Two persistent worries about SD legislative practice: (1) Can SD legislators trade votes ('I'll vote for your bill if you vote for mine')? (2) Can SD legislators use 'vehicle bills' (introducing a bill on one subject and then gutting and replacing the content with something completely different)? Are either of these practices illegal under the SD Constitution, SD statutes, or legislative rules?
Plain-English summary
Two practices that have been the source of recurring complaint about the SD Legislature:
Vote trading. Legislator A wants Legislator B's vote on Bill X. Legislator B wants A's vote on Bill Y. A and B agree: I'll vote yes on yours, you vote yes on mine. They cast the votes accordingly. This is sometimes called logrolling.
Vehicle bills. A legislator introduces a bill on Topic A. After it's introduced (with the bill's title and enacting clause locked in), the legislator amends out the original content and amends in different content on a related (or somewhat related) topic. The original bill is the "vehicle" carrying the new content past procedural deadlines or to escape certain committees.
State Senator Stace Nelson and eleven other legislators asked the AG whether these practices were illegal. The AG's answer: no on both.
On vote trading, the AG said vote trading "that does not involve physical violence, coercion, or the exchange of a thing of value is not prohibited by the constitution, statute, or legislative rule." The AG used direct language: "Vote trading is a common legislative practice that is an established landmark in South Dakota's legislative landscape."
The opinion noted that some other states have criminalized vote trading by statute. The opinion specifically cited Wisconsin (Wis. Stat. Ann. § 13.05) and Mississippi (Miss. Code Ann. § 97-7-55) as states with statutes criminalizing the practice. SD has not enacted similar legislation. SD's bribery statutes (SDCL ch. 22-12A) reach exchanges of things of value, physical violence, and coercion, but they do not reach the bare exchange of votes.
The line the AG drew is structural. A vote is something a legislator can lawfully cast. A thing of value (money, employment, a contract, a gift, a benefit to a relative) is something a legislator cannot lawfully receive in exchange for voting a certain way. Trading one vote for another vote does not cross the bribery line. Trading a vote for money or a contract does.
On vehicle bills, the AG said vehicle bills are not prohibited "as long as they contain an 'enacting clause' and satisfy the 'one subject' limitation." Those are the two requirements every SD bill must meet. SD Constitution Article III, § 18 requires an enacting clause and limits each bill to one subject (expressed in the title). SD Constitution Article III, § 21 sets the style ("Be it enacted by the Legislature of the State of South Dakota").
A vehicle bill that starts as one thing and ends as another can violate these rules if the final version doesn't fit within the bill's title or covers more than one subject. But a vehicle bill that conforms its content to the bill's broader title (which is often drafted broadly enough to accommodate amendment) and stays within one subject does not violate the constitutional requirements.
The AG's conclusion was an institutional point: if the Legislature wants to prohibit either practice, it has the power to do so by amending its own rules or through legislation. The AG is not going to read prohibitions into the existing constitution, statutes, or rules that aren't there. Reform has to come from the Legislature.
The opinion's tone was measured but clear. It did not endorse vote trading or vehicle bills as desirable practices. It said they are legal under current SD law. Whether they should remain legal is a question for the Legislature to address through rule amendment or statute.
Currency note
This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SD has periodically considered legislative reform measures since 2017. Check current SD legislative rules and SDCL chapter 22-12A (bribery and unlawful exchange) before relying on the analysis. The constitutional one-subject and enacting-clause requirements have remained stable, but the application to specific vehicle bills depends on the facts of each bill.
What the opinion meant at the time
For SD legislators in 2017, the opinion confirmed that vote trading and vehicle bills were available tools subject to traditional limits. A legislator could trade votes with a colleague as a matter of legislative dealmaking, so long as no money or other thing of value changed hands. A legislator could draft a vehicle bill, introduce it, and later amend its content, so long as the final version had an enacting clause and stayed within one subject.
For Senator Nelson and the eleven legislators who joined the opinion request, the opinion was a direct answer to a long-running complaint. The AG took the position that these practices are matters for legislative self-regulation, not external prohibition. If those legislators wanted to change the practice, they had to do so through legislative rule amendments or new legislation.
For SD legislative staff (bill drafters, parliamentarians, committee secretaries), the opinion validated normal practice. Vote-trading conversations on the floor and in cloakrooms could continue. Vehicle-bill drafting could continue, with attention to the existing constitutional requirements.
For government-reform advocates, the opinion was a marker. Reform of vote trading would require either a statutory ban (which has been done in other states like Wisconsin and Mississippi) or a legislative rule change. Reform of vehicle bills would require either a constitutional amendment tightening the one-subject rule, a statutory restriction, or a rule change limiting subject-matter changes through amendment.
For journalists covering the SD Legislature, the opinion identified what was and wasn't illegal. Reporting on vote-trading deals could continue, but characterizing them as "illegal" or "bribery" would generally be inaccurate unless physical violence, coercion, or exchange of value was involved. Vehicle bills could be criticized as undermining legislative transparency, but they were not unlawful.
For bill drafters working with legislators on legislation, the opinion left the technical tools intact. Broad bill titles, placeholder content, and substantive amendments after introduction all remained available.
Common questions
Q: What exactly is vote trading?
A: An exchange of votes between legislators. "I'll vote for your bill if you vote for mine." Sometimes called logrolling. Not the same as bribery (which involves exchange of value, not just exchange of votes).
Q: Is vote trading the same as bribery?
A: No. Bribery in SD requires the exchange of a thing of value (money, property, services, employment, contracts, benefits to relatives, etc.) for an official act. Trading a vote for another vote does not involve a thing of value flowing to the legislator. The line is between exchanging votes (allowed) and exchanging value for a vote (prohibited).
Q: What about coercion or threats?
A: If a legislator threatens or coerces another legislator into voting a certain way, that crosses out of allowed vote trading into prohibited conduct. The AG opinion specifically excluded "physical violence" and "coercion" from the protected category.
Q: What is a vehicle bill?
A: A bill introduced with one content that is later amended to contain different content. The bill serves as a "vehicle" carrying the new content past procedural deadlines or constraints.
Q: Why use a vehicle bill instead of just introducing a new bill?
A: Usually because of timing. Late in a session, the deadline to introduce new bills has passed but existing bills can still be amended. A previously-introduced bill becomes a vehicle for content the sponsor couldn't otherwise introduce.
Q: What is the "one subject" rule?
A: SD Constitution Article III, § 18 limits each bill to "one subject which shall be expressed in the title." This is a constitutional check on legislation that bundles unrelated provisions. A bill must have a coherent subject identified in its title.
Q: Does the one-subject rule limit vehicle bills?
A: Yes. A vehicle bill whose final content doesn't fit within its title's subject would violate the one-subject rule. In practice, vehicle bills are often introduced with broad titles ("an act to revise certain provisions concerning education" or similar) to accommodate later amendment. Whether a specific vehicle bill conforms to the one-subject rule depends on the title and the final content.
Q: What is the enacting clause?
A: The formal phrase that gives the bill the force of statute. Under SD Constitution Article III, § 21, the style of laws is "Be it enacted by the Legislature of the State of South Dakota."
Q: Can the Legislature prohibit vote trading or vehicle bills?
A: Yes. The AG opinion expressly says the Legislature has the power to prohibit either practice through legislative rule amendment or new legislation. Wisconsin and Mississippi are listed as examples of states that have criminalized vote trading by statute.
Q: Have other AG opinions or court decisions addressed these issues?
A: The 2017 opinion does not cite SD case law directly on vote trading or vehicle bills, suggesting the SD Supreme Court has not squarely addressed them. The opinion focuses on the constitutional, statutory, and rule text rather than on case law.
Background and statutory framework
The SD Constitution, statutes, and Legislative rules all govern how the Legislature operates. The relevant provisions for this opinion:
SD Constitution Article III, § 18 sets the form of legislation: each bill must have one subject expressed in the title, must contain an enacting clause, and must follow procedural rules for passage.
SD Constitution Article III, § 21 specifies the enacting clause: "Be it enacted by the Legislature of the State of South Dakota."
SDCL chapter 22-12A contains SD's bribery and corruption statutes. SDCL 22-12A-4 and related provisions criminalize the exchange of things of value for official acts. The threshold is value flowing to the official, not just an exchange of official acts between officials.
Legislative rules (the SD Legislature's own rules adopted at the start of each session) govern internal practice, including bill introduction, amendment procedure, committee processes, and floor procedure. The rules have not historically prohibited vote trading or vehicle bills, though they could be amended to do so.
Comparative state law. The opinion cites Wisconsin (Wis. Stat. Ann. § 13.05) and Mississippi (Miss. Code Ann. § 97-7-55) as states with statutes criminalizing vote trading. Other states have similar provisions; some have ethics rules rather than criminal statutes. The variation shows that prohibition is a policy choice each state makes (or doesn't make) independently.
The vote-trading analysis is straightforward. SD has no statute or rule prohibiting the exchange of votes between legislators. SD has bribery statutes, but they require exchange of value. A vote is not a thing of value the way money is. So vote trading falls outside the bribery prohibition.
The vehicle-bill analysis is slightly more layered because the constitutional one-subject rule provides a real (if often loose) limit. A vehicle bill that bundles disparate subjects under a misleadingly narrow title might be struck down as violating the one-subject rule. The SD Supreme Court has applied the rule in various cases. But the practice of introducing a bill and later amending its content is not, in itself, unconstitutional. The result depends on whether the final bill has an enacting clause and stays within one subject.
The institutional message of the opinion is important. The AG is explicit that reform is a matter for the Legislature. That reflects the AG's general posture of not reading prohibitions into legal text that doesn't contain them. AG opinions in SD don't typically take policy positions on what the law should be; they explain what the law is.
Citations and references
Constitutional provisions:
- S.D. Const. art. III, § 18 (one-subject rule, enacting clause)
- S.D. Const. art. III, § 21 (style of laws)
Statutes:
- SDCL 22-12A-4 (bribery and unlawful exchange of value)
- Wis. Stat. Ann. § 13.05 (Wisconsin criminalization of vote trading, comparator)
- Miss. Code Ann. § 97-7-55 (Mississippi criminalization of vote trading, comparator)
Cases:
- None cited.
Background references (from the opinion's footnotes):
- SD Legislator Reference Book (www.sdlegislature.gov/docs/referencematerials/legislatorreferencebook.pdf)
- SD Legislature Student Guide Reference Series #9 (www.sdlegislature.gov/docs/studentspage/studentguide/StudentReferenceSeries9.pdf)
Source
Original opinion text
OFFICIAL OPINION NO. 17-02
February 23, 2017
The Honorable Stace Nelson
State Senator
24739 420th Ave.
Fulton, SD 57340
OFFICIAL OPINION No. 17-02
Re: Whether "vote trading" and "vehicle bills" are prohibited
Dear Senator Nelson,
You and eleven other legislators have requested an official opinion from the Attorney General's Office based on the following questions:
QUESTIONS:
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Whether legislators are prohibited from engaging in "vote trading?"
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Whether legislators are prohibited from using "vehicle bills?"
ANSWERS:
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"Vote trading" that does not involve physical violence, coercion, or the exchange of a thing of value is not prohibited by the constitution, statute, or legislative rule.
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"Vehicle bills" are not prohibited by the constitution, statute, or legislative rule.
IN RE QUESTION 1:
"Vote trading" is the legislative practice of exchanging support between legislators on different bills. SD legislator reference materials describe the practice as a common feature of legislative dealmaking. The bare exchange of votes does not involve any thing of value flowing to the legislator. SD's bribery and unlawful-exchange statutes (SDCL ch. 22-12A) reach exchanges of things of value, but do not reach the exchange of votes between legislators.
Other states have legislated prohibitions on vote trading. See, e.g., Miss. Code Ann. § 97-7-55 (West 2017) (criminalizing vote trading); Wis. Stat. Ann. § 13.05 (West 2015) (same). SD has not enacted similar legislation, and the SD Legislature has not adopted a rule prohibiting the practice.
It is therefore my opinion that vote trading that does not involve physical violence, coercion, or the exchange of a thing of value is not prohibited by the SD Constitution, SD statutes, or SD legislative rules. Vote trading is a common legislative practice that is an established landmark in South Dakota's legislative landscape.
IN RE QUESTION 2:
"Vehicle bills" are bills introduced with one content and later amended to contain different content. The practice is not prohibited by the SD Constitution, SD statutes, or SD legislative rules.
The relevant constitutional limits are the requirement of an "enacting clause" (S.D. Const. art. III, § 21) and the "one subject" limitation (S.D. Const. art. III, § 18). So long as a vehicle bill contains the required enacting clause and the final content satisfies the one-subject limitation (with the subject expressed in the title), the use of the bill as a vehicle for content different from the originally-introduced content is permissible.
As members of the Legislature, you have the ability to address your concerns about "vehicle bills" by Legislative Rule or statutory enactment.
CONCLUSION
Based on the above analysis, it is my opinion that "vote trading" that does not involve physical violence, coercion, or an exchange of a thing of value is not prohibited by the constitution, statute, or legislative rule. "Vote trading" is a common legislative practice that is an established landmark in South Dakota's legislative landscape. Nor are "vehicle bills" prohibited as long as they contain an "enacting clause" and satisfy the "one subject" limitation. If the Legislature wishes to prohibit "vote trading" or "vehicle bills," it has the power to do so by amendment of its own rules or through legislation.
Sincerely,
Marty J. Jackley
ATTORNEY GENERAL