FARGO - One of the more potent scenarios invoked by opponents of North Dakota’s Measure 1 is an ordinary citizen driving to meet with lawmakers in Bismarck having to write down every cent spent on gas, meals and hotels on the trip.
It’s meant to show the proposed constitutional amendment, aimed at forcing so-called “dark money” groups to reveal who they really work for, is so vague it would ensnare everyone, making free speech that much harder.
“The disclosure requirements that they’re trying to impose on North Dakotans are just ridiculous,” Geoff Simon, a lobbyist who heads up the opposition group North Dakotans for Sound Government, said recently.
Dina Butcher, who chairs the ballot measure committee and North Dakotans for Public Integrity, called the hypothetical scenarios created by opponents “ridiculous.”
The measure doesn’t say citizens visiting with lawmakers must disclose their spending and leaves a lot of the interpretation up to state lawmakers, she said. “There are eight places in this measure where it says ‘the Legislature shall.’”
Measure 1, which goes before voters Tuesday, Nov. 6, has several other provisions, such as creating a state ethics commission and forbidding lawmakers from enriching themselves with campaign contributions. But the requirement to disclose “the ultimate and true source of funds” used to influence elections and government actions has seen the most attacks.
At this point, one side’s legal argument appears about as authoritative as the other’s because Measure 1 has no equivalent in other states; opponents and supporters can at least agree on this. At most, the measure’s legal defenders can point to a few states that have passed laws that they expect would be passed here if the measure succeeds.
Measure 1 is part of a national push by activists and state regulators to require more disclosures of political financing in the wake of the landmark 2010 Supreme Court case, Citizens United v. Federal Election Commission.
The court struck down limits on independent expenditures, spending by groups that support or oppose candidates but aren’t coordinating with any candidate, arguing that placing limits on spending effectively limited their free speech rights. But the court also upheld requirements to disclose donors, with some exceptions, arguing voters may need to know to make informed decisions.
Since then, there’s been an increase in independent expenditures by groups that aren’t required to disclose donors, popularly known as “dark money,” according to the Center for Responsive Politics, which tracks money in politics. These groups include nonprofit groups - examples include the National Rifle Association, Planned Parenthood, unions and chambers of commerce - and shell companies. The main purpose of these groups is supposed to be something other than politics - social welfare or networking, for example - though they may actually act in highly political ways.
The Campaign Legal Center, which advised the Measure 1 committee, said some states with laws similar to what the committee is trying to achieve here include California and Montana.
Starting in 2014, California began requiring groups, whose main purpose is not politics but do occasionally engage in politics, to name donors giving more than $1,000 a year. Donors can remain anonymous if they specify their money cannot be used for political purposes. Businesses are exempt.
In Montana, groups whose main purpose is not politics were already required to disclose donors when they spend money to support a political cause. In 2015, the state began requiring disclosures for money spent on public communications, within 60 days of an election, that merely mention a political cause without expressing support or opposition. News media, unless owned by a candidate, are exempt.
The California and Montana laws were passed by state lawmakers. In South Dakota, activists made similar efforts with Initiated Measure 22, which passed in 2016 with 52 percent of the vote. State lawmakers claimed it was unconstitutional and voted to repeal it. IM 22 would have required disclosures by any group that collects political contributions and, similar to Montana’s law, disclosures of spending on public communications, within 60 days of an election, that mention a political cause. News media, unless owned by a candidate, would have been exempt.
That may be the intent of North Dakota's Measure 1, but opponents say that’s not how it’s worded.
The part of Measure 1 pounced on by opponents - ranging from business interests to the North Dakota Catholic Conference to the American Civil Liberties Union of North Dakota - is in Section 1 Subsection 2.
It requires the state Legislature to pass laws mandating “public 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.”
The ACLU complained about the lack of explicit exception for news media reporting on politics and individuals visiting with their lawmakers.
The church and the Greater North Dakota Chamber complained that the “ultimate and true source” clause would force them to trace any spending to influence politics all the way back to individual members and even customers of business members. Simon suggested even organizations providing social services on the state’s behalf, because they work with the state and could influence its actions, would have to file disclosures.
These arguments don’t address how the words “in any medium” place a limit on the kind of spending that must be disclosed.
But what is a medium? Does a medium include face-to-face meetings with lawmakers? Does it include priests talking to their flocks about a social issue on the ballot? Or does it simply mean newspapers, radios and TVs?
Asked for the meaning of “medium” or its plural “media,” North Dakotans for Public Integrity said that will be determined by state lawmakers, who could use the words’ common meanings in existing state law. The state Century Code mentions telephone calls, radio, TV and the Internet as examples of media.
Though it’s possible to see state lawmakers limiting church’s and chambers of commerce’s disclosure of donors just to those giving money for political purposes, Measure 1 supporters haven’t addressed this directly as the church has pointed out.
Supporters have, instead, repeatedly pointed out how much power the measure would delegate to lawmakers.
“This flexibility within Measure One is consistent with the vast majority of federal and state constitutional provisions, which describe constitutional guarantees in general terms and defer to legislators on the details,” the Campaign Legal Center said in a legal brief.
Christopher Dodson, an attorney and executive director of the North Dakota Catholic Conference, argued that Measure 1 actually requires lawmakers to interpret its meaning strictly. He quoted in his legal brief Section 4 Subsection 1, which says “Laws may be enacted to facilitate, safeguard, or expand, but not to hamper, restrict, or impair, this article.”
Lacking that flexibility, the ACLU has argued Measure 1 would make political advocacy so cumbersome as to impair free speech rights enshrined in the First Amendment.
Ellen Chaffee, vice chairwoman of the Measure 1 committee, expressed exasperation with such arguments. “The first paragraph of the first section of our amendment reinforces the intent to strengthen individual rights,” she said, referring to a section that says the right to know who's influencing politics will enhance free speech rights. “Really, that’s our goal: Get the money out and get the voters in.”
The open question is if that intent is sufficiently clear.