The South Dakota State Legislature fully repealed a major anti-corruption law earlier this year that voters approved in November 2016. But voters in the state may get a second chance at reform.
Represent South Dakota, a nonpartisan anti-corruption organization that campaigned for the 2016 ballot measure, is now working to enshrine elements of the repealed law in the state's constitution through a voter-approved amendment.
IM-22, the ballot measure supported by 51 percent of voters last year, was a first-of-its-kind anti-corruption law:
- It imposed tight constraints on the gifts that lobbyists and their employers could give to state officials;
- Lowered campaign contribution limits;
- Enhanced transparency requirements related to campaign finance disclosures;
- Made bribery a felony offense;
- Mandated that high-level government officials wait two years before taking jobs as lobbyists; and
- Gave voters two $50 vouchers (so-called "democracy credits") that they could donate to the candidates of the choice.
It also created an independent ethics commission to prevent corruption and ensure compliance with state ethics rules.
Many state officials, however, claimed that the measure was poorly written, overly broad, and possibly in violation of the state and federal constitutions.
Governor Dennis Daugaard, for example, said voters had been "hoodwinked by scam artists who grossly misrepresented these proposed measures."
State Senate Majority Leader Blake Curd echoed this sentiment, claiming it was "more than just an ethics bill," and that "the most problematic sections made de facto criminals out of every single official in our state."
Curd and fellow lawmakers challenged the measure in court.
In December 2016, a circuit court judge determined that while some parts of the law could be "saved," others needed to be reviewed by a higher court. And since the provisions of the measure comprised an entire package, the judge argued, they were not severable – capable of being enforced individually. The judge thus ordered a halt in the implementation of the law in its entirety.
Rather than wait for a decision by the state supreme court, lawmakers acted quickly on their own to undo the law.
In January 2017, the legislature declared a state of emergency, which allowed lawmakers to repeal the law in full and prevented the public from reversing the decision through a veto referendum. Gov. Daugaard signed HB 1069 in early February, officially scrapping the South Dakota Government Accountability and Anti-Corruption Act.
Lawmakers did pass some bills to replace features of the repealed law, as many recognized that some reform was needed. After all, the state had suffered two major corruption scandals in recent years, the EB-5 and Gear Up scandals.
Moreover, South Dakota had been ranked 47th overall in an assessment of states' transparency and accountability rules in a study conducted by the Center for Public Integrity and Global Integrity in 2015.
While the legislature did reinstate the measure requiring officials to wait two years before becoming lobbyists, most of the measures signed by the governor differ from their counterparts in the repealed law.
The newly created State Government Accountability Board, for instance, does not provide oversight of the legislative branch, and the new ban on lawmakers receiving $100 in gifts from lobbyists annually contains significant exemptions, including expenses for food, beverages, and entertainment.
In an interview for IVN, Represent South Dakota spokesman Doug Kronaizl explained the features of the anti-corruption amendment and why the campaign for the amendment may prove to be more successful than the campaign for its predecessor.
In many ways, the amendment is similar to IM-22:
- It calls for abolishing the current State Government Accountability Board and replacing it with a seven-member independent citizens ethics board that has oversight over all three branches of government;
- It would impose low thresholds on the amount of money that candidates and political parties can raise from a single source; and
- It would close the loophole under the current law that allows lobbyists to purchase food, drinks, and entertainment for "senior public servants" (including elected and non-elected officials) – with an exception only for family members.
Kronaizl said that the proposed amendment reflects some of the lessons learned from the defeat of IM-22.
First, he said, the amendment stipulates that any future law that would repeal or amend a voter-backed measure cannot go into effect until such a change is approved by a majority of the electorate.
Moreover, the amendment contains severability clauses. Thus, if any provisions of the amendment are invalidated, the other provisions would remain in effect.
Finally, the provisions were chosen and worded so as not only to pass constitutional muster, but also to maximize the amendment's appeal. It does not address "democracy credits," for instance, a feature of IM-22 that was unpopular among some conservatives.
Before the amendment is put to the voters, its supporters will need to gather at least 27,741 by November 2017. If the requisite number of signatures are approved, the amendment will appear on the 2018 ballot.
Kronaizl sees that the road to passage is long: in a large, sparsely populated state, meeting with the public and building a political movement can be challenging.
Yet Kronaizl is confident that voters will be sympathetic to the amendment because of its nonpartisan nature. Anti-corruption, he said, is an issue that voters from all across the political map can unite behind.