
Guest Column: Why South Dakota Can Never Have its Own ‘BBB’
by Thomas E. Simmons
President Trump’s so-called “Big Beautiful Bill” in fact, boasts a much more technical title: it is the bill “To Provide for Reconciliation Pursuant to title II of H. Con. Res. 14.” It is something like 1,000 pages in length and contains numerous unrelated subjects including everything from tax relief to border security and Medicaid eligibility.
For better or worse, South Dakota will never see any state legislation (or constitutional amendment) which approximates the Big Beautiful Bill on account of a state constitutional prohibition. South Dakota bills can’t be too big. It’s a rule – the “single subject rule.”
Article 23 of South Dakota’s Constitution contains the single subject rule. It speaks to state constitutional amendments and it provides that ‘‘no proposed amendment may embrace more than one subject”
A similar rule (contained in Article 3) imposes the same limitation with regards to legislative bills: “No law shall embrace more than one subject, which shall be expressed in its title.”
As readers of the South Dakota War College know, South Dakota allows a limited form of direct democracy with its initiative and referendum procedures. Voters can propose new laws, repeal old ones, and even amend the state constitution. The current form of Article 23’s single subject rule was itself the product of a voter-initiated constitutional amendment in 2018.
What is the idea behind the single-subject rule? Its purpose is to prevent “logrolling.” As the South Dakota Supreme Court explained in a 1937 decision, anti-logrolling “is intended to prevent the bringing together in one act of subjects having no necessary connection or relation with each other, to guard the Legislature and persons affected by the Law against surprise and imposition.”
In 2020, the voters of South Dakota were presented with an amendment (“Amendment A”) to the South Dakota Constitution. Amendment A, if approved, would add a new article – Article 30 – to the Constitution. It addressed the legalization and regulation of marijuana. The voters approved it 54.2% to 45.8%.
A challenge was filed and in 2021, the South Dakota Supreme Court determined that Amendment A was unconstitutional in that it violated the single subject rule. As a result, the amendment was invalidated. The case was captioned Kevin Thom (the Sheriff of Pennington County) versus Steve Barnett (the South Dakota Secretary of State). The opinion contains the entire text of Amendment A as an appendix; the appendix runs some 5 pages.
Despite the relative brevity of Amendment A (less than half a dozen pages compared to the phone book-sized Big Beautiful Bill), our Court found that it violated the single subject rule insofar as it addressed at least two independent subjects: legalized marijuana and legalized hemp, each with a separate object or purpose.
The Court took note of the fact that legalization of marijuana addressed a substance with psychoactive properties. Hemp, however, is not psychoactive.
The Court explained:
The constitutional mandate requiring legislation to provide for “the cultivation, processing, and sale of hemp’’ has the distinct object or purpose of allowing industrial and agricultural use of a product that contains essentially no psychoactive properties… In contrast, there is no fixed maximum level of psychoactive properties for marijuana in Amendment A.
The Court even found an impermissible third subject within the text of Amendment A (medical marijuana) and hinted at a possible fourth (taxation of marijuana sales)). The proponents of Amendment A claimed that their amendment contained but a single subject – the legalization of marijuana including agricultural uses. But the Court wasn’t having it.
Interestingly, the South Dakota Supreme Court noted that it appeared that perhaps “the drafters of Amendment A folded the additional subjects of hemp and medical marijuana into this single amendment to aggregate votes and increase the chances for passage of the provisions legalizing and regulating recreational marijuana.” The fact that the voters of South Dakota rejected recreational marijuana as a single subject when presented with the option in 2022 and again in 2024 underscores the Court’s concerns. Perhaps the Amendment A sponsors had tried (unsuccessfully) to logroll us.
At any rate, for better or worse, the single subject rule ensures that South Dakota will never witness its own Big Beautiful Bill.
Thomas E. Simmons
University of South Dakota Knudson School of Law
Vermilion, SD
We need more Prof. Simmons on the blog