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Judge Kills IM22; Sponsors Should Drop Appeals, Take Revised Reform to 2018 Voters

Initiated Measure 22, the Anti-Corruption Act, was law for 22 days. Judge Mark Barnett put the law on hold yesterday, saying he finds the law unconstitutional. IM22 can’t provide Democracy Credits, the public campaign financing component of IM 22, because only the Legislature, not the voters, can appropriate money. IM22 can’t empanel an ethics commission because it doesn’t assign that commission to one of the three branches of government and it improperly delegates legislative power to the commission. IM22 can’t limit gifts from lobbyists to public officials because it overbroadly defines “gift” to include “compensation” and thus unfairly impairs contracts.

Barnett is open to amending his injunctions to allow certain constitutional portions of IM 22 to stand, like campaign finance limits and disclosure requirements. But any unenjoined portions of IM22 are likely to be picked off by our Republican controlled Legislature, which sounds determined to repeal the whole kit and kaboodle.

Don Frankenfeld, Darrell SolbergRick Weiland, you guys lined up cross-partisan allies to stand up to the Koch brothers and the GOP establishment and get Initiated Measure 22 passed. Governor Daugaard and the Republican leadership are now pretending corruption doesn’t exist while using Greg Belfrage’s words to call you guys hoodwinkers and scam artists and call all of us voters gullible dupes. You shouldn’t stand for that guff.

But I offer the radical suggestion that you shouldn’t waste another dollar on Initiated Measure 22. Judge Barnett has found the most important anti-corruption reforms of IM22 unconstitutional. Contrary to Republican appointee Judge Barnett’s claim from the bench yesterday, you are not likely to get a substantially different opinion from the five Republican appointees on the South Dakota Supreme Court. You’ll make no headway with the current Republican Legislature—they are monkeys at a poop-throwing party (a sign of intelligence, yes, but not of willingness to surrender one bit of their power, privilege, or free pickle sandwiches). The only thing they’ll replace IM 22 with is a measure to allow businesses to contribute directly to their campaign funds.

Don’t waste your money on lawyer bills or lobbying in Pierre. Go back to where you know you can win, the voters of South Dakota. Rewrite IM22 as a constitutional amendment that includes the following provisions:

  1. Amend Article 12 Section 2 of the South Dakota Constitution to make explicit the people’s authority to appropriate funds by initiative.
  2. Create the ethics commission as a permanent government watchdog attached to the judicial branch with members appointed by the Chief Justice from lists provided by legislative leaders and university presidents.
  3. Fund the ethics commission and Democracy Credits by repealing the sales tax exemption on advertising (all advertising, not just political) and dedicating that money to the Democracy Credit Fund. (Wild math: Nationwide advertising expenditures in 2015 were $311.6 billion; South Dakota puts out 0.25% of national GDP; 0.25% of $311.6 billion is $789 million in advertising expenditures in South Dakota; 4.5% sales tax on that ad spending would generate $35.5 million a year, more than enough to give 540,000 registered voters each two $50 Democracy Credits.
  4. Don’t ban those gifts from registered lobbyists and their employers. Just make them report their value, itemized by recipient public official and reported down to the last penny and pickle.

Take that tack, rally the voters to your side again, and you’ll enact anti-corruption reforms that Judge Barnett won’t overturn and the Legislature can’t touch.


  1. Porter Lansing 2016-12-09

    Good advice. Rewrite and resubmit to the voters. Taxing advertising is a great idea.

  2. Leo 2016-12-09

    What you are really saying is that the Legislative Research Council, GOP Attorney General Marty Jackley, and GOP Secretary of State Shantel Krebs, et al. were all asleep at the wheel of our state government. These “leaders” allegedly allowed an “unconstitutional” initiated measure to be presented to the public. Not all South Dakotans are constitutional scholars, so we depend upon our leadership to tell us the truth, and to tell us the truth quickly. The “legislative” intent of the voters was clear! The reasons set forth by Judge Barnett seem so simple on their face, and yet no one cared to question this before the election? Big Fail on their part. This is a stellar example why no one trusts our government and why we now know that our state government is inept. Now we have the dilemma of South Dakotans wanting ACTION on corruption in our state, and the Republicans leading the fight against the voters. It is very telling! What will the new SD Legislature do with this conundrum?

  3. Don Coyote 2016-12-09

    @Leo: Jonathan Ellis reported otherwise:

    “But an analyst with the Legislative Research Council who reviewed the proposed language in 2015 made a handwritten note next to the section that the language appeared to violate the South Dakota Constitution. At issue is a requirement that all appropriations must be passed by the Legislature with a two-thirds majority in both the House and Senate.”

    Not to mention that the math of the “democracy credits” doesn’t work as it doesn’t provide for enough money for all the voters who might possibly partake.

  4. Leo 2016-12-09

    @Don Coyote: Thank you for this link published after the election. Can you find any that were published well before the ballots were printed?

  5. mike from iowa 2016-12-09

    More koch bros interference Coyote?

  6. Mark Winegar 2016-12-09

    Cory and I rarely disagree and I do like his idea of a constitutional amendment but let’s not let this pass from battle pass from the public’s attention.

  7. Darin Larson 2016-12-09

    Let me try to understand how the SD Constitution, which is a limit on the power of government, becomes a limit on the power of the people. How does a power of the legislature to tax negate the people’s own power? Where is it written that the people don’t have the power to tax themselves?

    Under God the people rule or under God the legislature rules?

  8. Darin Larson 2016-12-09

    Mark, I agree! This is no time to let these people off the hook. Cory has plan B. Let’s see the SD Supreme Court decide that the people don’t have the power to spend their own money. Let’s hear how the people don’t rule. Let’s hear them explain how they will once again undermine the voice of the people and allow corruption to grow unfettered once again.

  9. Jana 2016-12-09

    Mark’s right on not letting this pass from public attention.

    What amazes me is that not the Governor or any GOP leader has said is that they even remotely recognize a need for any reform or ethics in Pierre. The people are pissed and they let them know that with their votes. The disdain for the will of the people is just wrong on so many levels.

    We need to demand more transparency and ask more questions of the governor and our legislators and if they refuse to answer then we need to call them out for hiding from their representation of the people of South Dakota. The press also needs to step their game up in examining what is happening in Pierre and connecting the dots. We can help them.

    More will come out around EB-5 and Gear Up and there will be not one iota of remorse that these tragic events happened. A few will be punished, but the system that enables will still be corrupt.

  10. Donald Pay 2016-12-09

    I’d just point out that this is just one judge, and one preliminary ruling. It’s way, way too early to quit.

    I’d like to channel Pat Duffy here. He’d be looking for every which way to save every last period of the bill. There are plenty of reasons for arguing all the points before the SD Supreme Court. I reckon Pat would relish the opportunity to do some discovery on some of the clowns that put their name on this suit. He’d love to deposed Ms. Peters, for example, and find out exactly how she’s being paid off and by whom. Same with little Markie. By the time Duffy got done with them they would be piles of the poo they really are.

    The crooks who put themselves up on that frivolous lawsuit deserve a little public scrutiny of every last one of their crooked dealings.

    So, I’d recommend an all of the above strategy. Do everything you can to screw these guys to the wall. These guys are running scared, and it’s time to run them out of Dodge.

  11. grudznick 2016-12-09

    Mr. H’s idea seems almost reasonable if it were not pushed and paid for entirely by out of state hoodwinkers. I expect the voters who were ignorant and got duped by these sloppy law writers this time will be more awake at the switch next time the libbie carpetbaggers come around.

  12. Porter Lansing 2016-12-09

    On Mr. Grudznick’s paranoid fear of out of state influence. It’s not that conservative people are more fearful, it’s that fearful people are more conservative. People who are scared of uncertainty, people they don’t know, and things they don’t understand are more supportive of policies that provide them with a sense of surety and security.

  13. Lee Schoenbeck 2016-12-09

    The initiatives sponsors ignored the opinion they revived at the outset of its unconstitutional provisions, so I’ll assume this will be similarly received. But point 3 clearly violates the First Amendment to the US Constitution. Free legal advice that even Duffy would agree with

  14. grudznick 2016-12-09

    Mr. Leo, it is nice that the sloppy survey to which you refer, which by the way receive an “F” for accuracy in the Conservatives for Common Sense Survey of Surveys for Corruption (CCSSSC), did point out the nice jitterbuggering that seems to occur at the Ramkota motel. I am sure there is some fancy jitterbuggering indeed, but that also might be as flawed as the rest of the survey. Just because you provide a blue link (like my good friend Lar often used to do, but sometimes his went to porn) does not make it a valid source. People tell me that the internets are a nortoriously bad source and any good teacher would slap a kid upside the head who used the internets as a research paper source.

  15. grudznick 2016-12-09

    I am a bit rankled about the dancing. There should not be dancing allowed. Especially at the Ramkota motel if the legislatures are staying there because they need to work harder, get more done, sleep hard, then get back to work. No jitterbuggering. No dancing.

  16. grudznick 2016-12-09

    I will be disappointed if the new measure that is initiated, #22, does not ban jitterbuggering by the legislatures. That should be section 1.

  17. Roger Cornelius 2016-12-09

    The SDGOP needs to be labeled what it is:

    SDGOP – The Pro-Corruption Party.

  18. clcjm 2016-12-09

    I agree, Roger, it’s our turn to label THEM! They are pro corruption!

  19. John 2016-12-10

    Great analysis. Let’s tweak #2: the ethics commission shall have 3 representatives from the democratic and 3 representatives from the republican, and 2 representatives from the independent, and 1 representative from the libertarian parties. At least 35% of the commissioners shall reside west of the Missouri River and at least 50% shall reside east of the Missouri River. At least 2 commissioners shall be enrolled tribal members. At least 55% of the commissioners shall reside in rural settings (more than 30-straight-line miles from the city limits of towns with greater than 25,000 population according to the last census as published by the US Census Bureau).

    – or something of that nature, roughly on the order of the statutory make-up of the SD GFP Commission which provides for a balance of SD backgrounds, interests, and thus, almost always yields balanced, rational decisions.

  20. grudznick 2016-12-10

    I, for one, like the Libertarian addtion. And the West Riverish part. Good additions, Mr. John.

  21. MC 2016-12-10

    Wow! really? Wow! and here I thought the Democrat party would be willing to work Republicans to come with a workable ethic reform package. I guess that idea just got screwed to the wall and ran out of Dodge.

    To be honest, I did not like this measure/law. In some areas it was overly broad and other areas it was too vague. It look like three or four ethic laws from a couple of different places then hobbled together. It is like a bad science experiment, ready to go wrong, then unleashed on the public.

    The people have spoken.

    They are tired of the scandals, they are tired of the pay to play schemes, they are tired of their government working for a select few and leave them holding the bill.

    Instead of taking this measure and scurrying off into the shadows to rewrite it, why not bring your ideas to the table, into light, and let us, Democrats and Republicans work out something that we can work under. Unless of course, your sponors at and fear true cooperation.

  22. mike from iowa 2016-12-10

    MC- please educate me. I haven’t seen your name attached to any legislation attempting to clean the sewage in Pierre. Am I wrong?

  23. caheidelberger Post author | 2016-12-10

    Don Coyote, the Democracy Credit math was fine. The sponsors appropriated a conservative amount based on their analysis of past public campaign finance and voter participation that suggested far from all voters would bother to redeem their Democracy Credits. Their math was actually pleasantly fiscally conservative.

  24. caheidelberger Post author | 2016-12-10

    Darin, I agree with your argument on the appropriations point. Perhaps the SDI lawyers can offer a better argument that the AG.

    But even there, I see a better chance of winning by passing a constitutional clarification than arguing in court.

  25. caheidelberger Post author | 2016-12-10

    Jana, Mark, on keeping the issue in the public eye: I agree that’s essential. Voters need to be reminded constantly right up to Election Day 2018 that the powers that be have thwarted their will to protect Pierre’s corruption from oversight. They need to be reminded daily that Al Novstrup, Brock Greenfield, and Blake Curd sued them to protect his free lunches from lobbyists.

    But consider: suppose we let Barnett’s ruling go unchallenged. We let the Legislature step in and repeal the whole kit and kaboodle. Whatever resources we have available for a fight can be directed right now to a single-front battle: revising IM 22, executing a new petition drive (right now, before the potty paranoiacs, pot pushers, and euthanasia backers hit the streets and tire signers out) and launching the ongoing public relations campaign to focus voters’ attention on corruption and knock the election legs out from under the litigants. If we have the money to fight in court and on the streets, great. But if resources are limited, go with the surer win.

  26. caheidelberger Post author | 2016-12-10

    Lee, you’re saying that taxing advertising violates the First Amendment? How so? I paid sales tax on the computer I’m using to exercise my First Amendment rights. I pay sales tax on my pens and paper. I pay sales tax on books that I buy. I pay sales tax on the copies of petition sheets I run before heading out to collect signatures. How does taxing all advertising services run afoul of the First Amendment?

  27. caheidelberger Post author | 2016-12-10

    MC, I do not speak for the Democratic caucus in Pierre. I speak to the sponsors of IM 22. Your leadership in the House has fallen in line with the Governor in publicly characterizing the sponsors as hoodwinkers and scam artists. That sends a pretty strong signal to me that the sponsors won’t be given much credence in any Legislative testimony or negotiations. Perhaps your Democratic colleagues in Pierre will have more voice in crafting a reform package, and if so, then I welcome whatever salvage you can perform. But your caucus is sending pretty clear signals that IM22 sponsors will get nowhere in Pierre.

    I’ve laid out my desired revised reform package. Tell us, MC, what components of IM22 and the revisions I propose would you like to see written into law? What changes would you make?

  28. Porter Lansing 2016-12-10

    Presently, Republicans are attempting to build a false equivalency. If the Supreme Court rules IM22 is unconstitutional they’ll try to spin that into messaging that the people were wrong to believe there is a need for an ethics package, which includes getting certain money out of campaigns. No matter if the language needs tweaking, it’s glaringly apparent that the voters believe the truth. Republicans have overstepped the public’s trust in them to act above board.

  29. Vickie 2016-12-10

    Yet another IM,SD Constitutional Amendment.Referred Law etc. that South Dakota voters approved and the SD legislators do whatever they can to undo the will of SD voters.

    When will these people get over themselves and listen to the voters?? Without SD citizens expressing their views and opinions,its no wonder that this state’s government is so well known for their rampant corruption.

    I don’t care which party plays “we WILL do what WE want to do and don’t care what SD voters want.” Once again,I throw the BS flag,penalize half the distance to the goal,and a loss of down. These people are supposed to support SD citizens,but instead they whine,cry,and screw us over.

    P.S. Yes,I do enjoy the NFL and I wear my favorite players jerseys…and yes I wore an NFL jersey when I voted. (That reference is from a SD legislator. Without disclosing any names…he knows who he is.)

  30. Jana 2016-12-10

    MC, I think it’s the Koch brothers that are also a significant blocking point. had nothing to do with this initiative. I have not heard anyone from representus or the proponents say they are against some form of compromise and tweeking.

    The caustic and hateful personal remarks from our Governor also show a great unwillingness to do anything to stop corruption, scandals, pay to play and a government for just some of the people.

    I do like your attitude of working through this and your recognition that the people have spoken and “They are tired of the scandals, they are tired of the pay to play schemes, they are tired of their government working for a select few and leave them holding the bill.”

    Good luck in Pierre, we could use an adult in the room who has some sense of statesmanship vs. the gamesmanship that permeates our state government.

  31. Roger Cornelius 2016-12-10

    Just think about how much IM22 could have been avoided had the republican Attorney General and GOAC done their jobs.
    If the SDGOP wants to blame anybody for IM22 they need to look no further than Marty Jackley.

  32. MC 2016-12-10

    The problem with Initiated Measures is they are ‘All or Nothing’ the is almost no opportunity to change it.

    In these laws, there was a lot going on.
    Limits on campaign contributions
    Increase reporting
    Ethics Commission
    Certification of candidates
    Democracy credits
    just to name the high points.

    I would break these down in to bite size parts.
    then follow the template laid out by the Governor’s Blue Ribbon task force. Hold hearings, listening sessions, public meeting and get the public’s input. I would want the authors (not the supporters) of the IM 22 to join me, to explain their work. Once we have all public’s input, put together a series of bills through the legislature, then refer them to the public as referred laws.

    I believe the Governor’s statement might have been a bit too strong. During this election cycle there was a lot going on. We had a Presidential candidate grouping young women, daily releases of private e-mails from another candidate private server, and much more. At the state level, we are still getting fall out from EB-5 and Gear-up scandals. At the local level we have the petitions for the new Sioux Falls Administration building being tossed, and some of antics of the Hartford’s City Council, not to mention all the fake news floating around out there; Being bombarded daily by some news of some scandal or inappropriate action by a candidate or elected official I can see why people would vote for an anti-corruption measure. Now we need to make sure we deliver on what they voted for.

  33. Donald Pay 2016-12-10


    What you say about initiated measures is true, but not really relevant. I think many of us questioned the length of IM 22 because we thought the public would not be able to understand the thing and would vote no. And, I think, that’s what the opponents of the bill thought, too.

    The length, really, was not the problem. People understand that getting rid of corruption is a complex matter.

    Every session there are bills that are 30 pages or longer, and just as complex. They can be amended (one great advantage of the Legislature), but I’ve seen many of these bills go through with minimal changes, mostly just in style and form. If you listen to the testimony on these bills you will often hear their proponents explaining why they didn’t submit separate bills. Mark Mickelson’s father often brought complex legislation. I was on both sides of that argument on different bills, as is everyone who spends any time in Pierre.

    You do make some great suggestions above for how to move forward, and those should be explored. But I would say it is really a charge for the Legislature, not the proponents. They have ignored the problem. The people have solved it. So, really, IM 22 should stand, at least as much of it that isn’t struck down by the Supreme Court.

    Until then, the Legislature should have real investigations, not whitewashes, of the decades of corruption that has plagued South Dakota government. And they should explain how they are going to deal with their own corrupt and corrupting practices. I’ll bet they come to the same conclusions the voters did, unless they really are as corrupt as we all think they are.

  34. Roger Cornelius 2016-12-10

    Who are the foxes that guard the foxes guarding the hen house.

  35. grudznick 2016-12-10

    They may combine the outlawing free hot dogs part of the IM #22 with the law bill to mandate the digging of The Borehole.

  36. caheidelberger Post author | 2016-12-11

    I appreciate the difficulty of passing any difficult measure. But like Don, I don’t view length as a reason to quash a bill. Nor do I view breaking a long bill down into a dozen mini-bills as a necessarily good step. If we had broken IM22 into several component initiatives (Democracy Credits, lobbying reform, new campaign finance limits, state ethics commission), we’d have caught heck from folks for cluttering the ballot with even more initiatives. A long ballot is a long ballot, whether it’s all in one long initiative or several shorter ones. We’d also have had to collect more signatures on more pieces of paper, which is a logistical hassle.

    In the Legislature, it takes just as long to read ten short bills as it does to read them all in the form of one omnibus bill. Plus, if those bills all have to work together, why take the chance of having one essential component not make it through committee?

  37. grudznick 2016-12-11

    But Mr. H, you must admit that any measure initiated that said “we will take five million dollars and give it to politicians” would have been dead on arrival and you couldn’t not have glossed over that fact in the deceitful television commercials. The voters would have smited it and smited it hard. Then you could have outlaws the free hotdogs easily and created your fourth branch of government and nobody would have cared.

  38. Roger Elgersma 2016-12-12

    Re write it, call it our own, they might lie and say it is an out of state thing again, but it passed with all the warts so would pass real well if very correct. But it really was an interpretation thing based on the bias of a judge who has had bias before.

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