Senate Halts IM22 Repeal
Television ads for Initiated Measure 22, an anti-corruption law, raised hackles at the state Capitol with its depiction of lobbyists handing over bags of cash to lawmakers.
In a week of quick action in Pierre, lawmakers raised eyebrows as it looked like IM22 would meet a fast demise. Then the Senate put the brakes on, extending the debate on the bill into next week.
Republican legislators say they need to repeal IM22. Then, with a clean slate, they promise they’ll use the current session to enact workable, constitutional laws that respect the will of the voters who gave the ballot measure a little more than 51 percent of the vote in November.
If the repeal is passed in its current form, the one place IM22 won’t be headed is back to the ballot. HB1069 has an emergency clause that’s designed to put the law into effect as soon as it’s signed. Under South Dakota law, bills with an emergency clause are not eligible to be referred to a public vote.
While detractors said from the beginning that IM22 was likely unconstitutional, in South Dakota the stage had been set for anti-corruption legislation with the flawed administration of the state’s EB 5 visa program and the embezzlement of funds in the Gear Up scandal.
IM22, billed as an anti-corruption measure, looked good on the ballot but was actually a monster piece of legislation weighing in at 70 sections in more than 30 pages. A document that opponents say few voters read, IM22 offered publicly funded election campaigns through a Democracy Credit, created an ethics commission and banned gifts to legislators from lobbyists.
Shortly after IM22’s victory at the ballot box and just before it was to take effect, a group of Republican legislators and others filed a lawsuit in Hughes County contesting its constitutionality. Judge Mark Barnett granted a temporary injunction which kept IM22 from becoming law.
A flawed piece of legislation
With one notable exception, throughout a week of committee hearings and floor action, IM22’s friends and foes alike agreed that the legislation may be unconstitutional.
In his ruling granting the injunction, Barnett said it was “beyond a reasonable doubt” that the plaintiffs’ claim that IM22 is unconstitutional would likely succeed.
During the week, both the House and Senate State Affairs committees held hearings on HB1069. Justin Smith, the attorney for the plaintiffs, spoke at both of them. He outlined the most significant unconstitutional aspects of IM22 as its appropriation of funding and the creation of an ethics commission untethered to any other part of state government.
“The ethics commission is answerable to no one,” Smith said, likening it to a fourth branch of government.
The response from IM22 backers was that lawmakers should let the judicial process work and allow the lawsuit to make its way to the S.D. Supreme Court.
“Let it have its day in court,” said Mitch Richter, of Represent Us, an IM22 backer. By working so fast to repeal IM22, Richter said lawmakers were “generally thumbing your nose” at the people who voted for it.
Some lawmakers, particularly House and Senate Democrats, said that with the injunction in place the Legislature had time to replace IM22 during this session. It was best, they said, to work on constitutionally sound replacements without subverting the will of the people by repealing the law without having a replacement ready to go.
“You really are going to break the people’s trust” by passing the repeal, said Spencer Hawley, D-Brookings. “It’s up to us to honor the intent of the people.”
During four days of hearings and floor action, the only person defending the constitutionality of IM22 was John Hinrichs, a Sioux Falls attorney hired by South Dakotans for Integrity, a backer of the ballot measure. Hinrichs said his client is suing to be a party to the lawsuit.
Hinrichs defended the constitutionality of IM22, saying that, since it’s not prohibited in the state constitution, the Legislature and the people both have equal power to appropriate money.
“The people do have the power to make appropriations by initiated measure,” Hinrichs said. “It’s a legislative power that’s shared by the Legislature and the people.”
A hurried legislative process
It was apparent during their testimony that some lawmakers were still visibly angered at being portrayed as on the take in IM22 political ads.
Rep. Larry Rhoden, RUnion Center said he resented the political commercials “telling my neighbors that I’m corrupt.”
IM22 defenders and a few lawmakers noted that with the judge’s ruling in place, the measure was in no danger of becoming state law. This would allow both sides of the issue to work on legislation to replace IM22.
Rep. Mark Mickelson, RSioux Falls, was a staunch defender of the notion that an emergency exists and that the law needed to be repealed as soon as possible. Mickelson had a key role in the week’s activities as a plaintiff in the lawsuit, a member of the House State Affairs Committee that ruled on HB1069 and as Speaker of the House.
Noting that the state constitution gives the Legislature great latitude in determining what constitutes an emergency, Mickelson said the repeal was “necessary for the preservation of state institutions and state government.”
If the plaintiffs in the lawsuit ran out of money and could no longer fund it, Mickelson said, the implementation of IM22 would cause many legislators to resign or be considered criminals. Many of the legislators or their spouses either work for or do business with companies and institutions that employ lobbyists, a situation deemed illegal by IM22.
In a state governed by IM22, Mickelson said, “Most people who live in this state can’t run” for office.
The emergency clause in HB1069 gave lawmakers on both sides of the aisle heartburn.
Rep. Julie Bartling, DGregory, said lawmakers needed to be aware of the public perception that they’re working “just as fast as they can to get repealed what the voters voted on. I do believe people in South Dakota knew what they were voting for.”
While they said they had every intention of fulfilling the will of the voters, the optics weren’t great for Republicans in the Legislature as national media outlets pointed to the state’s two GOP super majorities enacting legislation that would gut anti-corruption legislation passed by a vote of the people.
The Legislature’s rush to repeal IM22 has made the state the “laughingstock of the nation,” Hawley said.
Veterans of the Legislature were shocked by the speed afforded HB1069 as it was listed for action on Tuesday’s House agenda even before making its way through Monday afternoon’s House State Affairs committee meeting.
The path through the Legislature is generally slower, especially for those bills that will attract testimony from citizens across the state. After introduction, a bill usually has at least a few days until its committee hearing, allowing people with interest in the bill’s passage or defeat to make their travel plans to Pierre.
Then, if it’s endorsed by the committee, it’s not uncommon for a bill to languish for a few days before making it to the House or Senate Floor. If passed there, the bill begins an equally leisurely process through the other chamber. HB1069 made it through through two committee hearings and the House in just three days. On the fourth day, the Senate decided more debate was needed.
“This process is not right,” said Sen. Troy Heinert, DMission, at a committee hearing. “It is not fair to the people.”