AuthorCard, Michael

    In 1898, South Dakota became the first state in the union to grant legislative powers to the citizenry. (1) South Dakota citizens have initiated measures for enacting and the veto referendum for nullifying ordinary legislation. (2) However, both the initiative and the referenda had been considered well before South Dakota's statehood. (3) These two forms of direct legislation rest on the belief that the legislature was not to be trusted because it was beholden to corporate interests; (4) if the legislature did not pass laws that reflect public opinion, the people should be able to pass laws they desire and nullify laws they oppose. (5) These arc the initiative and referendum, respectively. (6) More recently, South Dakota voters gave themselves the right to petition to initiate amendments to the state constitution. (7)

    This paper reviews the legislative attempts over the last ten years to limit the initiative process via legislative and constitutional changes to the initiative processes. (8) The legislature has taken steps that many consider to be limiting voter initiatives by creating procedural challenges to putting issues on the ballot, while prominent Democrats have resorted to initiating measures to achieve policy goals. (9) Professor Loren Carlson referred to the process by which voters could, by petition, propose laws where the legislature did not represent the will of the people and, by petition, refer laws passed by the legislature to a vote of the citizenry as the "'guns behind the door' to be used when needed to correct legislative and constitutional sins both of omission and commission."' (0) The paper concludes by discussing reforms to the process that might offer citizens access to the ballot while maintaining the strengths of the representative or republican form of government. (11)


    In the 1885 Dakota Territory Constitutional Convention, (12) a "Dakota Plan" was considered and was also considered in the 1889 constitutional conventions of North Dakota and South Dakota. (13) The 1885 Constitutional Convention of Dakota Territory considered a petition by delegate W. H. Lyon for direct legislative power by the people. The petition read:

    I respectfully request that this Convention incorporate a provision in this constitution, that all appropriation bills for new public institutions, and permanent improvements to existing institutions, and all laws of general interest to the people should be drafted by the Legislature, and submitted for the people to enact or reject, at annual or biennial elections, and that the Legislature be given only the power to pass appropriation bills for the ordinary running expenses of the State, and to enact the necessary laws of a local, special and private nature, that can not well be provided for by general acts. Respectfully, W.H. Lyon. (14)

    The petition was referred to the convention's Legislative Committee and was not contained in the Legislative Committee report, ending its consideration. (15) Still, these provisions were quite similar to those of the "Dakota Plan" in that all general laws and appropriations for new public institutions and permanent improvements to existing institutions were to be drafted by the legislature and submitted to a vote of the people at the next annual or biennial election. (16) The legislature was to have the power to appropriate monies for the ordinary expenses of the state and its existing institutions and necessary laws of a local, special, and private nature. (17) Essentially, under this plan, all laws of any importance were to be subjected to popular vote. (18)

    To implement the "Dakota Plan," it was proposed that the legislature would be denied any important lawmaking powers. (19) Laws concerning corporations, railroads, appropriations, and similarly essential statutes should be formulated by the legislature but only adopted by a majority vote of the people at special elections. (20) The idea was to separate the deliberative function from the enacting function and to separate the enacting function from the deliberative function. (21)

    Father Robert Hairc, a Catholic priest from Aberdeen, proposed replacing the state legislature with a plan for each county to elect a "state's committee man" to draft bills for his home-county voters. (22) At the point at which twenty-five percent of the counties agreed on a measure, it would be printed and distributed to the voters. (23) The measure would then be subject to a voter referenda at the next general election. (24) The movement for voter-initiated legislation did not die in 1885 but continued as the Farmer's Alliance, the Knights of Labor, the Initiative and Referendum League, and the Populist Party kept the issue before the people through a non-partisan educational campaign that turned into a political movement. (25) The movement was spurred by economic unrest, the complacency and alleged corruption of political leaders and state and local officials, as well as a spirit of political independence. (26) Direct democracy was seen as a way to "cleanse the legislative process." (27) The Sioux Falls Convention of 1885 concluded that:

    "[T]he ordinary form of local government has proved a failure"; that it has yielded everywhere in this republic" "the most corrupt government on the face of the earth"; that there is not a local legislature in the country which does not "refuse to enact just laws that arc demanded by the people";... "practically they are our masters, and have almost unlimited power over our lives, liberty, and property"; that while they arc beyond the reach of their constituents; that while, for years, constitution makers have been devising ways and means to restrain them, they have steadily grown worse, "until the sitting of an average legislature is becoming a public calamity"; that "representative law making is one of the worst evils of the age"; and that the evil cannot be remedied "until deputized law making is abolished from the face of the earth." (28) Haire was attracting little support until economic conditions "worsened" in the 1890s. (29) Haire argued that the process would prevent the "skullduggery and passing bills at the last hour of the legislature." (30) Henry L. Loucks also promoted the initiative and referenda in the Dakota Ruralist. Loucks provided this explanation of the reforms:

    The Referendum and Initiative will make Legislative Corruption ALMOST IMPOSSIBLE, BY Making legislators The SERVANTS and not the MASTERS of the people. NECESSARY BEFORE WE ATTEMPT THE NATIONALIZATION OF TELEGRAPHS, RAILROADS AND MINES, And the Municipalization of Street Cars, Water and Gas Works, Telephones and Electric Lights. THE ONLY EFFECTUAL METHOD OF CONTROLLING Monopolies, Trusts and other Gigantic Corporations. Will PREVENT Class legislation. Subsidies, Land Grants, Credit Mobilizers, Special Privileges, Fat Contracts. Will Make the Producer and not the Parisite (sic) THE CAPITALIST. Will Put Legislation, and, therefore, the whole Government, in the Hands of the People. (31) The people of Dakota had taken the motto suggested by Joseph Ward, "Under God the People Rule," and had convinced themselves that the only way the people could rule was to vote on all laws. (32) This provision was for a very brief constitution or a very large one as the people voting on the acts would exercise the same power as they did in adopting the constitution, and every measure contrary to that instrument would rate as an amendment. (33)

    Popular support was increasing outside the Republican Party. (34) The People's Party adopted the initiative and referenda in a party platform: "Believing that all laws should eminate (sic) from the people, and that they alone should have the veto power, we demand that the voters of South Dakota be given absolute control of all legislation by means of the initiative and referendum at the earliest possible date." (35)

    The election of Governor Andrew E. Lee of Vermillion in 1896 and his slim re-election, but with a legislative majority of the fusion of Populists and Democrats in 1898, offered an opportunity for the legislature to move on the measure. (36) Governor Lee noted, "I can see the occupation of the lobbyist will be gone under direct legislation." (37) By the mid-1890s, Republicans were beginning to "come around." Some of this movement came as a result of the defalcation of state treasurer Thomas Taylor who absconded with much of the state treasury. (38) A coalition of Populists, Democrats, and "Silver Republicans" passed the joint resolution in the Senate. (39) But getting the proposed amendment through the legislature and onto the ballot was only the first step.

    As the electoral fusion of the Democratic Party and the Populists was "breaking down," Haire kept after the initiative. (40) Haire rejoined the Republican Party in 1898, providing an "insider" to push the resolution to amend the constitution. (41) Haire and some other supporters argued that neither the initiative nor the referendum would replace representative government. (42) Instead, the people would be put on equal standing with the legislature to create laws when the legislature refused to act and to reserve the right to sanction or veto acts of the legislature by putting a measure to a vote of the people. (43) J. E. Stahl, the proprietor of the Daily Leader (Madison, SD), claimed:

    It keeps a check upon the schemes, jobs or vagaries of the legislature, destroys the work of the paid lobbyist, the hired legislator or the influence of the corporation or its boss. Any legislation that passes a legislature by corruption and duress of its members or a portion of them and is likely to work injury to the people can be headed off by the referendum of the iniquitous law to a vote of the people, and vice versa, any good law the people want and a legislature will not pass the people can demand and obtain by invoking the...

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