After two weeks of work, and with two weeks left to introduce new bills in regular order, the Legislature has thrown 179 bills in the hopper. Three of those bills deal directly with the coronavirus pandemic:
- Senate Bill 3 would repeal the sunset clause on the Department of Health’s power, enacted last year as the pandemic hit South Dakota, to seek court enforcement of its health orders. Health Secretary Kim Malsam-Rysdon told Senate Health and Human Services Wednesday that the Department has used that power ten times, only in extreme cases of non-compliance. Senate Bill 3 thus appears not to appreciably expand the state’s fight against coronavirus. (The Senate passed SB 3 Thursday and sent it to House Health and Human Services.)
- House Bill 1046 brings ALEC’s and Mitch McConnell’s long-sought immunity from liability for coronavirus lawsuits to South Dakota, making it nearly impossible to hold businesses, manufacturers, and anyone else accountable for failing to protect workers and customers from coronavirus. This bill, like McConnell’s national proposal last year, is a solution in search of a problem: there is no wave of frivolous coronavirus lawsuits to be stanched, because it’s already hard to prove in court that the action or inaction of any specific actor led directly to a specific party’s coronavirus infection. Nonetheless, HB 1046 is the opposite of pandemic prevention; it decreases the legal pressure on responsible parties to protect others from coronavirus. (Senate State Affairs amended and passed HB 1046 Friday.)
- House Bill 1060 would require that funeral directors be notified if they are receiving a body of someone who had a communicable disease, like coronavirus, that the Governor has declared a public health emergency. HB 1060 originally directed the person completing the medical portion of the death certificate for any deceased individual; House Judiciary amended HB 1060 to apply only to deaths taking place in a health care facility and to mandate the notice from that facility. HB 1060 as amended would thus not require any warning to funeral directors pertaining to folks who die at home, on the road, or anywhere else other than a hospital, clinic, or nursing home. HB 1060 thus marginally increases protection from coronavirus for only a small class of businesspeople in South Dakota. (Senate Judiciary passed HB 1060 Friday.)
The two bills taking action against coronavirus take only limited steps to protect public health; the third bill specific to the pandemic reduces protection against the spread of covid-19.
Meanwhile, the Legislature is considering four bills to limit the spread of initiative and referendum:
- Senate Bill 77 would require all petitions for initiated laws to be printed in at least 12-point font. SB 77 would thus make it harder for initiative sponsors to print manageable petitions and effectively limit the scope and detail of laws that citizens could propose. (Senate State Affairs has not placed SB 77 on its calendar yet.)
- Senate Bill 86 would empower the Secretary of State to reject proposed initiated amendments if the Secretary feels that the amendment either encompasses multiple subjects or constitutes a revision, not an amendment, of the South Dakota Constitution. SB 86 thus writes Governor Kristi Noem’s flimsy objections to Amendment A, 2020’s successful cannabis constitutionalization, into law, usurps the voters’ and the courts’ proper authority to determine which initiated measures are kosher, and changes the Secretary of State’s role from ministerial to dictatorial in the petition approval process. SB 86 creates one more significant and easily abused roadblock to citizens’ exercise of their right to amend their Constitution. (SB 86 awaits a spot on the calendar of Senate State Affairs.)
- House Bill 1054 would force ballot question sponsors to pay for copies of their initiatives to be placed in the hands of every voter at election time. I calculate HB 1054 could impose on every initiative sponsoring committee a cost of $162,000 or more. Creating this new financial burden would drive grassroots groups off the political field and ensure that a higher percentage of ballot questions would come from big-money groups. Our initiatives would less reflect the interests of South Dakota voters and more reflect the interests of corporations and other wealthy special interests. (House Bill 1054 gets its first hearing on Monday morning (tomorrow! January 25!), 7:45 a.m., in House State Affairs.)
- House Bill 1062 would shift the cost of defending initiated amendments that are challenged in court and ruled unconstitutional from the Attorney General to the sponsors of the amendments. The financial uncertainty created by HB 1062—will someone sue if we win? Will the Attorney General lose and stick us with a huge bill?—will force sponsors to maintain sizable legal defense funds for potential indeterminate costs, which means they’ll have less money available to conduct their petition drives, educate the public, and promote their measures before the election. That financial uncertainty will also deter more grassroots groups from even starting a petition drive and incurring the risk that crafty lawyers will take their measures to court after a successful election. (HB 1062 awaits the attention of House Judiciary.)
The Legislature thus has before it four bills dealing with citizen ballot measures, each of which treats initiative not as a constitutional right but as a hazard to the Republic that must be reined in or rubbed out.
Four bills fighting citizens’ right to participate in democracy, versus two bills only marginally fighting coronavirus, plus a third pandemic-related bill that actually weakens efforts to prevent the spread of covid-19. Hmmm… a straight reading of the bills in the hopper indicates that the South Dakota Legislature views citizen initiatives as a greater threat than coronavirus.