Reed/Otten Proposal Bad for Initiatives

Responding to the revision error in the currently circulating recreational-marijuana petition, Rep. Tim Reed (R-7/Brookings) said on August 1 that he and fellow interim initiative and referendum task force member Senator Ernie Otten (R-6/Tea) “are proposing a review commission… that would help avoid issues like this.”

The Reed/Otten proposal is out, and it’s a turkey. Draft #107 (one of twenty draft bills on the committee’s online docket) would create a commission to hold hearings on citizen initiatives and produce a “ballot measure education brochure” to replace the current ballot question summary prepared by the Secretary of State.

Error #1 in the Reed/Otten proposal is its failure to follow the spirit of the independent citizen review panel that Rob Timm of the Chiesman Center for Democracy described for Rep. Reed and the I&R task force at its first public hearing in June. Independent citizen, as in made up of regular citizens who are independent of the Legislature that initiatives exist to check. Reed and Otten propose a commission that consists of no citizens outside of state government; instead, Reed and Otten would subject initiatives to review by the Secretary of State, four members of the Board of Elections, the Legislative Research Council director, and two sitting, non-freshman legislators. Appointing legislators as gatekeepers to initiatives that challenge legislative power weakens citizens’ initiative power.

Error #2 in the Reed/Otten proposal is its imposition of review commission hearings prior to circulation of initiative petitions. Requiring a new state commission with members from around the state to assemble for hearings takes more time away from petition circulators. The Reed/Otten proposal sets no deadline for the review commission to take action. Currently, both of the required delays imposed on initiative circulators have set timeframes: LRC must respond to a submitted initiative draft within fifteen days; the Attorney General must respond with his official explanation within sixty days. Initiative sponsors thus know that they must include 75 days of possible wait time between the time they draft their initiative and the time they can hit the streets with petitions.

The Reed/Otten proposal denies initiative sponsors the timeframe certainty that Reed and Otten themselves enjoy in Pierre, where the Legislature sets clear deadlines for its committees to take up bills. Instead, the Reed/Otten proposal creates a black hole in which citizen initiatives could disappear until it is practically impossible for circulators to collect the signatures they need to put their measures on the ballot.

Error #3 in the Reed/Otten proposal is its incomplete campaign finance disclosure requirements. Section 5 of Draft #107 would require the review commission to mail to every South Dakota voter a “ballot measure education brochure” that includes…

…the name of the petition sponsor and any organization or committee that participated in any effort to draft the language of the measure or amendment, circulate petitions or campaign on behalf of the measure or amendment; followed by a statement of the total contributions received by the ballot measure committee and the name of any person or organization that donated to the committee [I&R Task Force, Draft #107, posted August 2017].

Reed and Otten are willing to spend six figures on postage to tell every voter who’s spending money to pass a ballot measure, but Reed and Otten don’t think they should make a similar effort to tell every voter who’s spending money to defeat a ballot measure. If it’s important to know that G. Mark Mickelson is spending big money to pass a new campaign finance restriction, isn’t it important to know that the Koch brothers are working hard to defeat that measure?

There are other minor flaws in the Reed/Otten proposal, like lack of clarity on referred laws (does the ballot measure education brochure have to include the names of legislators who drafted the law that got referred?) and the requirement to report the names of small donors (currently, donations of $100 or less are not itemized). However, the above three flaws are major reasons to vote down the Reed/Otten proposal.

With changes—empanel independent citizens, not legislators and state officials; set a deadline for hearings, extend the circulation deadline, or move the hearings to take place after circulation; and expand the campaign finance disclosure requirements—the Reed/Otten proposal might serve a useful purpose. However, as written, the Reed/Otten proposal fits the Republican pattern of complicating, delaying, and weakening the initiative process and reducing the power it gives to citizens to check an unresponsive Legislature.