Initiated Measure 22 does many things including limit gifts to a legislator or family member to $100 per year from a lobbyist for a company or group. Employment can be argued is a gift under IM 22. There’s part of the rub.
Section 31 of IM 22 establishes the gift limit. Section 32 establishes an ethics commission that the governor is supposed to appoint by Jan. 31, 2017. Section 31 says the commission is supposed to oversee the gifts limit.
The Legislature starts its 2017 session Jan. 10. That’s before the commission must be appointed. The Legislature would have 12 working days before the commission deadline.
If there are changes that Republicans and Democrats can agree upon in the House and the Senate, such as a definition of gift that doesn’t cause people to give up their jobs or their legislative seats, there would be time to make the changes.
Could the changes carry an emergency clause, so they took immediate effect upon the governor’s signature, and therefore be immune to a referral? That would be up to the legislators to argue.
But putting many people out of their jobs or forcing their resignations from the Legislature could be construed as an emergency. It certainly would be in those households hit by the $100 limit.
The Legislature is scheduled to meet for its final day March 27. Normally state boards, commissions and agencies don’t set rules during the legislative session.
If the commission would break from accepted current practice and work on the rules during legislative session, the commission would need to work at a fast pace to be done before March 27.
The commission will need time to discuss rules, formally propose the rules, hold a public hearing and adopt them.
Ultimately the Legislature’s rules review committee would need to see whether the commission followed state laws for setting rules. So those three representatives and three senators could have the final say. The rules review committee typically doesn’t meet during legislative session.
That means April at the earliest.
Some might call this a loophole. But it might be preferable to legislators asking the South Dakota Supreme Court for some kind of action that prevents IM 22 from taking effect.
It’s possible that three of the five justices would be willing to deny the will of the majority of voters who approved IM 22 on Nov. 8.
But it seems like a hard swallow.