closing access to unlisted nonmeandered lakes with signs and buoys, petitioning for closure of listed nonmeandered lakes like Island South.) Why has the issue been ongoing for years? Why was the bill an “emergency”? (Hmm… how was it an emergency if it was going on for years?) Why was the new law passed for only one year, and what if anything does Rep. Schoenfish want to do to make the law better in the 2018 Session?
With all those substantive questions to address, Schoenfish’s dedication of half of his paragraph to vote counts seems misplaced. The paragraph hangs together as an account of the special session, but it doesn’t say enough about how the new law resulting from the special session affects constituents.
But enough about constituents—let’s jump to a completely different topic!
I have been appointed to the workforce housing summer study by the legislative executive board. My experience as a CPA working on muncipal audits and housing/rental components of income taxes will be beneficial on the committee. Businesses across the state are looking to expand and hire more workers, but the workers need places to live. This is an issue in rural and urban areas all across the state. I have been reaching out to community leaders for their input on workforce housing issues. The committee had our first meeting the day after the special session. We heard from various stakeholders who spoke and took questions during the meeting. Speakers consisted of several mayors, representatives of housing associations and government agencies and others. Topics discussed were affordability, taxes, tax credits, dilapidated houses, lending and more. There are many components that make up our housing and rental system and the committee will continue to work on this major issue that South Dakota faces. The committee will meet again later this summer [Schoenfish, 2017.06.19].
Again, Schoenfish gets credit for keeping each sentence in this block focused on one topic… albeit a topic with no connection to anything mentioned above. Alas, as with nonmeandered waters, Schoenfish leaves the problem of workforce housing underdeveloped by crowding brief details about the problem and legislative procedure into one paragraph instead of dedicating a full essay to the issue. Imagine the above paragraph expanded into a few detailed paragraphs:
The Problem: Workers have trouble finding housing, so we’re having trouble finding workers. Give us some examples, and tell us why: Are wages too low? Are houses too expensive? Are we short on building contractors?
The Legislature’s Response:We’re conducting a summer study. Who’s on it? When and where are we meeting? This is the paragraph where Schoenfish could tuck in his mention of his involvement and qualifications… plus maybe an explanation of how municipal audits and income tax affect the availability of housing.
What We’ve Heard So Far:We learned a lot about the problem at our June 13 meeting. Give specific examples of who said what.
What I Think So Far: Given what we’ve learned (see how that flows?), we should look at the following policy actions. Give the public a preview of what you’re thinking and invite their feedback.
That multi-paragraph explanation would make a great essay all by itself. Do the same with the Special Session, Don Hotchkiss, and Memorial Day, and holy cow, Kyle! You’ve got material for a month! Your name and smiling face appear next to useful, informative prose every week in the paper. (Plus, you can further delay answering those darned questions Scott Ehrisman, Angela Kennecke, and your neighbor Senator Stace Nelson keep asking about you and GEAR UP.)
Instead, constituents get one slapdash, one-darn-thing-after-another pile of sentences that toss out at least four unrelated topics that don’t tell the voters as much as they deserve.
After just a day and a half of hearings, the Initiative and Referendum Task Force has already asked the Legislative Research Council to draft at least seven bills. This list of bill draft requests, posted on the committee website, may not be all of the draft requests; at Wednesday’s meeting, LRC attorney Wenzel Cummings said he would keep legislator requests for bill drafts confidential if they wished.
First, I want to note that the fact that we already have seven proposals for changes indicates that the task force is jumping its gun. Its enacting legislation, House Bill 1141, gives the committee this mandate:
The task force established pursuant to this Act shall study and evaluate the voter constitutional amendment, initiative and referendum process, legislation proposed during the Ninety-second Legislative Session of the South Dakota Legislature relating to the voter constitutional amendment, initiative and referendum process, and other proposals as they relate to the voter constitutional amendment, initiative and referendum process in South Dakota [2017 HB 1141, Section 2].
Committee chair Dr. Emily Wanless reads that passage as a mandate to conduct “a thorough review of the policies, procedures and regulations surrounding the uses of initiatives and referendums and where needed, suggest any changes that might be warranted.” We can’t get to “where needed” until we conduct that “thorough review” of the status quo. Task force members appear to have laid the following proposals for changes on Day One, before any “thorough review” of current law and practice could be completed. If we do not fully understand how well the state enforces existing safeguards in ballot measure petitioning and campaign finance, we cannot responsibly gauge how well the state would implement any new proposals.
1. Allow for fifteen working days on LRC Review & Comment for submitted ballot measures.
I’m fine with this measure, under one condition: every additional day LRC gets must come out of the 60 days the Attorney General gets to review initiatives. We should not accept any provision that further delays the ability of ballot question sponsors to hit the streets with their petitions.
2. Number of days for LRC Review & Comment based on number of words in the ballot measure.
No. Equating word count with complexity misses many possibilities. For instance, an initiative to assign all regulatory authority over septic tanks and other rural wastewater systems not currently governed by municipal governments would be relatively straightforward. However, the text of such a measure would have to include several pages of text striking the 62 sections of SDCL Chapter 34A-5.
Conversely, one could offer a one-sentence initiative like last year’s IM23—”Notwithstanding any other provisions of law, an organization, corporate or nonprofit, has the right to charge a fee for any service provided by the organization”—which triggers all sorts of complexity as LRC may need to check all the other provisions of law that would not withstand this terse change.
We make no such provision for wordier bills in the Legislature. Committees, chambers, and the Governor all get the same amount of time to clear each bill, long or short. We should not impose this nitpickery on ballot measures, either.
3. Exemption from fifteen-day requirement for LRC for ballot measures submitted during Legislative Session.
I understand the time crunch this proposal seeks to solve. Session is a bad time for a citizen to drop by the Capitol and ask an LRC staffer to add another task to his or her plate. But welcome to public service. The Legislature does not get to give itself precedence over the general public in accessing public resources. After all, the Legislative Research Council exists to serve all citizen legislators, including the vast majority of us citizens who do not get per diems and cushy desks in the Capitol but who nonetheless constitutionally reserve to ourselves the right to legislate by initiative and referendum. Elected legislators can ask LRC for service at any time; all citizens deserve the same service.
If there is a practical crunch on LRC staff availability to review citizen proposals, we should resolve that crunch in ways that do not further restrict the ability of citizens to exercise their constitutional rights. Instead of further delaying initiatives, I recommend the following practical solutions:
Increase funding for LRC to hire more staff during Session and/or create a special division dedicated to initiatives and service for the general public.
Move the deadline for submitting initiative petitions from November of the year before the election to July 1 of the year of the election. That gives petitioners eight more months to collect signatures, thus easing the time crunch for both LRC and petitioners.
4. LRC to provide, in addition to style and form, guidance for “efficacy” of the ballot measure’s policy objective.
LRC should provide the same service to all citizen legislators, be they elected or be they initiators. If this advice to elected legislators includes guidance on policy “efficacy,” then yes, by all means, provide that advice to initiative sponsors as well.
5. Limit on number of ballot measures that may appear on a ballot.
Bonk. We do not limit the number of bills legislators can propose. The Governor does not limit the number of bills the Legislature can send to his desk. The state does not limit the number of political parties or independent candidates who can access the ballot. If citizens want to vote on zero, five, ten, or a hundred measures, that’s citizens’ business. Limiting the number of measures on the ballot turns initiative and referendum into a race of the richest players to crowd the ballot and box out low-budget grassroots activists.
6. Provide statutory authority for state Board of Elections to determine size of ballot.
The Board of Elections already has statutory authority to determine the “form and color of ballots” [SDCL 12-1-9(2)]. If this proposal recognizes a need to accommodate more measures or more information about each measure, let’s consider it. But if this measure envisions restricting ballot space and thus ballot measures, forget it.
7. Independent Citizen Review panels for ballot measures.
Rob Timm of the Chiesman Center for Democracy told the I&R Task Force about this idea in his testimony Wednesday among his recommendations for giving the public more unbiased information about ballot measures:
Holding numerous facilitated town hall discussions throughout the state to review one or more key ballot initiatives, or maybe just constitutional measures – allowing not only sponsors and opponents to provide arguments but also creating opportunities for the general public to ask questions.
Take this one step further, and implement a process that is used in Oregon, Arizona, Massachusetts, Colorado and California. These states utilize an independent Citizens Initiative Review® (https://healthydemocracy.org/cir/) that engages a randomly selected, demographically balanced “jury” of citizens who take testimony and then deliberate for 2-3 days, drafting a statement highlighting the most fact-based pro and con findings about a measure (usually a constitutional amendment). Which is then placed in the voter guide [Rob Timm, Chiesman Center for Democracy, testimony as prepared for Initiative and Referendum Task Force, 2017.06.22].
Placing ballot measure sponsors and opponents on an equal footing in a formal public process designed to give all voters more information is a splendid idea. But as I cautioned Dana Ferguson, we need to make sure the process is impartial:
Cory Allen Heidelberger, a progressive blogger and referendum and initiative sponsor, said he generally supported the idea of allowing more public input on the proposals, but warned that constraints would be needed to prevent abuse of the public hearings.
We also need to make sure that any citizen review/public hearing process does not further delay the petition process or otherwise restrict the ability of citizens to put measures to a vote. Finally, I hesitate to write into public policy anything with a registered trademark. But overall, engaging more citizens in the political process is good…
…and that’s the principle that should guide the Initiative and Referendum Task Force’s review of existing ballot measure statutes as well as their premature rush to propose new laws. Of the above draft bill requests, #3, and #5 raise hurdles to participation. #1, #4, #7, and my counterproposals under #3, if implemented properly, invite more citizen participation.
Leading off was Karla Hofhenke, representing South Dakota Farmers Union’s 19,000 members, who said simply, “If it’s not broke, don’t fix it.” Hofhenke, who is familiar with the I&R petition process from her work on Farmers Union’s independent redistricting initiative in the last election cycle, expressed opposition to two major “reforms” Republicans have recently proposed for the petition process, requiring more signatures and requiring signatures from more counties. Hofhenke says raising signature requirements would make it harder for regular citizens to sponsor ballot measures and make the process “a rich man’s game” and encourage the use of out-of-state circulators. Geographical restrictions (like Rep. Spencer Gosch’s onerous and fortunately defeated House Bill 1153, which would have required half of a petition’s signatures to come from 33 different counties) would make the process unworkable. “All South Dakotans have equal merit” in supporting ballot measures, said Hofhenke; requiring geographical quotas is simply “an attempt to gut the process” of initiative and referendum.
Senator Jim Bolin (R-16/Canton) expressed his surprise that Farmers Union is not interested in seeing rural people have more ability to be involved in process of signing petitions. He said he represents a primarily rural area and finds it rare to see petitions in Alcester, Beresford, or Elk Point. Why not, asked Senator Bolin, get signatures from a more diverse geographical area? Hofhenke replied simply that Farmers Union supports the process as it is.
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Tom Harmon, who said he had worked on South Dakota initiatives dealing with radiation, invoked the “Republic Not a Democracy” mantra to cast skepticism on ballot measures. He suggested the task force need take no action on initiated laws, since any legislator can draft measures to get around them. For the “very solmen matter” of constitutional amendments, Harmon suggested allowing opponents to respond to filed amendment petitions by circulating their own petitions against placing the amendment on the ballot and allowing opponent signatures to cancel out proponent signatures. Asked by panelist and Board of Elections member Linda Lea Viken if such a process would allow the easy defeat of any amendment filing, Harmon shrugged, “That’s getting into the mechanics of the matter.”
Harmon also said the press loves ballot measures “because there is a lot of advertising that is put in on both sides.”
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Rob Timm of Chiesman Center for Democracy said his organization is founded on the principle that “Democracy does matter.” He said that initiative and referendum arose in South Dakota in the late 19th century because average Americans felt excluded by a “plutocracy… controlled by the wealthy and corporate elite.” Timm argued that the positive effects of direct democracy outweigh the “messy” problems.
Timm didn’t just assert the merits of direct democracy; he brought empirical evidence. Timm cited research showing that direct democracy has positive psychological effects on voters, making them feel they have an impact on policy. Allowing people to be the government helps them develop higher levels of “political efficacy,” their faith and trust in government. Timm also cited research showing that ballot questions increase voter turnout. States with initiative see 3% to 4.5% higher turnout in presidential elections and 7% to 9% higher turnout in midterm elections. Finally, Timm said research shows states with initiative waste fewer government resources and have better GDP growth. Barriers to placing measures on the ballot may thus reduce voter turnout and civic engagement… and maybe South Dakota’s economy!
Rather than restricting the process and risking those harms, Timm stressed the need to push education, host events, and publish information and good voter guides. Timm said research shows voters want accurate information, not less democracy. He said South Dakota voters were “pretty darn smart” when they created initiative and referendum in the 1890s and when they added constitutional amendment to their direct-democracy bailiwick in 1972; they remain smart enough today to use I&R wisely.
Panelist Will Mortenson asked Timm if he found irony in the fact that big money is now coming full circle and using “big money from the coasts” to control a process created to fight big money. Timm said the public sector and media must do their job to provide unbiased information.
Prompted by panelist Rep. Karen Soli (D-15/Sioux Falls), Timm explained a method five states (Arizona, Massachusetts, Colorado, California, and Oregon) have adopted to inform citizens about ballot measures. Those states select demographically balanced but otherwise random juries of citizens to review ballot measures. These juries take public testimony and draft a statement on the pros and cons of each measure for a voters guide.
Panelist Rep. Don Haggar (R-10/Sioux Falls) said by phone that he’s less concerned about where ad money comes from and more about getting information about ballot measures. He asked about reheating something like Haggar’s House Bill 1130, a proposal canned by the Senate last March that would have imposed hearings by the Legislature’s Executive Board on the ballot initiative process. Timm said citizens are leery of a process that comes from the Legislature; however, he feels the premise is exactly right that the public needs more information about ballot measures.
Senator Reynold Nesiba (D-15/Sioux Falls) gently resisted Mortenson’s assertion that 80% of the money for ballot questions is coming from out of state by asking if more outside money is involved in our ballot question campaigns than pours into our U.S. Senate candidates’ coffers. Senator Nesiba then endorsed the citizen jury idea and asked the Legislative Research Council to look into it.
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Sharon Gray of Vermillion testified about her heartburn over the Legislature’s use of emergency clauses to box citizens out of the chance to refer those laws to a publci vote. She recommended (as I and her son Doug Kronaizl and ballot measure sponsor Roxanne Weber all have proposed) allowing voters to refer emergency legislation. Gray noted that North Dakota has allowed such referrals for a century with no apparent trouble.
Gray noted that South Dakota voters have never supported giving away their I&R power. She said the Legislature’s repeal of Initiated Measure 22 this year expanded the “chasm” voters perceive between themselves and a Legislature that ignores them or includes them at most in a cursory role. Gray said the changes she suggests would help “close that rift.”
Gray responded to Bolin’s earlier question about geographical requirements for I&R petitioners. She said having separate petitions for each county’s voters would be a “mind-boggling” and “onerous” problem that would make petitioning unworkable.
Senator Bolin replied that he has never actually been in favor of requiring signatures from every county. (He did not mention that last December he said he likes a Colorado bill that requires initiated amendment sponsors to get signatures from 2% of voters in every Senate District). Senator Bolin said Montana requires a geographical distribution of amendment petition signatures. Bolin said he objects to notion that almost all of the signatures on South Dakota I&R petitions come from three or four counties—”that is a weakness of the process.” (If we used the Montana rule, which requires signatures for amendment petitions from at least two fifths of the state’s 100 legislative districts, then in South Dakota, we could still complete a petition by getting signatures from three counties—Minnehaha, Pennington, and Brown, which include seventeen counties, more than two-fifths of our 35 legislative districts.)
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John Dale of Spearfish, sponsor of an initiative to legalize marijuana, said he sees an “attack on South Dakota culture” and urged the panel not to “throw my good idea out with the bathwater.” He said that he’d be happy to receive a bunch of out-of-state money for his initiative, then recited his marijuana agenda.
Getting back on topic, Dale responded cautiously to Bolin’s call for geographical quotas. Dale said he doesn’t want South Dakota’s big population centers controlling life for the whole state, but the rules he has heard so far seem designed not allow participation but create de facto veto power and disproportionate value of rural votes over city votes.
Dale said engaging and educating voters is a better way to beat bad measures than raising barriers to citizen participation. Dale said South Dakota needs a “non-Facebook, non-Internet-ghetto means” of discussing ballot measures and offered his tech skills to help state set up non-Facebook system.
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Jim Ackerman of Pierre said he has circulated I&R petitions since 1984, and maybe earlier. He said he came to Wednesday’s hearing in part because of IM22, which he granted was complicated but represented an “honest” sentiment of the electorate, and the people’s attempt to guide the political process is “always legitimate.” Ackerman said IM22 was not an assault on the Legislature specifically but a culmination of voter frustration at years of attempts at public input being ignored by state government.
Ackerman said he wants signature counts to remain where they are—5% of voters for laws, 10% for constitutional amendments. Ackerman said there may be too much out-of-state influence in I&R campaigns, but he noted that the most vocal complainers of that influence have said nothing about the Koch Brothers’ hefty investment in fighting IM22. Ackerman said he could live with efforts to ban out-of-state money (but remember, Jim: the courts won’t!) if we also capped in-state groups’ spending at $100K per side on each ballot question.
Apparently piqued by any impugning of the Legislature, Senator Bolin queried Ackerman about what he meant by his statement about the Legislature ignoring ideas. Ackerman said he meant state government in general. Bolin replied that he doesn’t ignore people. He listens to people who come to issues, but that doesn’t mean he’ll agree with them. He said it’s not accurate to say the Legislature ignores citizens. he then explained his interpretation of his personal Legislative power:
One of the reasons I ran for the Legislature is I didn’t want to have to call anybody up and ask them to please support my idea any longer…. Ultimately by running and winning, I will assume the responsibility of making those decisions that hopefully represent my district in the best possible way [Senator Jim Bolin, statement, Initiative and Referendum Task Force, 2017.06.21, timestamp 01:02:03].
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Jay Davis, attorney from Rapid City, offered a list of the 55 initiatives and referenda on which South Dakotans have voted since 2000. He said only two of those measures—the 2006 JAIL for Judges amendment from California interlopers and the 2016 Amendment U fake payday loan rate cap from out-of-state payday lenders—were “truly malicious” measures that shouldn’t have made the ballot. South Dakotans voted both measures down by unusually large margins. Davis distinguished those malicious measures from other measures like IM22, which, regardless of where their big donors came from, arose from legitimate grassroots concerns and warranted South Dakota voters’ attention.
“The voters know what they are doing,” said Davis, as demonstrated by their ability to distinguish the two competing payday loan measures on the 2016 ballot and by their consistent votes on measures like abortion, medical marijuana, and the five-cent-per-mile reimbursement for legislators that have appeared on our ballots in different years.
Davis said there is not a crisis justifying major changes to I&R. He says minor tinkering is o.k., like more actively publishing campaign finance information and producing a better voter guide.
Davis rebuffed Bolin’s geographical quota. Davis said seeking signatures from residents of as many counties as possible is smart politics for ballot question sponsors: counting on Sioux Falls and Rapid City alone for support at the polls is a losing strategy. But petitioners already get many signatures from residents of many counties visiting Sioux Falls and Rapid City. Demanding an arbitrary percentage of signatures from an arbitrary number of counties introduces too many technicalities into the process. Such quotas would also severely referendum petitioners, who have only 90 days to collect their signatures.
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Next I offered my comments, which I have summarized in a separate post. Chair Wanless then called a potty break (no, really, after we reconvened, she told the next speaker he bladder thanked him for waiting).
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Curt Pochardt of Rapid City said South Dakota was the first to implement initiative and referendum; he hopes we’re not the first to go back on it.
Pochardt said the changes adopted this Session need a chance to work for at least one election cycle before we tinker any further. He said he respects Senator Bolin’s effort to protect the state constitution but he wishes the Legislature felt that way about all provisions in the constitution, like our commitment to education. He called on the Legislature to live up the state motto, “Under God the People Rule” and not place itself above the people.
Pochardt agreed with previous speakers that putting measures on the ballot is hard. He said he and fellow circulators work hard to explain to people what they are signing and to uphold their responsibilities faithfully because we want valid signatures. Pochardt asked the panel, “Don’t make it any harder.”
Pochardt said he also works at Rapid City polling places, and he doesn’t see much of the “voter fatigue” that the panel has discussed. Last year at the polls, he saw some voters take longer than statutory ten minutes allowed. Many brought in the Secretary of State’s voting guide, and many had clearly studied. The voters “took their job seriously.”
The process is not broken, said Pochardt. He said it was “reckless on the part of the Legislature to so quickly disregard the decision made by the voters” on IM22. He asked that in the future the Legislature “try to be more respectful of the people that voted by a majority to enact… IM22”
Senator Ernie Otten (R/6-Tea) roused himself from silence to challenge Pochardt’s use of the word “reckless” to describe his Legislature. Pochardt said his use of that word itself may have been reckless [no, Curt! Stick by your well-chosen vocabulary! reckless—without reck, i.e., without care, concern, or regard… in this case for the voters], but repealing IM22 before the courts could fully process the legal challenge against it was not a good decision. Pochardt said voters passed IM22 in response to the corruption and death they witnessed in the EB-5 and GEAR UP scandals, but “the Legislature decided to substitute its judgment for that of the people.”
Senator Bolin asked Pochardt if he would be opposed to what Bolin called the “cosmetic” change of changing LRC review of proposed initiatives and referenda from 15 days to 15 working days? Pochardt recognized that change as “de minimis” and “probably… necessary.” [I can live with it, too, but only if every extra day LRC gets is taken off the number of days the Attorney General gets.]
Discussion of petition challenges and the new 95%-confidence sampling procedure induced Senator Nesiba, who teachers economics at Augustana, to note researchers “run the regression 25 times.” He asked Secretary of State Shantel Krebs, a non-voting member of the task force—how many times her office will run random samples of each petition. Secretary Krebs said once.
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Mark Lee, speaking for the Sioux Falls Chamber of Commerce, said his group does not subscribe to “if it ain’t broke, don’t fix it.” Sometimes we need “preventive maintenance.” The Chamber says stable laws and constitution are important.
The Sioux Falls Chamber does not advocate elimination of direct access to the ballot and has less concern about initiated laws. “I do not consider it easy to get something on the ballot,” but Lee said it is relatively easier in South Dakota than in other states, some of which don’t even allow I&R.
Lee expressed sympathy for Senator Bolin’s geographical quotas. Minnehaha and Pennington counties can drive the political agenda, said Lee, but he’s not sure that’s good public policy.
Lee said that many conversations with Bolin have led him to agree that the requirements for amending the Constitution need some review. What if it took a 50%+1 vote to amend the federal constitution, Lee asked. Changing our constitution is supposed to be difficult; toward that end, said Lee, we need a higher vote total to pass constitutional amendments similar to Bolin’s 2017 SJR 2.
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Doug Kronaizl of Vermillion, activist for Represent South Dakota, and supporter of an upcoming initiated amendment to write much of IM22 into the constitution, said initiative and referendum are citizens’ recourse when the Legislature doesn’t do what we want. He said that increasing signature requirements, reducing petition circulation time, imposing geographic quotas, and lessening public information all run counter to the process.
Kronaizl said geographical quotas are one more logistical hurdle for grassroots organizations. For example, the previously mentioned HB 1153 would have required putting the name of the county of all signers at top of each petition sheet. Kronaizl said that county labeling might make it easier for the Secretary of State to check petitions, but circulators would have to have 66 sheets available for any one visitor, which creates hassle and cost, especially for volunteers printing their own sheets.
Kronaizl said no ballot question committee is opposed to folks from rural towns getting involved. In fact, he encourages interested rural folks to work their own towns rather than inviting petition sponsors to come circulate, since, Kronaizl has found, out-of-towners are often met with an air of “distance.”
Kronaizl noted that a 2006 Florida measure that raised the vote threshold for constitutional amendments to 60% itself received only 57% of the vote. Kronaizl suggested that any such attempt to raise that bar in South Dakota should have to meet its own standard.
Kronaizl also opposes the Minnesota rule that counts non-votes on constitutional amendments as No votes. He says we have no business assuming the intent of voters who don’t show up.
Senator Bolin noted that in 1978, 53% of South Dakota voters said the Legislature must get a 2/3 vote to raise taxes. He asked Kronaizl if that was an illegitimate vote. Kronaizl evaded the question, saying we can learn from the past.
Mortenson grilled his “old friend… at least by our standards” (the old hands in the room chuckled at 20-something Mortenson’s use of the word “old) about why Represent South Dakota presented four drafts of its amendment to LRC and the Attorney General. Mortenson said Represent South Dakota was using state staff time to do work it should have done on its own, before submission. Kronaizl replied the differences in the drafts were relatively minor and did not thus require four times the work. Mortenson maintained that submitting four drafts abuses the process, that figuring out such details should be incumbent on initiators, and the task force should look at ways to protect LRC and AG staff.
Senator Nesiba challenged Mortenson on this point, noting that months ago, legislators angling to repeal IM22 were complaining in the Capitol about initiators not being careful enough. Do legislators now want to complain about an initiator being careful by submitting multiple drafts for review? Senator Nesiba suggested that perhaps the Legislature should make the LRC more available to public.
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Roxanne Weber of Pierre said Senator Bolin will be thrilled about her one-page petition to amend the constitution. (“How do you know?” Senator Bolin interrrupted.) Saying, “We are the government,” Weber said she got great service from the LRC. She said her group submitted three drafts to LRC because her group really didn’t know whether various provisions and wording would be acceptable or “way off.” She said submitting multiple drafts allowed her group to get feedback sooner on all three and decide which draft to proceed with.
Weber challenged Bolin’s geographical quota, saying that trying to get to Bolin’s district to collect signatures on a shoestring volunteer budget would be a difficult feat. For participation, said Weber, it’s more important that everyone gets to vote.
Weber asserted that people she’s talked to throughout the state are less upset with the repeal of IM22 than they are with the Legislature’s use of the emergency clause to shut of the possibility of referring that repeal to a public vote.
Panelist Viken question Weber about the use of the terms “qualified voters” and “qualified electors” side by side in Section 3 of Weber’s amendment. “I think you have a conflict there,” said Viken. Weber said the two terms are essentially the same but result from using existing language in the constitution.
* * *
Karen Hall, member of the Pennington County Democrats from Rapid City who said she used to work as an engineer at a Koch Brothers refinery in Minnesota, opposes limiting the number of measures on the ballot. She said initiative and referendum are “a good check on the Legislature by the voters,” allowing us to undo bad things the Legislature does or do things the Legislature won’t. Hall cited payday loans as a good example: after the Legislature rejected efforts to regulate predatory lending in multiple sessions, the people finally took action with teh 36% rate cap.
Hall said South Dakota voters take their constitutional responsibility to vote very seriously. In response to a complaint about voter intimidation at a north Rapid City polling station last year, Hall went to the polls as an observer. She was really impressed with voters, working class folks in “jeans and workboots,” bringing their kids along, taking the time to do the work of democracy. Hall said she saw three kinds of voters:
Some voters had cheat sheets. They’d done their homework ahead of time. They worked through every line, and Hall saw them turn the ballots over, indicating they took time to address the ballot issues along with the candidates.
Some voters sat and read every word. Some who were at the polls at the legal 7 p.m. closing time stayed until 7:25 to finish. Hall said the Legislature should consider lengthening that statutory limit of
Only a very small number of voters—”less than a handful” appeared to vote only for candidates and skip the ballot measures. Hall observed those few voters who did not turn their ballots over and work on the back.
People may not love to have a long ballot, said Hall, but the voters of South Dakota will do the work. She implored the task force, don’t take away voter rights.
Senator Bolin asked Hall if it bothered her when she lived in Minnesota that she didn’t have input through initiative and referendum. Hall said back then she was not as involved in politics, since working for the Kochs meany working 80 hours a week. Bolin asked Hall if she had moved to Rapid City because of initiative and referendum. Hall said she returned to Rapid City because she is a proud graduate of the School of Mines.
* * * John Schmidt of Woonsocket spoke, as he does to everyone in every venue, about Arctic methane release. At the end of his testimony, which Chair Wanless hastened, Schmidt expressed surprise that the members of the Initiative and Referendum Task Force had no questions about Arctic methane release.
* * *
David Owen, speaking for the South Dakota Chamber of Commerce and Industry, said his people are “more skeptical” about I&R and find it “annoying.”
“We do have respect for the process” and South Dakota’s historical role in I&R, said Owen. The Chamber firmly believes that South Dakota voters take this seriously, and “We would dink with this at our peril.” Owen acknowledged that we don’t have a lot of voter fall-off and even see some higher votes for I&R than some constitutional offices.
However, the Chamber is skeptical of the notion that tinkering with I&R is somehow a violation of the sacred will of the voters. Signatures on a petition don’t always represent voters’ will; half of those signers, said Owen, “just wanted to get their mail” or were willing to vote on something they disagree with.
The Chamber’s irritation is that they know how elections run: “You’re not seeking to inform the public; you’re seeking to incite the people to vote your way.” He said we don’t let any crowd take away our rights by popular vote. Owen invoked lynching as an example, saying that’s 23 votes Yes on the ground, one vote No in the tree.
For the apparent antipathy toward I&R, Owen put only two relatively benign proposals on the record. He said the Attorney General should have a public comment period on ballot measures (problematic in my mind only if it creates further delay in sponsors’ ability to hit the streets with petitions). Owen also said we “dearly need” a PAC-like structure that would allow a group to address multiple ballot questions and maintain continuity over time to tackle ballot measures from election to election. Such long-term ballot question committees used to be possible; Owen noted that we only recently outlawed ongoing ballot question committees (see 2016 HB 1036).
Responding to a question from fellow lobbyist Mortenson, Owen personally warned the Legislature that any changes to I&R must be “defendable as the changes themselves. Where we will get in trouble is where we make changes that are really designed to inhibit this process without just admitting we want to make it harder.”
Owen said the constitution deserves a higher threshold for amendments. He said he is “personally skeptical that 60% is too high.”
* * *
Shawn Lyons, speaking for the 4,000 members of the South Dakota Retailers Association, noted that his group was founded around the same time as initiative and referendum, in 1897, to advocate for small merchants. Lyons said the Retailers aren’t “special interests”; they are the businesses that collect the sales tax that funds this very process.
Lyons seconded Lee’s call for “preventative maintenance.” The Retailers “do not oppose the initiative and referendum process,” but they note that I&R lack the opportunity for review and amendment that normal legislation gets as it passes through committees and the House and Senate. Lyons said voters are frustrated with that lack of input and amendment in ballot questions and said “legislative review” of initiatives “should not be out of the question. The Retailers support a public comment period on initiatives. Lyons agreed that democracy is messy but said that when we amend law and even more importantly our constitution, we should be looking at the far-reaching impacts of those changes.
Lyons expressed support for geographical quotas, saying small communities and businesses should also “have a voice.” He said he’d like to see more petition gatherers in his neck of the woods in “Metro Reva.”
* * *
Rebecca Terk, representing Dakota Rural Action, spoke last. She said DRA, as an organization representing primarily rural South Dakotans, does not think that not having petitioners come to town denies rural folks a voice in I&R. Everyone has the opportunity to weigh in at the ballot box if an initiative or referendum receives enough support to get there.
Terk sees no need to limit the number of measures on the ballot. Then on our ballot last year were not historically unusual, and multiple measures increase voter engagement and turnout. Terk said initiative and referendum are the people’s process. The Legislature should “tread very carefully” in changing the rules for I&R. “The greatest task of this committee,” said Terk, “is to preserve… and in some ways to regain the public trust when it comes to the protection of initiative and referendum.”
* * *
Dr. Emily Wanless gets kudos so far for fairly chairing yesterday’s meeting. Public testimony was scheduled to run from 9:10 to 11:00, with an hour of committee discussion to follow; Dr. Wanless allowed public testimony to run the full three hours and was generally liberal with time limits as long as speakers were on topic. Her few statements from the chair showed no agenda like Bolin’s and no brittle institutional defensiveness like Bolin’s and Otten’s. Dr. Wanless appeared interested only adding a fact or two and listening to the public.
My local paper edits Bob Mercer’s coverage to move my testimony up a few paragraphs but adds the odd identifier, “who ran unsuccessfully for Legislature as Democrat.” For a story on initiative and referendum, AAN could have more relevantly identified me with, “who sponsored two successful referendum petitions in the 2016 election cycle.” But that’s a minor editorial choice; let’s focus on what I said about our initiative and referendum process.
We impose some justifiable hurdles between citizens and the ballot. We don’t want any old wild idea ending up on the ballot, not without some nominal demonstration of public support. But we say the same about candidates: rather than letting individuals place unilaterally place themselves on the ballot, we expect them to solicit the support of some neighbors and pass the basic civics quiz of following petition rules. These hurdles are a reasonable response to the reasonable notion that some iconoclastic proposals and candidates could be so harmful, so “malicious” (the word Jay Davis used in testimony preceding mine) that they don’t even deserve a vote, let alone popular approval.
But if ballot measures and candidates can both do harm, which can do more? To put it concretely, suppose I want to change South Dakota. How do I have a greater impact (or, from my opponents’ perspective, do more damage): by creating or changing one law with a ballot measure, or by becoming Governor?
“Governor Cory Heidelberger,” I proposed to the committee. The laughter in the room suggested my point was taken. So does the focus of the political establishment: political parties and PACs work much harder to win the Governor’s office and other elected positions than they do to win ballot measures.
So if we erect barriers to the ballot to prevent bad things from going to a vote, we would expect to see higher barriers to higher risks. Yet in South Dakota, the barriers to bad ballot measures are far higher than the barriers to bad candidates. If I want to run for Governor, I need to collect about 700 signatures. I could do that on a busy weekend with some volunteers in a weekend in Aberdeen.
If I want to put a new law on the ballot, I need to collect about 14,000 signatures. If I want to put a constitutional amendment to a vote, I need about 28,000 signatures. Just by signature count, it is 20 to 40 times harder to put a bad idea on the ballot than to put a bad candidate on the ballot.
But ballot measures face even more barriers than inordinately large signature counts. If I run for Governor, I can take out my petition on January 1 and start collecting signatures immediately. If I decide to float a ballot measure, I have to wait up to 75 days to start circulating my petition while it undergoes review by two state government offices. The Legislative Research Council gets 15 days to analyze and provide feedback on my ballot measure. Then the Attorney General gets 60 days to study and compose a a public explanation of my measure. Only after those two reviews can I take my proposal to the people.
Even then, when I circulate my petition, I have to give every potential signer a copy of the Attorney General’s explanation. Imagine if we made a similar demand of candidates: “Hi, I’m Democrat Cory Heidelberger, and I’m running for Governor, but before you sign my petition, here’s what Republican Attorney General Marty Jackley, who also happens to be running for Governor, thinks of my qualifications and political agenda.”
My contention is not that we should subject candidates to background checks by an elected rival or that we should increase the number of signatures candidates have to get. My contention is that, relative to the reasonable requirements placed on candidates to make the ballot, we have already imposed more than enough burdens on ballot measure sponsors to win access to the ballot. The Legislature should leave initiative and referendum alone and let the voters evaluate ballot measures for themselves.
Related Comedy: Following my testimony, Mark Lee, my old Lake Herman neighbor testifying on behalf of the Sioux Falls Chamber of Commerce, urged the committee “based on very recent testimony and a newly developed deep and abiding fear that I would encourage you to raise the number of signatures required to run for Governor… significantly.” We all laughed.
The tables comparing previous campaign finance law to confirms my analysis during the Legislative Session that, far from honoring the will of the voters and putting more restrictions on big money politics, self-serving legislators essentially restored the lax status quo with some tweaks to put more money in their campaign coffers. Consider these tables comparing the status quo, the campaign finance limits that voters approved but Republicans repealed in Initiated Measure 22, and the rules included in SB 54, which kick in on July 1:
Every lower campaign finance limit that voters approved in IM 22 is gone. Almost every limit previous to IM22 is restored by SB 54. Businesses and unions (referred to as “entities”) can now donate directly to candidates and parties, in addition to the money they can funnel into campaigns via PACs. And for all the Republican concerns about too much money being spent on ballot measures, they make sure to lift the previous ban on PAC contributions to ballot question committees.
In preparing these charts, the Secretary of State did make some errors. She characterizes the rules on contributions from ballot question committees as “unclear”. This is incorrect:
IM 22 Section 5 said, “No candidate for statewide office may accept a contribution from a ballot question committee.”
IM 22 Section 6 said, “No candidate for legislative or county office may accept a contribution from a ballot question committee.”
IM 22 Section 7 maintained the prohibition on contributions to PACs from ballot question committees but phrased it more clearly: “A political action committee may not accept contributions from a ballot question committee.”
IM 22 Section 8 similarly clarified the prohibition on ballot question committees’ contributions to parties: “A political party may not accept contributions from a ballot question committee.”
The past performance presented in these summaries indicates we should not expect this interim committee to produce any major reforms limiting big money in South Dakota politics.
However, non-legislator chair Dr. Emily Wanless, poli-sci prof at Augustana has made one small atonement for that exclusion. She has directed the Legislative Research Council to invite “individuals who have participated in the process in one of the recent election cycles to be among the members of the public who provide input and feedback to the task force members during the public testimony period.” Hence, the letter above.
I sponsored two referenda in the 2016 cycle, the successful reversals of the Legislature’s devious Incumbent Protection Plan (Referred Law 19) and David Novstrup’s youth minimum wage (Referred Law 20). I thank Dr. Wanless for her invitation to address the task force and answer their questions about direct democracy.
Furlong failed to heed calls for atonement during the petition process as surely as she refused interviews with the press. Furlong could seek some atonement now by speaking to the Legislature about her funders’ real abuses of the ballot question process and helping legislators respond with reforms directed specifically at those abuses.
The last invitation to a megabuck (well, technically, kilobuck) fundraiser for Marty Jackley‘s gubernatorial campaign suggests one area of support where Jackley may, surprisingly, get the drop on Kristi Noem: the Legislature.
Jackley got about 120 people to sign on as hosts for his June 22 soirée on the Alex Johnson roof in Rapid City (raising the real possibility that there could be more hosts than guests). Among those hosts are several current and former legislators:
I don’t have an invite to one of Kristi’s fundraisers handy (what?!), but Noem’s 2016 year-end report shows former legislator Kim Vanneman giving her $500. (I could be missing some legislators on both forms; I invite your review and correction!)
Jackley’s never served in the Legislature. Kristi Noem did, from 2007 through 2010. But the data above suggest that Republican legislators may be less inclined to choose one of their own for the Governor’s office in the 2018 primary.
The nonmeandered waters legislation passed in yesterday’s special session of the Legislature is so bad—
—how bad is it?—
—it’s so bad that the biggest argument the House and Senate had about it was whether it should die four years from now or just one.
The Legislature took ten hours to deliver for Governor Daugaard’s signature the “Open Waters Compromise,” which is still is no compromise and which authorizes the unappealable closure by private parties of far more public water than it opens. In those ten hours, there was less substantive discussion of the core of the conflict—private property rights versus public ownership and use of waters that have flooded farmland—than there was repetition of how impressed legislators were with themselves for working so hard and so fast to put this bill forward (after 25 years of legislative inaction). One of the main arguments made for passing this bill (House Bill 1001) was that failing to do so would disrespect the work of the interim committee, which, sponsors frequently reminded us, made six field trips and took ten hours of testimony from 70 witnesses and on top of that had to take lots of phone calls and e-mails, some of which were mean.
These public servants who regularly humble-brag about their part-time status as citizen legislators sure marvel at their occasional ability to do their job. Good grief, legislators—get over yourselves.
I might be impressed if the Legislature had passed a consistent bill worth keeping around. But the issue that roused the most debate was over the sunset clause. Everyone acknowledged HB 1001 was imperfect and would require subsequent review and tweaking. To force such review, the original version of the bill would have expired July 1, 2021. Apparently wishing to force that review sooner rather than later, Rep. Nancy York (R-5/Watertown) moved to amend that date to July 1, 2018. Rep. York failed to sell that idea to the House, but Senator Jeff Partridge (R-34/Rapid City) moved a similar amendment of the sunset date to June 30, 2018 and won 29–4 approval. Partridge’s rationale was that the legislators who have grappled with this issue should deal with it again next year rather than kicking it down the road to a bunch of noobs in 2021.
Of course, Partridge’s one-year sunset moots the study provision of HB 1001. Section 20 directs Game Fish and Parks to report to the Legislature on closures of nonmeandered waters, negotiations for access, and other results of the law in 2019. But as amended, that directive and the rest of the law goes poof eleven months before GF&P’s report is due. So for all their self-congratulated work, in the three-plus hours it took them to get from Senate approval of its amendments through conference committee to House concurrence, nobody managed to amend Section 20 to direct Game Fish & Parks to provide the information the Legislature will need to assess the effectiveness of its action on nonmeandered waters before it revisits the issue in the 2018 Session.
But here’s the bright side: by passing a law that dies a year from now, legislators have guaranteed that nonmeandered waters will dominate the 2018 Session the same way it has dominated South Dakota political discourse over the past couple months. Farmers and fishers will crowd the Capitol next winter, elbowing aside the Family Heritage Alliance and other culture-war lobbyists and demanding attention for property rights and outdoor sports.
Nonmeandered waters make normal partisan conflicts disappear. Yesterday’s debate included almost no mention of party or ideology. Senate Stace Nelson (R-19/Fulton) tried to force the issue into something vaguely resembling a partisan template, fulminating about the stench of the “hard Left” campaign to subject God-given property rights to negotiation and compromise, but I could hear every other eye in the Senate (except Lance Russell’s) rolling through the SDPB audio feed. If any “hard Left” exists in South Dakota, it collectively cares not one fin about nonmeandered waters. Nonmeandered waters is a uniquely hot and complicated South Dakota issue. The “hard Right” and GOP political hacks can’t fit nonmeandered waters into their templates, either: look how little SDGOP spin blogger Pat Powers and wingnut Gordon Howie have contributed to the discussion of nonmeandered waters. Legislators and concerned citizens can’t get their talking points from Sean Hannity, Ivanka Trump, Rachel Maddow, or Bernie Sanders. South Dakotans have to figure this issue for themselves.
Every hour spent debating nonmeandered waters in the 2018 Session (and possibly the 2018 election) is an hour we don’t spend debating transgender bathroom access. And you know, we may be a lot better off debating where we can fish than where we can piss.
The Legislature worked really hard this spring to come up with a solution that won’t last. But with that little sunset clause, they may have shifted South Dakota political discourse in 2018 for the better.