The North Dakota House of Representatives recently killed a resolution calling for a constitutional amendment to create an ethics commission for North Dakota state government. I am not sure if an ethics commission is the answer, but I have a few bridges I would like to sell to those people who say we have no ethics problems in North Dakota.
I had a career as an attorney for the North Dakota Legislative Council, and for the last 25 years I was there, I was director of the agency. One of my jobs was to teach ethics to legislators. I used to preface my remarks by saying I often heard we have no ethics problems in North Dakota. Translation: we have no one in jail for ethics violations. Of course we have no one in jail—the Legislature is responsible for setting the ground rules for ethical behavior by elected officials, and those laws and rules do not even begin to address the ethical issues faced by people in public positions in this state.
The standard most elected officials rely upon is whether their actions are legal, which I have already stated is a very low threshold because we have few laws and rules in North Dakota. Because we cannot rely on laws and rules, I wish we would instead use the smell test—do the actions of our elected officials meet our smell test, meaning can we accept what they are doing without any air fresheners to cover the smell?
In 2013 a federal judge in Bismarck said the actions of members of our Public Service Commission who accepted campaign contributions from entities having cases before the commission were taking action that was “ill-advised, devoid of common sense, and raises legitimate questions as to the appearance of impropriety.” Time for the air freshener, or, in the alternative, make me an offer on the bridge of your choice.
In an attempt to provide some transparency, North Dakota law provides that any amount above a certain amount spent by a lobbyist for a legislator must be reported to the Secretary of State. Even though the amount has been increased by law at the urging of lobbyists, those same individuals often find they are spending more than the law allows. Rather than complying with the law and filing the required reports, lobbyists go together and share the costs, so no reports are filed. Where is the transparency in this? Have I sold another bridge or two?
How about exotic trips paid for by corporate interests that send North Dakota legislators to destinations all over the world? In 2013 I wrote an extensive article published in the Northern Plains Ethics Journal of North Dakota State University which went into considerable detail about the ethical issues raised by those trips. Although the readers of this blog probably do not want to get into the details, let me try to make you think about the serious ethical issues raised by those trips.
North Dakota legislators are invited to go on trips to far-off places, such as China or India. The invitations come from innocent sounding nonprofit organizations, such as the American Legislative Exchange Council (ALEC), or the State Legislative Leaders Foundation (SLLF). Rather than directly paying for these trips, corporations launder their money through these kinds of organizations. Most of these trips have two categories of guests—legislators and “partners,” meaning corporate representatives who are most likely not only paying their own way, but also much of the costs of the legislators.
There is no transparency, because these are private organizations outside the realm of open records law, and the legislators who take the trips do not always know who is really paying for them. Because lobbyists registered in North Dakota are not on public record to be paying for these trips, there are no reporting requirements.
Are these trips paid for from the general funds of the sponsoring organizations, or, more likely, do these organizations arrange for contributions from specified corporations that have special interests in the states from which the legislator guests are chosen?
Upon conclusion of one of these exotic trips, the North Dakota legislators return home and proudly tell their families and friends “I saw the Great Wall of China” or “I saw the Taj Mahal.” The corporate partners (lobbyists) who accompanied them and probably paid for the trips return to their jobs and their superiors demand “What did you accomplish on this trip? Which legislators from what states can we now count on to advance our agenda?” Unless a corporate attendee on one of those trips can assure his bosses that his travels were a good investment for his corporation, he has taken his last trip.
Unless you are ready to make that last payment on the many bridges I have sold you, there is more. You probably are wondering why these corporations are willing to pay so much to send North Dakota legislators on trips. The answer is “access.” These corporate interests want to identify someone in each state who has power in the legislative process. They want to pick up the phone and call that person, legislative leader, chairman of a legislative committee, or whomever, and ask for favors on a first name basis.
Most legislators are reluctant to talk about these exotic trips, probably because they do not want to admit no one has offered them a trip to China or India, meaning they are not valued enough by the relevant corporate interests for such an investment. The deep pocket lobbying interests are savvy about finding the most effective and efficient use of their discretionary budgets, and they seek out those legislators they have identified as having power to make things happen. Because there are no reporting requirements, the public has no way of knowing who among our legislators have been chosen to receive these offers, let alone which ones have accepted such trips.
Almost every night during legislative sessions, most if not all legislators are invited to receptions and dinners. Most of these events are well publicized and members of the press can attend and report on them. In the interests of transparency, we should concentrate on those legislators, most often leaders or chairmen of committees, who either do not appear or who make short appearances. We should be asking where they are going and who is buying their evening dinner and entertainment. The smart money has found that, rather than paying for meals for all legislators, it is a far better corporate investment to buy a few very expensive meals out of public view. And, as noted before, the lobbyists have found a way to avoid having to report these private gatherings.
After reading the above, can anyone still say we have no ethics problems in North Dakota? As long as we keep assuring ourselves that all is well, we cannot expect any changes to be made in our laws and rules regarding ethics in government. There are powerful interests intent on keeping the status quo. The last thing some of these lobbying interests want is public exposure of the money they are spending to buy influence over North Dakota elected officials. If those officials will not take steps to at least assure some transparency, there is a real danger of concerned citizens taking this to the ballot box as an initiated measure. That could be the subject for a whole new blog.