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Port: Ethics commission is preparing to put their boot on the throat of participatory politics in our state

I realize that "influence" can be a dirty word, in some contexts, but remember that our participatory government was designed to be influenced. It's our government. We get a say, and part of the way

North Dakota ethics commission
Members of North Dakota's Ethics Commission are Paul Richard, Ward Koeser, Cynthia Lindquist, Ron Goodman and David Anderson. Assistant Attorney General Allyson Hicks is the board's legal counsel.
Mike McCleary / Bismarck Tribune
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MINOT, N.D. — North Dakota's new ethics commission is a mess.

It's a board made up of appointees who are in no way accountable to the electorate, who are hostile to being transparent with the public , and seemingly serve a constituency of one, given their obsequious attitude toward left-wing activist Ellen Chaffee who spearheaded the ballot measure campaign that created the commission.

Chaffee has enjoyed special access to commission members. During a 2020 meeting Chaffee was texting commission members during a public meeting, influencing their discussions in real-time in ways the general public could not. The commission members were reading her texts to one another during the meeting.

Dave Thiele, commission executive director, admitted to me at the time that the board members accepting those texts was "an error," and supposedly that sort of back-channel communication between Chaffee, the Democratic candidate for lieutenant governor in 2012, and the commission members has stopped.

Supposedly.

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We don't have a good way to tell.

But the larger problem, at the moment, are rules the commission is working on promulgating which would place itself between the people you and I elect and their ability to govern our state.

The rules are aimed at conflicts of interest, and while that's a noble cause, the way the rules may be implemented is hugely problematic.

MORE FROM ROB PORT
There is hubris in the belief that judicial edicts settle contentious political questions.

Here's an example.

The draft rules would seek to regulate when lawmakers can do their jobs, which raises a significant constitutional question. An executive branch commission made up of people appointed by the governor would be able to block lawmakers from attending to the public's business.

That's not only a serious separation of powers issue, it also runs contrary to North Dakota's constitution, specifically the very amendment that created the ethics commission. Article XIV, Section 2, subsection 5 lists the government officials who are subject to the ethics commission's regulation of conflicts of interest, and lawmakers aren't mentioned.

This out-of-control ethics commission is already trying to exceed the confines of the very amendment that created them.

But even as applied to non-legislative officials, these proposed rules are problematic.

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The Institute for Free Speech, a nonpartisan group, has submitted a letter to the commission that, though it's dense with legalese, is worth your time to read, because it captures perfectly how far off the rails things have gotten (their letter is below, you can read all submitted public comments here ).

As the rules are written, if you made a contribution to a political candidate, and then later that candidate is presiding in some way over an issue you're involved in, the ethics commission could throw a red flag and prevent that public official from doing their job.

The rules make no distinction between a $200 contribution or a $2,000 contribution. As the IFS points out, there aren't even distinctions between direct contributions to a candidate's campaign, or independent expenditures, which would be you, either on your own or through some group you've voluntarily joined, promoting a candidate through means outside their campaign.

If you spend your own money to put up a billboard supporting a candidate you could run afoul of the rules the ethics commission is proposing.

That, my friends, is downright un-American.

All of these actions are constitutionally-protected free speech, and while the courts (and common sense) make some allowance for regulations for the sake of fighting corruption, what the ethics commission is appropriating to itself is an enormous amount of power to limit the ability of certain voters to influence the political process.

I realize that "influence" can be a dirty word, in some contexts, but remember that our participatory government was designed to be influenced. It's our government. We get a say, and part of the way we do that is by supporting candidates, often with money, who will go about their public duties in the ways we wish.

And I say this would limit the ability of "certain voters," because there's a bias built into this benighted philosophy about conflicts of interest.

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Doing things requires government approval. Want to build a pipeline? A new office building? Some transmission lines? These things require permits and approvals issued by government officials who are often elected, but under these rules, the people you supported with your campaign contributions might be blocked from doing that job by an ethics commission that was elected by exactly nobody.

Opposing things requires no approval from the government. If you oppose a pipeline, if you want to regulate coal power out of existence, you don't need government approval.

A person making campaign donations to a politician who promises to block pipelines would never need worry about that politician being recused, because a person who is opposed to a pipeline doesn't need a permit.

In the conclusion of their letter to the commission, the IFS notes that "not every law designed with these purposes in mind is a good one."

That's worth keeping in mind.

The ethics commission ought to scrap these rules and start over. Or, better yet, look at North Dakota's existing laws relating to the disclosure of campaign contributions, and seek ways to improve and better enforce those.

That would be a far more productive use of the commission's time, though a departure from the ideological agenda of people like Chaffee.

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 rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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