Last updated on 2017-03-07
House State Affairs took Senate Bill 176 to the hoghouse this morning. Evidently getting the message that even his Republican majority wasn’t going to trust the Executive Branch with unchecked powers to declare martial law in and around protest sites in ways that would abrogate the First and Fifth Amendment, Governor Dennis Daugaard apparently allowed the following drastic reduction of the scope of this bill tacitly targeting Keystone XL pipeline protestors:
Here’s the amendment on SB 176 for those interested. #sdleg pic.twitter.com/zp0OvOGbcu
— Libby Skarin (@Libby_ACLUSD) March 6, 2017
Of course, nobody got this amendment before this morning’s hearing, so the numerous opponents who drove to Pierre to testify against SB 176 had little opportunity to analyze the impact of the amendment and adjust their testimony accordingly. Even Representative Spence Hawley (D-7/Brookings) said he had to lay the amendment side by side with the existing bill text and spend fifteen minutes trying to line up the strikes and insertions to figure out what was happening.
Here’s my read of what happens:
- The new concept of “public safety zones”—everything within a mile of a protest or other event that the Governor wants to shut down, in which the Governor can exercise emergency powers to seize property and forcibly remove property owners and their guests for six months—is gone (Sections 1 and 2 stricken).
- Stiffer penalties for trespassing and the new crime of “aggravated criminal trespass are gone (Sections 3, 4, 5, and 6 stricken).
- The Governor can still tell the Commissioner of School and Public Lands to remove any groups larger than twenty from land under that office’s supervision if those groups may damage the land or hinder lessee’s use thereof (Section 7 remains, untouched).
- The Chief Justice can still authorize out-of-state lawyers to represent defendants, though now on the condition that the county is experiencing a surge in criminal cases that its local defenders can’t handle (Section 8 amended).
- The Governor still wants to make it a crime to stand in the ditch or any such highway right of way (Sections 9 and 10, unchanged). Conceivably, given the wording about “the presence of any person standing outside of a motor vehicle” could make it a crime for me to pause on the shoulder in the middle of a bike ride for a snack break or to tighten down my gear.
- The July 1, 2020 sunset clause is gone (Section 11) and replaced with a section making it a Class 1 misdemeanor to enter a disaster area (no longer tied to protest targeted by SB 176) and a section declaring an emergency, making SB 176 take effect immediately, and insulating it from public referral.
The restoration of the emergency clause makes me think TransCanada may have called and said they might get to start laying pipe before July 1. Now that President Trump has gone back on his promise to require TransCanada to build Keystone XL strictly with American steel, TransCanada does not face the delay of replacing all the steel pipe that Russian manufacturer Evraz has already made for the project.
The removal of the sunset clause suggests that the Governor realizes this extension of gubernatorial power could be useful beyond construction of Keystone XL.
Most importantly, the retention of the new restrictions on roadside activity signal that the Governor’s people have decided that cracking down on roads (because where will all those protestors park?) will throw plenty of logistical complication into the protests they want to hamper without the risk of judicial review pulling the plug on the martial law provisions in the previous text of SB 176.
House State Affairs approved the hoghoused SB 176 this morning along party lines, 11–2. It now goes to the full House, then, if approved back to Senate for concurrence in amendments.
What is the fiscal impact of these sorts of efforts to undermine the First Amendment? Is there a fiscal note?
This is just a more fascist extension of the old SLAPP approach. SLAPP is “strategic lawsuit against public participation” and it was used by corporations to slap back at people who bothered to participate in government. This just combines the corporate overlords to the corrupt government in an attempt to criminalize public participation.
Back in the civil rights days protestors had the strategy of civil disobedience. They practically begged the authorities to arrest them and throw them in jail. They welcomed going to jail because it cost the states and counties lots of money to engage in such anti-American tactics. Many times the protestors would refuse to post bail just to cost them even more.
Oh ho! Donald! We have fiscal notes for both the original martial law version of Sb 176 and the amended form passed today!
LRC estimated original SB 176 would have increased prison/jail costs by $500K to $541K.
LRC says amended SB 176 adds no prison/jail cost, a conclusion reached by this logic:
It seems to me that one could argue that the proximate cause for increased jail costs is the state’s decision to use the new authority of this bill to go break up protests… and if there is no new authority, then there is no need for this bill, right?
If Daugaard is using it against the armed Tea Party protestors and right-to-birth protestors – game on.
Protest predates our republic. Let’s criminalize it – and in so doing – criminalize the idea of having a republic. The 1700s Tory governors, sheriffs, and sympathizers (about a million whom fled to England, including Benjamin Franklin’s son), are cheering from their graves.
Seems to me trespassing is a hard crime to prove/prosecute. Farmers/ranchers deal with trespassers during hunting season frequently.
I guess the severity of the charge and the brunt of the law’s force depends on which wingnut’s ox is being gored.
Mike, you get me thinking that the highway provisions of this bill could be interpreted to restrict road hunting. Quick, contact the NRA and the real outdoors groups!
John does well to remind us that we are a nation founded in protest. In that regard, SB 176 is terribly un-American.
What if someone does a drive-by gawking of a protest and their car dies? Is that now a crime?
Quick, contact the AP and the real Journalists!
At least the latest version from Daugaard’s office is a step in the right direction. I suspect they realized after the emergency clause was stripped from the previous version that it would be referred and stalled until after next year’s election. I doubt that anyone would try to refer this amended bill, but just to be safe they brought back the emergency. They don’t want to be stuck waiting for the 2018 results, but I’d be surprised if anything happens before July 1 of this year.
Barry, Section 4 does excuse pausing on the road “to seek assistance for an emergency or inoperable vehicle.”