Lawmakers pass texting ban compromise (updated)

Texting while driving is about to become illegal in South Dakota.

In an unexpected move just two days after talks collapsed in failure, the South Dakota Legislature resoundingly approved a compromise texting ban Thursday. It now heads to Gov. Dennis Daugaard, who supports the concept, for a signature or veto.

Under the deal, texting while driving would be illegal across the state, with a $100 penalty. Police wouldn’t be able to pull drivers over just for texting, but cities such as Sioux Falls with tougher bans will be allowed to keep them. Police won’t be allowed to seize someone’s cell phone to prove they were texting without going through the normal search and seizure procedures.

"We finally did what we didn’t think would happen this year," said Rep. Charlie Hoffman, R-Eureka, one of the lawmakers who negotiated the deal. "I’m just tickled pink."

The compromise resembles an offer made earlier this session by Sen. Mike Vehle, R-Mitchell, who has been the lead champion of a statewide texting ban. A House committee killed Vehle’s proposal, but on Thursday it passed both the House and Senate with support from more than two-thirds of the members.

The difference? Public pressure.

"There was an enormous amount of pressure from home, and from people who talked in the last crackerbarrels, (saying) ‘Why aren’t you doing something about texting?’" said Hoffman. "People in this House and Senate didn’t want to go back on their campaign and have to be badgered with, ‘Why aren’t you doing your job?’

Vehle said he’d prefer a stronger ban that allows police to pull people over for texting. But he’s willing to accept a weaker ban as long as it allows stronger bans put in place by local governments to stand. Police in Sioux Falls, Mitchell and other cities are allowed to pull over texting drivers, and will retain that power under the compromise measure.

"If I was a benevolent dictator, I’d have a different bill," Vehle said. "But at this point I want something that is statewide, and they’ve done that… You’ve got to have something that’s possible."

Throughout this session, Vehle has butted heads with House Speaker Brian Gosch, R-Rapid City, over the texting issue. Gosch opposes allowing police to pull over texters, and wanted to override local bans that allow that.

Thursday morning, hours before a conference committee met to discuss the ban, Gosch agreed to let local bans stand, Hoffman said.

"I was very concerned that Speaker Gosch was not going to allow us to take out (the override of local bans), and that’s the big sticking point," Hoffman said. "Once we got Speaker Gosch on board with us this morning, I knew this was going to take off."

Gosch said the appointment of new lawmakers helped make the difference after he and Vehle couldn’t agree. He endorsed the compromise despite differences from his preferred measure.

"There will still be people who want it to be stricter, and there are some people who think it’s too strict," Gosch said. "It’s a compromise."

Hoffman said he and Rep. Steve Westra, R-Sioux Falls, lobbied Gosch heavily to agree to a compromise.

Steve Allender, the Rapid City police chief who has aggressively pushed for a texting ban, said he’s disappointed the ban won’t allow police to pull over texters around the state.

"This bill, while better than nothing, probably, does not provide the enforcement tool necessary to be a complete success," Allender said.

Rep. Troy Heinert, D-Mission, called the measure “a true compromise between all of the (texting ban) bills that have been out there this year.”

"If it’s not perfect, we can come back and we can look at it again," Heinert said.

Sen. Blake Curd, R-Sioux Falls, credited Vehle’s four-year battle to pass a texting ban.

"He’s tried and failed many times to get a bill through both chambers," Curd said, provoking spontaneous applause from the audience. "Without his perseverance and dedication to this issue… I don’t think we’d be able to sit here today."

High dudgeon over Nelson resolution

With a standing-room crowd lobbyists and lawmakers watching in amusement, six South Dakota lawmakers met Wednesday morning to discuss the wording of a nonbinding resolution opposing the federal Affordable Care Act.

It was, longtime lobbyists and staff said, possibly the first time a nonbinding resolution had ever been referred to a conference committee in the history of the South Dakota Legislature.

Outspoken Rep. Stace Nelson, R-Fulton, had originally proposed a resolution urging Congress to “repeal and defund” the Affordable Care Act. But his resolution also accused South Dakota leaders, including Gov. Dennis Daugaard, of being complicit in the enactment of the controversial law despite Daugaard’s stated opposition and resistance to an expansion of Medicaid.

"Numerous bills have been defeated that sought to nullify and fight this controversial act, while numerous bills were passed that helped enact it and implement it here in the state of South Dakota," Nelson said Wednesday.

In 2011, Daugaard’s administration successfully sought laws updating South Dakota’s insurance regulations to comply with changes in the Affordable Care Act. The state has also received federal grants to study potential implementation of the act’s health insurance exchanges, which Daugaard ultimately left to the federal government to run instead.

But after the House passed Nelson’s resolution, the Senate amended it to remove mentions of where South Dakota had gone along with the act’s provisions. When the resolution came back to the House, Nelson requested a conference committee to resolve the differences between the chambers — and to many lawmakers’ surprise was granted one.

When the committee met on Wednesday morning, it included a key Nelson ally, Rep. Lance Russell, R-Hot Springs — but also Sen. Dan Lederman, R-Dakota Dunes, who is currently suing Nelson over an alleged election law violation.

In the crowd were lobbyists and legislators, including House Speaker Brian Gosch, Speaker Pro Tempore Dean Wink and Assistant Majority Leader Justin Cronin. Gosch, who has clashed with Nelson, was even eating popcorn as he watched. Also there were Sen. Larry Rhoden, R-Union Center, who is running against Nelson for U.S. Senate, and Rep. Tim Rounds, R-Pierre, whose brother Mike is also in the Senate race.

Sen. Craig Tieszen, R-Rapid City, asked the conference committee to kill Nelson’s resolution entirely.

"While our colleagues are in the halls of the Capitol putting the finishing touches on their bills, lobbying for their pet projects or trying to protect the taxpayers in their district… we’re in a committee room talking about a resolution with no force of law that is more about scorecards and postcards than about legislating for the people of South Dakota," Tieszen said.

Tieszen said the Senate had made “a mistake” to amend Nelson’s resolution.

"I don’t think the Senate is prepared to make another mistake," he said.

Sen. Billie Sutton, D-Burke, commended Nelson’s “passion” on the subject but said it was time to “move on.”

Nelson said public opposition to the Affordable Care Act in South Dakota meant this was an issue worth the Legislature’s time.

Conference committee rules require support from at least two of the three members from each chamber. That meant Nelson and Russell blocked Tieszen’s motion to kill the resolution. Tieszen, Lederman and the two Democrats on the committee in turn blocked Nelson’s amendment restoring most of his original language. Finally, lawmakers agreed to dissolve without agreement. The issue now returns to the House and Senate, who are expected to kill the resolution for good.

Two sides of texting ban dispute unable to agree, ban dies

An unsolvable dispute about enforcement sunk a statewide ban on texting while driving Tuesday in the Legislature.

Both the House and Senate had passed statewide texting bans. But the Senate version gave police the power to pull over texting drivers, while the House version did not. Senators were willing to accept weaker powers, but only if stronger texting bans in cities such as Sioux Falls were allowed to stand. House members insisted on overriding those bans in the name of uniform law across the state.

"It’s clear to me that we’re at loggerheads here," said Sen. Craig Tieszen, R-Rapid City.

Rep. Brian Gosch, R-Rapid City, had championed the House version. Gosch said he doesn’t believe letting police pull over texters works to deter texting while driving — and might make it worse.

"I’m thinking if it’s too strong, people hide the equipment too much, and they lose their peripheral vision on the road and it causes more accidents," Gosch said.

Sen. Mike Vehle, R-Mitchell, disputed that. A law that police can’t enforce directly won’t do much good, he said.

All six lawmakers on the conference committee appointed to resolve the issue recognized the impasse and voted to kill the bill.

Tieszen, a longtime champion of a statewide texting ban, said he was willing to accept the bill’s demise because of the growing number of cities that have passed local bans. Doing nothing allows those local bans to continue.

"No bill is better than a bad bill," Tieszen said.

After record year, lawmakers limit resolutions

This morning, legislative leaders adopted new rules for next year that will limit the number of resolutions lawmakers can offer.

The restriction comes after a record number of resolutions were introduced in the House of Representatives, including 11 from Rep. Stace Nelson.

No one will be able to do that next year. Under the rules passed Tuesday by the Legislative Procedure Committee, lawmakers will be limited to introducing four concurrent (nonbinding) resolutions. And three of those have to be introduced before the start of the Legislature’s third week — the ninth day out of 35. This year lawmakers could introduce resolutions up to the 26th day. That will remain the deadline for lawmakers’ fourth and final concurrent resolution.

Now, rules like this wouldn’t necessarily have stopped Nelson from bringing all those resolutions. He’d have just had to get three allies to sponsor bills for him. That already happens with bills, where lawmakers are limited to just three bills in the days before the deadline. If one legislator has already hit his or her limit, they will commonly ask a friend to introduce a bill for them.

But next year’s lawmakers will also have more restrictions on the type of resolutions they can offer. In another rule change, resolutions will no longer be allowed to “memorialize” something or someone.

That would rule out some of Nelson’s resolutions this year, like one “commemorating the 200th anniversary of the War of 1812,” and the controversial one honoring former presidential candidate Ron Paul. Other non-Nelson resolutions would also no longer qualify, such as one “recognizing Hot Springs as ‘The Veterans Town’" and another honoring former President Calvin Coolidge.

But as Rep. David Lust noted, this restriction can be bypassed by clever legislators. Resolutions are still allowed if they’re instructing a department of state government or petitioning federal agencies, and a lawmaker could always phrase their resolution as a petition to Congress to honor the 200th anniversary of the War of 1812.

The leaders on the Legislative Procedure Committee, though, seemed to agree with Rep. Brian Gosch, who said the changes, “combined with some turnover in the Legislature,” probably address “the issue we had this year.”

Sen. Phyllis Heineman had another hope: if South Dakota passes fewer resolutions, she said, perhaps the ones that do pass will be seen with greater weight. As it is, Lust said Tuesday the Legislature could probably abolish concurrent resolutions altogether without any big effect, since they don’t have the force of law and are often ignored.

Senate strengthens texting ban, setting up showdown with House

South Dakota’s Senate moved Monday to strengthen a proposed ban on texting while driving, adding teeth to the bill — and possibly dooming it.

The 22-13 vote on Monday sets up a clash with the House of Representatives, whose members prefer a weaker texting ban that where police can’t pull someone over just for texting.

In contrast, the version approved by the Senate Monday allows police to pull drivers over for texting. It also raises the penalty from a $25 petty offense to a misdemeanor with a maximum penalty of $500 and 30 days in jail.

Those two measures are especially significant because both the current proposal and the version previously approved by the House override any local texting bans. A number of South Dakota cities and counties, including Sioux Falls, have passed their own texting bans with stiffer penalties similar to the Senate bill.

That means the House bill would weaken existing texting bans, while the Senate version will mean little change to the law in places like Sioux Falls.

Several senators said Monday that the House version was too weak to deter texting while driving.

Sen. Tom Jones, D-Viborg, called the House version “a slap in the face to the families of the innocent” victims of texting drivers, and the second-worst bill he had seen in his four years in the Legislature.

Others predicted the House would reject the stronger texting ban. The only way to ban texting while driving statewide, said Sen. Mark Kirkeby, R-Rapid City, was to accept the House version.

"Passing this amendment will assure you that the great state of South Dakota will in fact not pass a texting bill this year," Kirkeby said. "We know that our chamber across the hall is just not going to occur. Our opportunity is going to be lost for an entire other year."

On Tuesday, the House will consider the Senate version of the texting ban. Lawmakers there can either accept the Senate’s changes, reject them and kill the bill or appoint a conference committee to negotiate a compromise version.

House Speaker Brian Gosch, R-Rapid City, the prime sponsor of the weaker House ban, said Monday afternoon that he didn’t know what he’d encourage the House to do with the Senate version.

Gosch in the driver’s seat in texting ban battle

Earlier today, the Senate State Affairs Committee voted 5-4 to pass House Speaker Brian Gosch’s version of a statewide ban on texting while driving. Some longtime supporters of texting bans oppose Gosch’s measure because it’s a “secondary offense” — which means drivers can’t be pulled over for it, only given an add-on ticket for another offense — and because it overrides the stronger texting bans a number of South Dakota cities pass.

But ultimately it’s no surprise that Gosch’s bill is advancing while Vehle’s heads into hostile territory tomorrow in the House Transportation Committee. In this political battle, Gosch holds all the cards.

Ultimately it comes down to this: Gosch doesn’t care very much about banning texting while driving. He’s opposed bans for years, arguing they don’t do much good and aren’t enforceable. He only came on board this year when he melded a texting ban to language overriding local texting bans. That override is where Gosch is passionate — he believes cities are already exceeding their legal authority by passing texting bans and wants to make that explicit.

In contrast, traditional texting ban supporters like Mike Vehle and Craig Tieszen want very much to ban texting while driving, which they believe is a scourge leading to accidents and deaths across South Dakota. So if the result of this legislative dispute is another year of no statewide ban, that’s a defeat for them.

Because the status quo is more acceptable to Gosch than it is to Vehle and Tieszen, he’s more willing to see both bills die — the likely outcome if the two chambers can’t make an agreement. So Gosch has no incentive to make any concessions from his position. He either gets what he wants, or things stay the same — neither one a loss.

Underpinning this power is Gosch’s support in the House, which has traditionally resisted texting bans. By being able to deliver a House majority for his statewide ban this year, and comfortable in the existence of a majority to defeat any versions he dislikes, Gosch can negotiate from a position of strength.

Vehle’s position of weakness has been clear for weeks. Instead of sticking to his guns and getting the Senate to pass his ideal texting ban — where police can pull people over for texting and the penalty is stronger — Vehle preemptively watered down his bill with elements of Gosch’s proposal. Today he pronounced himself undecided whether Gosch’s bill would be better or worse than the status quo.

Presuming the House sticks to its guns and defeats any alternative to Gosch’s bill, there are two potential outcomes here: either the Senate can acquiesce to Gosch’s version and pass it, or it can amend it and set up a conference committee fight. But as Speaker of the House Gosch would appoint all the House members of the conference committee. Since bills before a six-member conference committee need support from at least two of the three members from each House, Gosch would be able to effectively block any proposal he doesn’t like. With, as stated above, no incentive for Gosch to compromise, that would give Vehle two choices: surrender, or kill the bill. 

The real strategic mistake on the part of texting ban supporters was not launching an initiated measure years ago. They cite polling showing overwhelming popular support for texting bans, but kept coming back year after year to bash their heads against the immovable opposition in the House. Now they’re likely to get what they wanted — a statewide texting ban — but in a form they abhor.

Senate committee approves statewide texting ban, overrides local bans

A legislative committee voted on Wednesday to ban texting while driving in South Dakota — but also to override stronger local bans in cities like Sioux Falls.

The proposal, sponsored by House Speaker Brian Gosch, was one of two competing texting bans moving through the South Dakota Legislature. Compared to a version sponsored by Sen. Mike Vehle, Gosch’s version has a smaller $25 fine and specifically overrides any local texting bans.

Gosch said the state should have the same driving laws everywhere, not different laws in different cities.

"It makes sense with a state like ours that has as its number two industry tourism, as people travel into this state… they need to know that the rules of the road are going to be the same wherever they go," Gosch said.

On Wednesday, Gosch’s bill divided traditional supporters of texting bans. Some, such as the South Dakota Trucking Association and the state medical association, said they support any texting ban, even if they might prefer a strong version.

"We don’t care how you do it, just get it done this year," said Bob Miller, a lobbyist for the Dakota Transit Association, told lawmakers.

But the state’s cities and police chiefs were “vehemently” opposed.

Steve Allender, Rapid City’s police chief, said a strong texting ban would include a larger fine than $25 and crucially would allow police to pull someone over for texting. Under Gosch’s proposal, police can’t pull drivers over for texting, though they can issue an add-on ticket if they pull someone over for another violation. Vehle’s bill, in a concession, also doesn’t allow police to stop vehicles for texting, but it leaves in place local bans that do.

"This bill is nothing but a resolution asking the people to stop texting," Allender said.

But Sen. Larry Rhoden, R-Union Center, reminded supporters of a stronger texting ban of the arguments they had used to persuade him in years past: that South Dakotans are law-abiding and most will stop texting and driving just because it’s illegal, not because of the penalty.

For a number of years, South Dakota’s Senate has supported a texting ban, only to see it die in the House — with opposition led by Gosch. This year Gosch switched from opposition to supporting a weaker texting ban that overrides local ordinances.

Gosch’s bill passed the Senate State Affairs Committee 5-4 Wednesday morning, with Sen. Jason Frerichs, D-Wilmot, casting the deciding vote. It now heads to the full Senate.

Vehle’s alternative texting ban bill previously passed the Senate and is scheduled for a hearing before the House Transportation Committee Thursday.

A longtime crusader for a texting ban, Vehle said he doesn’t know whether South Dakota would be better off with Gosch’s bill or nothing.

"You’re going to have (a ban in) the whole state then," Vehle said. "But you would be taking away the stronger ban in the communities. That’s a tough call as to say whether that’s a win or a loss."

Sioux Falls, Brookings, Huron, Mitchell, Vermillion and Watertown have all passed local texting bans.

Daugaard can expand Medicaid himself, without legislative action

Gov. Dennis Daugaard can expand Medicaid without consulting with lawmakers, the governor said Thursday.

But Daugaard said if he did pursue Medicaid expansion, he would at least informally make sure the Legislature was on board with his plan, first.

That’s because even a unilateral Medicaid expansion would need to be retroactively approved by the Legislature in the following year’s budget revision.

"I would be a little bit cautious about (expanding Medicaid) without the Legislature’s overt agreement to change the budget," Daugaard said. "But we could evaluate when that was needed and whether a special session would be necessary."

The Affordable Care Act asks states to expand their Medicaid programs to cover low-income people earning up to 133 percent of the federal poverty line — $15,521 for an individual or $31,721 for a family of four. Under the law, the federal government promises to pay 90 percent or more of the cost, including 100 percent for the first several years.

Daugaard has asked the federal government for flexibility to do a partial expansion of Medicaid to just the poorest South Dakotans earning less than 100 percent of the poverty line — $11,670 for an individual or $23,850 for a family of four. People earning more than that are eligible right now to buy subsidized private insurance on the new health care exchanges.

The governor has also asked the federal government if South Dakota could impose a work requirement on Medicaid eligibility.

He made the request at the end of January. So far, Daugaard said the state has received neither formal nor informal word on its request.

Earlier Thursday, Republican legislative leaders suggested they were okay with Daugaard expanding Medicaid without formal approval from lawmakers.

"If that’s something that the governor and the departments decide to do, they have a right to do that," said Rep. Justin Cronin, assistant leader of the House Republicans. "We can always have a special session, if we decide to do so and don’t agree with the policies."

House Speaker Brian Gosch, R-Rapid City, and Senate Majority Leader Tim Rave, R-Baltic, agreed.

"It’s an adminsitrative decision at this point. It’s not a legislative decision," Gosch said. "So the administration, if granted that waiver, could go through with it without a special session."

Lawmakers this year have voted, largely along party lines, to kill multiple Democratic bills calling to expand Medicaid. But in so doing, many Republicans have expressed a willingness to expand Medicaid — if it can be done on South Dakota’s terms.

The first year of Medicaid expansion would have only a few million dollars in administrative costs, which Daugaard could pay for out of a $20 million Medicaid reserve fund he established several years ago. And the state’s practice has been to resist defining the state’s Medicaid program in law, giving the administration flexibility to make changes without legislative approval for each one.

Amending the budget to allow for spending hundreds of millions of dollars of federal money could be done after the fact, leaders said.

Democrats, who have pushed for Medicaid expansion, said they’d prefer the Legislature approve Medicaid expansion during its current session, which ends in March. But House Democratic Leader Bernie Hunhoff said he’s fine with Daugaard moving on his own.

"I don’t care how it happens, as long as it happens," said Hunhoff.

Daugaard said if he did decide to pursue Medicaid expansion, he would likely consult with lawmakers to make sure he had backing before going ahead.

"I would have to visit with the Legislature about that," Daugaard said. "This is a decision I should not unilaterally make… I think the Legislature has to play a part as well."

Lawmakers reject Democratic bills calling for more EB-5 investigations

Two attempts by Democrats to more aggressively investigate the state’s economic development office were defeated Monday by majority Republicans.

The key bill, by Rep. Kathy Tyler, D-Big Stone City, would have set up a new “Legislative Economic Development Investigative and Oversight Committee” to examine the economic development office. In particular, Tyler hoped the committee would examine the federal EB-5 visa program and the Northern Beef Packers plant it helped fund. Both the visa program and the plant are under federal criminal investigation.

But lawmakers are already initiating another investigation of the same subject, by the Legislature’s Government Operations and Audit Committee, or GOAC. Republican leaders said Tyler’s committee would be duplicative.

"This commission would be superfluous, unnecessary, and I question why it is being brought," said Rep. Brian Gosch, R-Rapid City.

Tyler said a one-topic committee would be better able to delve into the issue than GOAC, which also investigates other matters.

Another key difference: while GOAC has two Democrats and eight Republicans, Tyler’s committee would have three Democrats, three Republicans and one member chosen at random. It would be jointly chaired by a Democrat and a Republican.

Lawmakers voted on party lines to kill Tyler’s bill, with all Republicans opposed to it and Democrats in favor.

Earlier Monday, another bill to provide more oversight of EB-5 went down with less controversy. Democratic leader Bernie Hunhoff made the motion to kill the bill brought by his assistant, Rep. Julie Bartling, D-Burke, saying it wasn’t necessary. The vote to defeat it was unanimous.

In the same hearing, lawmakers defeated a proposal by Rep. Betty Olson, R-Prairie City, to forbid the posting of gun-free zone signs on public buildings unless those buildings also had metal detectors to enforce the gun-free zone.

Olson, who is opposed to gun-free zones, said she wasn’t trying to get courthouses and the Capitol to install metal detectors. Instead, she wanted the signs taken down. She believes the gun-free areas don’t do any good because only law-abiding citizens obey them — though Olson also said she had accidentally brought her concealed weapon into the gun-free Capitol on several occasions.

Leadership splits

In this morning’s House State Affairs Committee vote on early school year starts, House Speaker Brian Gosch, R-Rapid City, and House Majority Leader David Lust, R-Rapid City, spoke out on opposite sides of the issue.

Gosch and Lust are the top two ranked Republican lawmakers in the House, represent neighboring districts, and have served together for years. So it’s always interesting, if not surprising, when they end up differing.

Fortunately, I’ve got the stats on the subject, part of my legislative vote analysis from last month.

In 2013, Lust and Gosch were both participants in 379 votes. Of those, they agreed on 336 occasions, and differed on 43. That’s an 88.7 percent agreement.

In the South Dakota Legislature, 88.7 percent is a pretty high agreement. Gosch only voted with two lawmakers more often than he voted with Lust (Reps. Jon Hansen and Dean Wink). Lust only voted with four lawmakers more often than Gosch (Reps. Scott Munsterman, David Novstrup, Kristin Conzet, and — surprisingly — Democratic leader Bernie Hunhoff).

There’s one thing Hansen and Wink have in common with Gosch, and the other four with Lust — they all serve on committees together. Serving on a committee means you have a lot more chances to vote the same way, since many of the votes on committees are either unanimously approved or unanimously rejected. 

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