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Citizen Initiative Review Proposal Not Bad, But Needs Fewer Legislators, More Hearings

Yesterday I erroneously complained on Twitter that, with just two hours to go before the Initiative and Referendum Task Force met, the Legislative Research Council still hadn’t posted the final draft bill that panel would consider. I got mixed up on meeting dates: the I&R task force meets today, not yesterday. I apologize to our mostly efficient friends at LRC for my mix-up.

Within minutes of my Tweet, LRC posted the draft bill in question, giving us all 26 hours to review the proposal for a Citizen Initiative Review Commission. The draft bill isn’t as bad as it could have been, but it still has been taken in a more anti-initiative direction than some preceding proposals.

Here are the nuts and bolts of Draft #108:

The State Board of Elections would appoint an eleven-member Citizen Initiative Review Commission (CIRC) to hold one public hearing in Pierre for each of the initiated laws and amendments that makes the ballot. The CIRC would produce a 300-word-maximum summary of each initiative and appoint one five-member subcommittee for each initiative to produce Pro and Con statements. No later than 60 days before the election, the CIRC would post these summaries and Pro/Con statements to the Secretary of State’s website. The CIRC would also mail these statements, along with full text of each initiative, to every registered voter in South Dakota. The Secretary of State’s obligation to “distribute public information” about ballot measures, including Pro/Con statements and fiscal notes, would be limited to referred laws.

On the good side, this proposal places the citizen review process after the measures qualify for the ballot instead of before petitions circulate as Republican legislators Rep. Tim Reed and Sen. Ernie Otten wanted. This proposal explicitly prohibits anyone affiliated with a running ballot measure campaign from serving on the commission, thus avoiding conflicts of interest. It improves on the status quo, in which ballot question pamphlets go online and to the county courthouses, by making any effort to put this useful information in the hands of every voter by mail. And in a happy tweak, this proposal gives the citizen panel a little primacy over the attorney general by not including the sometimes biased explanation of the partisan Attorney General in the mailer.

However, I found myself drawing a lot more cautious yellow and grumpy red lines through the draft than happy green.

First, in expanding the Citizen Initiative Review Commission from five members to eleven, Draft #108 makes room to mandate the presence of two to four legislators on the panel. The legislators must have served at least two full terms in the Legislature, meaning those legislator-members will be more likely to be in good with the Legislative leadership, which over the past few years as shown strong hostility toward the entire initiative process. My inclination on walking into a CIRC hearing and facing legislators on the panel would be to shout, “Haven’t you done enough already?” Initiative is supposed to be a check on abuse and neglect committed by legislators. Putting the legislators we’re checking on this review panel is like putting inmates on the parole board.

Second, Draft #108 allows for up to six members from the same political party. No political party enjoys a majority in voter registration in South Dakota; no party should be allowed to hold a majority on the CIRC.

Third, this proposal calls for just one hearing in Pierre. A previous draft called for at least two hearings for each measure in separate locations in the state. Hearings at the Capitol are nice, but they are hard to get to for most South Dakotans, including most of our reporters. The CIRC can meet in Pierre, but it should hold at least one more hearing for each initiative in Brookings, Mitchell, Aberdeen, Rapid City, Sioux Falls, or someplace else that more voters and reporters can reach in an hour or so.

Fourth, this proposal takes away the opportunity proponents and opponents have to provide the Pro/Con statements that are distributed to voters. The CIRC gets its objective say with its summary; let that summary be the panel’s sole input, and let the key players for and against each initiative continue to have their one brief chance to present their basic arguments to every voter, in writing, on an equal footing.

Fifth, while Draft #108 keeps active ballot question campaigners off the CIRC, Section 7 rather shockingly allows the CIRC to accept donations to fund its meetings and mailings “from any source.” Holy cow! A panel that might review Rick Weiland and Drey Samuelson’s proposed initiatives on prescription drugs prices, voting by mail, and redistricting would be able to take donations from Weiland and Samuelson’s The CIRC could take money from the Koch Brothers’ Americans for Prosperity, which is trying to protect its lobbying power by stifling the people’s voice? That provision has got to go: no contributions from ballot question committees or any of their donors.

Sixth, the CIRC would not hear testimony or produce documents on referred laws. I can understand the logic: referred laws get hearings before the Legislature prior to passage and petitionage. However, this bill would place initiatives and referenda on unequal footings. Voters would receive hearings about initiatives during the election year and publications about initiatives in their mailboxes. Voters would have to go to the courthouse (or this blog!) to get similar useful information about referred laws. Proponents and opponents of initiatives would not get to have their Pro/Con statements distributed by the Secretary of State, while referendum principals will continue to enjoy that privilege. Voters likely don’t see a distinction between initiatives and referenda; they are all ballot questions, and they all deserve equal attention. The CIRC should hear and publish information on referred measures the same as initiatives to ensure voters are equally well informed on all policy questions on which they have the chance to vote.

The Citizen Initiative Review Commission is workable. Unlike most of the garbage floated by the Initiative and Referendum Task Force, the CIRC could improve the initiative and referendum process. But to ensure improvement, the CIRC proposal needs these changes:

  1. Remove legislators from the process.
  2. Ensure a better partisan balance (no more than four members from the same party).
  3. Hold more hearings in more places.
  4. Keep the proponents’ and opponents voice in Pro/Con statements.
  5. Ban money from ballot question committees and their donors.
  6. Include referred laws in the CIRC process and publications.

The Initiative and Referendum Task Force meets today, Friday, at 3 p.m. in Room 412 of the State Capitol in Pierre. They aren’t taking public testimony, but perhaps some calls and e-mails before this afternoon’s meeting will help them see their way to a better citizen (emphasis on citizen) review panel.

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