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To: Senate Ethics Committee
From: Christopher T. Dodson, Executive Director
Subject: Senate Bill 2148 - Ethics
Date: February 6, 2019

The North Dakota Catholic Conference appreciates this opportunity to provide input on Senate Bill 2148. The conference has a neutral position on SB 2148, as introduced. However, the bill currently lacks some needed provisions and some of the statements made at the last hearing about possible amendments and interpretations of Article XIV give us concern.

Although the final product of this Legislative Assembly may not be perfect and may not address all the possible constitutional problems with the new constitutional provisions, it should address two of the conference’s main concerns about Measure 1. First, it should make clear that individuals who donate to the general operation of a church or charity will not have their privacy unduly infringed. Second, it should provide some certainty regarding process and what will or will not be allowed, thereby possibly restoring some of the public’s confidence that they can participate in the democratic process without unknowingly or wrongly running afoul of the law.

Disclosure/Transparency Provisions

Each year approximately 20,600 Catholics prayerfully choose to give to the Catholic dioceses of Bismarck and Fargo. Their contributions support ministries like education, seminarian formation, communications, and Catholic schools. None of this money is used to support political candidates. None of it goes to contributions to politicians. None of it is used to help political parties.

Like other churches and charities, however, the Catholic Church participates in the public square and expresses opinions on legislation and ballot measures. Doing so typically amounts to spending less than one percent of its total budget.

If Measure 1 was implemented without any clarifying parameters, the dioceses or the conference would have to disclose the names of every one of those parishioners whenever we spent over two hundred dollars for lobbying or taking a position on a ballot measure, even if the parishioner gave just one dollar. During the campaign, proponents for the measure repeatedly stated that the legislature would have the authority to make sure this did not occur.(1) The legislature should adopt their earlier position and enact legislation now, rather than later, to place common sense parameters on the disclosure provisions.

In addition to requiring disclosure, as directed by Article XIV, the implementing legislation should define “ultimate and true source” of funds to mean the person who knowingly contributed over two hundred dollars solely to a campaign, to lobby, or to influence state government action.

This definition includes two crucial features. First, it clarifies that people who donate less than two hundred dollars will not be subject to disclosure. This makes sense. Subsection 2 of Section 1 of Article XIV requires disclosure only for expenditures over two hundred dollars. For that reason, it makes sense that the disclosure requirement should only apply to contributions over two hundred dollars.

Second, requiring that the contribution be knowingly and solely for one of the triggering purposes makes it clear that organizations would not be forced to reveal the names of individuals, such as parishioners, who give toward the general operation of the organization. Churches, like many nonprofits, engage in numerous activities of which legislative advocacy may constitute only a tiny fraction. It would be unduly burdensome and extreme overreach beyond the purpose of Article XIV to require disclosure of all sources of funding merely because some of the money was used for engaging in public policy advocacy.

The bill should also include practical definitions for “lobby” and “influence state government action.”

Article XIV does not define “lobby.” During the campaign people raised concerns that the lack of a definition meant that any individual communicating to a legislator could be subject to the disclosure provision. Proponents of the measure, however, claimed that the provisions only encompassed actual lobbyists. Presumably, this means that “lobby” is intended to mean lobbying as defined in the North Dakota Century Code, which applies to advocating or opposing the passage of legislation or a decision by Legislative Management on behalf of someone else. Building on existing law, SB 2148 should incorporate that definition for purposes of implementing Article XIV.

Similarly, Measure 1 lacked a definition of “influence state government action.” During the campaign the North Dakota Catholic Conference and others expressed concern that “influence state government action” could encompass acts such as Catholic Charities discussing and negotiating the contract for the corporate guardianship program or an adoption agency submitting paperwork to be approved as a child placement agency. People also raised questions about seeking professional licenses or permits. Supporters of Measure 1 indicated that the measure was not supposed to encompass those acts and the legislature would be charged with defining “state government action.”

Although Article XIV does not define “influence state government action,” we can conclude as a matter of grammar that it is something different from lobbying or campaign engagement. In other words, it must, by elimination, refer to executive branch actions. The bill in the other chamber, for example, defines “influencing state government action” as promoting or opposing the final adoption of a rule by an administrative agency. It is difficult to imagine what other official executive branch actions exist. If the phrase is not defined as the adoption of a rule by an executive office, “influencing state government action” could encompass practically all communications and interactions with state agencies. In addition to being unnecessarily overbroad and reaching non-official actions, such an open-ended scope would likely be unconstitutional.

To summarize, by defining “lobby” and “influence state government action,” and by defining “ultimate and true source,” SB 2148 could address our concerns about the potential scope of the disclosure requirement. Such definitions are reasonable and consistent with purpose of Measure 1. If the national office of the Knights of Columbus gave over two hundred dollars to the North Dakota Catholic Conference for the purpose of helping us pass a ballot measure, we would have to disclose that donation. People can argue whether that requirement is good public policy or constitutional, but the fact remains that the people of North Dakota put that requirement into the state constitution. Rather than delaying the requirement, the Legislative Assembly should, as the proponents of Measure 1 said the legislature could do, put it into statute with clear parameters.
Delaying implementation of the disclosure requirements with clear definitions would create more uncertainty and have a possible chilling effect on charitable giving. Although the disclosure provisions may not go in effect prior to January 5, 2022, the donations that would be subject to the disclosure law might be made in 2021, 2020, or even 2019. Donors should know now if the contributions they might make during the next few years could be forcibly disclosed after January of 2022.

This committee should also keep in mind that, with the exception of court action, only the legislature can provide these assurances to charitable givers and only the legislature acting this session can do so for the years 2019, 2020, and most of 2021. Article XIV does not grant such authority to the Ethics Commission and an interim study provides no assurances for the next few years.

Guidelines and Certainty

The second broad area of concern the North Dakota Catholic Conference had about Measure 1 related to its possible chilling effect on participation in the public square. People have a right to participate in the political process. The measure, in our opinion, contained too many undefined terms, procedures, and areas of confusion that could deter participation in the democratic process, especially by nonprofits, small organizations, and average citizens.

This committee can address some those concerns without running afoul of the new article’s requirements by:
  • Using existing and already familiar definitions where possible, such as for “lobby” and “campaign contribution,” and campaign “conduit;”
  • Employing existing mechanisms and time periods for reporting;
  • Setting out due process requirements for complaints;
  • Providing definite effective dates;
  • Clarifying that organizations like the North Dakota Catholic Conference can have their church service and appreciation dinner for public officials without violating the anti-gifting provisions; and
  • Consistent with the proponents’ position during the campaign, specifying a rulemaking process that gives the public advance notice of meetings and an opportunity to provide public input, just like any other rulemaking body.(2)

These provisions would give the public some clarity and certainty after a heated campaign marked by differing interpretations of the new provisions. The people of North Dakota have a right to know, now rather than later, that they can participate in the political process without transgressing the new provisions. In addition, by specifying the disclosure requirements now rather than later, individuals can be assured that they can continue to donate to their favorite charity without having to sacrifice their privacy.

The North Dakota Catholic Conference believes that ethical behavior should be the hallmark of our political process. No action by anyone in the process is immune from the command to do what is right and to do it honestly. While we may have disagreed with the proponents of Measure 1 about the measure itself, its implementation, subject to constitutional limitations, should not be in dispute and we do not support intentionally frustrating or unnecessarily delaying its implementation.

We ask this committee to take these concerns into consideration as it works on SB 2148.

(1) Dina Butcher, Good Talk Minot, September 24, 2018; (https://directory.libsyn.com/episode/index/id/ 7304732/tdest_id/446532); Legal memorandum from the Campaign Legal Center in support of Measure 1 released by NDPI in support of the measure, September, 25, 2018 (https://campaignlegal.org/ document/transparency-ballot-north-dakotas-initiative-disclosure-money-politics); NDPI press release citing Campaign Legal Center’s endorsement of Measure 1, October 1, 2018, (https://www.ndintegrity.org/ campaign_legal_center_endorses_north_dakota_measure_1); Dina Butcher, Prairie Public’s Main Street, October 23, 2018 (http://radiobookmark.com/listener-interactive/webplayer/#/fullscreen/ondemand/Fc6yEw9PkL2ZANvC/program/3549); Ellen Chaffee, Prairie Public’s Main Street, October 23, 2018,(http://radiobookmark.com/listener-interactive/webplayer/#/fullscreen/ondemand/Fc6yEw9PkL2ZANvC/program/3549).

(2) Dina Butcher,
Good Talk Minot, September 24, 2018; (https://directory.libsyn.com/episode/index/id/7304732/tdest_id/446532): “That commission, then, will set about to writing the rules and regulations like any commission or council or body of government would do then take out for public hearings and then be approved by the legislative process for rulemaking.”
Dina Butcher, Prairie Public’s Main Street, October 23, 2018, Prairie Public’s Main Street
(http://radiobookmark.com/listener-interactive/webplayer/#/fullscreen/ondemand/Fc6yEw9PkL2ZANvC/program/3549) “The ethics commission will develop rules subject to legislative review.”