As Senator Deb Peters explained during Senate debate Tuesday (see SDPB video, timestamp 2:21:00), HB 1184 allows vo-techs to respond more quickly to the demands of business interests. In other words, if business leaders tell the new vo-tech governing board they want fewer business teachers and more welding teachers, the vo-techs don’t have to wait until those gosh-darned collectively bargained contracts run out; they can can teachers and hire the new staff business wants.
Senator Troy Heinert tried to amend HB 1184 to at least let the custodial and maintenance staff unionize. After all, are business leaders really going to contend that they need to be able to demand the immediate breaking of groundskeepers’ contracts to satisfy Main Street’s immediate market demands?
Maybe. Senator Peters simply urged the body to resist the amendment, and they did, and then stripped all vo-tech employees of collective bargaining rights on a 27–8 vote.
Direct Support Employees and Medical Assistants at the South Dakota Developmental Center (SDDC) voted to join the American Federation of State, County, and Municipal Employees, Council 65 (AFSCME Council 65). The vote caps an organizing drive by workers that began over a year ago. The tally in Tuesday night’s vote was 88 votes in favor of unionizing and 3 votes against. At the start of the campaign, former employee Paul Register resigned from his position and brought safety concerns at the facility into the public eye.
“My peers at SDDC led an employee union campaign for over a year,” said Register. “I’m a little awestruck at their determination. They stayed unified to have a voice for better safety measures for SDDC clients and staff.” In 2015, Register attempted to get the safety issues addressed by the State and ran into multiple roadblocks. “The only reason the State took steps to address safety problems was these issues were now in the public’s eye, but not enough has been done.” Register worked for SDDC for nearly a decade before resigning in January 2016 due to safety concerns.
…Next, the AFSCME-represented employees will nominate co-workers to establish their bargaining team to start negotiations. Their goal is to negotiate with SDDC to work towards a bilateral agreement. They would like the initial contract to address safety concerns, hours of work, overtime and other working conditions to ultimately maintain quality staff and improve SDDC services.
While the State Legislature sets the salaries of State Employees, the SDDC workers were determined to organize for improved safety protections for everyone. AFSCME Council 65 Labor Representative for South Dakota, Tim Hoss, commented “the union will also serve as a counter-balance to deal with other shortcomings related to safety. South Dakota is in the minority among U.S. States that that deny OSHA-approved safety plans for public employees” [AFSCME Council 65, press release, 2017.03.09].
Redfield workers recognize that collective bargaining can do them some good. Instead of finding strength in numbers, our vo-tech workers will now have to pray to the Invisible Hand or some other higher power not to nix their jobs.
Novstrup said the only point of the election-year hearing was to “shine the light of sunshine upon the issue by asking good questions.”
Senator Billie Sutton noticed that the pre-circulation hearing had no deadline. I had flagged that omission as an opportunity for the Legislature, which has demonstrated notable antipathy toward the voters’ initiative power, to indefinitely delay petitioning. Senator Sutton moved to amend HB 1130 to require the Senator Novstrup deemed that amendment friendly, and the Senate adopted the Sutton amendment without objection.
Senator Craig Kennedy expressed concern about the use of the term “hearing.” “They’re not hearings at all,” said attorney Kennedy, since the purpose of a hearing is “to enable a body to make a decision.” The HB 1130 hearings “aren’t hearings at all,” said Kennedy, “because there’s no decision-making being done.” HB 1130 would be “spending state money for in essence two media events.”
Senator Troy Heinert then rose to urge defeat of HB 1130 runs counter to the sentiment he’s heard at all of his crackerbarrels: “Don’t mess with the initiative process.” Hmmm… sounds like clever petitioners would find fertile ground for my proposed “Don’t Mess with Us” Amendment!
Speaking from an appropriators’ perspective, Senator Jeff Partridge said the public comment provision would put a costly burden on the Secretary of State’s website and the Executive Board hearings would eat up further unknown funds.
In closing, Senator Novstrup portrayed this bill as “an open government bill” and “a bill of transparency. Arrogantly presuming to know the mind of the voters, Novstrup said, “The voters will not look upon this as an infringement upon their right but with a thank you to the Legislature for providing the opportunity for a complete discussion for the pros and the cons. The alternative to this is a 30-second ad.”
Sorry, Al: this voter saw HB 1130 as a net infringement. You may get all of your information from 30-second ads between your Fox News blurbs, but we already have numerous alternatives, like good local discussion of initiatives and referenda in our local media.
Novstrup’s comments won him just six other votes—Tapio, Rusch, Netherton, Jensen, Greenfield, and Cammack. My thank you goes to the 28 Senators who voted to kill HB 1130.
By the way, the Senate passed the HB 1141 task force at the close of the day on a 28–7 vote. Senator Kennedy expressed suspicion that a task force usually signals an intent to make changes. He said even the summer study is “somewhat insulting” to the will of the voters and led most of his caucus (except for Minority Leader Sutton) in opposing the I&R task force. Senator Sutton cleverly amended the task force bill to remove the seat the original bill saved for the Chamber of Commerce. Unfortunately, there are still only two regular citizens, appointed by the Governor, one from business, one from ag, which leaves out an entire swath of the population—teachers, journalists, factory workers, retirees, stay-home parents. There’s still one poli-sci prof (who now must be a non-Republican!) and two Board of Elections members, but the other eight members are all legislators or elected officials whose power is checked by initiative and referendum.
Two Republicans voted against HB 1069, Senator Stace Nelson (R-19/Fulton) and Senator Lance Russell (R-30/Hot Springs). Immediately after the Senate’s vote Wednesday to overturn the will of the people, Senators Nelson and Russell filed a formal dissent and protest, placing on the record arguments they made during floor debate that HB 1069 violates the U.S. Constitution by infringing on anonymous campaign speech and violates the South Dakota Constitution by addressing multiple subjects. They also contend that the seventeen Senators suing the state to overturn IM22 violated Legislative Joint Rules by voting on a bill that would allow them to escape further legal costs:
Pursuant to Joint Rule 1-10, we, the undersigned Senators, do hereby respectfully dissent from, and protest against, the rulings of the President of the Senate, Lt. Gov. Matthew Michels, in ruling against Senator Nelson’s point of orders that 17 Senate members be excused from voting due to their personal conflict of interest in the legislation to overturn IM22 due to their admitted public record of personal pecuniary interest in a lawsuit to overturn IM22, violating Joint Rule 12-1 and Section 521 (2)(3) & Section 522 (1) of Mason’s Manual of Legislative Procedure (enacted as SD Legislative Joint rules via Joint Rule 11-3). Lt. Gov. Michels’ ruling, in the face of such conflict of interests, promotes a practice that undermines the very foundation of our State Constitution, weakens the rule of law, and besmirches the reputation of the South Dakota Senate. Furthermore, we, the undersigned Senators, do hereby respectfully dissent from, and protest the passage of House Bill 1069 in that it clearly violates Article III, Section 21 of the South Dakota Constitution (which 17 Senators acknowledge in section 10 of their lawsuit contesting the mirror image of HB1069, IM22 was unconstitutional for violating this constitutional provision) states: “No law shall embrace more than one subject, which shall be expressed in its title.” Members voted to pass House Bill 1069 knowing that provisions of it contained sections which require citizens to declare their names, address, etc., on campaign material, which the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)). We therefore believe that the passage of House Bill 1069 is in contravention of both the United States Constitution, South Dakota’s Constitution, and is therefore null and void. We thus dissent from, and protest against, the erroneous rulings, the unconstitutional aspects of House Bill 1069, and the appearances of improprieties used to pass House Bill 1069. We respectfully request that this dissent and protest be printed in the Senate Journal as required by Joint Rule 1-10 [Sen. Stace Nelson and Sen. Lance Russell, Dissent and Protest to Passage, Senate Journal, 2017.02.01].
Democratic Senators Billie Sutton (D-21/Burke), Troy Heinert (D-26/Mission), and Jason Frerichs (D-1/Wilmot) followed suit but took a little longer to type. Their dissent and protest appears in yesterday’s Senate Journal:
Joint Rule 1B-2 states the legislators must comply with all Constitutional and statutory requirements regarding conflicts of interest. Voting upon HB 1069 presents a conflict of interest because the legislators currently in litigation against the implementation of Initiated Measure 22 would thereby receive a pecuniary interest due to the passage of HB 1069. Thus, they will no longer have to pay to continue the lawsuit and will thus receive a financial benefit with the repeal of IM 22.
In addition, the South Dakota Constitution, Article III, Section 1 has been used by the courts as the standard to determine when an emergency exists. Article III, Section 1 of the South Dakota Constitution allows a referral of a legislative act to a public vote before going into effect unless it is necessary for the immediate preservation of the public peace, health, or safety or the act is necessary for the support of the state government and its existing institutions. Since this law is enjoined we contend that no emergency exists, and the use of the Emergency Clause is unconstitutional in HB 1069. We therefore believe the passage of this act is in contravention of the Constitution of South Dakota and the Joint Rules and is such null and void.
We respectfully request this dissent be printed in the Senate Journal.
Nelson and Russell’s argument about anonymous speech is not really an expression of support for IM22. Both IM22 and current campaign finance law require disclaimers and disclosure of sources of campaign communications. The 1995 Supreme Court case they cite said that Ohio’s ban on anonymous speech was too broad but still allowed states and the federal government to impose disclaimer and disclosure requirements tailored to meet overriding state interests. For over two decades, states and the FEC have done just that, and the courts have not thrown out “Paid for by….”
The conflict-of-interest argument tantalizes but probably gets nowhere. Passing HB 1069 appears to end the lawyer bills for Novstrup and the other IM22 plaintiffs, but HB 1069 was not the only vehicle at their disposal for reaching that goal. They could have dropped their lawsuit at any time.
The state constitutional arguments on multiple subjects and the bogus emergency clause are the most solid. The IM22 plaintiffs themselves agreed in their anti-IM22 brief that IM22 addressed multiple subjects; they are logically bound to agree that a bill doing the exact opposite of IM22 also addresses multiple subjects. And for all their rhetorical gymnastics, not one Republican has addressed the 1996 LRC Issue Memorandum that clearly explains the funding requirement for the emergency clause HB 1069 invokes.
But are those two constitutional arguments worth taking HB 1069 to court? Get a court to overturn HB 1069 on the multi-subject argument, and we grant the court grounds on which to overturn IM22.
Get a court to overturn the emergency clause, and we may only delay enactment of HB 1069 until July 1, like a normal bill. IM22 would still be enjoined, and the South Dakota Supreme Court might not rule on the IM22 case before July 1, so even for the next few precious months, we’d still be laboring under the status quo that HB 1069 affirms.
The only impact of a no-emergency-clause delay is the opportunity to refer HB 1069 to a public vote. But that referral would be a disaster. We would place the exact text of HB 1069 (the inverse text of IM22) on the ballot. The South Dakota Supreme Court would then rule a line or two of IM22 unconstitutional (and I’m confident the plaintiffs will win at least one of their claims). Our campaign would then be in utter confusion, as we’d be voting on a Swiss-cheesed bill that includes provisions that we cannot constitutionally enact.
A key part of that pivot is for Nelson Republicans and Sutton Democrats to look for ways to turn their cooperation in protesting HB 1069 into practically constructive and/or obstructive collaboration.
Update 11:26 CST: Senator Stace Nelson expands on his dissent with this op-ed, circulated today:
February 1st was a “dark day” for the South Dakota legislature. The passage of House Bill 1069, brought to repeal the voters’ enacted Initiated Measure22, culminated the ugliest partisan bums-rush of legislation since Obamacare. I publicly opposed IM2 during the election for many reasons. The solution to bad government is not more government, and IM22 did nothing to combat the ugly corruption of the last two governor’s EB5, and Gear Up scandals. Circumstances made me a grudging opponent of HB1069.
Early on I encouraged Senators to go slow repealing IM22. We govern at the permission of the people. While the people give us permission to act on their behalf by electing us, we shouldn’t be so arrogant as to act rashly with out proper respect for their will. I suggested 5-6 single subject constitutional bills to review IM22 and afford the many subjects the proper, respectful, deliberate public hearings that voters deserved. That sage advice was cast aside and HB 1069, the mirror image of IM22 (which they contested was unconstitutional because it was multi-subject), was brought forth to repeal IM22. Immediately streams of dishonest rhetoric was pushed spinning the repeal and claiming a contrived “emergency” demanding the immediate passage of HB1069. Politicians who blithely voted for unconstitutional multi-subject bills previously, now claimed they must repeal IM22 to protect the people’s constitution, from the people!
Despite 24 legislators being personally involved in the lawsuit against IM22, they refused to recuse themselves from the obvious conflict of interest of pushing HB1069 through the legislature. They did everything possible to bend to breaking every rule possible to rush HB1069 through. To add injury to insult, Senators voted to knowingly keep unconstitutional provisions within HB1069, which require personal identifying information the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334(1995)). IM22 was allowed on the ballot by the Governor, Attorney General, and Secretary of State. That tacit support, in my opinion, removes blame of unconstitutionality from citizens who brought IM22. Legislators brought the unconstitutional HB 1069 mess. They were obligated to abide by legislative ethics rules and our US & SD Constitutions. The inappropriate conflicts of interests, the gross appearance of improprieties used to pass HB1069, and the provisions of HB1069 which were in explicit contravention of both the United States Constitution, and South Dakota’s Constitution, showed who was the real threat to our Constitutions. Principle demanded that I was duty bound to oppose HB1069, which I did.
The manner in which HB1069 was passed was disgraceful, and a “dark day” as Senator Lance Russell (R-Hot Springs) appropriately lamented. Politicians claimed there is no corruption in SD, in support of their rush to pass HB1069. The EB5 corruption and death of Richard Benda; the Gear Up corruption and deaths of Scott, Nicole, Michael,Connor, Jaeci, & Kailey Westerhuis; the recent scandal of a two year legislative cover-up of a legislator sexually preying on pages & interns; and, the same legislators repealing the will of the voters in such a corrupt fashion, refute those assertions upon utterance.
In that “dark day” there was a ray of principled sunshine. The honorable gentleman, Senator Lance Russell (R), stood tall on the Senate floor and opposed the partisan stampeding herd. In the end, we earned the wrath of politicians for refusing to compromise the ethical principles of your government in their demands we go along to get along. The good news is, Senator Russell and I sleep like babies at night and we can look each one of our constituents in the eyes when we go home.
But Heinert’s SB 158 isn’t a tax on oil in pipelines. It’s a pipeline tariff:
Any crude oil pipeline company using pipe made of steel not manufactured in the United States shall pay a tariff of twenty percent on the value of each length of pipe not manufactured in the United States used in this state. Any crude oil pipeline company that transports on average less than ten thousand barrels of crude oil per day by pipeline is exempt from the tariff and provisions imposed by this Act. The tariff established in this Act is in addition to any sales, use, or excise tax [2017 SB 158, Section 2, filed 2017.02.01].
Hmm… math… according to TransCanada’s original 2009 application to the PUC, 313 miles. I don’t have a steel cost per segment, but TransCanada said the total build cost in South Dakota would be $921.4 million… subtract $154.4 million for labor, wild-guess steel cost as a third of the remainder, half from elsewhere, times 20%—hey! SB 158 could put over $25 million into South Dakota’s coffers…
…or it could encourage TransCanada to use all American steel. Either way we win, right? Senator Heinert’s bill passes our Trump-lovin’ Legislature unanimously, right, just like our cordial invitation to the new President to visit our fair state. Heck, we can even time it so Trump can turn the first golden shovel at the state line when TransCanada sends the bulldozers to lay Keystone XL with all those “Made in USA” stickers on it.
Today was not a good day in the South Dakota Legislature. Social media is aswirl with the ignorance, dissemblage, sexism, and spite displayed by the Republican majority that voted for House Bill 1008, the paranoid potty bill. Only Governor Daugaard’s veto pen can save us from further shame and humiliation and maybe a tourism boycott (though how many visitors have we lost over the past decade over our regressive abortion restrictions?).
So let me try to close the day on a good note, by spotlight the best things said by South Dakota Senators during today’s floor debate on HB 1008 [SDPB video, beginning 1:30:40]:
Senator Troy Heinert (D-26/Mission):
[Referring to remarks earlier in the day from visiting Congresswoman Kristi Noem]: We heard from our Representative from Washington about unneeded regulation. This is truly unneeded regulation. Why is that 35 of us think we know better than the school districts and the parents and the people that it would affect the most?
…And when does the discrimination stop? Is it just transgender? Or do we go next year, is it, well, I don’t like blond hair blue eyes? I don’t like Natives? We’re going to tread down a very serious path. And we can all say, “Oh no, that’s not what this means, that’s not what this means!” But that’s how it starts. This is exactly how it starts.
Senator Scott Parsley (D-8/Madison):
[Responding to HB 1008 lead Senate sponsor Sen. Brock Greenfield’s (R-2/Clark) dismissal of his question about legal liability for schools as a “rabbit trail”]: I don’t really consider this to be a rabbit’s trail, with all due respect to the prime sponsor of the bill. We could be talking about several thousands or millions of dollars if we’re found—if a school is found to be in fault on this issue.
Senator Angie Buhl O’Donnell (D-15/Sioux Falls):
I am deeply concerned that by passing this bill we are putting our schools at risk of losing their Title IX funding. If there are lawsuits—and there almost certainly will be—there may be private assistance to help with that, but those private entities would not cover the damages or fill in lost Title IX funding, which across the state of South Dakota is over $200 million. Schools are struggling financially as it is, and I’m not sure how we’re going to fill in the other 200 million as a state if this goes through. We’re having a hard enough time with the other funding issues as it is.
…And maybe this bill was not intended to be disrespectful, but I would submit this: if someone, a whole community of people, tells us that we are hurting them, who are we to decide that we didn’t? This fight was not brought to us by the transgender community. They just want to live their lives in peace.
…I’m reminded of the comments that we heard from the new commander of the USS South Dakota when he came and addressed this body, when he said the word “Dakota” literally means friendly or ally. And as a fourth generation South Dakotan, that’s the state I’ve always wanted us to be, and I hope that we can continue to be that.
Senator Bernie Hunhoff (D-18/Yankton):
I’ve not heard from anybody who had a single example of a problem, a single incident in which the local school district wasn’t handling the issue appropriately, not a single, single case.
…We’re fixing nothing, but we’re creating problems.
…Communities have to be accepting of everyone. Many of our young people do not want to live in communities where people are not accepting and open-minded of people who may be different from the traditional you and me.
…I’ll promise you, a lot of the really good businesses in America want to relocate in places that are progressive and open-minded and tolerant.
…Young people think we’re crazy.
…[later, responding to a statement from Senator David Omdahl (R-11/Sioux Falls) that HB 1008 is about protecting innocent little girls]: It suggests that transgender youth are… out there preying on other kids. That just needs to be corrected for the record. These are kids who are probably very much at risk in their schools…
High school’s hard enough if you’re the quarterback who can throw the ball 50 yards or if you’re the top cheerleader or if you’re the straight-A student. It’s tough enough then. But think how tough it must be for these kids. These are probably the last kids that are going to be molesters or preying on other kids. They’ve faced adversity, and they’re probably gentler and wiser for it. Let’s not be adding to their burdens.
Senator Craig Tieszen (R-34/Rapid City):
My experience and good sense tell me to stay seated. This is an issue that most people have made their mind up and they don’t need or want to listen, they want to move on. But my conscience requires me to stand up, because despite the good intentions, I think, of the sponsors, this bill is causing pain to a significant minority in our community.
Thank you, Senator Tieszen, for letting conscience overrule your “good sense.” Thank you and Senator Deb Peters for standing up to speak against this latest legislative embarrassment for South Dakota. Thank you Senators Tieszen, Peters, Fiegen, Soholt, Tidemann, Vehle, and White for opposing your Republican colleagues and voting with the wiser and solid Democratic caucus against this bad bill.
As commentators heap scorn on our state, please point them toward the words of these Senators and remind them, “We South Dakotans aren’t all bad.” That’s a poor state motto (and it won’t save any school board from a lawsuit it will lose)… but tonight, thanks to our Legislature, it’s the best we can do.