The third week of the Legislative Session was tumultuous, with the resignation of a House member, DAPL protesters on the front steps of the Capitol, and legislators receiving threats about their efforts to repeal IM22, which has been declared unconstitutional.
Supporters of IM22 were told over 18 months ago it was constitutionally flawed, yet they chose not to fix those flaws before gathering signatures to place the measure on the ballot.
In early December, Sixth Circuit Court Judge Mark Barnett ruled IM22 is unconstitutional in ten main areas:
- The independent Ethics Commission is, in effect, a fourth branch of government which violates Articles 2 and 4 of the SD Constitution.
- The Ethics Commission violates the doctrine of separation of powers.
- It unconstitutionally delegates legislative authority by giving the Ethics Commission rule-making authority to replace or modify statute.
- The Ethics Commission would have the power to regulate the qualification of candidates for the Legislature, Governor, and Lieutenant Governor, which usurps Article 3, Section 9, and Article 4, Section 2 of the SD Constitution
- IM22 unconstitutionally appropriates from the General Fund. The “Democracy Credit” portion of the measure would have appropriated approximately $5 million each year from the state’s General Fund to pay for political campaigns. Our constitution requires all special appropriations be approved by a 2/3 vote of the members of each house of the Legislature.
- IM22’s overly-broad definition of “gift” violates the Contracts Clause to the US Constitution and Article 6, Section 12 of the SD Constitution.
- IM22’s overly-broad definition of “gift” violates the right to free speech.
- The Democracy Credit Program violates equal protection and First Amendment rights because it does not appropriate enough money for every registered voter to be able to use $100 in democracy credits.
- The disclosure requirements for independent expenditures violate the right to free speech.
- It violates the single-subject rule, which prohibits laws from embracing more than one subject. IM22 addresses multiple distinct subjects including campaign contribution limits, lobbying restrictions, the democracy credit program, and the establishment of an independent ethics commission.
Less than 44% of the voters in District 24 supported IM22. I voted to repeal IM22 because I took an oath to uphold the Constitution. However, that does not mean that I am trying to ignore the will of the voters. A number of bills have been introduced to address various aspects contained in IM22, yet do so in a way that passes constitutional muster. Topics include lobbying gift limits, conflict of interest for legislators and public officials, a state ethics commission, greater transparency and accountability in state government, and campaign finance reform. Each of these bills will have public hearings and take input from South Dakotans who are interested in coming up with good laws for South Dakota and not rely on a badly-written unconstitutional measure pushed by an out-of-state group.