HB 1193 Violates Single-Subject Rule, Shows Republican Font Hypocrisy

Plus: Freedom Caucus Frets New Definition of Money Favoring Government Digital Currency!

House Bill 1193 offers 109 sections that print to 117 pages of changes to South Dakota’s Uniform Commercial Code, SDCL Title 57A. In clear violation of the single-subject rule, HB 1193 redefines signatures and bank branch locations, rescopes the UCC to apply to new beasts called “hybrid transactions” and “hybrid leases”, makes clear the lingering bindingness of scanned images of subsequently shredded checks, clarifies authority over electronic titles, and wreaks other changes via dreary business jargon that I’m betting 48 of the 49 Representatives who voted HB 1193 forward to the Senate Monday have not read.

Had I the pleasurable privilege of serving on Senate Commerce and Energy hears this bill, I’d stemwind against it on single-subject grounds, just to be a pain in Chairman Wheeler‘s keester and to see if I could get fellow committee member Senator Schoenbeck to offer his legal opinion that the single-subject rule is bunk.

If Chairman Wheeler didn’t gavel me out of the committee room, I’d extend my remarks to oppose HB 1193 on this niggling ground:

Section 1 redefines, or, more accurately, de-defines “conspicuous” by striking the specifications that (A) a conspicuous heading by in capital letters or a contrasting type or font or color and be at least as large as the surrounding text and (B) conspicuous text in the body of a record be in larger type, a contrasting type or font or color, or set off by symbols or other attention-calling marks. Instead, Section 1 trusts the drafters of documents covered by the UCC to make any mandatory text conspicuous and leaves courts with the airy-fairy direction to determine conspicuity “based on the totality of the circumstances”.

State law demands conspicuity in exclusion or modification of warranties, prohibition of transfer of interest under leases, notices of fees for returned checks, nonnegotiable titles, avoidance of liability for nonreceipt or misdescription of goods, enforcement of warehouse liens, and restrictions on transfers of securities.

The sponsors of this bill apparently see fit to remove clear definitions of this important term in multiple vitally important commercial documents. Yet in 2021, the three non-rookie sponsors [Stevens, Bartels, and Perry] of this vaguification of font criteria for commercial documents supported specifying the size of fonts for important language on ballot question petitions in the form of 2021 Senate Bill 77. That the sponsors dictate font sizes for grassroots citizens trying to have a say on the laws under which they live but leave corporate lawyers free to style their critical financial documents in whatever way they may typographically conceal their nefarious intent (and the intent of all corporate lawyers is nefarious!) is hypocrisy up with which I shall not put. Until the sponsors of HB 1193 extend the same deference to citizens drafting petitions as they do to the well-heeled crafters of business papers, I cannot extend my support to this bill, and neither should the conscientious and philosophically consistent members of this committee.

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The right-wing Freedom Caucus, which is an embarrassment even to purported members, is not capable of any such fun. Nor is it capable of offering any serious resistance to a bill on which it chooses to grandstand.

The Freedom Caucus drew my attention to HB 1193 with this ridiculous press release announcing an online petition to stop the bill due to its promotion of a Central Bank Digital Currency—i.e., cryptocurrency, but backed by the full faith and credit of the greatest nation in the world, not random criminal tech bros with no accountability to the public.

Naturally, the Freedom Caucus doesn’t want government spoiling the fun for its Libertarian currency fakers:

The South Dakota Freedom Caucus launched an online petition today to stop House Bill 1193, which they are claiming helps create a Central Bank Digital Currency (CBDC), in hopes to draw awareness to an issue they say could be fatal to our economy.

CBDC has been a highly debated topic over the last year, since the U.S. Federal Reserve released its discussions on the matter. The main concern from opponents to the currency comes from a government’s ability to control people’s purchasing, as described by International Monetary Fund (IMF) Managing Director Bo Li this last September, when he stated, “programming CBDC, that money can be precisely targeted for what kind of people can own [CBDC] and for what kind of use this money can be utilized, for example for food.”

“The ability of a free people to determine the means of exchange and which transactions they engage in is what makes them free,” said [SDFC Position] Representative [SDFC Member], “and without it, you don’t have a free people.”

The issue over the creation of CBDC in HB 1193 was first raised by District 31 Representative Scott Odenbach during debate over the bill in House Judiciary last Wednesday. Rep. Odenbach pointed to an area in the bill where it establishes“an electronic record that is a medium of exchange recorded and transferable in a system … authorized or adopted by the government.” Even with Rep. Odenbach’s opposition, and three other committee members, HB 1193 passed committee by a vote of 7 to 4 and that following Monday, passed the House by a vote of 49-17.

“We just can’t afford to let something of this magnitude pass unchecked,” said Freedom Caucus Treasurer Representative Tina Mulally, explaining why the Freedom Caucus’s sudden push against the legislation.

The bill is now set to appear before the nine-member Senate Commerce and Energy Committee, chaired by Sen. David Wheeler. With growing opposition, groups like the Freedom Caucus are hoping to round up five votes in that committee to kill the legislation. No date has been set for the hearing of this legislation in the committee [SD Freedom Caucus, press release, 2023.02.16].

Why do I ridicule this press release?

1. The Freedom Caucus weakens their claim in the first sentence by referring to it as a mere claim. State your claim boldly: “stop HB 1193, which helps create a Central Bank Digital Currency that could kill our economy.” Leave it to the newspapers that run your release to insert qualifiers; maybe some will be lazy, run your release verbatim, and thus help spread your claim with your original confidence.
2. Of course, the entire press release doesn’t explain that bold claim. How does a digital currency managed by Uncle Sam threaten the economy in any way that digital currencies managed by rando-tech-bros do not? Sure, you cite the IMF Bo Li quote, but can’t Sam Bankman-Fried deprogram our buying power even more capriciously than Federal Reserve Bankers, or just run off with his customers’ cash to buy houses in the Bahamas?
3. Where is this online petition? The release contains no link to it.
4. The Freedom Caucus can’t proofread: the online version, paragraph 3, contains the quote with placeholders, showing that whoever is writing their copy is cooking up quotes, then asking around for a member who will agree to have his or her name slapped on it. (The version I received via e-mail attributes the “free people” quote to Freedom Caucus Vice Chair Tony Randolph.)
5. When the Freedom Caucus remembers to fill its placeholders with an actual member, it forgets to edit: “said…Mulally, explaining why the Freedom Caucus’s sudden push against the legislation.” Why that sudden push will what?
6. “Sudden push”—really? You want to portray a bold policy position and rallying cry as “sudden”? That word suggests you weren’t paying attention, hadn’t really studied this bill, and only just now decided to throw a fit. (I’m not applying to write for the Freedom Caucus, but seriously: I’m a democratic socialist, and I could write better copy for these right-wing radicals than whoever is doing their releases now.)
7. And back to that invisible online petition—why? The Freedom Caucus has members; why can’t those members march into committee and kill this bill? A feckless and invalidatable online petition only further underscores the fact that the Freedom Caucus does not have the votes to advance or block any bill.

By the way, the promotion of government digital currency that Representative Odenbach alleges lies in HB 1193 Section 1, where it redefines “money”. Wow—there’s another violation of the single-subject rule! But not even the Freedom Caucus recognizes that problem. Ridiculous!

So brace yourself for Aaron Aylward to march into Senate Commerce and Energy a few days from now and claim that he has some online petition “signed” by “many” “people” terrified that House Bill 1193 will authorize the government to digitize and confiscate all of their cash and prevent them from using private cryptocurrency to dodge taxes. And then watch Senate Commerce and Energy ignore him and those alleged signatures and the alleged problems of reliable, federally backed digital currency and advance this multi-subject bill to a vote of the full Senate.