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On the ballot: Proposed South Dakota constitutional amendment causes stir

PIERRE, S.D. — When South Dakotans head to the polls on Tuesday, they won’t just see candidates for office on their ballots. They will also vote yes or no on five ballot measures.

One such measure that has caused a stir is Constitutional Amendment W — or just "W" for short. W aims to tighten campaign finance rules and encourage state government transparency by banning lobbying gifts to politicians and establishing a nonpartisan State Government Accountability Board to investigate government corruption claims.

If this sounds familiar, that’s because it is: Voters passed a similar ballot measure in Nov. 2016’s general election, Initiated Measure 22.

South Dakota legislators in their following session, however, repealed IM 22, citing constitutional concerns. They then passed legislation on campaign contribution limits and established the Government Accountability Board, which they said followed the spirit of the measure.

In addition to some minor differences in the measure’s text, Amendment W’s major difference from IM 22 is its form. Unlike an initiated measure, a constitutional amendment cannot be repealed simply with the legislature’s vote. Any changes to the state’s constitution are subject to a statewide election or challenged in court.

Don Haggar, a former Republican state representative and current South Dakota director of Americans for Prosperity, said the implications of this concern him. If W passes, it will be difficult to make any changes to it — and there’s a lot in it he thinks should be changed.

Haggar said Amendment W would allow people to leverage anonymous claims, which could lead to false accusations of corruption. The State Government Accountability Board would have the power to not only investigate these claims like the current board, but also levy charges against someone they found guilty of violating the amendment.

According to the amendment’s text, the board would be “an independent entity, notwithstanding any other provisions of the constitution of South Dakota, including Article II.” Article II of the South Dakota state constitution establishes the division of power between the executive, legislative and judicial branches of government. In the current system, the Government Accountability Board ultimately answers to the Attorney General.

In effect, Haggar and other detractors of W say it would establish what they call a “fourth branch of government.”

Douglass Kronaizl works as field director for Represent South Dakota, the lobbying group that worked to get W on November’s ballot. He refutes these concerns of overpowering the existing three branches of government, saying they each have checks on the board.

South Dakota’s Supreme Court, he said, has the power of judicial review to make sure the board doesn’t “veer into territories it shouldn’t.” Legislators would be able to remove members of the board with reasonable cause. And the general public could keep watch of the board’s actions, which would be publicly available for review.

Each of the three branches would help to determine the board’s makeup, as well. According to the amendment text, two former judges, each registered to a different major political party, would be appointed to the board by the state supreme court. Another two would be appointed by the governor — one from a list of recommendations provided by the state’s House Speaker, another from the state’s House Minority Leader. The three final members would be citizen applicants, voted on by the existing four members.

By design, Kronaizl said the board would represent both major political parties, lessening the potential for politically motivated actions.

Opponents of W point out a potential question of constitutionality, as well. The amendment calls for the legislature to appropriate $389,000 from the general fund to the board. The state’s constitution grants the power of appropriations to the legislature.

When asked why this appropriation was included in the amendment text, Kronaizl said it was because, “When you put ball in politicians’ court, they will refuse to play.”

Another common concern with the amendment is its length. At six pages, Haggar said he thinks the amendment is too lengthy and complex to be on the ballot.

The nonpartisan South Dakota Legislative Research Council noted this in their comments on the ballot measure, as well, adding, “[M]ost of the draft is more suitable for the South Dakota codified laws, not for the constitution.”

“The constitution provides a basic framework for the structure and functions of state government and the rights of citizens, leaving the details and policies to be provided within the code or through administrative rules,” the council said. “Where language in the Constitution is concerned, less is more.”

Kronaizl said he thinks the notion that six pages are too much for voters to comprehend and vote on is “offensive.”

Overall, Haggar said he believes the intentions behind W are solid, but that the measure is unnecessary and could have dangerous implications.

“The road to Hell is paved with good intentions,” he said.