The strikes against Initiated Measure 22 according to the lawsuit.

I’m sure this is going to be dissected over the coming weeks, but here’s the primary issues that the litigants have against Initiated Measure 22, according to South Dakota State Law, the State Constitution, and the United States Constitution.

And as you read the problems with Initiated Measure 22, the case they lay out is stronger than you might have thought previous to it being brought.  Here’s the highlights as taken directly from the lawsuit:

Count One- The Ethics Commission violates Article 2 and Article 4, Section 8 of the state constitutionn.

Section 32 of IM22 creates an independent Ethics Commission that is not part of the legislative, executive, or judicial branches of government nor is it allocated to, responsible to, attached to, or overseen by any existing department, agency, or constitutional officer of the State of South Dakota.

Count Two-The Ethics Commission violates the Governor’s executive appointment authority and the separation of powers.

Under Article 4, Section I of the South Dakota Constitution, the Governor is vested with the executive power of the State.   Section 24 of IM22 violates the doctrine of separation of powers, which provides that each department of state government should act independently of the others. Section 24 violates this doctrine because the Governor’s executive authority to make appointments to the Ethics Commission is limited and in effect negated.

Count Three–IM 22 unconstitutionally delegates legislative authority to the Ethics Commission.

The power given to the Ethics Commission in Section 40 of IM22 to “replace or modify” 21 sections of the law constitutes an unlawful delegation of legislative power in violation of Article 3, Section 1 of the South Dakota Constitution.

Count Four-the Ethics Commission cannot lawfully qualify candidates

Section 40(9) of IM22 gives the Ethics Commission the broad power to adopt rules under SDCL Ch. 1-26 to regulate the qualification and certification of candidates.   By giving the Ethics Commission the power to regulate the qualification of candidates for the Legislature and the offices of governor and lieutenant governor, Section 40(9) usurps the constitutional authority of the legislative and executive branches under Article 3, Section 9 and Article 4, Section 2 of the South Dakota Constitution, and thereby violates Article 2 of the Constitution.

Count Five-IM22 unconstitutionally appropriates from the general fund

The annual appropriation made by Section 68 was not made by a two-thirds vote of the members of each house of the Legislature, and is therefore unconstitutional.

Count Six-Section 31 impairs existing contracts

Under Section 31, Curd, Peters, and Soholt must give up either their employment or their elected office to comply with IM22, which substantially impairs their existing contractual relationships. The requirement that citizen legislators or their family members not accept compensation from their primary employer if the employer happens to employ a lobbyist is not reasonably related to the purpose of IM22 of preventing corruption.  IM22 therefore violates the Contracts Clause to the United States Constitution (Article 1, Section 10) and the South Dakota Constitution (Article 6, Section 12).

Count Seven-Section 31 violates the right to free speech

Under Section 31, a lobbyist or employer who hires a lobbyist is limited to contributing $100 to many elected officials running for office, while anyone else is subject to much higher limits. Section 31 thereby restricts and reduces political speech protected by the First Amendment to the United States Constitution and Article 6, Section 5 of the South Dakota Constitution.

Count Eight-the Democracy Credit Program violates equal protection and rights protected by the First Amendment to the United States Constitution and Article 6, Sections 4 and 5 of the South Dakota Constitution.

IM22 does not appropriate enough money for every registered voter to be able to use $100 in democracy credits. In addition, the cap on the democracy credit fund allows only a small percentage of currently registered voters to obtain the face value of their democracy credits.   (Editor’s note – I’ve suspected there would be a problem with this all along!)

Count Nine–the disclosure requirements for independent expenditures violate the right to free speech

Based on the many and short deadlines for disclosure, the information that must be disclosed, and the low disclosure threshold, the disclosure requirements in IM22 are unduly burdensome and thereby violate the right to free speech protected by the United States and South Dakota Constitution because they will burden, chill, and reduce individuals’ and organizations’ ability to engage in political speech and activity and do not have a relevant correlation or substantial relation to a sufficiently important governmental interest

Count Ten-single subject rule

Article 3, Section 21 of the South Dakota Constitution prohibits laws from embracing more than one subject. IM22 is unconstitutional because it addresses multiple distinct subjects including campaign contribution limits, lobbying restrictions, the democracy credit program, and the establishment of an independent ethics commission.

The lawsuit also asks for declaratory and injunctive relief.

23 thoughts on “The strikes against Initiated Measure 22 according to the lawsuit.

  1. Anonymous

    I am convinced that the voters of SD voted for IM 22 because they wanted an ethics commission. Obviously IM 22 is a bad version of one because it has to oversee democracy credits. But I and many voters do want a commission on ethics.

    1. Anonymous

      I don’t think voters even KNEW an ethics commission was part of im22. They were voting against corruption as portrayed by a completely misleading ad campaign. End of story.

  2. MC

    This is just the first step.

    The will of the voters can still be honored, it is going to be a long drawn out process. just hang one there is much more to come.

  3. Anon4

    What is the will of the voters? With 70 sections and 34 pages, how does one discern the will of the people? All you can do is guess.

    1. MC

      Very simple, we break down each of the sections then we ask the voters, by holding hearings, listening session, etc. What they support and what they don’t

  4. Anonymous

    The so-called disclosure requirements for donors to (c)(4) organizations also violates the Constitutional right of privacy.

  5. Lee A Schoenbeck

    The long-term answer for our state, to keep the initiated measure process fair, is to statutorily limit these to one distinct topic, with a fiscal note for any costs. Then voters get to know what exactly they are voting on, and their vote is clearly being caste on a fair up or down vote basis. Throwing multiple issues into a goulash and calling at an initiated measure on some topic (ethics, for example) is misleading and not fair to the process —- I think most would call it…unethical

    1. Anonymous

      Lee nailed it. Ethics commission is what soled this issue and all of the other stuff was not talked about.

      Ethics Commission was such a powerful message from Weiland and his crew that they were even ok with publicly funded campaigns.

    2. Ken Santema

      I have to speak to a group this Friday about the ballot questions passed by the voters. I think I will have to use the goulash comparison when talking about IM 22!

  6. Anonymous

    What about the legislators that benefit from the state retirement system or have a spouse who works for state government? What if I’m a road contractor or retailer that does work for the state, I’m no longer allowed to belong to an association?

    What the hell kind of mess got sold here?!

  7. chief

    If Curd, Soholt, and Peters are the only ones that would be thrown out of the legislature, that’s no great loss !

    1. Minnehaha County Observer

      Any legislator with a job, spouse with a job or kids with a job is likely in violation of this stupid law. This essentially makes it so only the unemployed could be Legislators, in which case they will really be needing the lobbyist’s free meals.

  8. father of three

    Does the State require the wording of these measures to be viewed and approved prior to the signatures actually being collected? If so, why did they not notice that it was multiple topics? If the Constitution clearly states that the legislature may not pass a law with multiple topics but does not mention that same restriction reference initiated measures, most attorneys will tell you that by not mentioning it again in the other section, it does not carry over. It will be very important to see how that section is worded because that will decide the case, at least on this issue.

  9. father of three

    So if they are reviewed by the attorney general, and his job is to enforce the laws of this State, you would think that since he didn’t say anything that the measure as written and presented would be valid. Granted, after reading his brief explanation and reading the actual wording in the presented measure, I am not certain that he read the entire measure and only listened to the hype from the sponsors. Could this eventually come back to bit him in the rear end during his run for higher office?

    1. aquitas

      The attorney general cannot take a position on a ballot initiative. The only thing he can do is give a 200 word explanation of what the initiative is supposed to do. This was a 34 page mess. Could you give a 200 word explanation of the first 34 pages of Title 22 of the South Dakota code? Could you give a 200 word explanation of either the US or State Constitutions? When an initiative is two pages long, its fairly easy. Not a convoluted mess like IM22.
      Where he to say that he believed all or part of it is unconstitutional, that is not only an opinion, but places the AGs office in a very bad position of having to defend the law after it passes with his office being on the record as having said it was bad.
      The problem is that people did not actually know what they were voting for and how it would actually effect the state. Anyone who voted for it and says they understand it and how it applies to the US Constitution, Citizens United, the First Amendment, and common sense, is a liar. Generally I trust the good sense of the people of South Dakota. In this case, I think the want for a Ethics Commission out weighed the cost of the rest of the measure.

      1. Anonymous

        The thing is the AG did just that he said it may be challenged on constitutional grounds..that clearly indicates that he thinks it has problems…..I’d want to know what grounds he thought it might be challenged on….

        The one I think that will come back to bite him is Marcy’s law…the other threads discuss it but it is a mess…