In which South Dakota can’t actually do that

Voters in South Dakota approved a sweeping new government ethics law by referendum in November.  The South Dakota state legislature just overruled them.

Can they do that?

Yes and no.  A law passed by referendum is, in the end, a law; and laws can be repealed by the legislature.  A lot of states have protections against this practice, which is called “legislative tampering.”  South Dakota is one of 12 states that doesn’t.  So if you think the people can band together and pass a law by ballot measure there, you’re only sort of right; if the people’s will goes against the will of the legislative majority, as in this case, right out the window goes the popular vote.

But the legislature did more.  The bill, HB 1069, finishes off with the following language:

Section 35. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in
full force and effect from and after its passage and approval.

The declaration of an “emergency” does two things:  it makes the bill active immediately upon passage, thus preventing the ethics commission from coming into existence even temporarily, and it prevents the people of South Dakota from launching a new referendum to veto the repeal and restore the ethics law.

I don’t think they can do this.

Under the South Dakota Constitution, some kinds of laws are subject to veto by popular referendum and some are not.  Those laws protected from referendum are categorized as follows:

However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.

The legislature doesn’t have the power to protect a law from referendum just by declaring an emergency.  It has to fall under one of the two protected categories delineated in Section 1 above.  This was laid out in Lindstrom v. Goetz (1951):

 Only those laws which are not subject to the referendum, according to § 1 are subject to the emergency clause authorized by § 22. State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, L.R.A. 1917B, 1. The same rule applies to municipalities. City of Colome v. Von Seggern Bros. Ludden, 56 S.D. 390, 228 N.W. 800. Whether a law or ordinance is subject to the referendum is a judicial question. If it is found that the law is not subject to the referendum, the legislative declaration of an emergency is conclusive. If it be found that the law is subject to the referendum, the declaration of an emergency is void, for then no emergency could exist.

The Legislature, in HB 1069,  invoked the second category of protection.  That’s what I don’t think they can do.  The interpretation of what counts as “necessary for … support of state government” in South Dakota has traditionally been pretty broad, encompassing laws designed to enhance or even redistribute state revenue.  But it’s not unlimited.  Check this out, from “Restrictions on Initiative and Referendum Powers in South Dakota,” Lowe, Chip J., 28 S.D. L. Rev. 53 (1982-1983), p.61:

I don’t think you can say, with a straight face, that eliminating the independent ethics commission is an appropriation bill or a taxing measure.  So their claim dies here:  they can overrule the referendum, but they can’t prevent the public from overruling them right back.

Update: (July 2017)  The South Dakota legislature has passed a law bringing a state ethics board into existence, but one much weaker than the one the referendum was going to enact.  Good-government groups in SD are preparing a new referendum for the 2018 ballot; I guess, even if the legislature claims it can keep the public from vetoing its law, it can’t keep the public from bringing into existence an entirely new oversight body, which they’ll no doubt kill in its crib in January 2019, and so on, and so on….

Why I’m voting no on the Wisconsin transportation referendum

All attention is focused on Mary Burke and Scott Walker, so I didn’t even realize there’s a state ballot proposition in next week’s election.  And it’s not a trivial one, either.

Question 1: “Creation of a Transportation Fund. Shall section 9 (2) of article IV and section 11 of article VIII of the constitution be created to require that revenues generated by use of the state transportation system be deposited into a transportation fund administered by a department of transportation for the exclusive purpose of funding Wisconsin’s transportation systems and to prohibit any transfers or lapses from this fund?”

Mary Burke supports this.  So does Governor Walker.  The bill to put the referendum on the ballot was passed by large majorities of both houses.  “Yes on 1” has an organized campaign and a snappy website; as far as I can tell, there is no such thing as “No on 1.”

But I’m voting no.  I don’t expect every dime of people’s property taxes to support upkeep of residential infrastructure.  I don’t think the sales tax should be restricted to promoting Wisconsin retail.  I think money is money and it’s the job of the legislature, not the constitution, to decide how money can best be raised and where in the state it’s most needed.

The amendment prevents gas taxes and vehicle registration fees from being used to fund schools and hospitals and police, but it doesn’t prevent other revenue sources from being raided to fund our highways and bridges.  And that’s what’s actually happening right now; the current administration takes $133 million from the general fund to fund transportation in the current budget.  I’m not sure why transportation, out of all state projects, ought to enjoy a special status:  allowed to draw money from the general fund, but constitutionally prohibited from releasing any back.

The Yes on 1 FAQ points out that many states around the country have constitutional language enforcing segregation of the the transportation fund.  I looked at a few of these, and it’s true!  But those provisions are of a rather different nature.  California’s constitutional provision requires that 25% of the money go to public transportation.  In Minnesota, it’s 40%.  Our referendum has no such restriction, requiring only that the money go to things funded by the DoT.  The Yes on 1 FAQ points out, correctly, that “Wisconsin’s segregated transportation fund is the sole source of state funding for the entire transportation system – highways, air, rail, transit, harbors, bicycle and pedestrian facilities.”  Pretty weak sauce — the fund will not be prohibited from funding other forms of transportation.  Unless an enterprising governor splits off transit into a separate department, that is.  (Ohio’s Constitution, by the way, already forbids gas taxes and license fees from aiding mass transit.)

The amendment establishes one class of spending and taxing as privileged above all the rest.  It shouldn’t be part of our state constitution.

Links:

• GAB description of referendum
• Dane County LVW page on referendum
• Cap Times editorial opposing referendum

What If… Wisconsin were Ohio?

Last year Ohio governor John Kasich passed a law restricting collective bargaining for state employees, much like the one we have here in Wisconsin — whether because Kasich is a defter political operator than Scott Walker or because Columbus and Madison are not very similar, he got SB 5 passed with substantially less hubbub than we had here in WI.

There’s another difference between Wisconsin and Ohio.  The Wisconsin constitution allows for recall of sitting elected officials; the Ohio constitution doesn’t.  But Ohio is one of 24 states were a popular referendum can overturn a statute passed by the state legislature.  Wisconsin is not.

Ohio voters go to the polls today to decide whether Kasich’s law stays on the books.  Polls suggest Kasich is headed for defeat, though polling on ballot referenda are generally considered less reliable than election surveys.  The Walker recall, meanwhile, is said to have a higher hill to climb, especially given Russ Feingold’s decision not to jump in.

What if Walker’s State Bill 11, instead of Walker himself, were facing recall by Wisconsin voters?  Would it be more or less likely to survive?

On one hand, I think there’s likely to be a substantial body of voters who oppose SB 11, and who will vote for a Democrat in the next regular election, but who think recalls should be reserved for criminal or at least plainly unethical conduct.  On the other hand, I think there are plenty of people who dislike Walker but also don’t care very much about collective bargaining, and might not show up for a referendum vote:  during the State Senate recall elections this spring, the dominant campaign theme for Democrats was not “restore collective bargaining” but “Scott Walker is a bad guy who wants to defund your school and fire station.”

(Speaking of the State Senate recalls — the GOP is now down to a one-vote majority in the chamber, and for all intents and purposes that vote belongs to centrist Sen. Dale Schultz of Richland Center.  Schultz crossed party lines last week to keep the new Republican-drawn district boundaries from going into effect a year early.  The measure was expected to help Republican incumbents defend against a new wave of legislative recall elections in 2012.)