By Arik Spencer – president and CEO of the Greater North Dakota Chamber
When it comes to Measure 1, let’s address the challenge up front. Yes, GNDC is the state’s leading business advocacy organization. And, yes, we lobby. So for appearances sake, it is convenient for Measure 1 proponents to cast our opposition to their measure as further evidence of the need for a State Ethics Commission and more regulations. We acknowledge the optics conveniently play into their hands.
Unfortunately for them, our opposition to Measure 1 is not that simple. And, for the record, neither is the measure itself, which is one of the primary reasons why it should be defeated.
GNDC believes in high ethical standards for our elected officials and have long supported greater transparency in state government. It was out of this long-standing commitment that we carefully studied Measure 1. We even met with its proponents on a few occasions. It is evident many of them are operating out of good intentions. However, upon reading Measure 1, it is crystal clear that, as written, this proposed state constitutional amendment is fatally flawed.
Specifically, GNDC is concerned with Section 1.2 of the measure, which requires the disclosure of the “ultimate and true source of any funds over $200, spent in any medium to influence an election, ballot measure, or action of state government.”
At face value, this language seems straightforward and hard to argue with. Therein lies the problem.
Section 1.2 is so broadly written it would require private individuals, businesses, charities, trade associations, labor unions, religious organizations, the media, and other groups to disclose: Member lists, advertisers, sponsors, donors, even customer lists. As written, these groups would have to report amounts spent if any of them are engaged in public policy.
This goes beyond political campaigns and the legislative process. It could impact any state planning effort, public commenting process, advisory committee activities, and public hearings where individuals or organizations are either asked or encouraged to participate.
Think of how onerous this requirement would be, especially for a state with a citizen legislature and where organizations, like GNDC, encourage members to travel in to lobby, attend socials to interface with policymakers, or testify before legislative committees. This is why so many businesses and trade associations have come together in opposition to Measure 1.
But don’t take our word for it. The American Civil Liberties Union (ACLU) has come out in strong opposition to Measure 1 because it restricts political speech and advocacy.
Heather Smith, executive director of the ACLU of North Dakota, stated, “While North Dakotans have a right to know who is spending money to influence elections and government, this measure isn’t just about lobbyists and lawmakers. It’s about all the people of North Dakota and our First Amendment rights. When it comes to the political process, we all have a right to be heard, and this measure jeopardizes that.”
The ACLU criticizes Measure 1 for providing no exception to its reporting requirements for individuals spending their own money to express their personal point of view. As written, Measure 1 is so broad that a private citizen who wants to travel to Bismarck to testify on a bill would be required to disclose any money spent on fuel, meals, and lodging over $200. What’s more, as the ACLU notes, there’s no exception for the media. Talk radio hosts and columnists who influence policy and politics with their analysis would also likely be subject to regulations.
Because of these broad and unrealistic requirements, the state would be open to an endless stream of lawsuits if it were believed that regulations have not been met. This would cost taxpayers millions in legal fees and could have the chilling effect of stifling policy advocacy.
If Section 1.2 stifles free speech, then the measure’s Supremacy Clause found in Section 4.3 of the proposed amendment literally overrides every other existing article and protection in our state’s constitution. It is no exaggeration to say this section alone would almost immediately open North Dakota’s State Constitution up to judicial scrutiny.
Measure 1 is an excellent example of a proposal that takes a sledgehammer to a fly. While we have no qualms about improving ethics and transparency laws, Measure 1 is so poorly written some of its good points fall victim to the measure’s excess.
For these reasons, GNDC strongly opposes approval of Measure 1.