Sometimes it seems like South Dakota lawmakers have more tricks up their sleeves than Houdini.
After the Legislature and Gov. Dennis Daugaard made Initiated Measure 22 disappear in front of our very eyes in the first days of the 2017 session, they pulled Senate Bill 176 out of their hats on Feb. 15 — 12 days after the deadline for new legislation to be filed.
The bill gives the governor broad powers to declare “public safety zones” with penalties that could land protesters — in this case those opposed to the Keystone XL Pipeline — in prison for as long as two years. It is headed for almost certain approval by the Legislature.
The bill’s route to the Senate floor, however, is more controversial than the bill itself. SB176 is one of 16 “vehicle bills” introduced in the 2017 session. The bills are essentially empty vessels when introduced with just the faintest hint of what is yet to come.
Ryan Maher, the Senate assistant majority leader, said vehicle bills “make the process work as smooth as possible.” Opponents, like Sens. Stace Nelson and Lance Russell, call it a shortcut that creates a safety zone of sorts for lawmakers who can use them to limit discussion on controversial bills, which is certainly the case with SB176.
When first introduced by the Senate State Committee on Feb. 3 — the last day that bills could be introduced — it was a mere 32 words that referenced “the protection of the safety of the citizens of South Dakota.” It was approved on a 9-0 vote by the same committee.
By Feb. 15, SB176 had morphed into a 1,500-word bill with seven sections, giving the governor the authority to declare public safety zones and making it a felony for anyone who trespasses in these zones more than twice in two years. The bill also limits to 20 the number of people who can gather near these zones in certain circumstances. It was approved by the same committee on a 6-3 vote. The Senate passed the bill the next day, 21-14.
The bill was born out of the governor’s desire to prevent what occurred in North Dakota when thousands of protesters sought to stop the construction of the Dakota Access Pipeline project, a spectacle that attracted national attention and cost that state more than $30 million in law enforcement and cleanup costs. It is prudent for Daugaard to be looking ahead and doing what he can to avert a similar event.
But using the back door to introduce the bill in the second half of a 36-day legislative session has raised the ire of even Republican lawmakers. In fact, a dozen of them — including Sen. Phil Jensen and Reps. Blaine Campbell, Julie Frye-Mueller and Tim Goodwin of Rapid City — sent a letter to Attorney General Marty Jackley complaining that after vehicle bills “are passed out of either chamber they are filled with intended content, effectively bypassing the public committee process on the intended content, which deprives the public of their right to an open government provided for in our S.D. Constitution."
Jackley, a candidate for governor in 2018, replied by ruling that vehicle bills are constitutional but the Legislature has the authority to eliminate them.
At the same time SB176 was taking its subterranean route to the Senate floor, SB130 — which addresses vendor fees for businesses that sell hunting and fishing licenses — took a more traditional path. After it was amended three times in committee hearings, a compromise was reached that, according to Rep. Larry Rhoden, was "a good demonstration of good process."
It's difficult to understand why a vehicle bill was used for a measure that likely would have passed anyway. Maybe the governor's office wanted to limit the amount of time SB176 would be subjected to public and legislative scrutiny, which, if true, casts a shadow over the entire process.
No matter how well-intended legislation is the use of vehicle bills undermines their ultimate purpose and shakes our confidence in the legislative process. It is time for the Legislature to make them vanish.
– Rapid City (S.D.) Journal