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Cory’s Advice on Ballot Measures: YES on W, NO on the Rest

I am surprised by how many people call or write me asking for my thoughts on ballot measures. The latest request came from a friend whose spouse is in hospice but is determined to cast one more absentee ballot. Now that’s commitment to country and democracy.

Here’s the advice I shared with those friends on our five ballot measures:

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Short form: I voted YES on W, NO on everything else.

W: This is IM 22 from 2016, revised and improved. W includes the lower campaign finance limits, the stricter rules for lobbyists, and the statewide ethics commission. It leaves out the “Democracy Credits” (public campaign finance) from IM 22. Best of all, W writes into the state constitution a rule that the Legislature cannot repeal or amend an initiative or change the rules for doing initiatives and referenda without putting those changes to a public vote.

X, Z, and 24 are all part of the Republican Legislature’s war on initiative and referendum. That should be enough to vote all three down right there.

X: Raises popular vote necessary to amend the state constitution from 50% + 1 to 55%. Sponsor Jim Bolin says we have to protect the state constitution from over-amendment, but we’ve already amended our constitution 148 times—142 of those times at the Legislature’s request. The South Dakota constitution is no sacred document of founding principles; it’s a working document that we use to get basic policy done. When we need to fix it, we should be able to fix it. Besides, it’s already extra hard to amend our constitution: we have to gather twice the usual signatures on a petition (this year, only one of three citizen amendments made the ballot), or they have to go through the Legislature and the people.

Z: Requires that any constitutional amendment deal with just one subject. This rule is unnecessary: if anyone circulates an amendment that tries to do multiple things, voters are much more likely to vote it down. Plus, the single-subject rule invites Republican lawyers to litigate any citizen amendment to death with definitions and word games.

24: Pretends to ban out-of-state money from ballot question campaigns. First, that’s unconstitutional: since money is speech (that’s a firm court principle), we cannot pass a law saying a South Dakotan can give money to a ballot question campaign (i.e., engage in a free speech act) but a Minnesotan can’t. Even if we pass 24, the courts will throw it out.

Second, 24 doesn’t really ban out-of-state money from ballot question campaigns. Rich lawyers and other muckety-mucks can form a “corporation”, file papers with the Secretary of State to do business here, and they can then spend all the money they want on South Dakota ballot questions. 24 would only hurt grassroots efforts to raise money and leave ballot measures even more dominated by big-money interests.

Third, 24 doesn’t ban out-of-state money from candidates, only from ballot measures. The Republicans behind this bill don’t want John Thune and Mike Rounds to give up their out-of-state money, just us activists who might find allies in other states for our ballot measures.

IM 25 is a toss-up. It raises tax on tobacco (buck a pack on smokes). It dedicates $20 million in new tobacco tax money to funding SD vo-techs, which currently have the third highest tuition in the country. Both policies separately are good ideas, and I won’t get in a fistfight with anyone who wants to vote for them.

I voted NO on 25, however, because putting the two policies together is a bad idea. If vo-techs matter to SD, we shouldn’t fund them by taxing only a small minority of SD. We also shouldn’t fund an important public institution with an unsustainable tax. Tobacco tax revenues have declined since our last increase ten years ago. Fewer people are smoking. The 25 tax will make more people quit or avoid starting. That’s a good policy outcome from the tax, but it will mean the money we’re promising the vo-techs won’t materialize.

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Study the ballot measures. Add your advice below, and help all of your neighbors cast informed, conscientious votes for good policy!

25 Comments

  1. South DaCola 2018-10-11 07:56

    I agree 100%. My feelings on IM25 is that if we are going to raise taxes on tobacco, fine, but let’s use the money for smoking prevention.

    If we want to fund TECH ED why not implement a tax on the general contractors and health care systems that benefit the most from employing TECH ED students, or at the very least get them to fund a scholarship program.

    I think it is silly to use SIN taxes to fund EDUCATION

  2. Darin Larson 2018-10-11 09:03

    I might have voted against IM25 because it is not good policy to depend on sin taxes for basic governmental services, but when I see commercials against IM25 that so distort the issue as to be false, I’m voting in favor of IM25. These same moneyed interests that are fighting IM25 oppose any fair tax system, so in my opinion they have brought this on themselves. This is how we fund education in SD, unfortunately.

    IM25 provides more incentive for smokers to quit harming their health and driving up healthcare costs for everyone and it provides money that our SD students need for technical education. In this case, two rights don’t make a wrong.

  3. Donald Pay 2018-10-11 10:34

    I can’t vote, but I agree. “W” is the only one I’d like to see win. I’d be tempted to vote for G. Marky’s money ban (IM24), but there are so many loopholes that it doesn’t do what he says. Besides, it will be struck down as unconstitutional in two seconds.

    If he wanted to try something innovative in this area, he should have invited a bunch of people to a meeting, had some good attorneys on board, etc. It would have been fun to work together on real reform, but I don’t think he’s serious about it.

  4. Rattman 2018-10-11 12:37

    Cory,
    I voted No on all of the measures for these reasons:
    W – its still a bit too far reaching and in my mind, extra-constitutional in nature – yet, if the supporters start hammering on how IM 22 was dismantled by the Legislature, it may have a shot of passing. That said, I believe that the 2018 Legislature did an ok job (C-) on their attempts to address the concerns brought forth with the IM 22 proponents. However, they (the Legislature) did an extremely poor job of communicating to the public, in a comprehensive manner, what changes they made to current law and how those would make our state better.
    X – I argued with Sen. Bolin regarding this on several occasions. Bottom line, it is already hard to get an initiated constitutional amendment on the ballot – 2X as hard as and initiated measure. Sen. Bolin even concedes that most of the constitutional amendments on our ballots come from the legislature themselves! In addition, raising the threshold to 55% only emboldens out of state and big pocket interests. Again, another attempt to weaken the citizens’ ability to be engaged in their own government.
    Z – this one just won’t work. It raises more questions than it solves. How/who determines what is a single subject and what is not? Anyone can justify that a number of issue areas are all inter-related to the same subject. Again, another feeble attempt to take the citizens out of the process.
    IM 24 – blatantly unconstitutional and will end up costing South Dakotan’s millions of dollars defending and then losing. Even the measure’s sponsor said during floor testimony in the House that this is a 50/50 shot. Hey, I don’t like out of state money any more than anyone else but the law is the law. I think the fiscal note on this is also way off. (court case for $78,322 – give me a break)
    IM 25 – a little short history here, the state currently puts aside $5 million of the tobacco tax now for prevention programs – however, they (the state)(according to my sources) make it so difficult for agencies, etc. to access these funds that there’s money leftover. So…the legislature took $500,000 out of the fund (I believe last year or the year before) and used it for mosquito prevention. Hmmm, so with that logic, IM 25, with no safeguards in place, will get robbed once again. In addition, not the best way to fund education. Maybe its time the legislature comes up with a truly visionary plan to fund education the right way, instead of on the backs of smokers, gamblers and other “sinners”. Yet, this measure does have a remote chance of passing, since 75% of South Dakotans are not smokers. We shall see.

    Even though I voted no on all of these, I am still a huge fan of the initiated measure/constitutional amendment process. A great way to engage the citizenry.

  5. Chris S. 2018-10-11 12:43

    I don’t have a problem with either taxing tobacco or funding education (even if they limit the aid solely to tech schools), but why such a Rube Goldberg method of doing it? I was under the impression that the legislature had the ability to levy taxes, and thus could fund whatever they wanted. Once again they want the voters to do the heavy lifting for them, while they can crow that they “never raised taxes” themselves.

    Phooey. If the legislature wants to fund education, then go ahead and do it already. The same for taxing tobacco. Don’t lump them together and ask the voters to save your bacon. (The same voters, ironically, who they want to keep away from the Initiative and Referendum process with razor wire and alligator-filled moats if they have to.)

  6. PORTER LANSING 2018-10-11 13:45

  7. Ryan 2018-10-11 15:48

    Agreed on everything.

    “If vo-techs matter to SD, we shouldn’t fund them by taxing only a small minority of SD.” says everything for that one. I don’t use tobacco and even I saw that as a bully-the-outcast scheme.

  8. MHR 2018-10-11 19:22

    Absolutely vote yes on IM25 – the more taxes on tobacco the better putting even temporary funding on most anything! – the tobacco executives are sleeze balls, hands down and high tobacco costs do reduce smoking!

  9. Gary Van Riper 2018-10-11 20:42

    SD has $21 billion in untaxed income yet no one will talk about an income tax to fund education.

  10. grudgenutz 2018-10-11 21:15

    Grudgenutz agrees with Cory.

  11. Cory Allen Heidelberger Post author | 2018-10-11 21:33

    I’ll talk about it, Gary! I’d love to see some ambitious petitioners put a state income tax on the ballot in 2020 so we can have an extended and honest discussion about the merits of replacing at least some of our regressive sales tax and unfair property taxes with a more sustainable and fair means of capturing wealth for the public good. Even Republicans say that the best tax is one where everyone pays some but no one pays too much. That’s the opposite of the tobacco tax that the Republicans who pushed IM 25 want.

  12. Cory Allen Heidelberger Post author | 2018-10-11 21:37

    Thanks for your thoughts, Rattman!

    I wholeheartedly support mosquito control. I will support any candidate and any tax that promises to rid the prairie of the bloodsucking scourge. ;-)

    You’re not the only constitutionally minded acquaintance of mine saying W puts things in the constitution that don’t belong there. I’m curious, though: what is your standard for things that don’t belong in the state constitution?

  13. RJ 2018-10-11 22:59

    Thank you for the clarification!

  14. o 2018-10-12 08:25

    It seems like IM 25 is the latest in a line of reasoning that both 1) acknowledges SD does not raise the revenue it needs to fund the programs it values, and b) tries to get “the other guy” to pay the tax revenue we need for that funding.

  15. Rattman 2018-10-12 10:34

    Cory,
    In response to your question regarding a standard for things that don’t belong in the constitution, I would turn the question around to say what belongs in our State’s constitution. What belongs, in my opinion, is a broad based set of basic tenants that our state believes in – life, liberty, etc. etc. Both the State and the U.S. Constitutions, in my opinion, should not be so narrow and specific with its varied sections. It should consist of concepts, principles, and beliefs rather than point by point directions on how to attain the very rights and responsibilities afforded to us as citizens. That’s why we elect State Legislators and Congressmen and women, to hopefully lead us in the direction of life, liberty and the pursuit of happiness. That’s why, again in my opinion, 95% of the U.S. Constitution is non-prescriptive, meaning it may say in Article IV. Section 4. that every state will have a Republican (that’s not party you know)Form of Government…it does not say how that is to be accomplished (e.g. Nebraska’s unicameral legislature, etc.). Yes, there are very few occasions when specifics are needed, such as signatures needed for a measure to be placed on the ballot. But in my opinion, very very rarely should this happen.

  16. Cory Allen Heidelberger Post author | 2018-10-12 12:18

    O, when Mark Mickelson and other Republican legislators talk about fiscal policy, they sound like smokers who acknowledge the habit is unhealthy but just can’t work up the willpower to quit. South Dakota needs to go cold turkey… from Republicans!

  17. Cory Allen Heidelberger Post author | 2018-10-12 12:54

    Rattman, that’s the standard I was looking for. “concepts, principles, and beliefs rather than point by point directions”—makes good sense.

    But is that what the South Dakota Constitution is? Has it ever been that? Our constitution has provisions for the preservation of all military records and relics in the office of the adjutant general, the funding of an institution of mining and metallurgy, the provision of a Marsy’s Card to crime victims, the apportionment of mineral leasing moneys, the provision for a state cement plant, and the authorization of roulette, craps, and keno in Deadwood.

    I look at those provisions and think the document you and I want is not the document we have. South Dakota has not practiced constitution-writing the way you and I might idealize since 1889. If our sense of constitutional purity (that seems a strong word; I invite other suggestions: rigor? restraint?) is cause to vote down W, is it also cause to go on a rampage and repeal lots of lines of our existing constitution?

  18. Darrell Solberg 2018-10-12 14:28

    Amendment “W” is for the people, giving people a bigger voice in State Government. IT PROVIDES FOR MORE TRANSPARENCY, OPEN GOVERNMENT, AND ACCOUNTABILITY. Lets not let the Legislature run over Democracy….give it to the people. REMEMBER IM-22, THE MAJORITY IN THE LEGISLATURE REPEALED IT, NOT BECAUSE IT WAS A BAD LAW, BUT BECAUSE THE LIKE THE POWER THEY NOW HAVE AND THE LACK OF TRANSPARENCY, OPENNESS, AND ACCOUNTABILITY IS SOMETHING THEY DON’T WANT. VOTE ‘YES’ ON AMENDMENT ‘W”.

  19. Cory Allen Heidelberger Post author | 2018-10-12 18:37

    Darrell’s statement reminds me of another excuse I’m willing to extend to those who would write W’s specifics into the state constitution. We tried to achieve the specific policy goals of W by writing them into state law in 2016. The Legislature rescinded our vote. The Legislature made clear that the only means remaining for South Dakotans to achieve campaign finance reform, lobbyist restrictions, a statewide ethics commission, and protection of initiative and referendum from Legislative override and strangulation is by constitutional amendment. In an ideal community with a responsive, accountable Legislature, we would not have to resort to this extreme and less-than-optimal measure. But here we are in a less-than-ideal community.

  20. Darin Larson 2018-10-12 19:26

    Cory, “excuse” is not the word I would use. The treatment of IM22 by the legislature necessitated Amendment W. “Necessity” is the proper adjective in my opinion.

  21. Pat Caldwell 2018-10-14 09:44

    Many voters will be confused with Amendments X & Z not realizing they negate W. Is the Dem party putting explanations in the papers or local news? If not, they should be!

  22. Cory Allen Heidelberger Post author | 2018-10-14 10:10

    I disagree. X and Z do not negate W, any more than W negates X and Z.

    Suppose all three pass. All three come into effect on July 1, 2019.

    W does not retroactively require X and Z to be subjected to another vote of the people. (Besides, if they pass, they’ve gotten a vote of the people, just as W will require of all future measures affecting initiative and referendum.)

    X does not retroactively apply the 55% passage rule to any amendment passed before 2019, including W.

    Z does not retroactively apply the single-subject rule to any amendment passed before 2019, including W.

    But life will be better if we pass only W and reject X and Z. The least bad outcome would be to pass none of them. The worst outcome is to reject W and pass either or both of the others.

  23. TAG 2018-10-18 13:11

    Agree with Cory’s votes. I’m actually filling out my absentee ballot right now, and this article was helpful to me for X, Z and 24, for which the purpose of them is not immediately obvious. Confusing at best, deceptive at worst.

    I would add that for IM-25, South Dakota doesn’t need any more regressive “sin” taxes that proportionally hurt low-income South Dakotans. as of 2015 SD was #5 in the country in gambling tax and #6 in the country in overall sin taxes (as a percent of state budget). I don’t think climbing those charts is in our best interest.

    https://www.pewtrusts.org/en/research-and-analysis/reports/2018/07/19/are-sin-taxes-healthy-for-state-budgets

  24. Heidi Marttila-Losure 2018-10-22 16:30

    I found these comments from the LRC on Amendment W: https://sdsos.gov/elections-voting/assets/2018_CA_VPACA_V1.pdf

    Were any of these recommendations followed? I can’t tell if what the Sec of State has posted is the final version of the Amendment. Do you know, Cory (or others)?

    And why the heck is the only full copy of the text of the amendment a scanned copy, uploaded sideways, in tiny print?! https://sdsos.gov/elections-voting/assets/2018_CA_CampaignFinLobbyingLaws_Petition.pdf Someone help me out if they have a better link, please.

  25. Cory Allen Heidelberger Post author | 2018-10-22 23:05

    Hi, Heidi!

    I printed the original proposed draft of Amendment W in April 2017 here. That text appears to be the same as the text that appeared on the petition and appears on our ballot.

    Sponsors submitted that first draft to LRC. LRC responded with several recommended edits, shown in red in the second version included in its April 21, 2017, letter to sponsors’ attorney James Leach. Amendment W appears not to include any of those suggested revisions.

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