In the South Dakota Legislature, the 'smoke out' can bring bills back from the dead
As lawmakers in Pierre rush to finish the 2022 session, they're cobbling together a budget by increasingly using a relatively rare tool in the legislative toolbox: Joint Rule 7-7, the smoke out.
PIERRE, S.D. — On the session's final day, state Rep. Tamara St. John summed up the South Dakota Legislature's politically shambolic ways by tweeting out a photograph of a box of matches.
"I feel like they've [smoke outs] taken on a whole new life this session," St. John told Forum News Service on Thursday morning, March 10. "It's such an unusual year."
The 2022 Legislative session has been many things.
Longtime Statehouse reporter Bob Mercer has called the session the "longest, weirdest" he's seen in 38 years. For instance, the GOP-dominated House overwhelmingly approved a longtime Democratic proposal to strip sales tax from residents' grocery bills (though the bill later was killed in the Senate).
And Gov. Kristi Noem's relationship with House Speaker Spencer Gosch has deteriorated as a long list of priorities in Noem's state of the state address — a campground in Custer State Park, a moment of silence in schools, and a heartbeat abortion bill — have all gone pear-shaped, even with a GOP super-majority.
But more than any trend, it's been smoke out season in Pierre.
Like the antiquated " hoghouse " placeholder bills, the smoke out is a folksy Dakota label for an arguably radical legislative maneuver: skipping over the committee process.
Joint Rule 7-7 allows one third of a chamber's members to stand up and resurrect bills killed in committee. (Another vote must be taken to "calendar" the measure.)
The smoke out is not universally beloved or belittled. Lawmakers loathe it, until using it. On March 1, House Majority Leader Kent Peterson, R-Salem, opposed a motion by Rep. Greg Jamison, R-Sioux Falls, to smoke out a recreational marijuana bill.
"Well, this did have a full and fair hearing in state affairs yesterday," Peterson said. "And the vote wasn't close. I would ask you to reject this."
But just a week earlier, Peterson had risen to lead the smoke out of two funding bills for the University of South Dakota.
"It's a great process we have here," Rep. Chris Johnson, R-Rapid City, said at a news conference last month. "Every bill can die, and every bill can have a second chance."
"It's a great process we have here. Every bill can die, and every bill can have a second chance."
Newspaper clippings going back decades show the procedure to resurrect bills. In 1957, Democrats wanted to smoke out repeal of an unpopular county assessor law. In 1970, there was a smoke out of a bill to form the Department of Natural Resources. In 1961, according to the Associated Press, a Sioux Falls Republican invoked Joint 7-7 to raise the legal drinking age of 21. A fellow Republican from McIntosh objected, saying the move "violated the integrity of the committee system."
But in 2022 smoke outs have come to the rescue of a litany of bills this session, from a $200 million housing investment to a bill sending $2 million to the National Music Museum in Vermillion.
By one assessment from a Pierre observer , as of Monday there'd been 12 smoke outs in 2022 alone (roughly a quarter the number attempted over the last decade).
And in an era of hyper politicization, even with the GOP caucus, the relatively obscure tool has become increasingly relied upon.
"We've seen a lot of that coming from appropriations," St. John said. "And they've sat there and listened to hours and hours of testimony. If you haven't listened to the debate, then you shouldn't even be supporting this."
But she noted that — especially when money gets involved — legislators have ways of making exceptions.
"Boy, when they have a little project that's right tight within their district, then all of a sudden, it's OK," St. John said. "And we all know how that goes."