HB 1006: A False Compromise

After the 2017 legislative session and the hard-fought battle over repeal of the Anti-Corruption & Government Accountability Act (IM 22), a task force mandated by the legislature’s passage of HB 1141 met this summer to “consider certain legislation proposed to revise provisions regarding the constitutional amendment, initiative and referendum process in South Dakota.”

Dakota Rural Action and many other groups fought repeal of IM 22, passed by the people of South Dakota in 2016, and our members brought a clear message to the summer task force meetings that the People’s Process of Initiative, Referendum, and Constitutional Amendment is one part of our government that is clearly working. It does not need “fixing” by a legislature that, for the most part, seems to view it as a threat.

The initial make up of the task force was concerning. No legislative member hailed from West River–in fact, five out of the six legislators represented counties in the Sioux Falls Metropolitan Statistical Area (Lincoln, McCook, Minnehaha, and Turner Counties), and the sixth was from Brookings. Only one voting member of the entire eleven-member task force resided west of Fort Pierre. No tribal representation whatsoever. Not exactly a fair representation of the state as a whole.

Despite the “Protect the People’s Process” message echoed time and again throughout the Summer Task Force meetings, a number of bills drafted in that task force are now making their way through the legislature.

Last Friday in House State Affairs Committee, Dakota Rural Action’s lobbyist, Rebecca Terk, testified against three of those bills, and despite our reasonable concerns, all three passed through committee with unanimous votes and very little discussion. The most concerning bill of the bunch is HB 1006.

House Bill 1006 is a combination of two draft bills coming out of last summer’s Initiative & Referendum Task Force. The first section covers the content of Bill Draft #4, compelling the Legislative Research Council (LRC) to provide written comments on initiated measures “in order to minimize any conflict with existing law and to ensure the measure’s or amendment’s effective administration.” The second section of HB 1006 brings in a second Task Force idea, Bill Draft #3, which institutes a “blackout period” for LRC comments from December 1st until 15 days after the close of Legislative session–approximately 4 1/2 months.

While Dakota Rural Action does not object to the LRC providing what are being referred to as “substantive comments” on draft initiatives submitted to them, testimony from LRC Legislative Attorney Wenzel Cummings during the Summer Task Force indicated that, in some cases, those comments are already being provided, depending on the staffer assigned to the draft.

The claim that it’s an insurmountable burden for the LRC to provide comments on citizen initiatives during the busy legislative session seems a bit outrageous given that during the 2017 session there were 492 total pieces of legislation submitted to the LRC (counting all bills, commemorations, concurrent resolutions, and joint resolutions from both House and Senate) and only 4 citizen initiatives.

We do understand that our state’s LRC staff is smaller than that of other states where people’s right to initiate legislation is enshrined in the constitution, but the answer to a lack of staffing is NOT to curtail the rights of citizens.

It should also be understood that the LRC’s role of commenting on draft initiatives is one of the first steps. Delaying that step could, in some cases, create a cascade effect resulting in fewer ballot question committees being able to complete the full process (which also includes offices of the Attorney General and Secretary of State and can take two months or more) in time to get petitions out, signed by many thousands of fellow South Dakotans, and submitted by the deadline–one full year ahead of the next general election.

And, is it really true that expecting the LRC to provide style, form, and (where they haven’t already) substantive comments on a tiny handful of citizen initiatives during the legislative session is the straw that will break the proverbial camel’s back?

It’s hard to know the answer to that question when, in last Friday’s House State Affairs hearing, both proponents and opponents of the bill suggested to committee members that they invite LRC Director Jason Hancock, who was sitting in the room, to testify to that point, and the members declined to do so.

Members of the committee as well as sponsors of the bill (legislators who served on the summer task force) referred to HB 1006 as a “compromise” and castigated opponents as unwilling to negotiate.

We ask, what compromise should the people of South Dakota make over our constitutional rights? And why does our legislature believe it has the right to determine all the parameters of this so-called compromise?

The task force was formed by the legislature as a result of citizen anger over the repeal of IM 22. The people of South Dakota didn’t ask for the task force; they asked for their vote to be respected.

We, the people of South Dakota, also didn’t ask the legislature to compel the LRC to make substantive comments on our initiated measures. We don’t necessarily object to those substantive comments, but we did NOT agree to give up our right to the LRC’s services for months as a “deal” for something else we didn’t ask for.

House Bill 1006 is no compromise; it’s an undermining of the people’s constitutional right to initiate laws in this state. The bill is up for discussion on the House floor TOMORROW–Tuesday, January 16th.

Contact your Representatives and tell them to Vote No on the false compromise of HB 1006.

 

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DRA Weekly Legislative Update

Three Initiative & Referendum Task Force Bills Pass Through Committee

House Bills 1004, 1005, and 1006 passed through the House State Affairs Committee Friday morning, all on unanimous votes, and will be placed on the consent calendar for passage on the House floor.

HB 1004 Clarifies that the State Board of Elections can make rules regarding petition size and petition font size. This bill could create the opportunity for limiting initiatives based simply on the number of words in the text–and for revisions of existing code that deal with updating multiple sections.

HB 1005 Revises the ballot recitation language from an statement crafted by the Attorney General to a simple, “vote yes to pass” and “vote no to reject” phrasing. We agree with the intent of the bill, which is to remove the opportunity for biased language on the ballot, HOWEVER, the recitation for referred laws (laws passed by the legislature that have been referred to the ballot by voter signatures) is a “vote yes to say no” and “vote no to say yes” switcheroo that will cause confusion at the ballot box.

HB 1006: Section 1 provides for substantive comments to be made on ballot initiatives by the Legislative Research Council (LRC), which is something the LRC has already been willing to do. BUT, the bill’s second section creates a “blackout” period during legislative session when the LRC is not required to comment on the people’s initiatives. LRC staff indicated that dealing with citizen initiatives during the legislative session has not created an undue burden.

Dakota Rural Action’s lobbyist, Rebecca Terk, testified in opposition to the three bills, indicating a desire to see amendments for the ballot recitation language on HB 1005, and to remove the second section of HB 1006. In the case of HB 1006, both proponents and opponents of the bill suggested to committee members that testimony from the LRC Director would help provide clarity; however, committee members declined to invite Mr. Hancock (who was present at the hearing) to the podium.

There will be more bills coming in the weeks ahead aimed at tampering with the initiative, referendum, and constitutional amendment process. These are the people’s tools, and it is crucial that you contact your legislators with a clear message to stop tampering with it.

Click HERE to find your legislators.

Bills We’re Watching

HB 1036: Ag Mediation Program Amendments
This bill comes up in the House Ag & Natural Resources Committee on Tuesday morning. This program that provides assistance to our family farmers and ranchers has seen a great increase in usage over the past two years–from 114 requests for assistance in 2015 to 234 requests in 2017 due to low commodity prices and the drought.

The bill appears to get rid of a large section of the program, and has caused some concern for producers, but the amendment is to remove language from legislative statute that already exists in rules. Rules are more flexible than statute (which must be dealt with by the legislature), so the change is about being able to make those changes (specifically ones mandated by the USDA) more efficiently, rather than waiting for the legislature to convene.

SB 26: Grain Buyer Bonding Bill
This bill will be heard in Senate Ag & Natural Resources on Tuesday morning. It provides for the bonding of grain buyers to avoid problems we’ve seen with grain elevators going out of business and leaving farmers in the lurch.

SB 33: Repeal of Mediation Program for Oil & Gas Surface Damage & Drainage Disputes
This bill is not yet scheduled in committee, but we are watching for it. The information we have so far indicates that this repeal is a result of a legislative “clean-up” of “unused” legislation. However, the program was only passed in the 2013 session, and with the potential of Keystone XL being built in our state, we should not be so quick to throw out the measure.

More Initiative & Referendum Bills
We know they’re coming–specifically SJR1, which raises the percentage of votes to pass an initiated constitutional amendment, and HB 1007, which creates a citizen initiative review commission. Watch for Action Alerts in your inbox (usually sent in the afternoon/evening hours after committees schedules are posted) for updates.

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ACTION ALERT: Initiative & Referendum Bills in Committee Tomorrow

THREE INITIATIVE & REFERENDUM BILLS IN COMMITTEE TOMORROW MORNING!

CALL the House Lobby at (605) 773-3851
Leave a message for members of the House State Affairs Committee!
(See roster below)

The lobby phone is answered from 7:30am-1 hour after the end of session.
At other times, you may leave a voicemail.

HB 1004 Clarifies that the State Board of Elections can make rules regarding petition size and petition font size. This bill could create the opportunity for limiting initiatives based simply on the number of words in the text–and for revisions of existing code that deal with updating multiple sections.
MESSAGE: The potential for limiting initiatives is too great; vote NO.

HB 1005 Revises the ballot recitation language from an statement crafted by the Attorney General to a simple, “vote yes to pass” and “vote no to reject” phrasing. We agree with the intent of the bill, which is to remove the opportunity for biased language on the ballot, HOWEVER, the recitation for referred laws (laws passed by the legislature that have been referred to the ballot by voter signatures) is a “vote yes to say no” and “vote no to say yes” switcheroo that will cause confusion at the ballot box.
MESSAGE: Amend the language on referred laws so that “yes” means pass and “no” means reject.

HB 1006: Section 1 provides for substantive comments to be made on ballot initiatives by the Legislative Research Council (LRC), which is something the LRC has already been willing to do. BUT, the bill’s second section creates a “blackout” period during legislative session when the LRC is not required to comment on the people’s initiatives. LRC staff indicated that dealing with citizen initiatives during the legislative session has not been a problem.
MESSAGE: STRIKE section two of this bill.

You can also email members of the committee using the addresses below.

House State Affairs Committee:

Chair: Larry Rhoden, R-Union Center    Larry.Rhoden@sdlegislature.gov
Vice Chair: Lee Qualm, R-Platte        Lee.Qualm@sdlegislature.gov
Julie Bartling, D-Gregory        Julie.Bartling@sdlegislature.gov
Arch Beal, R-Sioux Falls        Arch.Beal@sdlegislature.gov
Lynne DiSanto, R-Box Elder        Lynne.DiSanto@sdlegislature.gov
Steven Haugaard, R-Sioux Falls    Steven.Haugaard@sdlegislature.gov
Spencer Hawley, D-Brookings    Spencer.Hawley@sdlegislature.gov
Leslie Heinemann, R-Flandreau    Leslie.Heinemann@sdlegislature.gov
Isaac Latterell, R-Tea            Isaac.Latterell@sdlegislature.gov
David Lust, R-Rapid City        David.Lust@sdlegislature.gov
G. Mark Mickelson, R-Sioux Falls    Mark.Mickelson@sdlegislature.gov
***Kent Peterson, R-Salem         Kent.Peterson@sdlegislature.gov
Tona Rozum, R-Mitchell        Tona.Rozum@sdlegislature.gov

***Representative Peterson serves on the committee and is a sponsor of all of three of these bills, which were drafted in the Summer Task Force on Initiative & Referendum.

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Initiative & Referendum Task Force Final Meeting Wednesday–Contact Members NOW

No fewer than twenty bills are on the docket for consideration in the final meeting of the Initiative & Referendum Summer Task Force on Wednesday, August 23rd in Pierre.

And there’s no time slated for citizen input.

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A number of these bills were already discussed in the last meeting. However, the July meeting agenda provided for up to two hours of public comment on the draft bills; this final meeting agenda provides no room for citizen input on the plethora of new bills under consideration–many of which would undermine the citizens’ tools for direct democracy in this state.

This is the final meeting of the task force, where bill drafts will be recommended for consideration during the 2018 legislative session.

The more bad bills we kill now, the fewer bad bills we’ll have to fight in committee and on the House and Senate floor come January. That means you should contact Task Force members BEFORE Wednesday!

The Legislative Research Council has prepared a summary of all of the bill drafts under consideration, accessible here.

Contact information for the members of the task force is here:
Initiative & Referendum Task Force Contacts (PDF)

Dakota Rural Action’s stance is first and foremost to protect the initiative and referendum process. South Dakota was the first state in the nation to enshrine these tools for direct democracy, and they have been invaluable in dealing directly with issues the legislature won’t touch, as well as checking the legislature when they go in directions we don’t agree with.

Here’s a run-down of the bills under consideration. The numbers are the Legislative Research Council’s draft numbers. Our comments are in italics, and our stance is in boldface:

  • #77–Board of Elections can determine petition size and font size. Members of the task force who are on the Board of Elections have indicated this is already under their purview. NO.
  • #82–Requires initiated measures being circulated now for the 2018 ballot to go back to the LRC for a fiscal note. Last session, the requirement for IM’s to have a fiscal note passed, but did not go into effect until July 1st. So, this is basically cluttering the process for ballot measure committees who’ve already gone through the LRC process and are collecting signatures now (as well being a pain for the LRC). NO.
  • #83–Revise the attorney general’s recitation of “yes” or “no.” This may actually have some benefit, as previous initiators have indicated concern over the AG’s ballot wording of what a “Yes” or a “No” vote does. This bill would simplify (and potentially neutralize) that language. YES.
  • #84–If two ballot measures on the same subject but with conflicting language pass in the same election, the measure receiving the most votes supersedes. Seems reasonable. MAYBE.
  • #87–Moves the filing deadline for initiated measure petitions from one year to the second day of May prior to the next general election. More time for circulating and gathering petitions=more opportunity for direct democracy. YES.
  • #96–Allows petition circulation to begin 30 months (rather than 24) prior to the next general election. Again, more time for circulation means more opportunity for grassroots groups to gather signatures. That’s a YES.
  • #97–Allows the LRC to provide substantive assistance as well as style and form assistance to petition sponsors. This could be useful, so long as sponsors retain the right to say “no” to comments they disagree with. MAYBE.
  • #99–Removes the requirement for the full text of the measure to be on the petition form; allows circulators to provide the full text in a separate document. The measure would still require the attorney general’s summary to be printed on the petition itself. This could be helpful in terms of the costs associated with the printing of petitions, since the law now requires the petition and full text to be contained on a single piece of paper–leading to what Secretary of State Krebs referred to as “beach towel petitions” in cases of more lengthy measures. YES.
  • #80 & #81 (Constitutional Amendments)–Requires initiated constitutional amendments to pass with 55% and 60% of the vote, respectively. Proponents of these amendments argue that the constitution is too easy to amend (though to our knowledge none of those folks have been involved in an attempt to get one on the ballot). Initiated constitutional amendments already require double the number of signatures to get on the ballot, which on the ground (in order to account for a margin of error) means about 40,000 signatures. And then a majority of the voters actually have to agree. NO.
  • #95 & #96 (Constitutional Amendments)–Same as the two above, but with the addition of a 2/3 vote requirement for legislature-proposed constitutional amendments. For the reasons stated above, NO.
  • #73–Deadline for LRC comments on ballot measures determined by the length of the ballot measure. Due to a number of factors (including the possibility of an initiated measure that creates or amends several similarly worded sections), the contention that a lengthier ballot measure is necessarily more complex is false. NO.
  • #100–Provides for the automatic generation of a fiscal note for ballot measures. Since the requirement for ballot measures to have a fiscal note passed last session, this is a way to make that automatic rather than a separate step for initiators. YES.
  • #110–(Constitutional Amendment) Limit of two constitutional amendments per ballot. This actually limits to four total–two from the legislature and two from the people. It also sets up a situation where those with the most money to hire paid circulators get their petitions in first and claim those two spots. NO.
  • #113–(Constitutional Amendment) Initiated amendments passed in multiple legislatures/multiple elections. Requires that initiated amendments be passed in two consecutive general elections and that legislature-proposed amendments be passed, passed again in the next session after the general election, and then referred to voters. This overly complicates the process and puts too much time lag on issues that are of immediate concern. NO.
  • #114–(Constitutional Amendment) Initiatives may not be amended except as provided for in the language of the initiative. This blocks the legislature from repealing or amending initiatives passed by the people unless the language of the initiative itself allows for it, or the legislature has a 3/4 majority vote of both houses on an amendment or repeal. YES.
  • #101, #107, #108–Citizen review panels for initiated laws and initiated constitutional amendments. All of these unnecessarily complicate the process by setting up yet another hoop to jump through and a potentially biased one at that. There is nothing that currently blocks folks from having public discussions about what’s on the ballot, so it’s of dubious merit to have the legislature setting up a forum that forces initiators to go through a process they make up. NO.

Dakota Rural Action lobbyist Rebecca Terk will be at Wednesday’s hearing in Pierre to report on the task force’s decisions. The members of the task force should hear from YOU before then with a strong message about protecting the process, and specific input about the bill drafts that should be scrapped.

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Report Out: Initiative & Referendum Task Force July Meeting

The Summer Task Force on Initiative & Referendum met for a second time last week in Pierre to discuss research reports and draft legislation prepared by the Legislative Research Council (LRC) at the request of task force members.

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By the time the Task Force reconvened on Wednesday, July 19th, no fewer than twelve bill drafts were posted to the LRC’s website–some of which were simply different iterations of similar ideas. For example, Senator Jim Bolin submitted two joint resolutions on raising the percentage of votes needed to pass a constitutional amendment–one that raised the percentage to 55% and one that raised it to 60%.

Proposed Changes to LRC’s Role

Another topic raised by multiple bills was the amount of time the LRC has to comment on proposed initiated measures and the types of comments provided. One such bill changed the LRC’s comment deadline from fifteen days to fifteen working days; another bill draft proposed that the LRC would not provide comment on initiated measures during the legislative session.

A third bill suggested a time frame based on the number of words in the measure, and a fourth bill dealing with the LRC’s role made provision for substantive comments on initiated measures to “minimize conflict with existing laws.’ It should be noted that in current statute (and none of the bill drafts amend this), the sponsors of initiatives “may, but are not required to, amend the initiative or initiated amendment to the Constitution to comply with the [LRC] director’s comments.”

Otten’s Unpopular Proposals

Roundly rejected by the task force (including by its own author–Senator Ernie Otten) was a measure to limit the number of ballot measures (initiated laws, referred laws, and constitutional amendments) that could appear on the ballot. None of the members could get behind what would likely turn out to be a race–most likely to be won by the biggest monied interests hiring the most paid circulators–to be the first to collect signatures and submit them to the Secretary of State.

Otten also brought forward a bill to back-date the requirement for fiscal notes (passed last session and effective July 1 of this year) on initiated measures and amendments to include those already in process before July 1st of this year. Technically, it’s possible to do this–if the bill passed without an emergency clause in the next session, it would become effective July 1, 2018, but one wonders if legislators would risk a legal challenge by telling ballot question committees that got out of the gate early this year to go back to the LRC a few months before the election for a fiscal note.

More Time for Petitioners?

A draft bill introduced by Senator Reynold Nesiba would push forward the due date for signed petitions on initiated measures (not constitutional amendments, which require twice as many signatures as proposed laws) from one year prior to the next general election to the last day of June prior to the election. Secretary of State Krebs was adamantly opposed to moving the date forward because of local elections and other requirements of her staff’s time, but did suggest that allowing the submission, comment, and petition process to start earlier might be an option she could get on board with.

Streamlining & Conflict Resolution

Two draft bills appearing the day before the task force met embodied ideas of attorney Will Mortenson, who in 2016 led the campaign to defeat Amendment V (non-partisan races and open primaries). Mortenson’s contributions to the raft of bills included a measure to resolve conflicting initiated measures on a single ballot (if both are passed, the one with the most votes takes precedence), and another to change the ballot recitation (the language developed by the attorney general describing what a “yes” vote and a “no” vote does) to, in the simplest of terms, indicate that a yes vote passes the measure and a no vote rejects the measure.

A full list of the draft bills and research information from the Initiative & Referendum Task Force’s July 19th meeting are available on the Legislative Research Council’s website here.

The Task Force will reconvene for what is likely its final meeting on Wednesday, August 23rd, 9am, in Room 362 (Appropriations Committee Room) of the State Capitol. Discussion at the July meeting indicated that members will consider new bills as well as those already posted and make final decisions on which to recommend to the 2018 legislature.

We hope to see you there.

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Initiative & Referendum Task Force: Take Two

The Summer Task Force on Initiative & Referendum meets again at the State Capitol, Room 414, on Wednesday, July 19th to discuss draft legislation and take public testimony. Dakota Rural Action’s lobbyist will be there, and we invite members to join us at the Capitol, and to contact task force members.

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Since the first meeting of the task force in June, the Legislative Research Council (LRC) has drafted no fewer than ten bills at the request of committee members, as well as fulfilling several research requests. You can read the compiled research and full text of bill drafts on the LRC’s website by clicking here.

The members of the task force need to hear from South Dakotans (that means YOU!) that these tools for Direct Democracy should not be weakened or undermined. Contact them using the link below.

Initiative & Referendum Task Force Contacts (PDF)

Here is a short summary of the ten bills drafted thusfar:

  1. Lengthens the amount of time the LRC has to review initiated laws and constitutional amendments from fifteen days to fifteen working days.
  2. Ties the amount of time the LRC has to review initiated laws and constitutional amendments to the number of words in the initiated measure.
  3. Exempts the LRC from reviewing citizen-initiated laws and constitutional amendments during the regular legislative session–reviews of any initiated measures submitted during the session would be due 15 days following the close of session.
  4. On initiated measures submitted to their office, directs the LRC to provide comments not only on style and form (required at present), but on the “substantive content” of initiated measures, “in order to minimize any conflict with existing law and to ensure the measure’s or amendment’s effective administration.”
  5. Limits the number of initiated measures, referred laws, and constitutional amendments that can appear on the ballot.
  6. Directs the State Board of Elections to promulgate rules concerning petition size and font size.
  7. Moves the dates for completed petitions to be submitted to the Secretary of State’s office from one year ahead of the next general election to the last day of June prior to the general election (increasing the amount of time petitioners have to collect signatures).
  8. A resolution increasing the number of votes required to pass an initiated constitutional amendment from a simple majority to 60% (if passed, this resolution would go to the voters for approval).
  9. A resolution increasing the number of votes required to pass an initiated constitutional amendment from a simple majority to 55% (if passed by the legislature, this resolution would go to the voters for approval).
  10. Requiring initiated laws and constitutional amendments submitted before July 1 of 2017 to include a fiscal note (this covers those measures submitted before SB77 went into effect).

Remember, Task Force members need to hear from you!

And, so do we!
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ACTION ALERT: Protect Initiative & Referendum

The Summer Task Force on Initiative & Referendum is Meeting This Week.

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Today was the first meeting. Tomorrow, public testimony is being heard in Room 413 at the State Capitol.

Contact the members of the Task Force NOW and tell them South Dakota’s Direct Democracy is important to all of us. They must PROTECT our right to initiate and refer laws–NOT weaken it or make it more difficult to access.

There are plenty of problems in South Dakota’s government, but the initiative and referendum process is not a problem–it’s a solution–a tool for voters to fix what’s not being addressed by the legislature.
Contact the Task Force TODAY to say you want Direct Democracy protected!

Initiative & Referendum Task Force Roster:
Legislator Members:
Senator Jim Bolin
Jim.Bolin@sdlegislature.gov

Representative Don Haggar
Don.Haggar@sdlegislature.gov

Senator Reynold Nesiba
Reynold.Nesiba@sdlegislature.gov

Senator Ernie Otten
Ernie.Otten@sdlegislature.gov

Representative Tim Reed
Tim.Reed@sdlegislature.gov

Representative Karen Soli
Karen.Soli@sdlegislature.gov

Non-Legislator Members:
Dr. Emily Wanless (Chair)
ewanless@augie.edu

Pam L. Lynde
plynde@itctel.com

Linda Lea M. Viken
llmv@vikenlaw.com

Yvonne Taylor
yvonne@sdmunicipalleague.org

Duane Sutton
sutton.duane@gmail.com

Will Mortenson
will.mortenson@gmail.com

James W. Abbott
james.abbott@usd.edu
(Jim Abbott was absent from the initial meeting)

Access the agenda and documents for the Task Force via the Legislative Research Council here.

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2017 Legislative Wrap-Up

Dakota Rural Action 2017 Legislative Wrap-Up

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The 2017 session was a whirlwind. While there were fewer bills in total than many previous sessions, much was at stake in protecting tools for direct democracy and our ability to exercise constitutionally-protected rights to assemble. Member’s voices were heard by legislators through phone calls, e-mails, testimony, and cracker barrels, and in many cases, it made all the difference. Read on for a synopsis of our work in Pierre.

The Full Frontal Attack on Direct Democracy

Following the repeal of Anti-Corruption and Government Accountability Act (IM22), legislators proceeded to bring a multitude of bills to undermine citizens’ ability to legislate through Initiative, Referendum, and Constitutional Amendment.

  • SB59–Delay effective date of initiated measures to July 1. PASSED
  • SB67–Increase the number of petition signatures required. TABLED
  • SB77–Require a fiscal note for ballot measures. PASSED
  • HB1074–Cap out of state contributions to ballot question committees. TABLED
  • HB1130–Public comment period and hearings for ballot questions. FAILED
  • HB1141–Legislative task force on the initiated measure process. PASSED
  • HB1153–Require 50% of petition signatures from no fewer than 33 counties. 41ST DAY

The Down-Low: We will be watching the legislative task force on the initiative and referendum process closely, as well as looking for ways to protect that process for the people of South Dakota as initiative, referendum, and constitutional amendment drives take shape in the coming months.

 

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DRA members Kristi Mogen & Kathy Tyler traveled to Pierre to testify against HB1187, which would have undermined citizens’ ability to appeal Conditional Use Permit decisions by their local Boards of Adjustment.

 

Agriculture & Land Use Bills–A Mixed Bag

Some of the good bills that we wanted to see pass ended up failing, but NO bills that we opposed made it through the process.

  • SB9&10: While DRA did not take a position on these bills, we closely followed their debate. These bills drew river basin natural resource districts along more accurate watershed boundaries, created subdistricts based on population, and provided for an election in the Red River/Minnesota River Watershed District. Both died primarily due to the exclusion of Class I municipalities from the process. FAILED
  • SB66–Creates a riparian buffer strip tax incentive program. PASSED
  • SB114–Spearfish Canyon land swap bill (and $2.5 million appropriation) was tabled for lack of support from constituents in addition to a lack of funding in the budget. TABLED
  • SB135–Country of Origin Labeling (COOL) for beef. Hard fought, but SD Retailers Association has a lot of pull with some high-powered legislators (although many actual retailers said, “no problem” to using placards to indicate beef origin). FAILED
  • SB154–Encouraged the use of native vegetation in DOT rest stop remodeling projects throughout the state. Passed the Senate and House Transportation Committee only to fail on the House floor due to concerns about “weediness” and rattlesnakes. FAILED
  • HB1187–Would have undermined citizens’ right to appeal Conditional Use Permit decisions by local Boards of Adjustment. This bill was considered twice on the House floor and failed both times. FAILED
  • HB1188–A hoghouse vehicle that tied state funding for counties and municipalities to their inclusion of agricultural development (read CAFOs) in their comprehensive plans. FAILED
  • HB1204–Established an industrial hemp pilot program in South Dakota. FAILED

The Down-Low: While Rep. Jason Kettwig (R-Milbank) was the prime sponsor of both HB1187 and HB1188, he clearly had the backing of House Speaker Mark Mickelson (R-Sioux Falls), who attended committee hearings on both bills–even though Mickelson was not a sponsor of HB1188. Speaker Mickelson handed off the gavel to pitch HB1187 on the House floor, and after it failed, he brought it back for reconsideration. When it failed a second time, he warned that the legislation would make a reappearance in the 2018 session.

 

lesmeisterhempbill

Rep. Oren Lesmeister brings the case for an industrial hemp pilot program on the House floor.

 

The Industrial Hemp Pilot Program bill seemed to have a good chance this year, after a very strong showing (9-2) in the House Ag & Natural Resources Committee and garnering the ⅔ House floor vote needed to establish a new program. Representative Liz May (R-Kyle) pitched the bill in committee and on the floor for the fifth year, joined by freshman Rep. Oren Lesmeister (D-Parade) who made a strong case based on language in the Farm Bill. The failure of the bill in Senate Ag Committee seemed largely due to the fact that it was the last piece of legislation heard in that committee on the last day bills had to pass through committee–and it came up in the last few minutes of the meeting–never a good time to consider implementing a new statewide program, especially one that the overseeing agency (Dept. of Agriculture) was not keen on dealing with.

Pipelines & Energy

As usual, the South Dakota legislative majority continues to support dirty & disastrous policy on pipelines, tar sands, and fracking. At least there was support for oversight of nuclear waste.

  • SB158–provided for a tariff on foreign steel used in pipelines built in South Dakota, and set up an oil spill clean up fund in the state. FAILED
  • SCR10–Protect waters of the Missouri River and oppose the Dakota Access Pipeline. TABLED
  • SCR13–Require payment into the federal oil spill liability trust fund for the Keystone One Pipeline and the Keystone XL Pipeline and to recognize dilbit (diluted bitumen, or tar sands oil) as oil. 41ST DAY
  • HB1071–Previously, only the governor’s approval was needed to store or process high-level nuclear waste in the state. This bill required additional legislative approval to do so. PASSED
  • HCR1013–Urged the State Department to approve the Keystone XL permit. PASSED

The Down-Low: Senators Frerichs, Kennedy, Killer, and Heinert all worked hard to protect natural resources and hold TransCanada accountable for their pipelines and products through bills that a created a state clean-up fund, supported American steel manufacturers, and urged the federal government to recognize tar sands oil (“dilbit” or “synbit”) as oil for the purposes of paying into the federal oil spill liability fund. Sadly, NONE of these bills even got through committee–many of whose members seemed incapable of saying anything but yes to what pipeline companies want and anything but no to even common sense protections for people and the planet.

Senator Wiik (R-Big Stone City) and Representative Schaefer (R-Kennebec) sponsored the resolution to urge State Department approval of Keystone XL, and Senate Republicans (with the exception of Assistant Majority Leader Ryan Maher, of Isabel) said yes to that, but no (again) to adding language clarifying that what the proposed oil pipeline would carry (dilbit) is actually oil.

 

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Senators Sutton, Heinert, Frerichs, Kennedy, Nesiba, and Killer signify their support for resolving that tar sands oil (dilbit) is, in fact, oil for the purposes of payment into the federal Oil Spill Liability Trust Fund.

 

Use and Abuse of the Emergency Clause

This session was all about emergencies. Legislators tacked emergency clauses on all kinds of legislation, even when there was no clear threat or concern that warranted their use. According to the South Dakota Constitution, the only acceptable uses of an emergency clause are a) the law is necessary for immediate preservation of public peace, health, or safety of the state or, b) the law is necessary for support of state government and its existing public institutions.

If a bill passes with an emergency clause, the legislation goes into effect immediately after being signed by the governor, and the law cannot be referred to the ballot by voters. However, if an emergency clause is included in a piece of legislation, the bill needs a ⅔ majority vote in both chambers to pass. But, legislators found ways to get around this hurdle as well. Governor Daugaard’s anti-protest bill (SB176) could not pass either chamber with the ⅔ majority required, so the emergency clause was stripped on the floor of both chambers, the bill passed with a simple majority, and the emergency clause was re-added during conference committee.

The Initiated Measure 22 Repeal bill (HB1069) also included an emergency clause, even though IM 22 had already been enjoined by a judge and never actually went into effect due to a lawsuit filed by a number of legislators immediately following the bill’s passage. Another inappropriate use of an emergency clause was on SB67, which would have increased the number of petition signatures required for constitutional amendments by an estimated 88%. Thankfully, the bill was tabled by unanimous consent in Senate State Affairs Committee.

Seal

Hoghouse Vehicles, Carcass Bills, and Other “Shell” Games

Technically speaking, a “hoghouse” is a bill that is amended in its entirety during the legislative session–throwing out all the previous language of the bill and replacing it with contents that may be entirely contrary to the bill’s original purpose. A “vehicle,” “carcass,” or “shell” bill is one that is introduced with a title and virtually no content for the express purpose of filling in the contents later than the deadline for introduction of new bills. Legislators defend their use of these shell bills by saying that “things come up” during the session that cannot be predicted–though the fact that these bills have titles germane to their eventual contents tends to make that argument somewhat questionable. Over a dozen of these carcasses were introduced this session–some of which were abandoned, and some of which made their way through initial hearings without any contents.

A group of legislators led by Senator Stace Nelson (R-Fulton) appealed to Attorney General Marty Jackley about the perceived abuse of these vehicle bills, but Jackley determined their use is legal. In the case of SB 176, introduced as “An Act to accommodate legislation relating to the protection of the public safety,” it seems likely that Governor Daugaard communicated with North Dakota officials about the Dakota Access Pipeline protests prior to the legislative session and could have submitted his anti-protest bill by the regular deadline rather than nearly two weeks after. The question on the use of vehicle bills remains: how often are they used as a stopgap measure for necessary legislation, and how often are they used to hide the sponsor’s true intent until late in the session? And, is there a way to allow for the former and prevent the latter?

 

RepKaiser

Rep. Dan Kaiser (R-Aberdeen), a law enforcement officer, testifies against the Governor’s Public Safety Bill (SB176), stating that laws already exist to deal with protesters who may trespass, commit violence, or destroy property.

 

Public Safety? Or Fear-Based Propaganda?

Almost forgotten after what came later, the first “public safety” bill of the session was HB1145, entitled “An Act to define a no-go zone and create a procedure to manage no-go zones.” Sponsored by Representative Tim Goodwin (R-Rapid City) and Lance Russell (R-Hot Springs) on the Senate side, the legislation was modeled on a failed 2015 bill from Tennessee based on false claims that Muslims were creating areas within municipalities where Sharia law was in force and police feared to tread. In addition to its clearly anti-Islamic roots, the language of the bill called into question how many other groups might be targeted by its vague definition suggesting that community organizers seek to “intimidate,” rather than empower the public: “a no-go zone is a contiguous geographical area consisting of public space or privately owned public space where community organizing efforts systematically intimidate or exclude the general public or public workers from entering or being present within the area.” Thankfully, the bill was withdrawn by its sponsor.

In committee hearings on the Governor’s Public Safety Bill (SB176) administration officials admitted that it was developed in talks with North Dakota’s administration during the Dakota Access Pipeline protests at Standing Rock, and they admitted that it was targeted toward those who would demonstrate against Keystone XL. However, officials claimed that the bill, which would allow the governor what amounted to war powers to declare a “public safety zone” anywhere, of any size in the state, was only targeting outside agitators and law-breakers. The initial hearing brought opposition testimony from tribal leaders from Cheyenne River, Crow Creek, and Yankton Sioux Tribes, as well as the ACLU and Dakota Rural Action. Legislators representing districts encompassing tribal lands were in attendance as well, and when they asked if any tribes were consulted in the drafting of the legislation, the answer from Governor Daugaard’s staff was simply, “no.” Landowners along the path of the pipeline were similarly ignored in the bill’s drafting.

DRA Board Chair John Harter (whose land is crossed by KXL’s proposed path) arrived at the Capitol to testify during the bill’s second hearing in House State Affairs on a Monday morning at 7:45am. Without warning to Harter and others who had traveled to testify, the governor’s staff introduced a comprehensive amendment that almost entirely overhauled the bill, removing the “public safety zone” language, and whittling down its scope to gatherings of 20 or more people on school and public lands and blockades of posted highways or highway right-of-ways. The amendment also removed the Senate version’s mandatory jail time for persons convicted of trespassing within a public safety zone, and an automatic felony charge for those previously convicted of trespassing within the past eighteen months. As previously written, because the Senate (first) and House (second) versions were radically different, the bill was sent to conference committee, and what finally emerged (and passed) was the House version which, with an emergency clause included, is not eligible for a referendum by voters, and was enacted into law as soon as signed by Governor Daugaard.

While we would have preferred to kill the bill entirely, the process that whittled this bill down from its truly chilling original language was an important fight for Dakota Rural Action and its allies. And, as the lobbyist during this session, and a frequent guest at Oceti Sakowin Camp last summer and fall, I can say that of all the bills we worked on this session, this was the one that affected me the most deeply and personally. I heard legislators repeat propaganda about “outside agitators” and “paid protesters” on the House floor, but I also heard calls for understanding, for wisdom, and for listening and learning from our Native neighbors. In a session that seemed like a never-ending fight, that is what gave me hope.

 

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Flags at sunrise. Oceti Sakowin Camp, Fall 2016

 

Thank you for your support during the legislative session!

Rebecca Terk, DRA Lobbyist & Organizer

 

Weekly Legislative Update

This was the final legislative week, and most of our focus has been fixed on Senate Bill 176–the Governor’s Public Safety Zone bill–that arrived on the legislative scene late in the session as a hoghouse of a vehicle bill “to enhance the public safety.”

The hoghoused Senate version of the bill was incredibly concerning, almost certainly unconstitutional, and a direct affront to farmers, ranchers, and tribal members concerned about pipeline construction across the state. It allowed the governor virtually unlimited powers to create “public safety zones” anywhere, of any size in the state, and to control movement of people within a mile surrounding the zones–including those who live and/or own land in those zones. Additionally, the bill contained an emergency clause, allowing it to take effect immediately, and with no recourse for voters to refer the measure to the ballot.

 

RepBordeaux

Representative Shawn Bordeaux (D-Mission) testifies about the lack of tribal consultation and the likelihood of leaks on the proposed Keystone XL Pipeline route.

 

Tribal leaders, the American Civil Liberties Union, and Dakota Rural Action (DRA) all showed up to testify against the bill in Senate State Affairs Committee. Representatives from Governor Daugaard’s office testified that the bill was a direct response to the Dakota Access Pipeline protests in North Dakota, crafted in anticipation of protests against the Keystone XL Pipeline in South Dakota, and that NO tribes or landowners affected by the proposed KXL Pipeline had been consulted in the crafting of the bill. Despite the admission of a complete lack of communication or consultation, the bill passed Senate State Affairs 6-3 with Senators Heinert, Maher, and Sutton voting no.

On the Senate floor (and thanks to citizen outcry), the measure was unable to garner the ⅔ majority vote required of a bill with an emergency clause attached. But, the bill did have support from a simple majority, which allowed immediate reconsideration. Assistant Majority Leader Ryan Maher (who voted against the bill in committee), moved to amend (remove) the emergency clause, and the bill then passed.  Click here for vote roster.

 

RepKaiser

Representative Dan Kaiser (R-Aberdeen), a sergeant in the Aberdeen Police Dept., testifies that South Dakota already has statutes to deal with violent or destructive protesters, and that SB 176 is redundant and unnecessary.

 

The early Monday morning House State Affairs Committee hearing on the bill brought many of the same opponents to testify, some of whom traveled from more than an hour away. Therefore, it was a surprise that the governor’s office immediately introduced substantial amendments to the bill without having informed those affected and concerned. Because of the radical nature of the amendments, opponents were testifying nearly blind to what the bill now contained (or didn’t contain). One thing we did seize on right away was that an emergency clause had been added back onto the bill, so DRA’s testimony focused specifically on that issue. Again, the bill passed through committee, this time on a party-line vote (Representatives Bartling and Hawley voting nay).

By the time the bill emerged on the House floor the next afternoon, landowners and tribal members had had a chance to digest the contents of the new bill and were substantially less concerned, though there were still questions about the process by which this bill came to the legislature (that is, with zero consultation with affected parties) and the need for an emergency clause. A lively debate ensued, and the bill again failed to pass with the ⅔ majority needed to retain the emergency clause. On reconsideration without the clause, the bill passed with a simple majority (click here for the roster).

 

RepSoli

Representative Karen Soli (D-Sioux Falls) objected to the continual vilifying of “outsiders” in proponent testimony on SB 176, noting that representatives of her ancestral people traveled from Norway to attend the Dakota Access Pipeline Protests in North Dakota.

 

Because of the differences between the House and Senate versions of the bill, and because the Senate did not concur with the House version, the bill was sent to conference committee. We were watching for the results of that committee (and what the bill would look like coming out of it) through Thursday evening. What emerged is the House (MUCH less concerning) version, but with the emergency clause tacked on yet again. Click here to see those amendments.

After being considered twice, the House passed the conference committee version of the bill, and that same version passed the Senate earlier today. We’re not ecstatic about the final version of this bill, but we are very happy with the intense pressure from citizens that took the teeth out of an initially horrifying and chilling piece of legislation.

Watch for our Legislative Wrap Up for an overview of the entire legislative session–including an analysis of the IM-22 replacement bills, hoghouse vehicles, and ag-related legislation.

Many thanks for supporting our work in Pierre this session, through your calls, e-mails, testimony, and donations! We couldn’t do it without you!

Weekly Legislative Update

Weekly Legislative Update

It has been a tough battle in Pierre this week. We have had some wins, but there have also been some last minute losses. Next week is the last week of session, though, and there is a very concerning bill coming up in committee Monday morning which is imperative to defeat either in committee (preferable) or on the House floor. Read about it below.

ALERT: SB176 Hearing in House State Affairs Early Monday Morning!

SB176 is the Governor’s “Public Safety Zone” bill–a piece of legislation enabling the governor to create a “public safety zone” of ANY size ANYWHERE in the state (including on private property) in order to control the movement of people in and out of that zone. Additionally, it creates a new crime–that of “aggravated criminal trespass” for those who enter the zone unauthorized–a charge that comes with an automatic, non-suspendable 10-day jail sentence if convicted. If they do it more than once (or they have been convicted of trespass in the previous two years anywhere in the country), the charge is immediately increased to a felony.

The bill was developed in collusion with North Dakota’s administration following the Dakota Access Pipeline protests. It is specifically targeted against farmers, landowners, and tribal members who may protest the future installation of pipelines (including Keystone XL)–even on their own land–though with these kind of unlimited powers to violate First Amendment rights, anyone who challenges the use of eminent domain for private gain or any other administration policy could be targeted. We already have laws to deal with protesters who turn violent or destructive; creating a new charge of “aggravated criminal trespass” is simply a way to chill freedom of speech and assembly and further cripple private property rights in the state.

This is not just a bad bill, it is an unconstitutional and deeply disturbing bill. Contact members of the House State Affairs Committee THIS WEEKEND, and ALSO contact your Representatives individually (in case it gets through committee) to tell them to deny this unconstitutional over-reach of executive power. If you have a legislative coffee or cracker barrel in your district this weekend, talk to them in person!

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Senate Democratic Caucus supporting a floor amendment to require TransCanada to pay into the Federal Oil Spill Liability Trust Fund.

The Good, Bad, and Ugly of this Week at the Capitol

SB 66 The Governor’s bill to establish a tax incentive for planting of riparian buffer strips passed its last hurdle on the House floor and will be signed into law.

HB 1130 This was a bad bill to establish a series of hearings and public comment period for ballot initiatives (though with no actual process for revisions)–basically just inserting the legislature into a process where they don’t belong. It was amended in committee to remove a thirty-day delay of petitioners’ ability to gather signatures, but that delay was added back in later in the process! However, the bill was soundly defeated on the Senate floor.

HB 1071 This bill requires the legislature’s approval to store or process high-level nuclear waste in the state. Previously, the governor was the sole decision-maker on this issue. The bill passed unanimously on the Senate floor.

SCR 13 resolved, “To require the payment into the federal oil spill liability trust fund for the Keystone One Pipeline and the Keystone XL Pipeline and to recognize dilbit as oil.” The resolution, brought by Senators Frerichs (D-Wilmot) and Kennedy (D-Yankton) was tabled in committee; however, Senator Frerichs attempted to bring it back as an amendment to another, pro-KXL construction resolution (HCR1013) on the Senate floor. The move was unsuccessful, but it was greatly appreciated by those who think TransCanada should participate in a fund to help clean up their potential messes.

SB 59–This bill delays the effective date for initiated measures and referred laws until July 1st. An amendment brought in House State Affairs Committee by House Minority Leader Spencer Hawley would have prevented legislators from repealing any voter-initiated measure with an emergency clause (as happened with IM22) was discussed and supported by many members. However, after the bill was deferred NINE times in the House, that support dwindled and the bill passed un-amended.

SB 154–A bill encouraging the State Department of Transportation to use native vegetation on rest stop remodeling projects in the state. Here is one where more education for our legislators is definitely in order. It died on the House floor amid concerns of “weediness” and the misperception that native vegetation is more attractive to rattlesnakes.

HB 1204–The Industrial Hemp Pilot Program bill made it through the House side with flying colors (and a ⅔ votes on the floor) only to be killed in Senate Ag & Natural Resources Committee after SD Department of Agriculture officials cast doubt on states’ ability to continue such pilot programs with so much uncertainty coming from the new federal administration.

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