When I was in the South Dakota Legislature folks would often come up to me and say, “There outta be a law…” and then fill me in on what legislation they thought that the law makers in Pierre should enact. There was one such case out of Watertown that I particularly remember.
A Watertown business owner prevailed on his legislative district team to bring a bill to Pierre on his behalf. He owned a Subway franchise in Watertown and had been in conflict with the parent company over various issues. Instead of yanking his franchise the national Subway Corporation opened their own corporate store almost right across the street from his preexisting business. The positions of the competing Subway restaurants were akin to the locations of Burger King and McDonald’s on Mitchell’s Main Street. The independent Watertown Subway owner was furious and wanted the Legislature to pass a law dictating a minimum allowable distance between franchises.
I served on the Commerce Committee where this bill was heard. We on the committee were appalled at how this man had been treated and empathetic to his plea for relief. However, we defeated the bill unanimously because the proposal would not have been good law in practice. Even if we enacted such a law, it wouldn’t have helped the Watertown man. Laws cannot be ex post facto. In other words, laws have to be a “from now on” kind of thing. The proposed legislation therefore would not have impacted the corporate Subway already operating across the street from the Watertown man’s preexisting Subway franchise in any case but perhaps might forestall anything like that from occurring in the future.
While the committee was sympathetic, there were several issues to consider. What was the material difference between this Watertown man’s situation and where two of the “same” businesses exist across the street from each other like the earlier mentioned instance of Burger King and McDonald’s as well as Sinclair and Coborn’s both selling gasoline right across the street from each other on the north end of Mitchell’s Main Street? (I’m sure that the reader can think of several more examples of merchants in similar lines of business in relatively close proximity.) If we passed the bill, what would be the “correct” physical distance between franchises of the same name that would be enshrined in the law? Should existing businesses be allowed to dictate where potential competitors set up shop? Should one franchise be allowed to veto the establishment of another business selling a similar product under a different franchise name (Burger King and McDonald’s again)? Would this legislation, passed with the best of intentions to punish a seemingly unfair trade practice, result in unforeseen consequences for other franchisees and businesses?
Would the Watertown man’s situation be substantially different if a Quiznos or a Blimpie’s (another deli type sandwich franchise shop that used to be in the sub business) opened up catty corner across from the Watertown man’s Subway shop? The Subway Corporation was being petty to be sure. Why the Subway Corporation wanted to run their own franchisee out of business was a conundrum and despicable but was it any different than Walmart coming to town to the chagrin of Kmart and Shopko? Ultimately, after discussion with the man and the Watertown delegation and debate within the committee we decided “no” and the bill was voted down. There was also the “Law of Unintended Legislative Consequences” to contemplate. While not a tangible thing, it is real. How would declaring a minimum distance between franchises work in the real world? Just how big a can of worms would this type of legislation open?
Frequently the law of unintended legislative consequences reared its ugly head when the legislature thought it was doing something good and either went too far or not far enough. I recall one such time when the Legislature was reworking incest and age of consent laws. I was proud of the work we did until the next session when Senator Kenny Albers came up to me and asked me to sign onto a bill. Kenny was then a freshman Senator and a former Sheriff and he was upset with our reworking of the incest laws. Under our “improved” incest legislation there was a loophole, if a stepchild were 16 (the age of consent) or older and agreed to have sexual relations with the non-blood relation stepparent that was permissible under the revamped South Dakota law. Clearly the Legislature certainly didn’t intend to allow that and Senator Albers legislation quickly fixed that potential problem.
The next time you approach a legislator and say “there outta be a law,” remember that person is only 1 of 105 legislators. A bill has to get through the committee process in the House or Senate, then through the floor of the body it originated in and then it goes across the hall to the other legislative body and goes through the same process all over again over there. If the bill survives all that but the House version doesn’t match the Senate version then the bill goes to conference committee to work out the differences and ultimately may not survive that process. If the bill makes it all the way through both chambers and out of conference it goes to the Governor. If the Governor vetoes the bill then two-thirds of the legislature needs to override the veto in order for the bill to finally become a law. It’s tough to get any legislation passed, so try to remember that the next time you’re angry about something or upset with your elected representatives lack of success in accomplishing what you wanted accomplished.