Governor Kristi Noem has vetoed five bills in the 2023 Legislative Session. One veto has already been sustained; the other four will be discussed by the Legislature tomorrow, Monday, the final day of the 2023 Session.
A common denominator in Noem’s vetoes is that her veto letters have been riddled with misunderstandings, misrepresentations, or possibly outright lies about the bills she’s blocking.
Noem issued her first veto of the Session on House Bill 1109, which modified the occupation tax for business improvement districts. Noem claimed HB 1109 “significantly raises taxes”. Technically, enactment of HB 1109 would not have raised taxes on any motel room in the state; it would only have allowed local governments to raise room taxes from $2 to as high as $4 a night or 4% of the room rate, if they thought the market could bear such taxes. That $2 cap was set back in 2005. But never mind inflation or local control; Noem wanted this bill dead, and the House failed to rally the two-thirds vote necessary to override her death wish.
Four vetoes remain for the Legislature’s consideration.
The most contentious veto is Noem’s veto of House Bill 1193, the update of the Uniform Commercial Code. Inspired more by right-wing lizard-people conspiracists than an actual reading of the bill and information from her party’s own mainstream bankers and businesspeople, Noem makes two big false claims:
- Noem claims that HB 1193 would make it harder to use cryptocurrency. That would be great if it were true, since crypto is for crooks, but it isn’t: HB 1193’s UCC update was written to make it easier to use cryptocurrency for grown-up commerce and finance.
- Noem claims that HB 1193 “opens the door to the risk that the federal government could more easily adopt a CBDC [Central Bank Digital Currency]”. That mealy-mouthed sentence is simply false: the UCC update is not opening that door, the door is already open, other governments have already stepped through it, and the state of South Dakota cannot do one thing to stop the federal government from exercising its constitutional authority to issue money in whatever form it sees fit for the Republic.
Neither HB 1193 itself nor Noem’s veto thereof do what Noem says they do. They actually do the opposite.
In addition to crypto-madness, Noem still suffers from reefer madness. Last week Noem vetoed House Bill 1209, which sought to raise the level of THC that may be found in industrial hemp during processing from 1% to 5%. Noem says in her veto letter that HB 1209 would allow marijuana products to be considered hemp products. That is bunk: HB 1209 deals with THC levels during processing, not in final products available to consumers. HB 1209 would require any products in process be labeled “not intended for human consumption” if they are transported anywhere. Finished products would still be required to have no more than 0.3% THC, not enough to get anyone high.
HB 1209 prime sponsor Representative Oren Lesmeister (D-28A/Parade) says Noem is lying about HB 1209:
Noem also argued that the change would increase the THC level for crops in the field.
“That’s absolutely a lie. That’s not true,” said Rep. Oren Lesmeister, D-Parade, the bill’s prime sponsor in the House. “The only time we’re allowing it above 0.3% is processor to processor. Crops are still under 0.3%, biomass is still under 0.3% and end products are still under 0.3%.”
The higher THC levels are temporary, Lesmeister explained, and tied to the production of hemp-derived products. While hemp plants in the field have a THC below 0.3%, processors have concentrated levels of THC when extracting oils and CBD from the crops for products such as lip balms, oils and lotions.
Those higher levels of THC are all but unavoidable in the production of consumer hemp products, Lesmeister said. Processors themselves are not federally regulated, and other states with hemp processors “turn a blind eye” to processing-related concentrations over 0.3%, Lesmeister said. South Dakota would join two other states, Colorado and New York, were it to allow the 5% limit [Makenzie Huber, “Noem Vetoes Bill That Would Increase THC Limits for Hemp Processing,” South Dakota Searchlight, 2023.03.23].
Noem’s misunderstandings in her vetoes of HB 1193 and HB 1209 may actually get in the way of business opportunities in South Dakota. Her contorted misreading of Senate Bill 108 only stands in the way of a few students taking college classes on how to make beer and wine. Current law, as amended three years ago, says students must be 21 or older to take classes on how to make hooch. SB 108 allows students under the drinking age to take such courses and to taste (but not swallow!) the fruits of their coursework during class. Noem claims SB 108 would complicate law enforcement: “Officers encountering underage students with alcohol on their breath or in their system must determine if this exception to underage drinking laws applies before writing a citation.” Wrong:
- If students are following SB 108, officers won’t find alcohol in students’ systems, because the alcohol will never get past the students’ palates.
- The smell of alcohol on students’ breath may prompt an officer to ask a few questions and conduct a field sobriety test, but when the students walk that straight line, count backward without hesitation, and presents their student IDs and the notes from their instructors certifying their participation in the course, no arrest will ensue, because the officers won’t have probable cause to charge the students with underage drinking.
- Students and professors foreseeing the potential for problematic run-ins with law enforcement after class will have Scope, peanut butter, or coffee handy in class. And since they aren’t swallowing the alcohol, rinsing their mouths out will do the trick, since their bodies won’t be absorbing and metabolizing alcohol and exuding those fumes from the lungs.
SB 108 won’t lead to students under 21 stumbling out of their keggers and getting out of tickets by proclaiming, “Chill, ossifer! I’m doing homework!”
Finally, Noem vetoed Senate Bill 129, which would have increased the criminal penalty for assaulting school employees. Under current law, simple assault is a Class 1 misdemeanor and aggravated assault is a Class 3 felony. However, a law enacted in 2005 bumps those penalties up one notch for assault of a cop, firefighter, ambulance staff, prison employee, or “other public officer… engaged in the performance of the officer’s or employee’s duties.” An amendment in 2018 extended the same enhanced penalties for assault against health care workers. The enhancement for simple assault is perhaps most significant, since it moves the penalty up from misdemeanor to felony, meaning time in the pen instead of county lockup.
SB 129 would adds public or non-public school employees to the roster of folks you can’t beat up without incurring a felony charge. Noem vetoed this enhanced punishment for assaulting teachers, saying she appreciates school employees but can’t give them the same special treatment as cops:
This veto does not take away from the appreciation I have for our school employees. They carry the great responsibility of educating and caring for our children, and there’s no question they deserve a safe working environment. But unlike school employees, the nature of the work and responsibility of law enforcement makes enhanced penalties a necessity to protect the integrity of our institutions, as law enforcement officers are expressly tasked with risking their lives to protect the public.
While anyone who assaults a school employee also needs to be held accountable, our current statute provides that accountability. South Dakota already has a strong and fair criminal justice system, and school districts have robust disciplinary policies tailored to address behavior within their districts. The changes SB 129 makes would open the door for additional occupations to ask for special treatment under the law [Gov. Kristi Noem, veto letter on SB 129, 2023.03.09].
Noem’s focus on law enforcement in her veto letter suggests she did not read the statute SB 129 amends. We apply enhanced penalties for assault not just to cops but to firefighters, ambulance drivers, and doctors and nurses. Noem cites “expressly task[ing]” certain professions “with risking their lives to protect the public” as a criterion for extending the protection of enhanced assault penalties. But are EMTs and nurses “expressly tasked” with risking their lives? If they are, and if they thus qualify for protection of enhanced assault penalties, then don’t school employees also qualify, since with all of our school-shooting drills, we are tasking teachers and other school employees with risking their lives to protect students?
Every one of Governor Noem’s five 2023 vetoes seems to be based on a misreading of each bill’s text. Whether she is deliberately misrepresenting these bills or simply failing to read them carefully, Noem is only adding to the voluminous evidence that she is really bad at her job. Legislators have let one sloppy veto stand; they should respond to Noem’s inattention and inaccuracy by overriding the remaining four vetoes.