PIERRE — A controversial bill appears headed for a showdown on the South Dakota Senate floor today (Wednesday), seeking to scuttle an anti-corruption law passed by the state’s voters last November.
HB 1069 would repeal Initiated Measure 22 (IM22), which voters passed 52-48 percent. The measure has already passed the House and a Senate committee. If the Senate gives final passage to HB 1069, Gov. Dennis Daugaard has indicated he will sign the bill. An emergency clause would turn the bill into law immediately rather than the normal July 1.
District 18 Sen. Craig Kennedy (D-Yankton) said he has decided how he will vote on the bill.
“I don’t care for HB 1069, and I don’t like the repeal of IM22,” he said. “I don’t like the idea that you do a repeal and declare an emergency, which prevents the repeal from being referred (to a public vote).”
IM22 includes establishment of an independent ethics watchdog commission, campaign finance reform, public funding of campaigns and a $100 annual cap on lobbyist gifts to lawmakers.
In addition, IM22 would make campaigns more transparent, toughen the penalty for bribery from misdemeanor to felony, lower political contribution limits and make it illegal for public officials and top staff to take lobbyist jobs for two years after leaving office.
The effort to overturn IM22 has gained national attention. In conjunction with the anticipated Senate action, IM22 supporters are planning a rally today at the Capitol in Pierre.
“I expect a fairly full gallery and a good turnout,” Kennedy said.
HB 1069 moved quickly through the Legislature and reached the Senate floor last Thursday for the last hurdle. However, a group of senators invoked Rule 5-17, which allows the Senate to delay a bill one legislative day for further consideration when an amendment is added.
The Senate didn’t meet again until this week, making today the next day for consideration.
HB 1069 foes urged citizens to contact their legislators during the long weekend and express their opposition to any repeal effort.
District 18, which consists of Yankton County, didn’t hold a legislative forum last weekend. However, Kennedy said he has received a great deal of feedback on the issue.
“There has been quite a bit of email,” he said. “I can’t say every one of the emails that I received (expressed the same sentiment), but the vast majority of the emails that I received encouraged me to vote against 1069.”
HB 1069 supporters say the repeal is necessary because of a December ruling by Circuit Court Judge Mark Barnett of Pierre. However, Kennedy — an attorney — said Barnett did not rule IM22 unconstitutional in the court challenge.
“When Judge Barnett ruled on the request for a preliminary injunction, he indicated some concerns about the constitutionality of certain sections of IM22,” Kennedy said. “The (South Dakota) Supreme Court is where it has the ultimate appeal. Whether there will be an appeal at this stage of the process, we don’t know. At this point, Judge Barnett has made a temporary injunction but hasn’t ruled on the measure itself.”
HB 1069 has received mixed reviews among area legislators, mostly along party lines.
District 21 Rep. Lee Qualm (R-Platte), the House Majority Leader, pointed to Barnett’s areas of concern in the preliminary injunction.
“The ethics commission would be a fourth branch of state government that is not accountable to any existing department in state government,” Qualm said. “The democracy credit program is funded by an unconstitutional annual appropriation of tax dollars, since only the Legislature may constitutionally make appropriations. Citizens may not appropriate by ballot measure.”
Additional areas may produce problems, Qualm said. “The limit on lobbyist gifts in IM22 makes many legislators criminals since they work for companies that employ lobbyists, which violates the U.S. Constitution’s contracts clause,” he said.
Finally, Qualm contended the other IM22 sections are too intertwined with the questionable sections. The interconnections would make the entire law unconstitutional, he said.
The emergency class is needed to prevent IM 22 and its machinery from going into effect, Qualm added. Those aspects include setting up an ethics commission, covering the costs of implementing the new law and prosecuting those who would be found in violation of it.
District 16 Sen. Jim Bolin (R-Canton) expressed strong support for overturning IM22.
“Most of the Legislature, including myself, would have to resign if this is not dealt with,” he said. “As a former teacher, I would have to resign my position because the SDRS (South Dakota Retirement System) has a lobbyist, and since I receive money from them, I would then have to resign or break the law.”
Bolin defended the emergency clause as a necessary tool.
“I submit it is an emergency when over 75 percent of the Legislature has to resign if this law is not removed,” he said. “Then, you would have a total rubber stamp Legislature because the governor would appoint almost the entire body.”
District 19 Rep. Kyle Schoenfish (R-Scotland) said he has also received emails and calls regarding IM22.
“Legislators from both parties acknowledge that IM22 is deeply flawed and doesn’t do what the advertising for it claimed,” he said. “It is important to remember that IM22 is not currently in effect due to a judge putting an injunction on it … The Legislature will keep working on ways to implement workable reforms that will actually follow the constitution and keep government accountable.”
While Republicans constitute a large bloc of HB 1069 supporters, not all GOP lawmakers support overturning IM22.
District 19 Sen. Stace Nelson (R-Fulton) said he opposes HB 1069 and the current procedure used to move it through the Legislature.
“I was elected to represent all the folks in District 19, which includes the majority of people in my district who in fact voted against IM22. But, there are proper and respectful ways to review this, which the legislators and the governor are not following,” Nelson said.
“I cautioned my fellow senators early on in session that, while I strongly support a detailed, methodical, thorough review of IM 22, I would not support any effort that had any appearance of impropriety.”
While a small minority in the 35-member Senate, the six Democrats say they will work to preserve IM 22 and produce their own bills.
District 21 Sen. Billie Sutton (D-Burke), the Senate Minority Leader, criticized what he called “tactics used by Republicans to pass HB 1069 at such incredible speed.”
“I was disappointed by the extraordinary measures used to ram the HB 1069 through the Legislature so quickly — limiting public input by scheduling committee hearings and floor votes in a manner inconsistent with regular legislative procedure,” he said. “This is not the first time that Republicans in Pierre have shown their lack of respect for the will of the voters.”
Qualm countered that the GOP has not pushed through HB 1069. “This is not ‘fast tracked’ or ‘rapid progress,’” he said, adding that four other bills are dealing with the questionable areas of IM22. Those bills deal with lobbyist gifts, a state accountability government board, contribution caps and a disciplinary board.
“It is very offensive to me and all of my colleagues that the proponents of IM 22 are portraying the South Dakota legislators as ‘corrupt’ and that we ‘take bribes,’” he said. “One comment was made that legislators take ‘gold watches and potentially millions of dollars in exchange for votes.’ That is an absolute lie!”
Kennedy sees IM22 as reflecting voter anger and frustration.
“The people that I talked to or communicated with, there is a general sense of concern that the government is not as transparent as it could and should be. People are feeling disconnected from their government,” he said.
Kennedy asks voters which direction they want to go.
“I responded to a constituent’s email with a question: ‘What do you think is the best approach? Work its way through the courts, or with what has been given to make it work and avoid the constitutional trap?’ he asked.
Follow @RDockendorf on Twitter.