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SB 67 and HB 1069: Anti-Democracy Measures Use Bogus Emergency Clauses

Senate Bill 67, our democracy-fearing Legislature’s attempt to make it 88% harder for South Dakotans to amend their constitution without Legislative interference, goes before Senate State Affairs tomorrow (Wednesday) at 10 a.m., alongside House Bill 1069, the Legislature’s fast-tracked repeal of Initiated Measure 22. (Wow—House State Affairs approved HB 1069 just yesterday afternoon; it hasn’t received full House support yet, although it’s on this afternoon’s House calendar.)

Both SB 67 and HB 1069 include emergency clauses, which will insulate them from popular referendum. Voters could still initiate measures to repeal these odious bills, but while a referendum would suspend those bills until after the 2018 election, an initiative effort would leave those measures in place until the 2018 election, meaning petitioning and campaigning in this election cycle would take place under the Legislature’s preferred anti-democratic, anti-anti-corruption rules.

Article 3 Section 1 of the South Dakota Constitution specifies which laws the Legislature may exempt from referendum with emergency clauses:

However, the people expressly reserve to themselves… the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions [SD Const. Art. 3 Sec. 1].

In Issue Memorandum 96-29, the Legislative Research Council explains these criteria:

An emergency clause for the immediate preservation of public peace, health, or safety… is generally used when a bill is regulatory in nature and it is necessary to begin the regulation immediately to preserve the public safety.

An emergency clause for the support of state government… is used when a bill relating to taxation, the raising of revenue, or appropriations needs to go into effect immediately since the revenue is needed to continue to operate the activities of the government [Legislative Research Council, Issue Memorandum 96-29: “Constitutional Foundation of the Two-Thirds Vote Requirement,” 1996.11.20].

Both SB 67 and HB 1069 invoke the latter criterion:

Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval [SB 67 Section 2;HB 1069 Section 35].

SB 67 does not deal with taxation, raising of revenue, or appropriations. It does not enact any funding for government activities. By the LRC’s own explanation, SB 67 is not addressing emergency needs for support of state government.

HB 1069 mentions appropriations by repealing the voter-approved funding for the Democracy Credits program. However, that funding has been enjoined by Judge Mark Barnett and remains in limbo until the South Dakota Supreme Court hears and rules on the lawsuit against IM22. HB 1069 is not providing funding to any government operation; it seeks to repeal funding that is already blocked. HB 1069 thus does not address any emergency needs for support of state government., Represent South Dakota, and others who supported IM22 are raising heck over HB 1069. They should add SB 67 to their agenda, since constitutional amendments are apparently the only way South Dakota voters can guarantee their will will stand as law without Legislative interference. and Represent SD should prepare their legal briefs now on the improper emergency clauses, be ready to file suits the moment Governor Daugaard signs those laws, and have referendum petitions ready to go the moment the judge overturns those bogus emergency clauses.


  1. Porter Lansing 2017-01-24 11:42

    It’s not right to further limit the power of the people to write their own laws.

  2. Mike Boswell 2017-01-24 12:36

    Repeal IM22 Repeal the ACA and Gooo Pipelines.

  3. Porter Lansing 2017-01-24 12:38

    Understand this: The majority in Pierre wants to assign you voters a role in life. And once you accept that role you are doomed. Your power is limited to the tiny amount of choices allotted to the role you have been forced to assume.
    Voters: Forge a new identity, one of your own making. One that has had no boundaries assigned to it by an envious and resentful political group. This act of defiance is liberating. It makes you responsible for your own creation.

  4. Mike Boswell 2017-01-24 12:58

    Yeah that’s why I voted against IM22 because I knew it was a piece of junk ballot measure.

  5. Mike Boswell 2017-01-24 12:59

    I took the time to read it. Many didn’t

  6. Stephen Self 2017-01-24 13:07

    Thanks for this post and the great reporting. I live in TX but am very disheartened and concerned by this attack on the democratic process. Voting rights are everything in a democracy such as ours is supposed to be. Please let me know if there is some concrete action I can take from afar apart from sharing your post and similar stories on social media (which I have already done). Keep up the great and necessary work!

  7. Michael Wyland 2017-01-24 13:32

    Mike Boswell makes a good point. IM 22 was long and at points convoluted, defeating easy understanding. I tend to agree with the court that IM 22 is unconstitutional because it tackles more than one subject in a single vote and because it bypasses the legislative appropriations process in mandating ongoing spending. I’m less sure of the severability/nonseverability of the measure, though I think severability becomes moot once the multiple subject issue is decided.

    None of the above addresses whether the *goals* of IM22 are a good idea or a bad idea. Personally, I like the fact that the Legislature is attempting a “repeal and replace” strategy rather than a straight repeal.

    Remember, the Legislature could sit back and do nothing, waiting for the SD Supreme Court to rule on the appeal from Mark Barnett’s circuit court decision and still do a repeal afterward.

    IM 22’s proponents reached too far too fast and are paying the price. However, it looks like they’ll get at least some progress on ethics, and that’s a victory for them, and the people of SD.

  8. caheidelberger Post author | 2017-01-24 13:43

    Michael Wyland, the funny thing is that the nonseverability argument offered by Judge Barnett in his ruling does not address the clearly stated intent of the sponsors, along with the advice that they got from LRC prior to circulating their petition, that severability is assumed as a default condition for all South Dakota laws and thus did not need to be explicitly stated in the initiative. Judge Barnett based his ruling on stilted assumptions about the intent of the voters that ran counter to textual evidence available in the bill.

    Indeed, Michael Wyland, the Legislature could sit back and let the court have its say. Why is the Legislature in such a hurry to do what the court may do for them?

    HB 1069 is similarly long and convoluted, defeating easy understanding. Shall we reject that bill just as IM 22 opponents want us to reject that measure for the same characteristics?

    Boswell, I read the whole thing, too. I typed it out, for Pete’s sake. I found some parts I didn’t like (as a candidate, I might not take advantage of the Democracy Credits), but liked enough of it to vote for it. But like or not, I did not find the measure junky or sloppily written. That’s a lazy slag that I’ve never seen anyone really substantiate.

  9. caheidelberger Post author | 2017-01-24 13:46

    But hey, the main point here is that the Legislature is using unconstitutional emergency clauses to undermine the people’s will. Boswell again can’t admit that I’ve offered solid law and analysis, so he has to distract us with the topics he’d rather shout about.

    By tacking emergency clauses on SB 67 and HB 1069, the Legislature is abusing the constitution that it pretends to be protecting. Not cool… and not able to withstand judicial scrutiny.

  10. Mike Boswell 2017-01-24 15:57

    Cory the fact was IM22 was pushed by using empathy and dark money from MA. It was presented as a need and fact is there wasn’t a need. We will get your ethics commission without you, kelo, and others proving any corruption. The legislature will take care of that for you. But you will not get taxpayers to pay for elections. That is unconstitutional.

  11. Darin Larson 2017-01-24 16:23

    Mike Boswell says, “But you will not get taxpayers to pay for elections. That is unconstitutional.”

    Uff da! It is not unconstitutional to have taxpayers pay for “elections.” Assuming you meant election campaigns, the Federal Election Commission has been overseeing public funding for US Presidential campaigns since 1976.

    13 states have some form of public campaign financing:

  12. Jana 2017-01-24 16:31

    Saint Ronald Reagan used public financing for his election…just saying it’s not the bogey man the SDGOP makes it out to be. They and their lobbyists control the money that is pumped in to GOP hand selected candidates and public finance would upset that apple cart.

  13. Jesse Adams 2017-01-24 16:32

    Well said Darin!

  14. caheidelberger Post author | 2017-01-24 22:09

    Didn’t I just say something about distractions?

    Boswell, you keep diverting us back to the argument you’d rather have about IM22. This post ain’t that.

    Tell us: just because you don’t like the legal sources of funding and emotional appeals that campaigners on both sides used in an election, you support unconstitutional means to overturn a public vote?

    Tell us: where’s the emergency?

  15. Mike Boswell 2017-01-24 22:17

    The legislature is just taking care of what the courts would do anyway. Nothing wrong in that. If the people are outraged they will exercise that outrage at the polls. But I suggest you not hold your breath.

  16. Darin Larson 2017-01-24 22:28

    If there is nothing wrong with declaring an emergency under the constitution when no such emergency exists, then ethics, constitutional law, and government accountability don’t really concern you, Mike Boswell. You can go back to making excuses for legislator misconduct.

  17. Mike Boswell 2017-01-24 22:30

    on IM22 it doesn’t bother me one little bit I voted against it.

  18. Darin Larson 2017-01-24 22:44

    Once again, the point eludes you, Mike Boswell. If the emergency clause is invoked without proper cause, it is illegal and unethical to use it, especially if the legislature is trying to hide it from the oversight of the people. Whether you like IM22 or not is not relevant and it shouldn’t be the basis for whether you approve of something or not.

  19. Mike Boswell 2017-01-24 22:47

    That’s an opinion Darin and you probably won’t have the majority behind you. So gets you just get to crow about it.

  20. Mike Boswell 2017-01-24 22:48

    You could always hire a lawyer and sue the State.

  21. Cory Allen Heidelberger Post author | 2017-01-25 13:11

    Hey, Boswell, we already spent a lot of time and money to pass the law. Why should we be subjected to yet another barrier to the ballot?

    The court did not rule every provision of IM 22 unconstitutional. There are plenty of provisions about which the only thing Judge Barnett has said is, “They can’t be severed from the parts I think are unconstitutional.” If the Legislature really needs to rush in and repeal this enjoined, not enacted, not-hurting-anyone-yet bill before the Supreme Court performs a full constitutional analysis, the Legislature could do the voters the minimal respect of severing the unconstitutional parts and keeping the sections about which Judge Barnett has rendered no constitutional opinion.

    Keep the stricter campaign finance limits—they don’t violate the constitution (and you’ll love the fact that I won’t be able to take more than $750 from ActBlue).

    Keep the increased campaign finance reporting requirements, including the new timely disclosure statements to help us keep track of big-money interventions—there’s nothing unconstitutional about making politicians fill out more paperwork.

    Keep the expansion of the lobbyist-revolving-door restriction—it’s not unconstitutional to prohibit former legislators from taking pay as lobbyists for two years after they leave government.

    Keep the lobbyist registration requirements—they’re not unconstitutional.

    Keep the Democracy Credits—public campaign finance is not unconstitutional (Judge Barnett said nothing about them, and the only thing the Curd lawsuit said about them was that they didn’t have enough money to go to every voter!).

    The only thing unconstitutional about the Democracy Credits was the appropriation, which the Judge says we the people can’t do (hmmm… add that to our notes on constitutional amendments to place on the ballot in 2018). The Legislature could fix that with one section, appropriating dollars themselves.

    So come on, Boswell, quit blowing smoke for arrogant Republican legislators. Even if they have some sacred duty to save the law books from unconstitutional provisions passed by the Legislature, they have no reason to strike constitutional statutes approved by the voters other than their selfish desire to crush voter initiatives and keep all power in their own hands. HB 1069 is unnecessary overreach, legislative arrogance masquerading behind a a pretense of devotion to the constitution.

    And like SB 67, HB 1069 unconstitutionally invokes the emergency clause, which original point remains untouched and unrefuted.

  22. Mike Boswell 2017-01-25 18:36

    I believe the court was going to rule if part of the IM was unconstitutional the entire IM was unconstitutional. But Cory you are free to sue the State if you feel wronged.

  23. Jake 2017-01-25 19:15

    Boswell you epitomize Trumpist attitudes of ignorance…..

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