On December 8, Judge Mark Barnett enjoined Initiated Measure 22, deeming the funding for the Democracy Credits, the state ethics commission, and the limit on gifts from lobbyists to public officials unconstitutional.
But IM22 has 70 sections, and Attorney General Marty Jackley says a lot of those sections are perfectly constitutional. In a court filing last week, A.G. Jackley (through Assistant A.G. Steven R. Blair, who does the writing) asked Judge Barnett to amend his order and allow 28 of those 70 sections to be enacted:
Not all of these sections matter much. Sections 1 and 2 are mere title and purpose, with no practical impact. The definition of “qualified contribution” Jackley would restore from Section 3 is redundant with the definition in Section 4 and is relevant only to the Democracy Credits that Jackley would leave enjoined.
The additional campaign finance reports and electronic reporting requirements in Sections 21–23 and 28–30 don’t kick in until 2018, but their reinstatement would require the Secretary of State’s office to plan ahead. Also delayed by IM 22’s Sction 70 are the new electronic lobbyist registration and database download capability of Sections 64 and 67.
If Judge Barnett does approve the state’s motion, what goes into effect immediately?
- Lower limits on contributions to statewide, legislative, and count candidates and parties and PACs.
- End of shell committees created by the same entity to evade contribution limits.
- New limits and reporting requirements on independent communications.
- Extension of time elected officials must wait to become lobbyists from one year to two, plus extension of that restriction to appointed officers, state agency and division directors, and highest paid staffers in those offices.
- Increase of penalty for bribes and threats to influence legislation or legislators from Class 1 misdemeanor to Class 5 felony.
The Republican legislators who sued to protect their free lunches argue that we can’t have even those select sections. Because IM22 contains no severability clause, it’s all or nothing: Judge Barnett can’t throw out one section without throwing out the works. Bunk, says Jackley, who reminds Judge Barnett of the “doctrine of separability” that came up in a case Barnett argued as Attorney General in 1998:
Unconstitutional provisions of a statute may be extracted and the remainder left intact…. The “doctrine of separability” requires this court to uphold the remaining sections of a statute if they can stand by themselves and if it appears that the legislature would have intended the remainder to take effect without the invalidated section [SDEA/Roberts et al. v. Barnett et al., 1998].
IM 22 backer Don Frankenfeld backs Jackley with an affidavit noting that the original draft of IM 22 included a severability clause but that IM 22 sponsors removed that clause on the recommendation of Legislative Research Council director Jason Hancock, who advised in a July 29, 2015, letter to sponsors that no severability clause is necessary in South Dakota laws:
Precedent seems clear: absent proof from the plaintiffs that each section is unconstitutional, Judge Barnett can allow the portions of IM 22 identified by the Attorney General to become law.