Yesterday, the Institute for Free Speech – “a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government” – released an analysis of the ballot measure proposing to establish an ethics commission in North Dakota. While the introduction to the document specifically states that it “should not be interpreted in any way as an exhortation to either vote for or against the initiative, nor should it be construed as otherwise endorsing or opposing the initiative”, I think it’s pretty clear where they stand.
It should be noted that the IFS analysis doesn’t address the ballot measure as a whole. They specify that it “does not address the initiative’s other provisions imposing a revolving-door restriction for state elected officials, a ban on gifts from state lobbyists to state officials, a ban on state lobbyists delivering campaign contributions, and a ban on candidates using campaign funds for personal expenses”.
According to IFS, the purpose of their analysis is two-fold:
- “…to educate North Dakotans who speak about public matters in their state about the additional reporting requirements and litigation risks the initiative may impose on their speech and expressive activities; and
- “to educate North Dakota state lawmakers about the issues they will have to address if voters pass this initiative, which charges the Legislative Assembly with writing legislation to implement certain of the initiative’s provisions.”
I believe the concerns raised by IFS to not only be valid, but quite troubling.
Imagine a political environment in which the North Dakota Legislature is obligated to enact laws that demand:
“… disclosure of the ultimate and true source of funds spent in any medium, in an amount greater than two hundred dollars, adjusted for inflation, to influence any statewide election, election for the legislative assembly, statewide ballot-issue election, or to lobby or otherwise influence state government action.” (Emphasis Added)
This is exactly what Section 1 of the measure proposes. Sounds fairly harmless? Not really. Under such terminology – even vagueness – what kind of things might end up triggering such reporting? Nonpartisan voter guides, get-out-the-vote drives, websites, radio talk shows, and even blogs like this one— just to name some? The words “any medium” is extremely broad.
Furthermore, what does “ultimate and true source of funds” mean? If a nonprofit group publishes a position in opposition to or support for ballot measure, would they then be required to report who their donors are— even if some of their donors didn’t support that specific measure themselves?
In Section 3 – which proposes to create the new five member Ethics Commission – things aren’t any better. This section not only creates the commission, who appoints them, and how long they serve, but grants them the following authority:
“The ethics commission may adopt ethics rules related to transparency, corruption, elections, and lobbying to which any lobbyist, public official, or candidate for public office shall be subject, and may investigate alleged violations of such rules, this article, and related state laws. The ethics commission shall maintain a confidential whistleblower hotline through which any person acting in good faith may submit relevant information. The legislative assembly shall provide adequate funds for the proper carrying out of the functions and duties of the commission.”
Quite simply, this is seemingly a huge grant of power. Do you see anything in terms of limitations? Of course not, because they don’t exist. You’ll notice that in Section 1 the Legislative Assembly was tasked with enacting laws to implement it. Section 3 has no such language aside from providing “adequate funds”. Forgive me for being skeptical, but I’m not really interested in an unchecked and potentially intrusive commission.
One of the most fascinating points picked up in the IFS analysis is again found in Section 1 where it specifically states, “a resident taxpayer may bring suit in the courts of this state to enforce such rights”. As if politics isn’t nasty enough already. Can you imagine if this measure passes and political enemies across the state can take “enforcement action… to fully vindicate the rights provided in this section”? It should be noted that Colorado apparently had a similar enforcement mechanism. The law suits got so out of hand that it was ultimately ruled to be unconstitutional.
There’s many other problematic points discussed in the IFS analysis. You can read it in its entirety here. I encourage you to do so.
Suffice it to say that regardless of how sensible an ethics commission may sound to some, this measure is deserving of defeat. My hope is that voters will do just that by voting “No” in November.
Sources:
- https://www.ifs.org/
- https://www.ifs.org/2018/08/14/analysis-north-dakota-ballot-measure-raises-first-amendment-concerns/
- https://vip.sos.nd.gov/pdfs/Measures%20Info/Petitions%20Being%20Circulated/Version%20A%20approved%20petition%20w%20ethics%20commission.pdf
- https://www.ifs.org/wp-content/uploads/2018/08/2018-08-14_IFS-Analysis_ND_Campaign-Finance-Lobbying-Initiated-Constitutional-Amendment.pdf
