Senate Bill 123 proposes to add a public comment period to the pre-circulation phase of initiative petition drives. Currently, before sponsors of an initiative can collect signatures on their petitions to place their measures on the ballot, they must submit final drafts of their proposals to the Attorney General. Under SDCL 12-13-25.1, the Attorney General gets 60 days to compose a statement consisting of a title and explanation of the measure. That title and explanation must be printed on every petition, on a handout that petition circulators are required to offer to every petition signer, and, if the petition drive succeeds, on the ballot. The Secretary of State will not approve any petition for circulation until the sponsors have the Attorney General’s title and explanation in hand and printed on their petitions.
Senate Bill 123 subjects the Attorney General’s statement on each initiative to public scrutiny before the A.G.’s verbage becomes official. SB 123 would require the A.G. to file a draft title and explanation with the Secretary of State, post the draft statement to the A.G.’s website, and issue a press release announcing that the statement is available for public review and comment. SB 123 requires that the A.G. take public comment via the A.G.’s website (whoo-hoo! Let’s install WordPress on atg.sd.gov!), review all comments, and “revise the statement in response to the comments as deemed necessary.”
I’m all for public comment on initiatives—after all, the whole point of initiative and referendum is to increase civic engagement and give the people more voice in the laws under which we live. I’m not sure SB 123 opens the door to the proper scope of public comment, since it invites comment on the A.G.’s statement rather than the initiative as a whole. The technical arguments about whether the Attorney General properly captures the essence and primary legal ramifications of an initiative in an explanation limited to 200 words (SB 123 does not change that restriction) may not be as interesting or as useful as a broader public comment period on the initiative itself. The A.G.’s statement doesn’t affect our laws or quality of life; the initiative itself does…
…which gets me thinking of an amendment. Instead of public comment directed toward the Attorney General’s summary (which makes me wonder if Senator Diedrich may have misinterpreted what Chamber chief David Owen suggested at the 2017 Initiative and Referendum Task Force hearings), why not post the text of the sponsors’ initial draft the moment it is submitted to the Legislative Research Council and invite public comment on that text? Require 15 days of public comment to coincide with the LRC’s 15 days of review. Make that public comment available to the sponsors (and everyone else) right alongside the guidance the LRC gives the sponsors. Allow the sponsors to incorporate that public comment into their revisions before they submit their final language to the Attorney General. That layer of public attention and input on initiatives before their language is locked in could make for better initiatives.
But whatever public comment we invite in the initiative process must not further delay an already bloated and dilatory review process. My first concern with Senate Bill 123 was that Republicans would use it as an excuse to take more precious time away from petition circulators. Fortunately, SB 123 does not do that. It requires that the Attorney General post his rough draft, collect and consider public comment, and produce the final title and explanation for the sponsors within the same 60-day period as under current law.
Senate Bill 123 is a surprising Republican step toward inviting more public participation, not less, in the lawmaking process. With some adjustment, it could allow the public to help sponsors make their initiatives even more responsive to the needs and desires of the electorate.