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  • Citizens, Lobbyists Speak to Initiative and Referendum Task Force

    Citizens awaiting public testimony before Initiative and Referendum Task Force, State Capitol, Pierre, SD, 2017.06.21.
    Citizens awaiting public testimony before Initiative and Referendum Task Force, State Capitol, Pierre, SD, 2017.06.21.

    What can we learn from yesterday’s public testimony before the Legislature’s Initiative and Referendum Task Force?

    1. Most interested parties think initiative and referendum is good the way it is.
    2. The parties who want to rein in I&R are mainly South Dakota’s business interests and Republican legislators.
    3. Dr. Emily Wanless is a good chairperson.
    4. Senator Jim Bolin is determined to keep regular citizens from intruding on his arrogant power.

    To illustrate, permit me to summarize the testimony offered by citizens and questions and comments from task force members yesterday in Pierre. The full three hours of audio is available via SDPB.

    *     *     *

    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.

    *     *     *

    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.”

    *     *     *

    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.

    Rob Timm and task force member Will Mortenson discuss the tension between big-money advertising and the need to inform the voters about ballot measures.
    Rob Timm and task force member Will Mortenson discuss the tension between big-money advertising and the need to inform the voters about ballot measures.

    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.

    *     *     *

    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.)

    *     *     *

    John Dale, marijuana deregulation petition sponsor
    John Dale, marijuana deregulation petition sponsor

    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.

    *     *     *

    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].

    *     *     *

    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.

    *     *     *

    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).

    *     *     *

    Curt Pochardt fields a question from the task force.
    Curt Pochardt fields a question from the task force.

    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”

    Pochardt expressed concern about the new 95% confidence random sampling method for statewide petitions. He asked that petitioners whose petitions are rejected by one such sampling be given an opportunity to administratively appeal for a second sample to check for error.

    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.

    *     *     *

    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.

    *     *     *

    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 rejected proposed restrictions on the number of measures allowed on the ballot. He said that limiting citizens to five ballot measures could mean that initiative sponsors could suck up all five available ballot slots in 2017, thus making it impossible to refer any laws from the 2018 Session.

    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.

    *     *     *

    Voter Initiative Protection Amendment sponsor Roxanne Weber addresses the task force.
    Voter Initiative Protection Amendment sponsor Roxanne Weber addresses the task force.

    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:

    1. 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.
    2. 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
    3. 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 and task force member Will Mortenson discuss ballot measures.
    David Owen and task force member Will Mortenson discuss the peril of dinking with ballot measures.

    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.



  • Don’t Make Me Run for Governor: Ballot Measures Hard Enough!

    I joined sixteen other South Dakotans who testified to the Legislature’s Initiative and Referendum Task Force yesterday. You can hear my comments at 74:00 in the SDPB audio.

    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.

    I focused on disabusing the task force of the assumption on which Republican legislators predicated it, the claim that it is too easy to put initiatives and referenda on the ballot. Anyone who thinks ballot measures are easy either hasn’t circulated a ballot measure petition or has a billion dollars of mad money in his pocket.

    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.



  • Summary of New Campaign Finance Rules: Same as Before, Plus More Money from Businesses

    The Government Accountability Task Force, which was created by Senate Bill 171 to study campaign finance and held its first meeting yesterday, shares the Secretary of State’s great service of summarizing South Dakota’s basic campaign finance requirements in one handy-dandy three-page guide.

    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.



  • Task Force Invites Ballot Question Sponsors to Testify—See You There, Lisa Furlong?

    Hey! I may finally get to meet Lisa Furlong on Wednesday!

    Legislative Research Council, invitation recent ballot question sponsor, 2017.06.13.
    Legislative Research Council, invitation recent ballot question sponsor, 2017.06.13.

    The Legislature’s Initiative and Referendum Task Force meets this week Tuesday and Wednesday. While the panel, by the design of House Bill 1141 and contrary to the claim of its sponsor, Rep. David Lust (R-34/Rapid City), the I&R task force remains stacked against supporters of ballot measures by including no sponsors of recent initiatives or referenda.

    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.

    Lisa Furlong submits fake 18% rate cap petition, Pierre, South Dakota, 2015.11.05. Photo by Secretary of State's Office.
    Lisa Furlong submits fake 18% rate cap petition, Pierre, South Dakota, 2015.11.05. Photo by Secretary of State’s Office.

    I also look forward to meeting Lisa Furlong, the sponsor of the failed Amendment U that she sponsored on behalf of Rod Aycox and the payday lending industry. Furlong proved remarkably reclusive for a public political figure in the 2016 election cycle, refusing to make any public appearances to advocate her fake 18% rate cap. Wednesday morning’s public testimony period would be the perfect opportunity for Furlong to break her silence and explain exactly how corporate interests exploited her to tell lies, violate petition and notary laws, and attempted to hijack the state constitution.

    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.



  • Jackley More Popular Among GOP Legislators than Former Legislator Noem?

    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:

    • Mike Buckingham
    • Mike Diedrich
    • Tim Goodwin
    • Rex Hagg
    • David Lust
    • Mac McCracken
    • Jeff Partridge
    • Bruce Rampelberg
    • Alan Solano

    I check the campaign finance reports and find some present and past legislators tossing cash into Jackley’s kitty there, too:

    • Tom Brunner ($200)
    • Gary Cammack ($250)
    • R. Blake Curd ($1,000)
    • Bob Ewing ($200)
    • Dave Knudson ($1,000)
    • David Lust ($1,000)
    • Liz May ($200)
    • Mac McCracken ($500)
    • John Mills ($200)
    • Scott Munsterman ($1,000)
    • Betty Olson ($200)
    • Tona Rozum ($250)
    • Mike Vehle ($250)

    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.



  • Legislature Passes Stopgap Private Lakes Bill, Keeps Nonmeandered Waters Issue Alive for 2018

    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.



  • Lynne DiSanto Misses Special Session Vote, Updates Facebook Photo

    I heard during the votes this afternoon that Senators Jenna Haggar Netherton and Deb Peters and Representatives Craig Tieszen and Lynne DiSanto are excused from today’s special session on nonmeandered waters.

    Funny—in her Facebook profile photo updated sometime before 4 p.m. Mountain today, Rep. DiSanto doesn’t look sick:

    Lynne DiSanto, Facebook profile photo, updated 2017.06.12.
    Lynne DiSanto, Facebook profile photo, updated 2017.06.12.

    Maybe someone should meander over to Rep. DiSanto’s house and see if she remembers she had work today.

    By the way, in DiSanto’s absence, the House and Senate have both approved versions of HB 1001, but the Senate amended the House’s sunset date from 2021 to 2018, and sponsor Rep. Lee Qualm wanted that sent to conference committee. As of 6 p.m. Central, that committee is arm-wrestling over which Legislature gets the hot potato. Rep. DiSanto could still make the conference committee vote, if she gets the lead out.



  • Nonmeandered Draft Bill Avoids Tax Reform, Doesn’t Stop Commercialization of Public Water

    The South Dakota Legislature meets in special session today in Pierre to deal with the issue of nonmeandered waters, the lakes over private lands that put fishers and hunters at odds with the flooded landowners. The Legislature is poised to take minimal action favoring property owners and weakening public ownership of water while passing most of the buck to Game Fish and Parks.

    The Legislature is poised to ignore an issue that aggrieves every flooded landowner more keenly and regularly than occasional boaters over their former cornfields: the taxes those landowners pay on land they can’t use for anything else but recreation. My local paper says tax reform should be part of today’s debate:

    These are people who are paying for land that has been flooded for years, land that they are never getting back. That their flooded land is being valued as usable land is unfair.

    We don’t know the exact solution — reassessments by the counties, or blanket property tax relief — but this must be addressed [editorial, Aberdeen American News, 2017.06.11].

    Rapid City lawyer David Ganje says the draft legislation lacks numerous other important features, like the clear declaration of whether “recreational use if an acceptable beneficial use of the public waters” that the South Dakota Supreme Court said the Legislature needs to make or explicitly reject. Ganje complains that the draft (I Freudian-slip-typed “drat”) legislation authorizes the state to “buy” public waters, gives landowners no notice or due process relating to improvements on adjoining nonmeandered waters, and doesn’t take on the challenge of establishing clear setbacks or quiet times. Ganje also says the draft creates two confusing and discriminating sets of laws for nonmeandered waters:

    The bill legalizes discrimination among the lakes. The plain meaning of words used in the bill create two sets of laws for nonmeandered waters. The bill does this by using the word ‘notwithstanding.’ The late Justice Scalia in a book on statutory interpretations wrote that to use the word ‘notwithstanding’ performs a function opposite that of ‘subject to.’ The bill language ‘Notwithstanding the provisions of this Act’ indicates the provisions which follow the clause are not subject to the other provisions of the Act. The designated lakes listed in the bill, and any landowners owning land underneath the lakes, are not subject to the rules, protections and provisions of the rest of the bill. The bill creates two sets of laws. One for the designated lakes identified in the bill and another set for all other nonmeandered lakes. To explain the correctness of this reading, one need only look at the section of the bill following. Under that section, a landowner on a designated lake must first seek permission from the state before he might put up signs or markers over his property. Other nonmeandered landowners can put up signs. The rights, duties and liabilities of the landowners under the designated lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes [David Ganje, “Legislature’s New Nonmeandered Waters Bill Still Needs Work,” Farm Forum, 2017.06.06].

    Chris Hesla of the South Dakota Wildlife Federation rejects the assertion of the Governor’s office that the draft legislation represents a compromise among all parties:

    The federation understands the delicate balance that must be achieved between the public’s right to use public waters and concerns about landowner rights. With that consideration, we attempted to work under the language of this bill, which was drafted in great part by Duerre’s attorneys with little or no public input, by offering a new bill and amendments. The federation made significant concessions, yet included verbiage to protect the rights of the general public. The bill and amendments were offered to and rejected by the summer study group. Assuming the special session will also not address our concerns, the South Dakota Wildlife Federation formally opposes the proposed bill as written [Chris Hesla, “Wildlife Advocate: Nonmeandered Bill Must Not Pass,” Aberdeen American News, 2017.06.12].

    Hesla also finds fault with Senator Brock Greenfield’s assertion that his amendment to the draft legislation clarifies that landowners who close access to the public water on their land cannot commercialize that water. Let’s review the Greenfield amendment in Section 6:

    No owner of private property may receive financial compensation in exchange for granting permission to fish on a portion of a nonmeandered lake overlying the owner’s private property that is marked pursuant to section 5 of this Act. A violation of this section is a Class 1 misdemeanor [Draft nonmeandered waters bill, Section 6, posted 2017.06.07].

    Landowners can’t charge fishers for plying the waters they close. However, says Hesla, the draft legislation leaves open numerous other routes to making a buck:

    Although this bill prohibits landowners from receiving financial compensation in exchange for granting permission to fish closed public waters, it does not prevent other types of compensation; does not apply the same restrictions to lessees; does not prevent an owner from receiving financial compensation in exchange for granting other access including hunting; and does not prevent individuals from forming a legal entity that purchases submerged property and then allows exclusive access to members/shareholders [Hesla, 2017.06.12].

    Meanwhile, a Claremont landowner Roger Schuller catches that contradiction and blasts the draft legislation as another disaster for landowners:

    It appears that the sportsmen and the state Legislative Task Force agree on one thing in the proposed nonmeandered water bill: The landowner who has suffered a natural disaster and continues to pay the real estate taxes must be punished. If he receives any income from letting people onto his property to fish he will be subject to fine and imprisonment.

    …The landowner, who has suffered the disaster to his business and property, must watch while everyone else can receive income and enjoyment off his property. This list includes, to name a few: sportsmen, guides, lodges, bait shops, restaurants, bars, GFP and state government.

    What’s next, landowners cannot receive income from hunting? [Roger A. Schuller, letter to the editorAberdeen American News, 2017,06.12]

    Schuller’s complaint brings us right back to taxes. The draft legislation under consideration in today’s special session lets landowners say, “If I can’t use my land, no one else can, either!” but it denies them real practical relief from paying taxes on otherwise useless land. Instead of avoiding hard decisions, the Legislature should go back to something like my simple May proposal—full property tax refund on flooded land as compensation for public access to public water for recreation.



  • Governor Touts Power Shift to Landowners as “Compromise”

    I keep hearing this word “compromise” to describe the nonmeandered waters* legislation for which the Governor is convening the Legislature in special session Monday. But the Governor’s own language indicates the proposal to let landowners bar recreational users from their flooded lands is all about knocking recreational users down a peg and easing landowners’ grief. Check out how Governor Daugaard describes the problem prompting his action:

    As the waters of nonmeandered lakes expanded, so did their recreational use, much of which is tied to exceptional fishing in some of the new lakes. As fishing became more commonplace, so did conflicts between sportsmen and landowners. Complaints emerged about boat trailers blocking roadways, littering, noise and many others [Gov. Dennis Daugaard, press release, 2017.06.08 (though curiously labeled April 21)].

    The Governor mentions no problems about recreational users not getting to enjoy their rights. Landowners are squeaking, and the draft legislation coming up Monday in our special session is designed to grease their wheels.

    A compromise generally means all parties are giving something up and meeting in the middle. This legislation has the public giving up water and private landowners giving up gaining new authority while giving up little to nothing.

    *Related Language Note: The award for best headline synonym for this arcane term goes to KJAM Radio, which tagged its Thursday story on the topic, “Governor Calls Special Session About Lakes on Private Land.” Much clearer, only two characters longer in print, and same number of characters if hashtagged! #NonmeaneredWaters vs. #LakesOnPrivateLand—well done, KJAM! But they lose a bonus point for referring to “sportsmen” rather than a more sex-inclusive “fishers and hunters.”



  • Governor Convenes Legislature Monday to Discuss Nonmeandered Waters

    Legislators, assemble!

    Governor Dennis Daugaard has called a special session of the South Dakota Legislature on Monday, June 12 (that’s next week!) to discuss who can fish where:

    Gov. Dennis Daugaard has called a special legislative session to consider legislation relating to public recreational use of non-meandered waters overlying private property.

    After consulting with legislative leaders from both political parties, the Governor is calling the special session for Monday, June 12, 2017, at 10 a.m. CDT, at the State Capitol in Pierre.

    “The interim legislative committee considered hours of testimony and struck a good compromise that balanced the rights of landowners with the ability for sportsmen to use public waters for recreation,” said the Governor. “I hope the Legislature can act quickly to resolve this long-standing issue” [Governor Dennis Daugaard, press release, 2017.06.07].

    The draft legislation that emerged from committee last week mostly follows the paramaters set by the first draft issued in May, which strongly favors private property rights over the public trust doctrine that makes water the property of all South Dakotans. It also would allow the Legislature to pass most of the hard decisions off to the Department of Game, Fish, and Parks.

    Monday’s meeting will be the Legislature’s 25th special session since statehood. Special sessions usually only deal with a handful of bills; however, a mondo-special session in June 1920 heard 132 bills and passed 88, many reforming South Dakota’s education laws.

    Article 4 Section 3 of the South Dakota Constitution says that when convened by the Governor, a Legislature in special session may transact only business encompassed in the purposes the Governor states in his proclamation. Thus, unfortunately, any ambitious legislator wanting to deal with more pressing matters (Medicaid expansion, increasingly dangerous highway speeds, rampant anti-refugee bigotry, unusually high rate of sex offenders, still unaccounted millions of taxpayer dollars lost in public corruption) will have to wait.

    Update 23:21 CDT: Great Warren Green’s Ghost! Tony Venhuizen hits the history books and lists the purposes of all past special sessions!