Senator Corey Brown (R-23/Gettysburg) does not lose gracefully. His Senate Bill 166 was a spiteful and crassly political ploy to weaken voters' right to legislate via initiative and referendum. The press blasted him, a variety of citizens and groups rose against SB 166, and numerous opponents trekked to Pierre yesterday to testify against this destructive bill yesterday.

A bigger man would have responded with a simple apology: I'm sorry. You're right. Senate Bill 166 is a bad idea. I withdraw the bill.

Senator Brown is a bigger something else. When Senate State Affairs finally reached SB 166, after opponents had waited through more than three hours of testimony and discussion in on other issues, Senator Brown took the mic, dismissed "the vast majority" of the opposition as thoughtless and impolite, and craftily tabled—not withdrew, but tabled—his bill before patient, thoughtful citizens had any chance to put their opposition on the record.

Senator Brown also misportrayed Senate Bill 166 as a sincere defense of the state constitution and continued his war against the initiative and referendum by threatening to take petitioners to court.

Here is Senator Brown's complete statement, for the record. All blockquotes are Brown's words, in my transcription. My translations, corrections, and commentary are inserted between blockquotes. This portion of the hearing begins at 3:12:36 on the SDPB audio.

You know, when we are elected, I think most of us take that very seriously and we come here to pierre with the idea that we're going to address problems and issues. Most of the colleagues that I've met here in the Legislature have a true interest in trying to find better ways forward or to take care of things that are deemed incorrect. We also take pretty seriously the oath to defend and support the constitution of the state [Senator Corey Brown, remarks on Senate Bill 166, Senate State Affairs Committee, 2015.02.06].

Translation: I'm awesome. I'm brave and noble. I would never propose a bill just to take away a democratic tool that citizens have used to challenge my party's political agenda and undo the things ALEC tells me to do. Never.

I realize that Senate Bill 166 has generated a lot of discussion.

Translation: I'm awesome for introducing such a thought-provoking bill.

Unfortunately I'd say the vast majority of that discussion has not been nearly as thoughtful as I would have hoped that it would have been.

Translation: People criticizing my awesome idea are clearly idiots.

Essentially we have an issue or at least I believe we do, and a lot of you have heard me speak to this, but I think South Dakota, as you know, was one of the first—it was the first state to allow for initiatied measures and referendums. And in the constitution, there was language that was put in there to talk about qualified electors, and that's what the petitions are supposed to be based off of. You can also turn to section... Article 7 in the constitution which talks about the definition of an elector. When you marry those two things up, I think we run into a third problem, and one of the pieces that really hasn't been discussed in this entire conversation has been the Supreme Court Case in 1994, which was Poppen v. Walker. Now that case didn't have anything to do with initiated measures or referendums. What it dealt with basically the gaming industry.

Poppen v. Walker found in 1994 that video lottery as then constituted was unconstitutional because the Legislature had created a gambling mechanism that did not conform to the court's constructed definition of the "lottery" authorized by popular vote in 1986.

Senator Brown commits supreme irony in turning for legal support to a case in which the Supreme Court ruled that the Legislature had violated a constitutional provision that had been approved by the people.

However, there was a major finding in that case that I think is critical to this discussion today. And I'll just read it to you. Basically the Supreme Court came back and said, "It is the duty of the Supreme Court not the Legislature to determine the meaning of constitutional terms."

Unfortunately, if you look at our state statute, the Legislature at one point adopted code very early in our statehood that tried to define what an elector was, and basically they said you needed to go back and take a look at the last election for Governor, and it will be based off a percentage of that.

Correction: the statute in question, SDCL 2-1-5, was enacted in 1939, fifty years after statehood, and amended in 1976. Neither date qualifies as "very early in our statehood."

The problem is we as a Legislature defined what those electors were, kind of contrary to what the constitution indicates.

Correction: The problem is that not one word of current statute is contrary to language in either of the constitutional provisions Senator Brown cites. Stay tuned: I'm working up a separate post dedicated to that topic.

As we go forward, and I should point out that... I don't know the exact reasoning for why that was put into place way back when, but I think, as it's been pointed out to me, when that was adopted, we were at a point in our state's history where when you registered to vote. you did it every two years. You had to come back in and re-register when the county would call that together, and unfortunately, I don't think the tracking mechanisms were very good.

Essentially, at that point in the state's history, the only way you could really go back and figure out how many people were there was you had to go back and look at the last election and see how many people voted for governor

So I think there was a practical reason to put that in there at one point, and obviously it's remained there for a long time.

However, I think society, technology have got ahead and caught us up to a point where we can go on the secretary of state's website and know how many registered voters there are today. And that's, those are the words that were put in the constitution.

Having said all of that, I'm quite surprised that a lot of folks are willing to not engage in an intellectual conversation.

More irony: A South Dakota Republican legislator complains that citizens are not sufficiently intellectual.

And there was something that occurred last night that made me realize that this has really become too big of a distraction for this Legislature to deal with. I had a call from the page advisor. Opponents are calling the Capitol using swear words and curse words at our high school pages. That is absolutely pathetic. I cannot believe that we would reach that level.

Big translation: Political discourse is over in South Dakota. If activists want to kill a bill, all they need to do is call the Capitol, get on the phone with a high school page, and say, "That bill sucks, dagnabit!"

I find such discourse unintellectual and immoral. But if we're being practical (and I want you to think about the moral compass of various special interest groups), what's cheaper:

  1. Running a candidate to unseat Corey Brown?
  2. Hiring a lobbyist?
  3. Mounting a petition drive to refer Senator Brown's bad laws? or,
  4. Cussing out a page?

Senator Brown is obviously blowing smoke. If I were a legislator, and if some frail blossom of youth on my page staff came weeping to me that some mean citizen had burned her ears with foul language over a bill I cared about, I'd console her, assure her we'd keep her safe, but I'd also take the teachable moment, "Dear girl, some people are nasty, and they will try to distract us from doing what's right. But this bill matters, and we aren't going to let the bullies win."

The shorter translation: Corey Brown has no spine, and he's teaching kids to cave to bullies.

And so in the interest of allowing this Legislature—as you saw by our agenda today, we have many bigger fish to fry and there are a lot of things that we have to discuss and maybe ultimately we just need to let the courts deal with this—I'm going to ask that the committee table this bill so we can move on to the other issues that we have before us.

Translation: With opponents gathered to roast this bill, let's put it on the table. I'm not withdrawing it, and once these people leave, maybe I'll bring it back. Or maybe I'll just sue anyone who dares bring an initiative or referendum this year. Who knows? I'm determined to undermine the initiative and referendum, and if I can't get this bill passed, I'm going to at least create as much uncertainty as I can for all those citizens who think they are better than I am at making laws.

At that point, after allowing Senator Brown his grandstanding and insults, without allowing any opponents to speak, Senate State Affairs did indeed table Senate Bill 166. If SB 166 stays dead, we will at least be spared a bad bill. But sore loser Senator Corey Brown remains unapologetically committed to insulting the people of South Dakota and their constitutional right to legislate.

35 comments

Conservatives in the South Dakota Legislature are agitating to change the United States Constitution while limiting our ability to make such changes. Seeking to amend the highest law of the land and limiting debate and voting seems the opposite of conservatism.

Rep. Jim Stalzer (R-11/Sioux Falls) and Sen. Ernie Otten (R-6/Tea) lead a group of mostly hard conservatives in sponsoring two pieces of legislation relating to an Article V convention. Article V of the Constitution creates two methods for amending the Constitution: Congress can propose amendments, or two-thirds of state legislatures can call a convention. ALEC, which has been stacking up chips in state legislatures to pass pro-corporate legislation, has been pushing for an Article V convention. Stalzer, Otten, and many of their co-sponsors have traveled to ALEC's national meetings.

Stalzer, Otten, et al. propose House Joint Resolution 1001, calling for an Article V convention to propose a federal balanced budget amendment. A balanced budget amendment is bad fiscal and economic policy, reducing the government's ability to respond to economic crises with deficit spending. Besides, such an amendment should be anathema to these conservative legislators: why rewrite the Constitution to achieve a goal that can be achieved by simple personal responsibility? Don't vote for an unbalanced budget, and you won't have an unbalanced budget, right? If we need to stop Congress from spending like drunken sailors, we don't amend the Constitution to outlaw drinking (hey, didn't we try that?); we just elect Congressmen who don't get drunk... on booze or on corporate welfare.

Attempting to stem the critique that an Article V convention opens the door to repealing and rewriting the Constitution, Stalzer, Otten, et al. propose House Bill 1069 to shackle delegates to an Article V convention to these legislators' narrow agenda. HB 1069 would make it a crime for any Article V convention delegate to vote for an "unauthorized amendment"—i.e., any measure outside of the subject matter prescribed by the state's call for a convention. In this case, the ALEC sponsors of HJR 1001 want a convention that considers nothing but a balanced budget amendment, and they want to impose a fine of $5,000 on anyone who goes to such a convention and says, "Hey, while we're here, why don't we...?"

Telling citizens they cannot vote according to their conscience seems a mean and overreaching restriction on Article V and the First Amendment. Worse, like the balanced budget amendment itself, HB 1069 is unnecessary. In a 2007 Harvard Journal of Law & Public Policy article that largely defends the legality of such state restrictions, James Kenneth Rogers says a runaway convention can't really run away: amendments still have to be ratified by three fourths of the states. If the South Dakota Legislature doesn't like the amendments delegates approve, it can simply not ratify those amendments.

An Article V convention is a fun excursion into national politics and Constitutional interpretation. However, it's not paving any roads or paying any teachers in South Dakota. Stalzer's and Otten's colleagues should quickly shut down both HJR 1001 and HB 1069 and get back to the practical business of solving real South Dakota problems.

44 comments

Mr. Powers appears to oppose a proposal to require South Dakota students to pass a civics test to graduate high school. He cloaks his blog post on the topic in comment fishing ambivalence (he never closes a rant against Kathy Tyler or a spin-defense of patron Mike Rounds with "But, that’s just my 2 cents worth. What do you think?"), but he is staking out the position that state-mandated tests are bad and that the Legislature ought to defer to the experts on education. Wow—how I wish I cold get Pat and his fellow Republicans to take that position on other issues!

I agree that the last thing I need is the Legislature telling me what to test my students on, but I'll wait to see what if any proposal hits the Legislative hopper this session.

I would like to take a moment to look at the law that Powers says already ensures that South Dakota students get good civics education:

The South Dakota law the article mentions (but fails to cite) is SDCL 13-33-4, which reads:

13-33-4. Instruction on United States and state Constitutions required–Years when given. In all public and nonpublic schools located within the state there shall be given regular courses of instruction in the Constitutions of the United States and the State of South Dakota. Such instruction shall begin not later than the opening of the eighth grade and shall continue in the high school to an extent to be determined by the South Dakota Board of Education.

The law goes back to the state’s codification of laws back in 1939, and may pre-date it even further. So it’s not as if South Dakota ignores a basic need for this type of instruction. I don’t have a problem with this broad kind of guidance [Pat Powers, "What are your thoughts on the proposed citizenship test requirement for high school students? My view? Meh," Dakota War College, 2015.01.19].

It's good to see that Pat can read statute as well as press releases. But can our schools? SDCL 13-33-4 mandates education in both the federal constitution and the state constitution. I do not recall ever discussing the South Dakota constitution in my high school classes. I wonder, social studies teachers, have you been covering...

  1. Article 8 Section 1, which requires the Legislature to "adopt all suitable means" to ensure a free and uniform public school system for its people;
  2. the tension between Article 6 Section 5 guranateeing the freedom of speech and SDCL 22-9-1 outlawing the desecration of the South Dakota flag;
  3. the impact of Article 6 Section 2, the "right-to-work" clause, on undermining the ability labor to organize and fight for its rights;
  4. Article 21 Section 9, the state's ban on gay marriage, and the fact that Judge Schreier's invalidation of that clause may require a revision of Article 21 Section 5, which establishes the property rights of "married women" but makes no provision for property rights of married men and does nothing to protect a married woman from the debts of her lesbian wife?

State law says we have to have those conversations in our schools, public and private. Teachers, fire away! And if you're short on state constitution curriculum, just have the kids tune in the Madville Times. I'm sure we'll be covering more on the South Dakota constitution....

25 comments

The Republican majority in the South Dakota Legislature is enjoying its power this week, kicking two Democrats out of Pierre. They've refused to allow the Legislature's Democrats to hire Ann Tornberg as their Senate caucus secretary and Kathy Tyler as their House caucus secretary.

Booting Tornberg is clearly political mischief. Democrats elected her as their party chair last month, so the Republicans are just being mean. The majority leadership has the authority to make or refuse appointments pretty much at its sadistic pleasure.

Booting Tyler is likely a punctuation mark on the vendetta Republicans went on to unseat Tyler from her District 4 House seat last fall after her outspoken resistance to Republican abuses of power like the EB-5 scandal. But instead of just owning this mischief, Republicans are trying to justify their firing as a legal matter. Speaker of the House Dean Wink (R-29/Howes) says he had to fire Tyler because the state constitution says former legislators cannot hold a state job for a year after their terms end.

Well, I'm all about the constitution. Let's review the language in question:

No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased during the term for which he was elected, nor shall any member receive any civil appointment from the Governor, the Governor and senate, or from the Legislature during the term for which he shall have been elected, and all such appointments and all votes given for any such members for any such office or appointment shall be void; nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected [South Dakota State Constitution, Article 3, Section 12].

This statute exists to prevent clever legislators from passing a law that would create jobs and perks for themselves. It's a good idea. But read carefully:

  1. Was the office of caucus secretary created during Tyler's term? No.
  2. Was Tyler elected to that office during her term? No: the current legislature, after Tyler left, had to choose her.
  3. Was the contract of the caucus secretary authorized by a law passed during Tyler's term? No... unless the argument is that the caucus secretary's contract is authorized by the FY 2015 General Appropriations Bill passed last year and providing the funds for this year's Legislature.

If Democrats are violating the constitution by hiring Kathy Tyler to a state job, then nuke 'em... just as we should nuke any other former legislators whose organizations or businesses may be engaged in contracts with the state. (Let's all start sorting through contracts involving Russ Olson, Chuck Jones, and any legislative lawyers whose firms do work for the state.) But I'm not convinced the Republicans have constitutional cover for their partisan mischief against Tyler. I am convinced they have no such cover for their partisan mischief against Tornberg.

42 comments

Gordon Howie asks me what I think of religion in government. I could just say, No, thank you. Instead, I say, Down with the state motto!

Really, I think requiring all South Dakotans to labor under the motto "Under God the People Rule" improperly subjects non-believers to an unconstitutional, state-sponsored declaration of religious belief. All citizens can agree that the People Rule Under a Big Blue Sky, Under the U.S. Constitution, Under a Shared Commitment to Truth and Justice. But I do not believe we rule under any God, and I don't like the state telling me otherwise.

P.S.: As that statement and the video should make clear, I don't like Sharia law, either.

37 comments

In today's exercise in faux patrio-piety, Rep. Hal Wick presented House Bill 1150, to require all K-12 students in South Dakota to recite the Pledge of Allegiance daily, to House State Affairs this morning.

Rep. Wick said his bill came about because some nice young boy wanted to say the Pledge on September 11 (the new high holy day that justifies all excesses) and was denied by his school. Rep. Wick did not clarify whether this unnamed young man asked permission to say it the Pledge himself or whether he asked that everyone be required to recite the Pledge with him. Those two requests would be very different.

Wade Pogany testified on behalf of the Associated School Boards of South Dakota to support the mandatory Pledge. Pogany said his proponent testimony probably surprised some folks, since the school boards usually stand for local control against state mandates. However, said Pogany, "certain things... are more important than local control." Indeed there are... like CYA when legislators are wrapping themselves in the flag and you don't want to be painted a godless Commie.

Did I mention God? Dale Bartscher from the Family Heritage Alliance certainly did. "It is fitting," said Bartscher, "that we begin the school day by honoring God and country."

No, it is absolutely not fitting that we begin the day requiring every public school student to honor God, not in an America ruled by the First Amendment.

Notice that Bartscher put "God" first in his statement, exposing the real priorities of HB 1150. It's not a civics lesson; it's a wedge for the theocrats to force their God into public classrooms.

A proponent from Pierre, Kathy Lucas, said something about remembering a classmate who didn't recite the Pledge or celebrate birthdays because of his religion. She didn't tie that brief anecdote together with her support of HB 1150; she blithely ignored the fact that she will force more children into that awkward position of having to explain why they aren't doing what everyone else in the classroom is doing (were none of you people seven years old? Do none of you remember how hard it was to be different?).

Rep. Wick did say that students who choose not to say the Pledge face no penalty; they may "stand down but remain at attention." I thought standing down and standing at attention were mutually exclusive actions, but Rep. Wick's language reminds us that we can't expect some Republicans to make sense. His language also reminds us that HB 1150, in requiring a "respectful silence" of Pledge objectors, violates the Constitution. Students are forced to either say specific words that may violate their conscience or to be silent. Forced speech or forced silence—I invite your judgment of which is worse.

No one rose to argue that a pledge to any flag is un-Christian. No one reminded Rep. Wick that compelled speech (religious or otherwise) is unconstitutional. No one rose to remind the sponsor and the committee that there are much more pressing issues facing our children than the need to incant certain formulas every day. House State Affairs approved HB 1150 13–0 and sent it to the full House.

A socialist wrote the Pledge to sell flags. Rep. Wick and Bartscher are forcing the Pledge now to sell God. I love America, but the more I hear about the Pledge, the more I see people using it for their own schemes, the less comfortable I am about saying the Pledge myself or requiring students to say it with me.

p.s.: Oklahoma is considering a similar Pledge mandate. Bill author Sen. Rob Standridge says its purely a grassroots effort. Sen. Standridge and Rep. Wick are both ALEC members. Coincidences abound.

72 comments

This is how Republicans rebrand themselves to win the youth vote: by ratifying a Constitutional Amendment that has been law since the Nixon era.

The 26th Amendment, lowering the voting age from 21 to 18, passed Congress in March 1971. It had its 38th state ratification by July 1971. Four more states threw in that year.

Congress passed the 26th after the end of South Dakota's 1971 Legislative session. No one thought it necessary to call a special session to ratify the 26th Amendment, but the 1971 Legislature had placed on the ballot an amendment to the state constitution to lower South Dakota's voting age to 18. That measure passed in 1972 73% to 27%, and 18-, 19-, and 20-year-olds have been voting here (though not enough!) ever since.

We have ratified the right of 18-year-olds to vote in our own state constitution and in practice. But we haven't officially put South Dakota's name on the 26th Amendment.

Thus, in his first act of legislative derring-do, gubernatorial appointee Senator Chuck Jones (R-8/Flandreau) brings Senate Joint Resolution 1, South Dakota's formal ratification of the 42-year-old law of the land. Yay.

But let's not snark too much: for South Dakota Republicans, even this limp, long-delayed affirmation of the 26th Amendment is a nice change from their usual tack of trying to take voting rights away from folks who tend not to vote Republican. Keep it up, Senate!

9 comments

The fantasy-grand jury league continues its game-playing around the state. Stephanie Strong sends the media an update implying that her fellow vigilante-litigationists are using as a guide the tactics of a New York group that pretends to be the "Unified New York Common Law Grand Jury."

Included in Strong's e-mail are two writs of mandamus, sent last week to trouble New York Judge Charles M. Tailleur and court clerk Michelle Carrol. There two poor folks stand accused of high treason against the King (the people? Elvis? what's the difference?). UNCLGJ (Uncle Gidge? Who knows, since the writ is filed anonymously, with an inscrutable signature from its "Administrator") demands that Clerk Carrol respond directly and not talk to any lawyers (all conspirators against the King). UNCLGJ orders Judge Tailleur to pay a fine of 100 ounces of silver. Apparently the judge is supposed to fax that silver to UNCLGJ, since UNCLGJ's writs provide no contact information other than fax number 888-891-8977.

The common law grand jury movement is a dangerous combination of stupidity and terrorism. UNCLGJ blows a smokescreen of quotes and arcane legal citations, makes absurd demands in all capital letters, and intimidates people with accusations of treason, the sort of absolute charge that inflames passions and rouses less thoughtful adherents (yes, the rubes showing up to shadowy weekend meetings to forward their delusions of tri-corner hat granduer) to dangerous action.

Using UNCLGJ as a guide is the last thing we want South Dakota citizens doing. Stephanie, please tell your neighbors to drop this fake grand jury posturing and concentrate on honest, practical citizen activism. Call your legislators, lobby in Pierre, write letters to the editor, run for office... but for Pete's sake, don't run around calling public servants traitors and shaking them down for silver.

22 comments

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