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HB 1094: Circulator Registry Rests on Flawed Analogy to Lobbyists, Violates First Amendment

Prior to Senate State Affairs’ summary execution of Senator Reynold Nesiba’s (D-15/Sioux Falls) Senate Bill 157, a real effort to improve civic engagement by removing unfair burdens from grassroots petition circulators, House State Affairs gave Representative Jon Hansen (R-25/Rapids) a hearing on House Bill 1094, his effort to further hinder and endanger citizens who dare circulate ballot question petitions challenging the Legislature’s authority.

In testimony this morning, Rep. Hansen spoke the need for his new petition circulation law after witnessing firsthand the “manipulation of our South Dakota ballot measure process by individuals from out of state.” Hansen’s experience arose from Big Pharma paying him and his law firm colleagues big money to investigate and litigate the ultimately rejected petitions for the prescription drug price cap.

Stop right there, true conservatives. In the case Hansen cites, existing law worked. He presented evidence of violations to the court, and the court threw out the illegally gathered signatures. True conservatives, if the law is working, why do we need new law?

Hansen’s Flawed Analogy: Circulators ≠ Lobbyists

Much as Hansen and his lawyer friends surely enjoyed the paychecks they received from Big Pharma to kill IM 26, Big Pharma would apparently rather shift the cost of killing future measures to circulators themselves. Hansen said people challenging petitions shouldn’t have to file a lawsuit to get personal information about circulators. Instead, we should treat circulators like lobbyists (and Hansen pressed that analogy hard, saying folks who circulate ballot question petitions are just like the lobbyists who get paid to work the halls of the Capitol jawboning legislators for ten straight weeks) and make them register, submit personal information to a public database, and wear identifying badges.

Yet HB 1094’s circulator registry does not “mirror what we do for lobbyists” as Rep. Hansen claimed in committee. When I search Will Mortenson’s name (he testified for HB 1094 on behalf of the South Dakota Biotechnology Association, which joined Big Pharma in fighting IM 26) in the lobbyist registry, here’s what I get:

Will Mortenson, lobbyist registration for SD Biotech Assoc., SOS website, retrieved 2019.02.11.
Will Mortenson, lobbyist registration for SD Biotech Assoc., SOS website, retrieved 2019.02.11.

That entry gives most of the information required by SDCL 2-12-2: the name, city and state of residence, email address, phone number, and occupation of the person employed.

(Hey! Where’s Will’s phone number?!* And who gets the ticket for incomplete lobbyist registration, Will, his boss Joni, or SOS Barnett for not posting the info that Will surely would not have forgotten to file?)

(Focus, Cor, focus….)

HB 1094 all of the above information and more: age, physical address of current residence (not just Will’s city and state), physical address of prior residence if current residence is less than one year, state of issuance for driver license, state of voter registration, and whether the petition circulator is a registered sex offender.

I will grant that some of that information is related to legal requirements for petition circulators that don’t apply to lobbyists. (What, sex offenders can lobby? Well….) However, HB 1094 demands information beyond what petition law requires:

  • Age? Sure, circulators need to be at least 18, but gentlemen need not ask a lady circulator’s age. Why not a mere checkbox saying, “18 or older”… or, better yet, drop the age requirement and engage young people to learn about civics by participating in the petition circulation process?
  • Current physical address? Isn’t “Fort Pierre” or “Aberdeen” enough to attest to South Dakota residency?
  • Prior residence? That has nothing to do with whether a circulator is a resident now, or even under HB 1094’s new and unique-to-ballot-question-petition-circulators requirement of 30 days’ presence to be considered a resident.
  • Voter registration? Circulators don’t have to be voters, just residents.

Legal and Stalker Danger for Circulators

HB 1094 demands that circulators submit their information under sworn affidavit, subjecting circulators to perjury charges if they submit erroneous information. Lobbyists swear no oath when they register, meaning they face less penalty for submitting bad info.

The killer here is the physical address. HB 1094 pretends to repeal the unnecessary danger posed to circulators by forcing them to surrender their name, phone number, and e-mail address to signers on the street. But HB 1094 will require circulators to carry forms and petitions stamped with their registry ID number, which will allow unsavory types to access all of that information and the circulators’ home address, putting them in greater danger and deterring more citizens from volunteering to carry petitions…

Volunteers Have to Register to Circulate? Why?

…which reminds me of the other glaring flaw in Hansen’s pretense of treating circulators like lobbyists. Only paid lobbyists are required to register. Individuals like me who occasionally testify on bills on no one’s dime but our own do not have to register with the Secretary of State. SDCL 2-12-14 explicitly protects the right of citizens “to speak in their own name, in their own or in the public interest” without being subjected to the restrictions placed on paid lobbyists. HB 1094 includes no such protection for citizens who choose to circulate ballot question petitions in their own name, in their own or in the public interest. Volunteers have to register and carry HB 1094 badges just like paid circulators.

If Rep. Hansen really believed in this conflation of petition circulators with lobbyists, he would have written HB 1094 to apply strictly to paid circulators. But HB 1094 drops the registry hammer on every circulator, paid or volunteer. Volunteers are spared the $20 registration fee, but they are subject to the same onerous paperwork, badging, and updating requirements as paid circulators.

HB 1094 Busts Bloggers…

Rep. Hansen’s testimony today revealed other problems with HB 1094. Hansen said that he included “petitions or solicits petition signatures” in the definition of “petition circulator” to address out-of-state circulators’ sleazy and illegal practice of doing the real work of getting people to sign but having a local “witness” sign the circulator’s oath for them. But consider what happens when I write a blog post exhorting my neighbors to go to the Sioux Empire Fair and sign various ballot question petitions. I’m soliciting signatures; even though I might not even have a petition in my hand, HB 1094 deems me a petition circulator and demands that I register. As a matter of fact, I can’t even write that blog post until (Section 3) I submit an application to the Secretary of State to be a circulator and get my badge… and I have to wear that badge (Section 7) “while acting as a petition circulator,” which at least includes the time that I compose the post and hit “Publish,” any time that I retweet or forward or otherwise share that post, and possibly the entire time the post is available on the Internet.

(Hmm… writers can’t publish their work until they receive permission from the state? Hey, Attorney Hansen! Did they cover prior restraint in your Constitutional Law classes?)

And what about Pat Powers? If he hears I’m encouraging people to sign a petition, he’ll surely encourage them not to sign whatever godless communism I’m proposing. The definition of lobbying in SDCL 2-12-1 includes seeking “to promote, oppose, or influence in any manner the passage by the Legislature of any legislation.” Lobbying law doesn’t make proponents of legislation register but exempt lobbyists who only oppose legislation; every paid lobbyist registers, regardless of pro/con status on specific bills. By Hansen’s analogy of circulators to lobbyists, telling people not to sign a petition is as much “lobbying” as soliciting them to do so. The public should have has much interest in getting the phone number, home address, and names of employers paying Pat Powers and other writers to nay-say ballot question petitions and making Pat wear a badge over his blogging pajamas as Hansen says they should have in subjecting pro-ballot measure writers and other allies to the burdensome rules of HB 1094.

…Your Buddy Frank…

Heck, even regular citizens could be snared in HB 1094’s registry net. Suppose your buddy Frank sees a circulator with a good petition. Frank signs, then spots you across the street. “Hey, Frank!” Frank shouts. “Come sign this petition!”

Frank just solicited a signature. Frank did not register as a circulator. Frank just broke the law. He may not go to jail, but if Jon Hansen heard him, he just invalidated your signature.

…and the First Amendment

Criminalizing Frank’s casual solicitation, requiring bloggers to register, and forcing little old ladies to post their personal contact information on a state website show why HB 1094 must not pass. As written, HB 1094 forces citizens to get government permission to exercise their freedom to petition their government. HB 1094 creates a registry that chills participation in First Amendment activities. It gives the state an unchecked power to delay or even quash First Amendment activities by sitting on those circulator applications. One can even imagine a state disinclined to promote citizen petition drives passing those applications along to law enforcement or ballot question opponents first and facilitating harassment of those circulators before they even hit the street. Such harassment could even be cloaked as a background check, with Highway Patrol officers or DCI agents coming to the door of circulators, saying they’re just investigating the application to verify the submitted information. “So we hear you intend to circulate a petition,” say the armed agents of the state with menacing glares. Hansen’s registry creates exactly that big-government brake on First Amendment activity.

*     *     *

I understand where Representative Hansen says he’s coming from. I share his loathing of out-of-staters and anyone else who make money breaking the law and fouling our ballot question process. But the First Amendment outweighs our shared concern about out-of-state interlopers. The rules Republicans keep proposing to further complicate the ballot question process only scare more volunteers away from grassroots petition drives and ensure that what’s left of our ballot question process will be further dominated by big-money interests.

House State Affairs took testimony but ran out of time today before voting on House Bill 1094. When they reconvene on Wednesday (a busy day, with six new bills in the morning and five in the afternoon), let’s hope they have time to read this analysis and recognize that Hansen’s faulty analogy with lobbyists and HB 1094’s sloppy definition of “circulator” create a variety of First Amendment infringements that even crack counsel Hansen won’t be able to defend in court.

*Update 2019.02.12 12:40 CST: Will Mortenson checks in with me and says he has updated his lobbyist registration to include his phone number: 605.280.7087. Thanks, Will!

4 Comments

  1. Donald Pay 2019-02-12

    Exactly, Cory. A person who circulates a petition on a volunteer basis is not equivalent to a lobbyist. Anyone can go to Pierre and testify for or against a bill, and can encourage others to go to Pierre and testify for or against a bill. You don’t have to register as a lobbyist to do any of that.

    Money is the root of the problem, but the conservative courts and Republican legislators love government run by money, not voters, so that is not likely to change. They’ve rigged the system so that money talks and the people get to walk in the bullsh*t that money drops.

    His bill, of course, is unconstitutional. It’s too bad, because I have some sympathy with the need to improve the way petitions are circulated. That would be especially needed in candidate petitions, which have traditionally been illegally circulated. The fact that he is uninterested in the real problems tells us all we need to know about this bill.

  2. Cory Allen Heidelberger Post author | 2019-02-12

    Donald, it sounds like we agree, at least nominally, with Hansen and Mortenson: paid circulators are a problem. Can we go after them by amending this bill to require only paid circulators to register, pay a fee, and wear badges?

    Is it constitutional to require paid lobbyists to register, pay, and wear a badge, as long as we leave regular citizens (“unpaid/volunteer lobbyists”) alone?

  3. Donald Pay 2019-02-12

    Yes, paid circulation is a problem. I’ve said that for forty years.

    I think you could make the argument that paid circulators, especially, are like lobbyists, and should be required to register and wear a badge. I would also, however, allow, but didn’t require, an unpaid volunteer to register, and get a different badge that says “South Dakota Citizen Unpaid Petition Circulator.” Whether you can require a citizen to register with the state before he or she can engage in petitioning for redress of grievances or free speech is a question I have. If a citizen is acting under the constitution as a citizen, as envisioned by the SD Constitution, that should be all that is required. If you are an originalist, you don’t want all these laws that were never envisioned by the state’s founders. They envisioned laws that would put the initiative and referendum into motion, not hamstring it at every turn.

  4. Donald Pay 2019-02-12

    What has, after all, encouraged all this paid circulation? Well, what those of us citizen petitioners predicted in the 1990s, as we fought off the first attempts at eff-ing up the initiative process, was that if the Republican ever passed their efforts to make the use of the initiative more difficult, it would encourage the out-of-state billionaire/special interest use of the initiative and paid petition circulation. They never were all that concerned about all the things they blatted about, like bad signatures. Hell, they were the kings of illegal petition circulation. Why would they care about that? They were concerned with people actually having a say in their own government.

    Well, what we predicted is exactly what has happened. They have created all these problems that they now purport to solve with yet one more stupid bill, yet refuse to look in the mirror to find the real culprits. It’s like all their education “reform” packages that come around every 5-8 years. Their “solutions” just get weirder and more off the wall, and they refuse to admit their own complete corruption and failure.

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