A legislative source forwarded me an email exchange which illustrates perfectly the Legislature’s efforts to implement Measure 1 (ethics) approved by voters last year.
And why many observers, including myself and the ACLU, opposed the measure as an infringement on speech and political activity unreasonable to the point of being unconstitutional.
The whole thing is below, and I hope you’ll all take the time to read it, but here’s a summary.
Hollis Mackintosh Heid is the director of Northern Plains Dance, a nonprofit based in Bismarck. She emailed a number of lawmakers, including Senator Howard Anderson (R-Turtle Lake), offering two free tickets to see a performance of a production called Dance+. “Thank you for your support, and we can’t wait to share this extraordinary performance with you,” Heidi concluded in the email.
Anderson wrote back declining the tickets, citing Measure 1.
“Thank you for the invitation to attend one of your Northern Plains Dancer performances,” he wrote. “However, pursuant to the recently adopted Article XIV of the North Dakota Constitution we can no longer accept gifts and I must decline the complimentary tickets.”
At this point Ellen Chaffee, a left wing activist who describes herself as “vice president” of the front group for Hollywood activists which backed Measure 1, responded to Anderson.
It’s unclear from the thread how Chaffee got a hold of Anderson’s response, but she said she needed to “set the record straight.”
“The gift prohibition in Article XIV does not take effect until January 5, 2021,” she wrote. “Nothing has changed and nothing will change in this regard until then. Even after that, it is entirely possible that this kind of situation will be perfectly fine. The new Ethics Commission and the legislature are responsible for deciding such matters.”
[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]”[I]f something is to be unethical in two years then it is just as unethical now,” Anderson replied.[/mks_pullquote]
“[I]f something is to be unethical in two years then it is just as unethical now,” Anderson replied. “Also since the two years is up on January 5, 2021 the legislature will not be back before that and must get any guidelines in place in this session. Everyone wants to comply with the intent of Article XIV, even now, to get ready for January 5, 2021.”
He goes on to note that SB2148, which was passed by the Senate and now awaits a vote in the House, defines a gift as “any item, service, or thing of value not given in exchange for fair market consideration” and a lobbyist as “a person who, directly or indirectly” attempts to influence the government.
“The nonprofit Ms. Heid represents might just be trying to be nice to legislators,” Anderson writes. “She also might be trying to show us the importance of the art of dance, and perhaps influence legislation to make grants available for such worthwhile activities. At a penalty of $5000 per ticket no legislator will want to take the risk.”
Both Chaffee and Anderson’s responses were CC’d to the Senate’s group email list and they elicited responses from Senator Tim Mathern, a Fargo Democrat who introduced SB2148 and served on Measure 1’s sponsoring committee, as we as Senator Jessica Unruh (R-Beulah). You can read those responses below.
Essentially the critics of Measure 1 are arguing that the text of law it created is so broad it discourages lawmakers from interacting with individuals and organizations in ways reasonable people would find perfectly ethical and perfectly acceptable.
The response from Measure 1 proponents boils down to something along the lines of “yeah but it’s not in effect yet.”
Some might be inclined to argue that Anderson and Unruh are being facetious in their comments and actions, interpreting Measure 1 in an overly broad way to justify their criticism. The problem is Measure 1, well, overly broad.
It may seem quaint, in these days of powerful politicians ignoring the law to produce their preferred policy outcomes and daring the courts to tell them no, but I’m a proponent of enforcing the law (even bad law) exactly as written.
If we don’t like it, we should change the law.
If we don’t like that Measure 1 makes even a perfectly innocent offer of ballet tickets to lawmakers some unethical and illegal transaction, maybe we should change it?
So much of the debate about Measure 1 has seen its proponents deride critics as being anti-ethics. Which is a useful rhetorical cudgel for them, I suppose, but as this example shows the reality of how this policy will be applied is much more complex than the proponents are willing to admit.
On a related note, the Dance+ performance does look pretty cool, and if you want to check out ticket prices you can do that here.
Here’s the full email exchange:
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