DFP Brief Book: Twelve Emergency Bills Proposed for Online Veto Day

Last updated on 2020-03-30

The Governor and legislators are piling new bills into an emergency hopper for Monday’s historic Online Veto-Plus Day. When I checked at breakfasttime today, there were nine bills drafted to address the coronavirus crisis; checking in before suppertime, I find eleven. UPDATE 2020.03.29 06:45 CDT: Overnight we added a twelfth bill, Draft 938, proposed amendments to Senate Bill 38, the revision of the FY 2020 budget. I’ll add D938 to the chart and add discussion at the bottom of this post.

Looks like I’d better get to work providing legislators and the public with a brief book to explain what our leaders think we need to do right now in response to the greatest public health and economic crisis of our lifetimes.*

The emergency bills are not posted yet to the 2020 regular Session hopper. They reside instead on a special page LRC has created for Draft Legislation. All eleven bills would take effect immediately upon the Governor’s signing.

Here’s the full roster, with links to the posted PDFs in the left column and my recommendation at right:

Draft Bill	Title	DFP Recommendation
Draft 926	revise certain requirements for absentee ballots and to declare an emergency.	Amend
Draft 928	revise certain provisions regarding reemployment assistance benefits in response to Coronavirus Disease 2019 and to declare an emergency.	Pass, and do more!
Draft 929	revise certain provisions regarding contagious disease control and enforcement and to declare an emergency.	Pass with caution
Draft 930	revise the authority of the Governor in times of a disaster, act of terrorism, or emergency and to declare an emergency.	Do not pass
Draft 931	allow the secretary of education to waive the minimum number of hours required in a school term during a state of emergency and to declare an emergency.	Amend
Draft 932	grant the secretary of health certain authority during a public health emergency and to declare an emergency.	Do not pass
Draft 933	provide exemptions from certain requirements for the 2019-2020 school year and to declare an emergency.	Pass and make permanent!
Draft 934	revise certain driver licensing requirements to allow for an extension during a statewide emergency or disaster and to declare an emergency.	Pass
Draft 935	provide for the postponement of certain elections and to declare an emergency.	Pass and expand!
Draft 936	provide emergency authority to counties in the event of a public health crisis and to declare an emergency.	Pass
Draft 937	create the small business economic disaster relief subfund, to provide for the transfer of certain funds into the subfund, to authorize the Economic Development Finance Authority to make a grant to the subfund, to provide for the continuous appropriation of the subfund, and to declare an emergency.	Amend for accountability
Draft 938	revise Senate Bill 38, An Act to revise the General Appropriations Act for fiscal year 2020.	Pass and do more

D926: Apply to Vote Absentee Without Notary Seal or ID: Per SDCL 12-19-2, to get an absentee ballot from your county auditor, you have to either appear in person at the courthouse or mail an application. If you apply by mail, you either have to get a notary seal on your oath of identity or send a copy of your photo ID with your application. Apparently recognizing that it might be hard to get face time with notaries under social distancing (if not full community quarantine) and that not all voters will have copy machines in their covid-19 bunkers, Draft 926 would allow absentee voting applicants to simply sign a “personal identification affidavit” that includes their name, address, date of birth, and either their driver license number, nondriver ID card number, or last four Social Security Number digits.

Pretty much anything the Legislature does to make registering and voting easier during this public health crisis is fine by me. But the Legislature could make absentee voting easier by hoghousing D926 to strike the first half of SDCL 12-19-2 and simply mandating that the Secretary of State send ballot to every voter and allow statewide voting by mail.

D926 would expire on August 1, 2020. That’s a bad idea. Even if the coronavirus is completely gone and life completely back to normal by then (and that’s darned unlikely), we should not issue an application form with easier requirements at this point in the election year, then yank them during the last three months of the election season and reimpose stricter requirements. Don’t change rules to penalize voters mid-election. We should assume this crisis will continue to affect voters through November, make accommodations now, and leave them in place through Election Day.

D928: Revise Unemployment Insurance: Draft 928 eases these three unemployment insurance rules:

1. exempts employers from being assessed for unemployment claims from workers laid off due to covid-19 during the state of emergency declared by the Governor;
2. gives employers a pass on delays in paying their unemployment tax and UI reports caused by coronavirus-related layoffs and shutdowns;
3. allows the Governor to waive the one-week waiting period before unemployed workers can get their first UI check.

D928 would expire on July 1, 2021.

D929: Add Coronavirus to DOH Court Order Powers: Draft 929 adds coronavirus respiratory syndromes to the list of diseases (TB, MERS, SARS, smallpox, ebola, and other maladies declared to be public health emergencies) for which the Department of Health can seek court orders to enforce quarantines and other measures to lock down people who are infected or reasonably suspected of having” the infection.

D929 would expire July 1, 2021. That seems odd: if coronavirus is as bad as SARS, TB, etc., why would we take it back off that danger list next year?

D930: Give Governor More Emergency Powers: Hold on a moment—contrary to her pleadings, the Governor already has pretty much all the powers she needs to handle a real emergency. D930 empowers the Governor to suspend “any regulatory statute of this state prescribing the conduct of state business or the business of a local subdivision.” The Governor can already suspend rules, which is an awful lot of power. Legislators, if you want to give her even more power, the power to ignore the laws, make the Governor make a really strong case with specific examples of pandemic response that absolutely can’t happen under her current emergency powers.

In Section 1 subclause (4), D930 unnecessarily adds pandemic to the list of crises during which the Governor may wield her broad powers. That list already includes epidemic. For the purposes of state-level emergency-power legislation, adding pandemic is superfluous: you don’t reach pandemic unless you already have epidemic, which already triggers gubernatorial emergency powers.

D930 would expire July 1, 2021. Even in that short term, this particular expansion of Executive power appears unnecessary.

But psst, LRC! You’re missing a style-and-form opportunity! In Section 1, subclause 2, “affect” should be “effect,” as in to effect relief…. Fix it!

D931: Change K-12 School Contact Hour Requirements: State law requires 437.5 contact hours for kindergarten, 875 contact hours each school year for grades 1 through 5, and 962.5 hours for grades 6 through 12. Draft 931 allows those requirements to be waived if the Governor or President declares a state of emergency in the school district’s territory. Absent an outright waiver during an emregency, D931 allows school districts to count virtual or remote instruction toward those required hours. D931 does not try to set a formula for what counts as an actual “hour” of online instruction; that’s left to the Department of Education.

I’m tempted to support waiving an arbitrary number of hours in the midst of a crisis; who says 962.5 hours is really either necessary or sufficient to deem that every high school senior has learned enough to go to college? But I hesitate, because D931 seems to leave the door open for a school district to go through the coming school year, during which it may only be able to hold classes for two or three months out of nine as we continue to wait for a covid-19 vaccine, and just say to seniors, “Oh well, we tried. Y’all graduate with just three months of school!” I might prefer striking the contact hours waiver and rewording the virtual/remote learning option to make clear that schools must offer some sort of emergency plan that offers all students free and universal educational opportunities equivalent to what we’re trying to achieve with the seat-time requirement.

D931 would expire July 1, 2021.

D932: Give the Secretary of Health Superpowers: Draft 932 extends some of the Governor’s emergency powers to the Secretary of Health. D932 would allow the Secretary of Health to restrict the use of or close “any public or private location” to slow or prevent the spread of communicable diseases during a public health emergency or gubernatorially declared emergency.

I think we can do without this one, too. Government closure of private locations is a pretty big deal. We should leave that power directly in the hands of an electorally accountable official and not let her hand off that unpleasantness to an appointee. Besides, Secretary Malsam-Rysdon has been glued to Noem’s hip most of this month, anyway. If the Secretary of health sees the need to close some facility, the Governor is just a shout away to provide Executive approval.

D932 would expire July 1, 2021.

D933: Cancel Standardized Tests: Back to school—I would enact Draft 933 without a crisis. This measure takes my advice and waives this year’s standardized tests for all K-12 students, including home schoolers and recipients of stealth vouchers to private schools during the 2019–2020 school year. D933 releases schools from placing any such tests in these students permanent records and from the state’s “accountability system,” which in the absence of standardized tests will lack the usual data used by lazy number crunchers to determine whether schools are making suitable annual progress. (Lazy, I say, because you could hold schools accountable and get a better picture of their efforts and their students’ achievement by sending teams out to observe the schools and talk to the teachers and students and parents… which as your next Secretary of Education I promise to do, in every district, personally, during my first full four-year term in office.)

Amusingly, D933 also excuses the public schools from conducting any more fire drills this school year, in case they haven’t already done their two statutorily mandated drills. That part we should probably reinstate once this emergency is over. But the tests—ban ’em forever!

D933 has no expiration date; it is written to apply only to this school year.

D934: No Driver Licenses Expire During Emergency: Draft 934 would allow the Secretary of Public Safety to extend the expiration date of all driver licenses and nondriver ID cards to up to 90 days past the end of a gubernatorial emergency or disaster declaration.

We’re catching up with other states in offering that road grace. Minnesota’s Legislature has already passed such a grace bill for drivers (thought they only get two months extension past the emergency). Maine’s Secretary of State yesterday announced an indefinite extension of all driver licenses that expire during the state of emergency. Last week, Tennessee gave all of its residents whose licenses expire during the state of emergency an extra six months to renew.

D934 would expire on July 1, 2021.

D935: Postpone Spring Local Elections to June: Draft 935 postpones all election scheduled to take place from April 14 through May 26 and directs the cities, school boards, and other political subdivisions affected to pick a Tuesday this June for the replacement date. It also empowers the Governor to postpone the statewide primary and any other upcoming election to no later than July 28, if the Governor deems such delay necessary “due to public health concerns.”

I’m pretty sure we’re still going to be in the thick of public health concerns in June; for fairness to all parties and candidates and in the interest of maximum information and participation, I’d like to see the primary postponed to September 8. But I’ll accept July 28 as a compromise delay.

Somewhat problematic is the fact that D935 does not also extend petitioning deadlines for candidates. Petitioning is both difficult and unwise during this public health crisis. I’d like to see all nonpartisan, partisan, and independent candidates given an extension of time to figure out ways to circulate their petitions in ways that minimize the risk of spreading coronavirus. Legislators interested in maintaining the fairest election for voters and candidates amidst this public health crisis will amend D935’s delays to give candidates more time to get on the ballot. They could even consider my proposal to direct the Secretary of State to implement an electronic petitioning system to expand civic participation while reducing coronavirus exposure risk.

D935 would expire December 31, 2020.

D936: Let Counties Declare Public Health Emergencies: Draft 936 authorizes counties to declare public health emergencies, but only outside city limits. I’m (a) surprised we don’t have this yet, and (b) hoping counties and cities can act fast and in concert, because the idea that the Lake County Commission could declare a public health emergency across the bountiful prairie but not among the teeming hordes of Madison, Wentworth, and Chester is just silly.

D936 would expire July 1, 2021.

D937: Enact Emergency Small-Business Loans: We’re helping laid-off workers with D928; I suppose we should help their bosses, too. Draft 937 creates a Small Business Economic Disaster Relief Subfund within the REDI Fund. D928 authorizes the Commissioner of the Governor’s Office of Economic Development to give loans of up to $75,000 to any small business (no, Steve Westra, not just CAFOs!) “adversely affected by the COVID-19 state of emergency.” “Small business” is defined as any business enterprise employing 250 or fewer full-time equivalent employees.

D937 funds these loans with an initial appropriation of nine million dollars: seven million from the Small Business Credit Initiative Fund, one million from the Value-Added Agriculture Subfund, and one million from GOED’s Special Revenue Fund. D937 permits the Economic Development Finance Authority to transfer in another two million.

Give max $75K loans each time, and that $11 million could help 146 businesses. According to the Small Business Administration’s 2019 Small Business Profile for South Dakota (and be careful with SBA’s charts: they define “small business” as having fewer than 500 employees), we have 18,808 firms with under twenty employees. If we focused our aid on just those smallest firms and gave just half of them a piece of the Disaster Relief Subfund, they’d each get a check for about $1,170.

D937 keeps GOED’s meetings and deliberations about such disaster relief loans confidential. It does make public the names of loan recipients, the amounts of their loans, and the maturity and interest rate of the loan.

D937 fails to provide any clear oversight of how these loans are used. The only hint of criteria for loan usage come in one sentence in Section 3: “Loan proceeds may be used for business purposes as approved by the commissioner.” D937 could use at least three amendments on this count:

1. At least 50% of Disaster Relief Subfund Loans must be used to cover payroll for employees other than the principal owner and immediate family members employed in the business.
2. Loan recipients shall completely and accurately report to GOED all expenditures of Disaster Relief Subfund Loan dollars.
3. Any loan recipient who fails to fulfill these criteria will pay penalties equal to double the amount of any misspent or improperly accounted dollars.

D937 would expire July 1, 2025. If I put on my snark, I would suggest that D937 gets a uniquely long five-year run because we’re helping businesses, not individuals. But I’ll check that impulse and note the five years make sense here to allow administration and collection of those loans over a five-year period.

* * *
Most of these bills do useful things. But these bills show a paucity of leadership and vision. These bills offer no new spending or investments other than handouts to businesses… and even those handouts are loans. Draft 928 gets unemployment checks to laid-off South Dakotans sooner, but it doesn’t give them more. These bills don’t send more money to  individuals or schools or counties to help weather the twin epidemiological and economic storms. They take no action to re-employ South Dakotans in public projects or help South Dakotans take classes to prepare for new jobs.

Of immediate importance, none of these bills take direct action against the coronavirus. None of these bills provide more resources to hospitals, doctors, or nurses to treat covid-19 patients. None of these bills increase funding for public health. None of these bills expand Medicaid or do anything else that directly expands or protects South Dakotans access to health care. None of these bills take any direct action to stop activities that hasten the spread of infectious diseases or promote activities that check the epidemic.

Coronavirus and this sudden recession call for a Marshall Plan. This docket is mostly marshmallows.

Legislators, you still have a day to brainstorm before you log in for our historic online Legislative day. Don’t just treat the symptoms; tackle the disease itself and the real human harms it causes.

*I paused to consider timeframe on that sentence: this century would easily cover the magnitude of the peril we face; my lifetime would, too, as the Carter–Reagan double-dip recession was nothing like what’s happening on our Main Streets; I decided to go for our lifetimes, because no one in this country under 80 has experienced a depression cause by three parts new virus and one part absence of leadership and competence in the White House, and I will argue with my few centenarian readers that the 1918 influenza could not spread as fast pre-jet-travel and 1918 America was not nearly as dependent on today’s globally integrated and now gravely disrupted supply chain.↩

UPDATE 2020.03.29 06:45 CDT: Draft 938, the Saturday night addition to the emergency hopper, is the big kahuna of the measures posted so far. Even so, it demonstrates no real state-level initiative in tackling the current twin dragons; it simply authorizes the spending of additional anticipated federal funding. D938 puts $89.64 million more than SB 38 authorized into sixteen FY 2020 budget line items. The majority of that additional funding, $55.76 million, goes to operating expenses for the Bureau of Finance and Management for “computer services and development.” Some of that $55.76 million had better be paying for expanded distributed computing power that we contribute to covid-19 vaccine development.

The next biggest increase in D938 is $14.11 million directed toward operating expenses for the Department of Social Services for medical services. SB 38 cut $15.06 million from that line, so D938’s net effect on DSS medical services is to reduce its budget cut from 3.5% to 0.22%.

D938 uses $7.36 million from Uncle Sam to flip a $3.74-million cut to Department of Human Services long term services and supports operating expenses to a $3.61-million increase (from –2.9% to +2.8%). DHS also gets $4.591 million for operational expenses serving folks with developmental disabilities, on top of the $1.347-million increase in SB 38.

D938 adds $2.196 million to the Department of Labor and Regulation’s unemployment insurance operating expenses (to add staff and phone lines, we hope, to that swamped office) and $1.609 million to unemployment insurance personal services (to actually help laid-off workers, we hope).

The remaining seven-figure budget boosts include $1.172 million to DSS behavioral health operating expenses and one even million to Department of Health family and community health operating expenses.

97.5% of this new federal money goes toward government operating expenses. 2.5% goes toward personal services.