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Amendment is clumsy way to keep Legislature from manhandling voter initiatives


Amendment is clumsy way to keep Legislature from manhandling voter initiatives

Jul 16, 2023 | 1:00 pm ET
By Dana Hess
Amendment is clumsy way to keep Legislature from manhandling voter initiatives
Democratic U.S. Senate candidate Brian Bengs speaks to supporters on Nov. 7, 2022, at the Washington Pavilion in Sioux Falls. (John Hult/South Dakota Searchlight)

South Dakota’s legislative process is haunted by the ghost of Initiated Measure 22. Endorsed by a little more than 51% of voters in 2016, the anti-corruption measure was quickly dismantled in the next legislative session. Since then, lawmakers have lived with a reputation for dismissing the will of the people.

Derailing IM 22 has had a couple of consequences. Now some people who bring issues directly to the voters do it two ways — both as an initiated measure and as a constitutional amendment. Even though voters traditionally don’t relish endorsing amendments, the theory behind the twofold approach is that if the amendment becomes law, the Legislature won’t be able to muck about with it the way it can with an initiated measure.

Another consequence appeared recently when Brian Bengs, an Aberdeen man who ran for the U.S. Senate and lost to John Thune, offered an amendment that would put a seven-year prohibition on the Legislature repealing or amending a measure endorsed by voters.

In media interviews about the amendment, Bengs has directly referenced IM 22 as his inspiration. He told Hub City Radio that the Legislature repealed IM 22 because lawmakers believed “this will inconvenience us.”

Well, it wasn’t just an inconvenience, it was unconstitutional. Shortly after its passage, a group of Republican lawmakers filed a lawsuit in circuit court in Hughes County contesting its constitutionality. In granting an injunction, Judge Mark Barnett said it was “beyond a reasonable doubt” that the claim that IM 22 was unconstitutional would succeed.

During the next legislative session, lawmakers were generally of two minds about how to proceed. Democrats wanted to let the lawsuit play out in the courts while readying legislation that would provide for some of the elements found in the anti-corruption initiative.

Republicans, who took offense at the IM 22 commercials that portrayed them as taking bribes, had a different plan. They wanted to ram through an emergency repeal of IM 22 as fast as they could. While some measures found in IM 22 were endorsed in legislation during that session, Republicans wanted that law off the books as soon as possible. To that end, the repeal of IM 22 set a land-speed record for traveling through the legislative process. On a Monday, the bill containing the repeal was approved by the House State Affairs Committee. On Tuesday, it was approved by the full House. On Wednesday, it made its Senate debut before that chamber’s State Affairs Committee where it was easily endorsed.

Thursday, the last day of the legislative week, found the repeal before the full Senate. Only then did the brakes go on, with cooler heads suggesting that perhaps it would be best if lawmakers were to explain themselves to constituents at weekend cracker barrels. The next week, the Senate gave the repeal its OK, too.

If Bengs’ amendment had existed at that time, and if by some stretch of the imagination the state Supreme Court had found IM 22 constitutional, South Dakota would have been living with that law for the past seven years. Among its many features, IM 22:

  • Allowed for the appropriation of state funds, usurping the Legislature’s power of the purse.
  • Created an ethics commission that was answerable to no one, essentially setting up a fourth branch of government.
  • Kept almost everyone from running for office since anyone who worked for or did business with companies or institutions that employed lobbyists could not serve in the Legislature.

IM 22’s heart was in the right place, even if its guts were unconstitutional. South Dakota was ready for anti-corruption legislation after the flawed administration of the state’s EB-5 visa program and the embezzlement of funds in the Gear Up scandal. While ham-handed in its execution, IM 22 sought what was so often lacking in government: transparency, accountability and ethics.

One way of looking at the IM 22 experience is that the Legislature inherited a flawed piece of legislation from voters and embraced some aspects of the initiative that voters wanted. Few are the bills that make their way through the Capitol that don’t need to be polished or tweaked in some way. Even Bengs knows that. In his radio interview, he admitted that his amendment, which takes up all of one sentence, was submitted incorrectly the first time and had to be withdrawn. If he hadn’t caught his mistake, we could have been living with a flawed amendment for the foreseeable future.

Seven years is too long to live with a bad law. If citizens believe that legislators are messing with initiated measures too much, there’s a solution that doesn’t take nearly as long. Voters should keep in mind that legislative terms are just two years. Lawmakers who are too handsy with measures endorsed by voters can easily be shown the door without the need to amend the constitution.


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