Initiated Measure 22 became law last week, and its future is already in doubt.
Wednesday, Governor Daugaard, 25 lawmakers and a conservative South Dakota lobbying group, all want IM 22 thrown out.
While the governor says he’s in favor of repealing it, the 25 legislators and lobbyist group have filed a lawsuit challenging the constitutionality of the measure.
Lawmakers are asking the court for a temporary injunction before the start of the legislative session in January, in order to give them time to put the new requirements of the law into place. Aside from calling it unconstitutional, the lawsuit alleges that many of the 70 sections make it impossible for many legislators to hold their seats.
They also say IM-22 violates free speech and doles out state money illegally.
“There’s really no other way to get an answer to the constitutional question than to litigate,” Mark Mickelson said.
Lawmakers behind the suit say Initiated Measure 22 disregards South Dakota’s constitution, and in some cases, the federal constitution, too. One way it does that, the suit alleges, is by forming a fourth branch of government with an ethics commission which would have the power to change or create new laws.
“Well you can’t give that authority to a non-legislative body under the state’s constitution,” Mickelson said.
Mickelson says the measure’s provision limiting gifts and compensation to lawmakers from lobbying groups to under $100, is not only behind recent canceled dinners and events for lawmakers, but would also drive every lawmaker who has retired from state government, such as judges and teachers, out of their seats.
“All of them are participants in the SD legislative system. Their benefits are more than $100. Guess what, the SD retirement system employs a lobbyist,” Mickelson said.
The lawsuit also alleges that the democracy credit program in the measure would leave some people out since the funding wouldn’t cover all 540,000 voters in the state.
“You’ve got $54 million of expense and they thought $6 million would cover it. How’s that going to work?” Mickelson said.
Attorney General Marty Jackley stated in his explanation of IM-22 on the ballot that it could violate the state’s constitution. Now that it’s passed, he will have to defend the state to keep it.
“There’s a lot happening in there–some of it is dealing with campaign finance, some of it dealing with an ethics commission and some of it dealing with taxpayer funded elections–so you have a variety of components to IM 22 and I’ll really leave that up to the challengers to identify where their concerns are and my job as AG to work with the sponsors to defend the new law,” Jackley said.
Lawmakers who filed the suit say even if IM-22 is found to be unconstitutional by the court, some of its ideas, such as restricting lobbyist gifts and establishing an ethics commission could eventually be implemented in the state.
“I wouldn’t take this lawsuit as take the whole thing and throw it out. I would say, as sloppy as this was written, probably going to have to set it aside and sit down and take the ideas that people wanted and write them in a way that complies with the intent of the proponents and the state’s constitution,” Mickelson said.
Senator Blake Curd calls the new law a “constitutional crisis.” Curd says IM 22 was forced onto South Dakota by out-of-state activists.
Curd says it makes “de-facto criminals out of every elected office holder and giving only two choices: resign the office and abandon the voters or remain and commit a crime.”
