DRA Member Post: South Dakota Ethics

Carl Kline is a weekly columnist for the Brookings Register and  a Dakota Rural Action Brookings Chapter member. He is an adjunct faculty member at Mt. Marty, Watertown, and serves as interim pastor of the UCC Church there, as well as coordinating the Satyagraha Institute.

I have to say a word of thanks to State Representative John Wiik for his recent legislative report in the January 31 Brookings Register about “Why IM22 Just Has to Go.” Although his arguments weren’t very satisfying to this writer, at least he tried to explain why this initiated measure passed by South Dakota voters was unconstitutional.

Wiik mentioned that the description of a “gift” to a member of the legislature in IM22 was too broad. He suggested that because his children might be in a public school and the school was lobbying the legislature, he would be in violation of IM22.

This seems quite a stretch. I’m sure SD citizens are not lining up to take their legislators to court for having their children in a public school that lobbies them. And if the courts are in such bad shape that they would accept such an interpretation, they need as much help or more than the legislative branch.

On the other hand, it’s not unheard of for persons in government to put the needs of special interests above the needs of the larger community when it comes to education. Consider the continuing struggles over who uses what bathroom or how public schools teach science. Do people receive “gifts” for promoting these causes? Personally, I’d like to know.

IM22 helps provide greater transparency. With transparency comes understanding. And if the gifts in these battles are simply the appreciation and toasting of their supporters, so be it. We can respect that. And we can respect personal integrity on an issue and voting one’s conscience. And although some legislators might not believe it, the great majority of SD citizens are not out to say “got cha.” They want to know that their voice is not drowned out by “gifts.” They are simply asking for some modest assurances of legislative integrity and the reality of one person one vote.

Another argument for IM22 being unconstitutional some have put forward is that the public financing proposal forces tax payers to support candidates they don’t like, as well as those they do. If only this argument were carried to its logical conclusion. I don’t want any of my tax payer money going to help the legislature assume the role of refugee police, a job I know Lutheran Social Services in Sioux Falls does amazingly well (after a long and extensive vetting process by the government). Why don’t I have a choice now as to how my money is used? What’s so different about public financing of elections?

Those against IM22 also claim the initiative as written allocates tax payer monies for public financing when only the legislature is allowed by the constitution to do that. Simple enough! Since the citizens of the state asked for public financing, let our representatives just allocate the money. I’m sure that will be the first item on the legislator’s agenda, after repealing the initiative, but saying they want to abide by the will of the people.

One other constitutional argument has to do with the independent ethics commission. Critics of IM22 claim it allocates an unconstitutional delegation of legislative power. They claim the only ethics commission constitutionally allowed is one the legislature creates to police itself.

Honestly, South Dakotans know we live in a one party state. We know we have recently seen some serious violations of the public trust, resulting in deaths and disgrace and the misuse of public funds. If the legislature is not able to adequately root out ethical concerns in state government, the people need their own independent option. Since the party in power seems so resistant to this idea, perhaps members of the media, the clergy and the business community need to establish their own ethics commission. Some citizens are getting tired of having an F rating among the states on government accountability and transparency.

One final concern, opponents of IM22 are fond of pointing out most of the funding for the initiative came from out of state. Using that argument, how is it that all of the leadership in the Legislature were OK with taking campaign funds from Energy Transfer Partners, a Texas corporation? After all, ETP has not treated all of our SD citizens so well. They coerce our farmers and ranchers with threats of eminent domain if they can’t put a pipeline through their backyard. They threaten our waterways and aquifers. They ignore the wishes of our Native American residents. They continue to take fossil fuels out of the ground when our climate and children require they stay put. Let us at least know how much these massive corporations put into the pockets of those who claim to represent us.

I’d still like to know what kinds of “gifts” the American Legislative Exchange Council (ALEC) provides legislators. Am I as a taxpayer still paying to help them get to ALEC meetings? And shouldn’t there be a cap on what one can receive from PAC’s and individuals? What’s unconstitutional about that?

An independent ethics commission could help answer these questions for citizens deeply concerned about the ability of governments to function. Partisans, ideologues, and money from special interests are undermining our democracy. If our representatives are determined to make the initiative process harder and repeal what the people approve, let’s create our own commission to do ethical investigations.


  1. Bill Powers says:

    I am in favor of an ethics committee. What is unclear to me is what its scope would be if it is truly to be an independent voice. It would be trivially easy for it to become just another arm of political wrangling and fisticuffs. It was never clear to me what IM22 intended. SD has statutes establishing code of ethics for various professions (title 36). Why not have a code of ethics for legislators? What that code would look like I think we all have some idea. The recent dismissal of a legislator on grounds of inappropriate behavior with an intern is but one example. The job of this code and any commission that administers it is to be clear and unambiguous. It should not be charged with interpreting vague prohibitions. Otherwise, the process becomes to easily politically and personally charged, making the work of the commission of no benefit. I would suggest that the best way to do this would be stipulate specifically those behaviors that are to be judged unethical. Moreover, we need to know what subsequently occurs should the commission judge a behavior to be unethical. It is odd to me that with regard to a code of ethics that we are only interested in the unethical, and not the ethical as well. This can only mean that such a commission is to be regarded as something like a court of law and a concern for something like the criminal. Were I attempting to establish some sort of ethics commission, I would begin by establishing by statute what explicitly is regarded as unethical for a legislator. One needs to distinguish unprofessional behavior from criminal behavior. Criminal behavior would presumably be best handled by the police. As such, we already have an established institution for handling such behavior. Would the ethics commission be charged with unearthing such criminal behavior? Distinct from such criminal behavior would be unprofessional behavior: behavior, while not criminal, is unbecoming for a legislator. What are the consequences of such unprofessional behavior? I suspect one would be the loss of their position as a legislator. Criminal behavior, I presume, is already defined by statute. Unprofessional behavior may not be. None of these distinctions were ever made clear to me regarding IM22. I understand the description of the measure was very long, of which I know essentially nothing. The main conclusion I would draw from the passage of IM22 is that some kind of ethics commission is favored. What form that would take is largely unclear.

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