Legislative Leadership Flip Flops and Embraces Move to Gut State Auditor’s Powers


In the closing days of the 2019 legislative session an amendment was slipped into the budget for state Auditor Josh Gallion’s office. The amendment was approved by bipartisan majorities in both chambers – only a small faction of Republicans in the state House voted against it – and signed by Governor Doug Burgum.

It forces Gallion’s office to come to a Legislative committee to beg for permission to conduct performance audits. Which sort of undermines the whole point of having an independently-elected  Auditor, don’t you think?

Anyway, when they were initially caught out on this, lawmakers tried to plead ignorance about the amendment. “[T]he amendment goes a little farther than what it should,” House Majority Leader Chet Pollert said, adding that lawmakers “just want to know what the auditor is up to.”

State Rep. Keith Kempenich, the amendment’s author, told a reporter it “was harsher than he intended.”

Senate Majority Leader Rich Wardner, meanwhile, expressed frustration with the process which produced the amendment. “I’m a little bit frustrated. I’m not sure why the individual who put that in there thought they had to put it in there, I’m frustrated because I didn’t know about it and now I’m frustrated that people are trying to make it more than it is,” he said. “I would like to see Mr. Gallion cooperate with the Legislature a little bit, and we’ll get it out next session.”

The theme of these statements is that this amendment went too far, and got too little scrutiny, and will be addressed again in future legislative work.

That theme has changed, as evidenced by a column written by Wardner and submitted for publication here on SAB and elsewhere.

Suddenly Wardner is defending the amendment diminishing the Auditor’s powers as a right and proper exercise of the Legislature’s authority:

This action by the legislature was wholly appropriate and necessary. The North Dakota State Constitution states that the powers and duties of the State Auditor come from the legislature.  Therefore, the legislature has oversight of the auditor and makes decisions on staff requests, length of audits and the quality of all audits including performance audits.  The audits are critical to the legislature, because the audits help the legislature make sound policy.

The debate at hand isn’t whether or not the Legislature can limit the Auditor’s powers – they clearly can, as this guest post from Fargo attorney Sean Foss details – but whether or not they should.

Legislatures can create all sorts of very bad policy that is perfectly constitutional and within their purview. This is not a question of this particular policy’s legality but rather its efficacy.

If we want the Auditor’s office to be a creature of the Legislature, directed by its leadership and committees, then we should stop electing the Auditor. Instead the Auditor should be appointed by the Governor, or perhaps hired by the Legislature.

That is not what we have, however. We have an independent Auditor, with an electoral mandate directly from the people. Our current Auditor, Josh Gallion, earned over 76 percent of the vote in the last election (though he faced only one challenger, Libertarian candidate Roland Riemers). He has now brought an approach to the duties of his office which is quite different, in both style and substance, from his most recent predecessors.

Next year, assuming Gallion runs again (and it seems from my conversations with him that he will), voters will have a chance to weigh in on whether or not they think he’s doing a good job.

Gallion’s critics are free to run their own candidate against him. Perhaps they will.

What we should not do, however, is turn the Auditor’s office into something that is not independent because some don’t like the office’s current occupant.

But even if you agree with Legislature’s move to limit the Auditor’s powers, shouldn’t they have been honest about that intent from the get-go?