Port: When lawmakers don't want to follow their own law

Our system of government is based on three separate and co-equal branches of government, each wielding a very specific and distinct authority. The Legislature's power is appropriation. They control the purse strings. So when the Emergency Commission is appropriating in excess of $1 billion with only the direct involvement of four lawmakers, that's a problem.

State Sen. Ray Holmberg, R-Grand Forks, gives an acceptance speech after being named the 45th recipient of the Henry Havig Award for Community Service on Monday, Dec. 28. Adam Kurtz / Grand Forks Herald

MINOT, N.D. — Earlier this year, North Dakota lawmakers passed a law and then overrode a veto of that law, and now some of them don't want to follow the law.

I'm talking about SB2290 , which was inspired by pandemic-era federal spending.

The feds rained money on the states through the CARES Act and other initiatives. In North Dakota, that funding, which measured well over $1 billion during the last interim, was mostly appropriated by the six-member Emergency Commission, which is made up of the governor, the secretary of state, as well as the majority leaders and Appropriations Committee chairs from the House and the Senate.

Why was this a problem?

Our system of government is based on three separate and co-equal branches of government, each wielding a particular and distinct authority. The Legislature's power is appropriation. They control the purse strings.


So when the Emergency Commission is appropriating more than $1 billion with only the direct involvement of four lawmakers, that's a problem.
The Budget Section, an interim committee made up of House and Senate appropriators, did get an up or down vote on Emergency Commission appropriations, but that was only veto authority. They didn't craft the appropriations and weren't empowered even to amend them, ironically putting those lawmakers in what is traditionally the governor's role in this process.

Lawmakers should make law. Governors should wield a veto. The Emergency Commission is, in many ways, set up to function in a precisely opposite fashion.

SB2290, which was introduced by Sen. David Houge (R-Minot) and unsuccessfully vetoed by Gov. Doug Burgum , sought to fix that problem by putting a $50 million cap on what the Emergency Commission can appropriate before the full Legislature weighs in.

"It makes no sense to invest [the authority to spend over $1 billion] in a six-member commission," Hogue told me about his bill, arguing that it "rebalances the power in appropriating dollars" back to "what the constitution requires."

With a river of federal dollars still flowing into the state, that cap, which became law in April, was reached quickly — like, within weeks — and now, per reports in the Bismarck Tribune , some lawmakers think they made a mistake.

"We collectively thought we were doing the right thing at the time, but now sometimes harsh reality comes and bites you places, and there seems to be some teeth marks on parts of our body, so it's time to reassess," Sen. Ray Holmberg (R-Grand Forks) told reporter Jack Dura.

There are some interesting dynamics at play.

One is the tendency of some lawmakers to have inconsistent fealty to the separation of powers concept. During the 2020 election cycle, plenty of lawmakers were chest-thumping outraged over Burgum's political activities in legislative races. He formed a committee to promote his preferred legislative candidates. When one of the candidates he backed passed away, he attempted to appoint the replacement (the state Supreme Court halted that effort , though I still think they got that one wrong ).


Many lawmakers saw this as too much executive branch meddling in the Legislative branch.

Yet some of those same lawmakers are fine with handing over a huge amount of appropriating authority to the executive branch?

Pick a lane, you guys.

Another is the identity of the lawmakers who have been working to undermine SB2290. We have Holmberg's comments suggesting the bill needs to be changed. Holmberg, of course, has a seat on the Emergency Commission and gets a vote in its appropriations.

Several lawmakers told me Rep. Chet Pollert (R-Carrington) , and Sen. Rich Wardner (R-Dickinson) worked behind the scenes to defeat this bill. They, too, have seats on the Emergency Commission.

The primary argument against limits on what the Emergency Commission can appropriate without full legislative approval is one based on expediency. Calling the Legislature into a special session takes a long time, and it can be expensive. Even a two-day session meeting of the full Legislature supported by only a skeleton staff would probably cost around $100,000.


So what?

Democracy is hard.

Committees are a pain in the neck, and the Legislature is the biggest and most powerful committee in the state.

But do you know what's expeditious? Dictatorships.

This is not me calling anyone in the executive branch a dictator. My point is that policymaking in the American system of government, predicated as it is on the concept of representative government and the consent of the governed, is difficult by design.

The Legislature shouldn't give away its authority over appropriations because it's too arduous to wield.

Besides, many of these lawmakers, who are mostly Republicans, have, thanks to the electoral dominance of the NDGOP, served their entire careers under Republican governors.

They've forgotten what life might be like if they had to serve as a check on a Democratic governor.


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Rob Port, founder of, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at .

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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