I can’t think of a hotter topic in North Dakota politics this summer than the one relating to the North Dakota Legislature’s efforts, during the winding up moments of the 2019 Legislative Session, to strip our State Auditor of his authority to initiate performance audits. Not only was it bad in and of itself, but the way in which it was done was even worse— as a last minute amendment in conference committee.
To illustrate how last minute — and sneaky — this was, there were Senators who said they didn’t even know it was in the bill. I’ll leave it up to you whether you believe them or not, but not a single Senator voted against the legislation. In fact, it wasn’t until the bill reached the House, and Rep. Jeff Magrum (R – District 28) blew the lid off the issue, that we knew the full implications of what was going on. And even then it didn’t matter. The House adopted the amendment, passed the bill 72-20, and Governor Doug Burgum signed it into law.
How things unfolded after that were interesting. You can read everything we ever published on the issue here. Some of the comments by certain state officials alone left many shaking their heads. There was one lawmaker who admitted to some wanting to “reel in” the State Auditor, dumb comments by the governor, and the Senate Majority Leader who couldn’t keep his story straight of whether they knew about the amendment. From the perspective of a political blogger, it was the gift that kept on giving.
Amidst all of this, there was a referral effort put in place under the banner of “Audit the Swamp”. The branding was spot on— you can see it on their Facebook page here. The cartoon logo of a Cactus Guy with money all around him — no doubt referring to millions of wasteful spending on a cactus garden — was brilliant. The Audit the Swamp logo, with the State Capitol made a part of it, was a stroke of genius. Within a short time, they had nearly 800 Facebook followers.
Yet, when it comes to politics, branding isn’t everything. When all was said and done, efforts to refer the Legislature’s power grab of the State Auditor to a vote of the people fell short.
In reflecting upon this, I think there were multiple factors that led to the referral effort not getting the needed signatures:
- Referral Law isn’t Favorable to Petitioners – this was evident to me from the moment I heard rumblings of a referral effort. Rob Port of the Say Anything Blog wrote about this a week ago. Among the many points he made was the fact that current law only allows 90 days for a referral effort from the date legislation is filed with the Secretary of State’s office. By the time Audit the Swamp was able to gather a sponsoring committee, draft the referral, make any needed corrections, and await approval from the Secretary of State to circulate petitions, 34 days of the 90-day window were already “chewed up”. That’s a tall order for gathering 13,452 signatures with volunteers.
- Too Many Referrals at a Time – perhaps some will disagree with me on this, but I think Audit the Swamp’s well-intentioned decision to refer not one, but three pieces of legislation became problematic. You might recall that referrals were done for not only Section 3 of the State Auditor’s bill (Senate Bill 2004), but legislation that further exempts Legislators’ e-mail from being subject to open records requests (Senate Bill 2221), and Section 5 of the Governor’s budget, which authorizes the $50 million endowment for the Theodore Roosevelt Presidential Library & Museum (Senate Bill 2001). The feedback I received was that attempting to gather signatures for all three was too cumbersome. Not to mention that some folks didn’t buy into all of them. Three for one is a good deal at the grocery store— when it comes to referrals, not so much.
- It Can be Difficult to Effectively Organize with Volunteers – I don’t want to sound critical of volunteer efforts. That’s not my intention. There’s no doubt that the folks who actually drafted the referrals, gathered signatures, etc. sacrificed their time. But let’s be honest, people are busy with their lives. It takes a lot of effort and some serious organization to pull things together— even when the people you’re depending on believe in what you’re doing. Money and politics makes many of us cringe. But again, let’s be honest. If Audit the Swamp had sufficient funds, and could have hired help, the outcome might have been different.
- The Attorney General’s Opinion – there’s no question Wayne Stenehjem’s opinion that the legislature overstepped their bounds, violated the Separation of Powers Doctrine, and that the law would likely be found unconstitutional in the courts hurt the referral effort. Some folks viewed the opinion as the victory they were looking for and even backed out of the referral effort as a result. Sponsoring Committee Chairman Riley Kuntz attested to this reality of it hurting the effort to The Forum’s John Hageman.
For now, we wait and see how things play out. As a result of the AG’s opinion, State Auditor Josh Gallion has already stated numerous times that he will ignore the law Wayne Stenehjem says is likely to be found unconstitutional. And as we explained in a previous article, he’s right for doing so.
Unless something happens between now and 2021, things should be fairly interesting during the next Legislative Session.
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