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SB 123: Require Public Comment on Attorney General’s Statements on Proposed Initiatives

Senator Michael Diedrich (R-34/Rapid City) proposes the first initiative-related bill of the 2021 Session I’ve seen that doesn’t attack the initiative process.

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.

5 Comments

  1. Donald Pay 2021-01-29

    I’d take the AG out of it totally. The AG was involved in the first place because there was no legislative legal or technical staff when the initiative and referendum amendment passed. So, the AG got the job more or less by default. But if you think about it, the AG is an executive branch official whose job in crafting an explanation is a direct interference in the legislative process. Anything dealing with a legislative proposal should be completed by legislative staff. Now I will say that putting an explanation on an initiative petition is also forced government speech, which is unconstitutional, but at least it is the correct branch of government doing it.

    The concept of Diedrich’s bill is much like what many of us were suggesting in the 1990s. The ballot explanation is the most secretive part of the whole initiative process. It can be a corrupt process, as we found out in our mining initiatives. For example, the mining association focus tested specific words they wanted to insert into the AG’s opinion, and secretly lobbied the AG to put those words in the explanation. We found out about it. Of course, the AG had to open it up for our comments. So, opening up the process to public comment is something we would have appreciated.

    The problem is this could add a few more weeks to the timeline. That was fine when the timeline was reasonable, but with the completely unnecessary frontloading of all the bureaucracy since the 1990s, this may stretch out the timeline further. That is not what should happen.

    Like Cory, I think public comment on draft initiatives is a good thing. We held meeting after meeting on our draft initiatives and continually reworked them before going to the LRC with them. Then LRC would rework our drafts and we would hold a couple more meetings to determine whether we wanted to go with the LRC drafts in total or add clarifying language. We found out just going with LRC drafts sometimes leads to confusion. We always went with the LRC drafts because we thought that protected us, though. That was not always the case, however.

  2. Mark Anderson 2021-01-29

    Gosh Cory a Republican doing a good thing, this will put him on the trumpian noem bad list. He does live close too close to Wyoming and Cheney after all.

  3. John 2021-01-29

    I second Cory, and I second Donald. Having public input makes sense. It would strengthen a tremendous weak legislature to do its own statement, removing the executive branch from the legislative branches business.

  4. Bob Newland 2021-01-29

    Public comment would start a trend toward making the legislature irrelevant. I say that with full realization that the legislature is largely relevant only in placing barriers in front of people with brains.

  5. leslie 2021-01-30

    Incremental shifts in leverage against initiatives. Piece by piece by piece. The long game.

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