Ketchup, Mustard, or Horseradish: LRC Casts No Light on Difference Between Style-and-Form Veto and Substantive Changes

Governor Kristi Noem has had some trouble understanding the proper scope of the style-and-form veto. To aid her understanding and their own, the Legislature asked the Legislative Research Council to produce an update to its 1995 Issue Memorandum on South Dakota’s rare and entertaining amendatory veto. The new draft memorandum, presented at the August 31 Executive Board meeting, offers some historical perspective on the drafting and application of this unusual veto power that indicates South Dakota has been fuzzy on the use of style-and-form vetoes all along.

The LRC digs up minutes from the Constitutional Revision Commission that brought us the great constitutional reforms of 1972. At the CRC’s 10th meeting, September 3–4, 1971, former Senate Majority Leader Robert William Hirsch and USD political science chair Dr. William O. Farber discussed the proper scope of amendatory veto power:

Mr. Hirsch stated that Subsection (c) allowed for executive amendment. It allows the Governor to return a bill with suggestions for change. Mr. Hirsch feels this gives the Governor too much power.

Dr. Farber stated that this provision is used to correct minor errors in several states. It avoids having to veto the legislation and go through the process of passing the bill again. Mr. Hirsch feels there is a danger that the Governor may change the substance of the whole bill. There is no limitation on this. Representative Clay agreed that as presently written the provision allows the Governor to rewrite the bill. He feels the changes should be limited to technical matters.

Mr. Hirsch suggested that the words “to correct such errors in style and form and not of substance” be inserted after the word “change.” This would take care of the problem of the Governor changing the substance of a bill [Minutes of the 10th Meeting of the Constitutional Revision Commission, 1971.09.03–04, p. 22; cited in LRC, draft Issue Memorandum: “The Style and Form Veto Revisited,” presented to Executive Board 2021.08.31].

But but but! The language that we put into Article 4 Section 4 refers to the Governor’s “specific recommendations for change as to style or form” but does not include Hirsch’s “and not of substance.” LRC finds no reference in the CRC minutes for this omission.

I would argue that if the Constitution says, “The Governor may offer condiments of ketchup and mustard” but does not go on to say, “and not of horseradish,” we would all still understand that the Governor’s condimentary power is limited to ketchup and mustard and that if the Governor tries to serve up horseradish, we may immediately shout, “Horsefeathers!” and dismiss that unconstitutional condimentation.

Not so the LRC, which cautious avoids taking a position and only suggests that the absence of definitions of error, style, or form in the CRC minutes and the Constitution leaves the door open to interpretation. I would argue that if you need a definition of ketchup and mustard, you need to go annoy some other hot dog vendor while I sling wieners for serious customers.

But LRC reports Noem isn’t the only Governor to try expanding this thin loophole into a wide-open door for substantive amendatory vetoes. LRC defines three types of style-and-form issues:

1. Recommendations to correct a plain error or oversight, or that result in no substantive change;
2. Substantive recommendations to address clarity issues or possible violations of the Constitution, with those changes aligning with perceived legislative intent; and
3. Substantive recommendations to address a policy outcome or implementation concern [LRC, 2021.08.31]

…and thusly plots the 145 style-and-form vetoes issued since 1977 in each year and category:

LRC reports that the Legislature has rejected only ten of those style-and-form vetoes; nine of those ten rejections were rejections of Category 3 substantive amendments masquerading as style-and-form vetoes, including Noem’s transgender sports error last March. But if I’m counting the red marks on LRC’s chart right, that means the Legislature has gone along with six style-and-form vetoes (twice for Mike Rounds, four times for Bill Janklow) that overreached into substantive changes.

Rather than taking a plain-textual approach and declaring that ketchup and mustard are ketchup and mustard, the Legislature appears to take the Schoenbeckian position that Legislative things are what the Legislature says they are, and that when legislators feel like it, horseradish can be ketchup and mustard. And the LRC endorses this position at the end of its draft Issue Memorandum: “As suggested by the history of the style and form veto, there are no hard-and-fast rules on its use or acceptance.” Despite seemingly clear Constitutional language approved by us the voters in 1972, the Governor appears free to slap whatever wild ideas she wants into style-and-form vetoes, and the Legislature may dispose of those changes however they wish.