Monthly Archives: March 2017

See you in a week or so

Taking some time off after the legislative session. Hope to be back some time next week but you just never know. I’ll read your emails then.

Why Randy Seiler remains U.S. attorney (and how he got there in the first place)

First, read this official news release issued by Randy Seiler, U.S. attorney for the District of South Dakota:

US Attorney Status

His official biography page is here. His predecessor as U.S. attorney, Democrat Brendan Johnson, resigned effective March 11, 2015. A Black Hills Pioneer column from December 2008 highlighted the likelihood that Johnson would get the post.

Johnson, son of the now-former U.S. senator, succeeded Republican Marty Jackley in 2009. In turn then-Gov. Mike Rounds appointed Jackley as state attorney general. Jackley succeeded Larry Long in the state office after Long received an appointment from Rounds to a new circuit judge seat in Sioux Falls.

The choice for Rounds came down to Jackley and Charlie McGuigan. On Monday, word circulated that McGuigan now plans to run for the Republican nomination for attorney general in 2018, as Jackley runs for the Republican nomination for governor. Jackley succeeded another Republican, Jim McMahon, as U.S. attorney.

Here’s a summary of the twists and turns in the U.S. attorney post for the past 20 years or more. There is a name — a significant defense attorney based in Sioux Falls who’s been in some high-profile cases — circulating in federal court circles in South Dakota as to a possible successor for Randy Seiler. We’ll see if that transpires. A current case might need to conclude first.

The 11 acts of IM 22

The 2017 session of the Legislature added a chapter to South Dakota history. Republicans repealed Initiated Measure 22. As best as I can recall, this was the first time in my 32 legislative sessions that lawmakers repealed an act of the voters. You could see them headed this way two years ago when they reduced the minimum wage for youths after the voters had raised the minimum wage; but that never took effect, because the youth wage was referred to a public vote and it was rejected. About a century ago, legislators also repealed a new primary election system. The sides went back and forth for several years. Otherwise, there are many instances of voters repealing something the Legislature passed, but it’s been rare for the Legislature to repeal the will of the voters.

The repeal of IM 22 was HB 1069. It came from Rep. Larry Rhoden, R-Union Center. Not all Republicans voted for it, but only Republicans voted for it. In the House four Republicans joined nine Democrats in opposing. The four were Jean Hunhoff of Yankton, Mike Stevens of Yankton, David Lust of Rapid City and Craig Tieszen of Rapid City. In the Senate two Republicans joined the six Democrats to oppose the repeal. The two were Lance Russell of Hot Springs and Stace Nelson of Fulton.

Legislators clearly plan to do it again. They passed SB 59 that delays the date of implementation to July 1 for a ballot measure. In any other year, perhaps the legislation from Sen. Jim White, R-Huron, would have looked like a good idea. State laws normally take effect July 1 unless passed with an emergency clause. Ballot measures have traditionally taken effect as soon as the election canvass is complete. The July 1 start date provides an extra seven months to prepare for a voter-approved law to start. But in this instance, coming on the heels of IM 22’s passage, the July 1 start date legislation looked like retaliation. It buys time in future years for the Legislature to meet in regular session during January through March and repeal or amend any initiated law or referral. The Legislature can’t directly amend a change to the constitution. So we might see more constitutional amendments rather than initiated laws on the ballots in the elections ahead. There is a possibility that someone will try to refer SB 59 to a statewide vote, but I haven’t heard anyone getting such an effort ready. No Democrats voted for SB 59. One Republican senator, Nelson, and four Republican representatives — Drew Dennert of Aberdeen, Dan Kaiser of Aberdeen, Blaine “Chip” Campbell of Rapid City and Isaac Latterell of Tea — voted against it.

Another change that would have seemed like a good idea if it didn’t come in the IM 22 legislative session came from Sen. Ernie Otten, R-Tea. His SB 77 requires fiscal notes to be prepared and made available for all ballot measures. This applies the same principle followed by the Legislature: Know the potential financial impact of a proposal. It drew five nays in the Senate — all Democrats — and 21 nays in the House split between Democrats and Republicans. IM 22 contained an appropriation and established a new publicly funded campaign system known as Democracy Credits. This was one of the features of IM 22 that was judged by opponents to be unconstitutional (appropriation legislation is supposed to be a single subject, other than the general budget bill for state government). Most of the rest of IM 22 was discussed and debated in some way by legislators, but not one lawmaker proposed restoring the Democracy Credits. There was no appetite for using taxpayer money to fuel candidates’ campaigns.

Rep. Haggar brought another piece of IM 22-sparked reform legislation. HB 1052 expands whistleblower protections for public employees in South Dakota. It drew five nays in the House, all from Republicans, and zero opposition in the Senate.

The lobbyist gift restriction of $100 came via HB 1072 sponsored by Rep. Mark Mickelson, R-Sioux Falls. It took aim at the TV advertising by IM 22 supporters that portrayed a lobbyist paying off a lawmaker. Legislators removed the $75 meal limit from the legislation. Lawmakers can take unlimited meals including food and drink and not have the hospitality count against the gift limit. The House unanimously passed the first version of Mickelson’s bill with the $75 meal limit. The Senate saw 10 people — nine Republicans and one Democrat — vote against the version with the unlimited meals.

The state government accountability board came via HB 1076 that Rep. Karen Soli, D-Sioux Falls, shepherded through many amendments to final passage. It drew only nine nays between the two chambers, all from Republicans.

The conflict of interest laws that Rep. Mickelson sponsored during the 2016 session needed some modifications. He returned with HB 1170. It drew one nay between the two chambers from Sen. Russell. Another piece of legislation dealing with conflicts of interest, SB 27, came from state Attorney General Marty Jackley. It raises the severity of the crime to a felony from a misdemeanor, so that prosecutors might be more inclined to prosecute and potential offenders might be less inclined to offend.

SB 54, a vast rewrite and update of state laws on campaign finances, came from Secretary of State Shantel Krebs and a workgroup she convened last year independent of IM 22. Legislators wrestled on this topic until the final day of the session’s main run Friday. IM 22’s Doug Kronaizl rightly said it didn’t address the smaller contribution limits that IM 22 contained. Legislators decided to send the contributions subject to a study group for a 2018 proposal.

Senate Republican leader Blake Curd of Sioux Falls sponsored SB 131 that expands the time that officials must wait to two year before lobbying. The limit has been one year. The measure also expands the prohibition’s coverage from solely elected officials to also include to department or agency heads, division directors and the highest-paid person reporting to them. The Senate liked htis better than the House, with senators voting 34-1 and representatives passing it 51-17.

It took until Friday to reach agreement on another of Sen. Curd’s bills, SB 151, setting the process for the state Division of Criminal Investigation to receive and process allegations of government misconduct. The House liked it, a lot, in part because Rep. Larry Rhoden, R-Union Center, worked for it. The Senate was lukewarm, needing a last “aye” from Sen. Deb Peters, R-Hartford, for final passage 18-17. It nearly died on a procedural vote that was tied at 17 when Sen. Jordan Youngberg, R-Madison, kept it alive. He also cast the aye that set up the tie for Peters to break, after she had passed on her first turn through the alphabetical roll call.

Sen. Brock Greenfield, R-Clark, and Rep. Julie Bartling, D-Gregory, teamed up to ease SB 171 to passage. It sets up a legislative task force on government accountability. Their original version called for studying lobbyist restrictions, ethics and campaign finance. In the end it was down to campaign finance. The task force will take on the topics that weren’t decided in the SB 54 deliberations.

There might be other IM 22-response legislation that passed but escapes this reporter’s Saturday morning attention. Some measures lost, such as two that sought more transparency on contributors behind ballot measures. Legislators and citizens lost on another front when the repeal of IM 22 put an end to the lawsuit that came from IM 22 opponents in the Legislature. It would have been worthwhile to know what the South Dakota Supreme Court thought about some of the allegedly unconstitutional provisions of IM 22. Perhaps someday the state’s high court can give an interpretation of whether legislators violate the prohibition against direct or indirect interest in state contracts, including how their spouses’ jobs fit into that equation.

The bottom line: South Dakota has many more reforms on the law books as a result of voters’ approval of IM 22.

Note to readers: The original version of this post incorrectly identified the prime sponsor of HB 1069 as Rep. Don Haggar, R-Sioux Falls. He was a co-sponsor.



No pay raise for state employees

Contrary to some reports in news media Thursday night and this morning, the 2018 budget plan for state government won’t include raises for state employees. Instead additional money will be spent on their insurance plan. We’ll know details in the coming hours. The confusion results from the stop and start fashion of budget negotiating in the final week of the legislative session. Today is the last day of the 2018 session’s main run.

Some numbers in GOP race for governor

These came to me third-hand (at best) so don’t bet on them being right (or wrong). But I’m told a survey conducted at the turn of the calendar from February to March in South Dakota found U.S. Rep. Kristi Noem ahead of state Attorney General Marty General in the contest for the Republican nomination for governor.

They are the only two declared candidates so far. Supposedly the poll sample was 900; I don’t know who paid for the poll, and I don’t know the methodology (I presume telephone but don’t know whether it was an auto-caller or human beings making the contacts). The tally I’ve been told is Kristi at 39 percent and Marty at 35 percent. I don’t know if those numbers include soft support and/or leaners. I would relish getting a copy. Bottom line; If true, there isn’t much space left for a third Republican to run.

By the way, I’m told that Secretary of State Shantel Krebs is preparing to be the second candidate for the Republican nomination for U.S. House to succeed Kristi in Congress. So far Dusty Johnson is the only declared candidate for the Republican slot on the 2018 general election ballot. Dusty has the backing of Republican Gov. Dennis Daugaard, who hasn’t taken a public side in the governor contest. Dusty won re-election to the state Public Utilities Commission in 2010 but never served a day of his second term, resigning to become chief of staff for the newly elected governor. In turn the governor named Chris Nelson, the former secretary of state, to the PUC vacancy. As you might expect if you know Chris at all, he turned out to be very capable and rock steady in the new (now old) role.

Shantel meanwhile has gradually pieced together the functions of the secretary of state office following the single term of Jason Gant, who won the office when Chris Nelson was term-limited in 2010. Dusty meanwhile is trying to win the Republican nomination for U.S. House from private life again, having stepped down from the governor’s aide role after the 2014 elections.

Republicans had a three-way primary for the nomination for U.S. House in 2010 between a new legislator named Blake Curd of Sioux Falls, Nelson and Noem, who was in her second term as a legislator. Kristi won with 42.1 percent, followed by Chris at 34.6 and Blake at 23.3. Seven years later, Blake is in a key post as the state Senate Republican leader and showing his skills and abilities in the 2017 session. He’s proven quite capable (and a sharp dresser as shown Wednesday).

As a footnote to the 2010 history, I came across an interesting table of polling results from Rasmussen Reports. The Democratic incumbent, then-Rep. Stephanie Herseth Sandlin, polled 49 percent in February 2010 and subsequently varied from 46 to 50 percent in the polls that spring, while Kristi was at 34 to 35 percent for three months before surging in late May to 43 percent. After Kristi won the primary and became the No. 1 challenger to Stephanie, their positions reversed in the polling. Suddenly Kristi was up 53-41 and stayed ahead in four of the next five surveys.

Stephanie climbed back once, in September, when she led 47-45. It was the only time after the Republican primary that Stephanie received more than 44 percent support and the only time after Kristi won the primary that Kristi received less than 47 percent. Looking back, it becomes apparent that a decisive subset of South Dakota voters changed their minds in favor of Kristi Noem over Stephanie Herseth Sandlin that June.  In the real poll at the voting booth that fall, Kristi won with 48.12 percent, followed by Stephanie with 45.89 and independent B. Thomas Marking at 5.99 percent.

On regents matter, Democrats show why two political parties are important w/update (and a rebuttal)

The Democrats’ long slide in voter registration in South Dakota continued in the past month, as they fell to 170,057 as of March 1. That’s down more than 600 from the Nov. 8 election total. Republicans gained a little, reaching 253,854, up more than 1,700 since November. And independents remained the top choice in terms of additional registrations, climbing to a record 121,711, an increase of 3,000 since the election.

Despite what has become a years-long decline in voter registration, and despite being down to 10 members of the 70-seat House and six members of the 35-seat Senate in the South Dakota Legislature, there are instances of relevancy for Democrats in our Republican-dominated state government. The latest came Monday afternoon.

Mysteriously, two Senate confirmation votes were deferred on the governor’s latest appointees to the state Board of Regents. There wasn’t any explanation at the time, and the matter became odder when the Senate proceeded to confirmation votes on three appointees to the state Board of Education. The answer came a few minutes after 4 p.m. CT when the South Dakota Democratic Party issued a news release. It said state law had been violated regarding the regents.

The statute, 13-49-2, states:  “No two regents may be residents in the same county and not more than six may be members of the same political party.” The Democrats said that as of 2 p.m. Monday, the minute when the Senate convened for its afternoon work, eight of the nine regents were Republicans.

Somehow none of us in the news media had caught the pattern that had been taking shape for some years. The two most recent appointees were Republicans. Pam Roberts of Pierre had recently been the South Dakota Republican Party chairman. Konrad Adam of Pierre, the student regent, is a son of Karl Adam, a past party chairman.

What happens next wasn’t immediately clear. The regents are a constitutional office in South Dakota, so this matter rose to a higher level than many other state boards and commissions. Perhaps some current regents got busy changing their voter registrations from Republicans to independents The one regent who wasn’t a registered Republican was retired circuit judge John Bastian of Belle Fourche. He was listed as an independent. That means a nine-member constitutional board didn’t have one Democrat and hasn’t had a Democrat for some time.

The system worked in this instance. The minority party pointed out an abuse favoring the majority party. The Senate used its confirmation authority to block two illegal appointments by the governor. It’s a good example of why two relevant political parties are important and why process matters.

UPDATE: The plot thickened a bit Tuesday. Tony Venhuizen, the governor’s chief of staff, produced two relevant sets of documents.

Turns out that regent Kathryn Johnson of Hill City, who was a Democrat when then-Gov. Mike Rounds first appointed her a decade ago, changed her registration to Republican for the 2016 primary elections. Venhuizen said she switched back Monday afternoon after the discovery there were too many Republicans. Her final term expires this year and her successor, presumably a Democrat or independent, will be appointed in the months ahead.

And then there’s the matter of whether the requirements apply to the student regent. Venhuizen provided a 1993 opinion from then-Attorney General Mark Barnett, now a circuit judge, that dealt with the residency of the student regent. Barnett concluded the residency requirement didn’t apply to the student regent. The Legislature changed the statute somewhat in 2007, according to Venhuizen, but lawmakers didn’t clarify whether the requirement applied. The regents’ current legal counsel Guilherme Costa gave Venhuizen his written opinion Tuesday that the attorney general wouldn’t find the same-party requirement applies to the student regent, either.

So all now appears to be good. Both Pam Roberts of Pierre and Conrad Adam of Pierre are back on the Senate calendar Tuesday for confirmation votes.

REBUTTAL: Over at his Dakota Free Press blog Cory Heidelberger takes a swipe at me, saying I exaggerated by saying the Democrats are in a long slide. Well, they are. Compare the 190,905 registered Democrats for the 2006 general election, or the 204,413 registered Democrats for the 2008 general election, to the steadily declining counts since then. Here’s a link to the those figures. You’ll find the numbers for Republicans and independents there too.

Put the school funding requirement in the constitution?

The Legislature has proven in the recent past it will ignore its laws, such as the mandatory inflationary increase for K-12 state aid, when it wants. We’re at that point again in the 2017 legislative session, as school officials pray they’ll see the 0.3 percent increase due. Money is tight this session, and that led to a proposed raid on retailers Monday.

The House appropriations chairman, Rep. David Anderson, R-Hudson, convinced Republicans on the House State Affairs Committee to put a bill into play for this final week that would allow a reduction in the retailers’ collection allowance. That’s the 1.5 percent they’re allowed to keep for collecting and remitting sales tax, up to $70 maximum per month.

At this point SB 106 would reduce the allowance to 1.4 percent. Anderson wants to keep the legislation alive so it could be used to help balance the state budget come the end of this week. Friday marks the final day of the main run of the 2017 session. Overall the collection allowance is worth about $5 million.

That could pay for the state aid to schools inflation increase (or something else). Or the Legislature could do as it has in the past and skip the increase. If it’s a law, the legislators can write a new law skipping the payment. If the inflation increase was in the state constitution, legislators couldn’t skip it. It would take a statewide vote to amend the constitution in that way.

Meanwhile the Anderson amendment points out another situation. The Legislature this session seemed to have an abnormally high number of “vehicle” bills or carcasses or shells that awaited some totally new measure to be amended. That’s one version of a hoghouse, where a bill is gutted of its contents and new language is inserted.

Anderson used SB 106, which was introduced by Sen. Ryan Maher, R-isabel, and Rep. Kent Peterson, R-Salem. They are the Republican assistant leaders in their respective chambers. SB 106 originally contained one sentence: “The Legislature shall pursue opportunities to enhance the state.” Now it’s an attempt to repeal at least part of the retailers’ sales-tax collection allowance.

But that’s not the end of it. The Anderson amendment also could steer collection-allowance revenue away from retailers into the Building South Dakota programs. They were created by the Legislature in a power play against Gov. Dennis Daugaard a few years ago.

Legislators took half of the unclaimed property that is turned over to the state treasury and began spending it on BSD programs for housing, training and local projects. The governor came back a year later with a $30 million lump sum intended to cover three years of the programs. The Legislature approved that deal. Now legislators realize the $30 million is about to run out and they don’t have a replacement source of funding.

This is a little bit like the scheme underway to create an agriculture development fund through property taxes. Agricultural property received some tax relief through the half-percent sales-tax increase approved by the Legislature at the governor’s urging in 2016. Agricultural interests don’t want to pay higher fees to provide revenue for a new animal-disease laboratory sought at South Dakota State University.

So there’s a move afoot in the Legislature to take away the agricultural property tax relief from 2016 — meaning the general-education levy on farm and ranch land would be slightly higher — and put the revenue in a new fund for agriculture development. The fund in turn could cover the $3 million annual bond payment for the SDSU lab and provide several million dollars for other uses in the ag sector.

These final five working days of the main run of the 2017 session will bear close watching.


Out-of-state spending restrictions die

Two panels of state senators defeated two pieces of legislation Wednesday that were intended to affect streams of political advertising money from outside South Dakota.

The Senate Judiciary Committee killed HB 1200 from Rep. Mark Mickelson, R-Sioux Falls, that would have required listing the 50 largest donors to organizations and committees that spent $25,000 or more in a 12-month period on a ballot-measure campaign.

The Senate State Affairs Committee tried to pass but then killed HB 1074 from Rep. Spencer Gosch, R-Glenham, that would have enacted a four-year limit of $100,000 from an out-of-state contributor to a ballot question committee.

The House of Representatives previously had approved the two measures.

Opposing the bills Wednesday were a combination of interest groups including electric utilities, South Dakota Chamber of Commerce, retailers, National Rifle Association, Americans for Prosperity, Family Heritage Alliance Action, National Association for Gun Rights and Foundation for Government Accountability.

Dick Howard: Wrapping up a career

When his current contract with the South Dakota Association of Towns and Townships expires March 31, lobbyist Dick Howard of Pierre plans to call it a career. He turns 75 this year and he’s been coming to the Capitol for legislative sessions since 1973 when he worked for what then was the environmental protection department. He rose through the department and later was appointed state secretary of transportation. He was the only witness to testify Thursday on SB 23 that would allow SDDOT to make loans to local governments for roads and bridges under rules to be set by the state Transportation Commission. The bill is up for final passage by the House of Representatives Monday.

Did the anti-SB 94 calls work?

A New York, New York-based organization reports spending some money in South Dakota recently to urge state senators to vote against SB 94 sponsored by Sen. Lance Russell, R-Hot Springs. The group Everytown for Gun Safety Action Fund filed an independent expenditure report stating it spent $4,416.25 on telephone calls asking legislators to oppose SB 94. The senators were Republicans Terri Haverly of Rapid City, Blake Curd of Sioux Falls, Justin Cronin of Gettysburg, Kris Langer of Dell Rapids, Al Novstrup of Aberdeen, Jeff Partridge of Rapid City, Jim White of Huron and Jordan Youngberg of Madison. The Senate voted 27-7 to table, or kill, the legislation. It sought to repeal South Dakota’s law requiring people to obtain permits to carry concealed pistols. A similar measure is heading to the Senate from Rep. Lynne DiSanto, R-Rapid City, whose bill passed in the House.

FOOTNOTE: Sen. White said Thursday he didn’t receive any such calls.