Kristi Noem demonstrated a failure to understand many things during her first Legislative Session as Governor: facts, consistency, civics education, agri-business opportunity, transparency, the First Amendment, grammar.
Add to Kristi’s portfolio of (probably willful) ignorance the style-and-form veto.
Article 4 Section 4 of the South Dakota Constitution, as amended by the voters in 1972, allows the Governor to return “Bills with errors in style or form… to the Legislature… with specific recommendations for change.” The Legislature may pass any such recommended changes by amendment on a simple majority vote.
On Tuesday, Governor Noem issued a style-and-form veto of Senate Bill 176, her own proposal to spend a million bucks to restore pheasant habitat. In her veto message, Governor Noem explained that she intended SB 176 to give her one million dollars right now… or at least in this fiscal year and not in the 2020 budget:
Throughout the legislative debate on this bill, it was understood that these funds would come from dollars available in Fiscal Year 2019. That was how the bill was originally proposed and how it was explained throughout the legislative process. Even in the last week of the legislative session, materials prepared by legislators and legislative staff included these funds in the Fiscal Year 2019 budget.
As Senate Bill 176 passed in its final form, however, it did not include an effective date in Fiscal Year 2019. To carry out the objective of this bill in a manner consistent with the Legislature’s clear intent, I recommend the following Style and Form correction to the Enrolled version of Senate Bill 176:
On Page 1, after Section 5, insert “Section 6. This Act is effective on June 28, 2019” [Gov. Kristi Noem, veto message to SB 176, 2019.03.26].
The absence of the right-now effective date was not a drafting error. Let’s look at the Legislative history:
With the Governor’s emergency-enactment clause requiring a two-thirds vote to pass, SB 176 failed two full House floor votes: four votes short of the necessary 47 on March 5, then five votes short on reconsideration on March 7. Majority Leader Lee Qualm moved to reconsider SB 176 again, stating that he intended to remove the emergency clause.
Before we even got to the emergency clause, Rep. Isaac Latterell called point fof order on the motion to reconsider. He cited Joint Rule 5-11.1, which says, “No motion to reconsider the same question may be made twice in the same house without unanimous consent.”
SB 176 should have been dead right there. Speaker Haugaard muttered something about the motion being on a different bill, but Joint Rule 5-11.1 says “question”, and the question on March 5 and March 7 was, “Shall SB 176 pass as amended?” Speaker Haugaard attempted to gloss over the point of order and let Qualm speak to his motion, let Rep. Tom Brunner speak in blunt opposition (he deemed reconsidering SB 176 a third time “…ridiculous! We need to learn to take No for an answer”), and meandered toward a reconsideration vote. Rep. Latterell boldly rose to point out that after 19 minutes, no direct ruling on his point of order appeared to have been issued. Speaker Haugaard reiterated that the substance of the bill had changed with that day’s amendment. Rep. Latterell then challenged the ruling of the Speaker.
“Excuse me?” said Speaker Haugaard.
“I would challenge the ruling of the Speaker,” repeated Rep. Latterell.
Speaker Haugaard needed another two minutes of coaching to figure out what to do next, joked at the dais about putting a football game on the screen, and then called for a vote on sustaining his ruling. 50 members (himself included) sustained Speaker Haugaard’s improper ruling. 40 members (Haugaard not included) supported the improper reconsideration motion.
And then came the key votes putting the lie to Governor Noem’s characterization of her veto as style and form: Rep. Qualm moved to amend SB 176 to remove the emergency clause and to take the pheasant funds from Game Fish & Parks or other funds rather than the general fund. After another long pause for drafting and distribution, meaning everyone in the chamber saw exactly what the amendment contained, Qualm’s amendment passed on a voice vote. 47 legislators then voted to pass SB 176 as amended, with no emergency clause. Absent an emergency clause, SB 176 would take effect July 1.
The minor point from the March 7 House debate is that Steven Haugaard isn’t fit to be Speaker.
The major point from the March 7 House debate is that the omission of the emergency clause was not a style-and-form error; it was a deliberate Legislative act initiated by the House, sustained through conference committee amendments, and supported by House and Senate in concurrence votes on March 12.
Governor Noem’s veto was not a style-and-form veto. It was an effort to rewrite a passed bill to get what she wanted.
Some legislators tried to make that point yesterday:
Representative Taffy Howard, a Rapid City Republican, called for House members to vote against Noem’s change
Representative Thomas Brunner, a Nisland Republican, said it was “an obvious abuse“ of the style-and-form veto. “Uphold the constitution. Do the right thing,“ Brunner urged.
…Sen. Stace Nelson, R-Fulton, said the House deliberately removed the emergency clause that would have let the bill take effect immediately upon Noem’ssignature.
“This bill was passed in the form the money comes out in 2020. Now they want the money to come out in 2019,“ Nelson said.
…”If we allow what’s happening today, if we okay this as a style and form veto, we are setting precedent, and ten years down the road, twenty years down the road, the future legislators will be referring back to us and saying, ‘Well, they allowed it, so it must be okay,'” Howard said.
“This has been a very, very hard session. People have been told that principles don’t matter, we need to give up on our principles,” Howard continued. She added, “This has been a tough session, and this may be another tough vote.”
…”Adding a section or a sentence to the bill is very dangerous. It obviously is outside what we normally would call style and form,” Brunner said. He added, “I will never vote against the constitution knowingly and I certainly won’t do that today” [Bob Mercer, “On Wildlife Habitat, South Dakota Lawmakers Give Governor Her $1 Million Wish,” KELO-TV, 2019.03.29].
As an unseen rider to SB 176, Governor Noem will also be signing a declaration officially renaming the Legislature “Bryon.”
I’ve never really dug Kristi Noem’s sense of style. But Governor Noem’s sense of style and form is atrocious.
Governor Noem’s amendment of SB 176 was not a style-and-form veto. It was a substantive change to an appropriations bill, removing an expenditure from the FY2020 budget and advancing it to the FY2019 budget. As a special appropriation, SB 176 required a two-thirds vote to pass, as specified by Article 12 Section 2 of the South Dakota Constitution. In receiving only 41 votes in the House on Friday, SB 176 fell short of the required two-thirds consent. Governor Noem has thus used the fiction of a style-and-form veto to obtain an illegal appropriation.