North Dakota Legislature finalizes ethics bill, but 'safeguard' looms over Measure 1 implementation
BISMARCK — Critics of the North Dakota Legislature's efforts to implement the state's new voter-approved ethics rules will still have avenues to challenge lawmakers' actions even after a final bill moves across the finish line.
The new constitutional language allows any "resident taxpayer" to file a lawsuit if the implementation fails "to fully vindicate" their rights under the article's financial transparency requirements. Republican Sen. David Hogue, a Minot attorney who helped lead efforts to address the passage of Measure 1 this session, said people typically only have legal standing to challenge laws if they've been harmed by them.
"This turns that on its head and says everybody has standing," he said Wednesday, April 24.
Greg Stites, an attorney hired by Measure 1 supporters to lobby lawmakers, said the "resident taxpayer's express right to bring suit is very powerful and is, or almost is, unprecedented in ND law."
Whether anyone will use that tool remains unclear.
Democrats and Measure 1 supporters have criticized a finalized implementation bill, which was sponsored by Republican majority leaders in both chambers. Stites said it's unconstitutional and waters down what voters approved last year.
But Ellen Chaffee, the vice president of North Dakotans for Public Integrity, the group that backed Measure 1, said they haven't discussed bringing a lawsuit. She described the language allowing taxpayers to enforce their rights through the courts as citizens' "safeguard" to ensure the constitution is implemented and enforced correctly.
"The people of North Dakota expect Article 14 to be implemented properly," she said. "And one way or another, I am completely confident that any concerns that the Legislature leaves in the public's mind will be addressed."
North Dakota lawmakers sent House Bill 1521 to Gov. Doug Burgum Thursday largely along party lines, with Republicans supporting the legislation, ending months of debate over enacting the new requirements. The state constitution now bans lobbyist gifts to public officials, requires the disclosure of the "ultimate and true source of funds" spent to influence elections and state government action and creates a new ethics commission that could investigate malfeasance.
The constitution's citizen safeguard only applies to the financial disclosure requirements, however.
Stites said the implementation bill falls short by narrowing the definition of lobbyist and leaving holes in reporting requirements. During a floor debate Thursday, House Minority Leader Josh Boschee, D-Fargo, warned that it would "stifle" anonymous complaints by allowing a whistleblower's name to be disclosed to the person they're accusing. Republicans said that was meant to ensure due process was followed.
Hogue defended the bill as a "responsible and reasonable implementation" that went through a rigorous legislative debate and more than 40 iterations. He also noted that lawmakers plan to study the constitution's new requirements during the interim period between legislative sessions with input from the yet-to-be appointed members of the ethics commission.
Geoff Simon, a lobbyist who led the opposition campaign against Measure 1, welcomed the implementation bill. He said language limiting disclosure mandates to money donated "solely" to influence elections, which Measure 1 supporters consider a reporting loophole, helps ensure its constitutionality.
"I honestly think the (ethics) committees have done an admirable job of trying to comply with the intent of the article," Simon said. But he added that there's "still a lot of questions out there."
"It's a work in progress," said Bismarck Republican Sen. Dick Dever.