Solano Hopes Special Session Would Check Abuses of Anti-Protest SB 176

Coming up in House State Affairs this hour is Senate Bill 176, Governor Dennis Daugaard’s attempt to grab the authority to declare martial law for six months in a one-mile “public safety zone” surrounding any protest site.

Rep. Dan Kaiser recognizes that SB 176 is an overreach; Senator Alan Solano (who voted for SB 176) says not to worry: the Legislature can check any abuse of this emergency power by calling a special session:

Solano said ensuring public safety was one of the main reasons he voted for the bill. He said if the governor tried to overreach, as some opponents fear, “I’d hope the Legislature would call a special session to stop it” [Jennifer Naylor Gesick, “Crackerbarrel Discusses State Income Tax, Laws to Crackdown {sic} on Protestors,” Rapid City Journal, 2017.03.05].

Hold on, Senator Solano: let’s think through how calling a special session could check a gubernatorial abuse of power. To convene a special session, you need to get signatures from two thirds of the members of each chamber. Given that SB 176 targets tribally led protests of the looming Keystone XL pipeline, that means you need to find 24 Senators and 47 Representatives who are willing to stand with Indians against TransCanada. Legislative history on pipeline issues suggests the chances of fielding those numbers are pretty thin.

Even if you can gather the 71 signatures necessary to convene a special session, it’s going to take a few days to complete the petition and get everyone to Pierre. The Governor can arrest a lot of protestors, seize a lot of private property, and evict a lot of homeowners and landowners from the “public safety zone.” Your special session can’t act fast enough to keep the Governor from doing serious harm to the Constitutional rights of thousands of South Dakotans.

Your special session can’t order the Governor to stand down. You can write and pass a new law repealing the Governor’s emergency powers, but you’ll have to wrangle a bit to apply that law retroactively to the gubernatorial decision that provokes your special session.

The overreaching Governor will have at least five days to sit on the bill before he has to choose between standing his ground with a veto or surrendering and letting the Legislature take away his power. However, per Article 4 Section 4, to keep that wait period to five days, you legislators will have to remain in special session in Pierre, or at least recess with a clear declaration that you will come back within five days to continue. Then you’ll have to make sure that the two thirds who were willing to call the special session don’t waver and instead maintain their willingness to override the veto.

And if we’re dealing with a Governor willing to commit true abuses of power, consider the possibility that he could use SB 176 to snarl your special session. Suppose the Governor you challenge with your special session reads Section 1 of SB 176 and declares that your special session is “an event that may consume significant public resources,” (that’s an easy conclusion) “poses a threat to public or private property,” (take away the Governor’s emergency powers, and the protest he’s shutting down may swell into violence) “and poses a threat to the health and welfare of the public,” (ditto). Under SB 176, the Governor could reach a conclusion that the Legislature poses a threat to public safety and declare the Capitol and the one-mile zone around it a public safety zone, where he can have Highway Patrol set up roadblocks, check IDs, detain folks coming to testify in favor of whatever legislature you are proposing, and create all sorts of other complications to slow down or stop your attempt to check his power. If the Governor is willing to declare martial law to shut down Constitutionally protected protest, might he not also be willing to take extraordinary measures to stop the Legislature from taking away his power?

Senator Solano, your plan to pass SB 176, then check abuse of power by calling a special session sounds like saying, “Let’s lift the sanctions on Iran and let them develop nuclear technology. If they do build a bomb, we’ll just send in special forces to destroy it.”

Instead of giving the Governor too much power, then hoping the Legislature can take extraordinary measures to check abuses of that power, why not just prevent any abuse by not giving the Governor that excessive power in the first place?