As North Dakota lawmakers consider House Bill 1521 and Senate Bill 2148, the ACLU of North Dakota has serious concerns about the implementation of Amendment XIV and its constitutionality under the U.S. Constitution.
In November, voters approved the addition of Amendment XIV to the North Dakota Constitution, which tasked the legislature with implementing new campaign finance laws, creating an ethics commission and enacting a foreign political contribution ban. The ACLU of North Dakota opposed the measure prior to the election out of concern that it would institute a host of new restrictions and regulations on political speech and advocacy that would violate the First Amendment rights of all residents. The ACLU did not oppose the creation of an ethics commission in North Dakota.
The ACLU of North Dakota agrees that North Dakotans have a right to know who is spending money to influence the outcome of elections and who is supporting or opposing referenda and ballot initiatives.
However, any legislation requiring disclosure of donor names must be drawn carefully not to sweep more broadly than that. Otherwise, groups engaged in genuine issue advocacy regarding the issues of the day could see their speech chilled. Privacy in one’s associations is integral to the freedom of speech guaranteed by the Constitution – particularly when unpopular opinions are expressed.
This bill isn’t just about election-related speech. It could also apply to speech intended to “influence” state government actions. Citizens calling their legislators to advocate for changes in a particular law or advocacy groups campaigning in support of legislative and regulatory issues that matter most to them might find themselves caught up in trying to figure out these confusing new requirements, or, worse, may find themselves in violation of the law and subject to penalty.
Requiring large or small advocacy groups and non-profit organizations to disclose their donors when they speak about controversial issues like gun rights, religious liberty or abortion would result in less speech about those issues. That is a clear harm to public discourse and a result directly opposed to the values embodied by the First Amendment. To protect the First Amendment speech and association rights of North Dakotans, the state should include precise definitions limiting the application of this law to ‘express advocacy’ of the election or defeat of a candidate for office or the adoption or rejection of a statewide referendum or ballot initiative.
Additionally, it is in the best interest of North Dakotans for legislators to create a robust ethics commission.
The majority of states throughout the country have ethics commissions to protect the integrity of their elections and we support the formation of a similar institution in North Dakota. “The ethics commission not only needs to conform to the requirements of Amendment XIV, but also should be vested with the power to thoroughly investigate any potential ethics violations.