Who’s watching the watchdogs?

One of the critical elements of our system of government is the checks and balances it ensures. The Constitution gives specific powers to each branch to check the powers of the others, ensuring that none can run amock and trample the others and the rights of the people.

In North Dakota, we may have lost sight of the importance of that.

Through an initiated measure a few years ago, an Ethics Commission was created. This wasn’t because of vast corruption or malfeasance by our elected officials but rather because, it would seem, some on the far left (the groups who put the ballot measure together and promoted it) saw it as a way to potentially get at some who they couldn’t defeat at the ballot box.

Of course, cleverly labeled and promoted, it passed with flying colors. If you ask voters if they want to insure against corruption or whether they think “ethics” are a good idea, the answer will obviously be a resounding “yes” and so it was.  

Most voters, however, had not read the voluminous document, the supremacy it created for this new appointed (not elected) commission which, in some ways, is more powerful than those these same voters elect. In essence, the measure created a new branch of government whose mission is essentially to field complaints about elected officials, which will, presumably, often be brought by their political opponents.

Prior to this, those in government essentially policed one another, both because of the checks and balances inherent in the separation of powers and also because of the existing ethics under which they operated, enacted by rule, policy, or law.

When the Ethics Commission was being formed, after the measure passed, the Legislature passed laws relating to it, as it often does to enact measures the voters approve. Vetted by the legislative Ethics Committee, the bill initially included a provision which would have also created a check and balance for the Ethics Commission. But with little notice, it was removed in the final version of the bill—a major error.

It would simply have ensured the same oversight of the rules created by the Ethics Commission as exist for other rules created in state government. Administrative rules have the force and effect of law so this is very important. New law should be passed to establish this important check on unbridled power.

Have we crafted a new, Supreme Branch of Government?

As a result, the Ethics Commission, in both its rules and its rulings, essentially has free rein.  In fact, the Ethics section in the Constitution even says that if anything in it is found to conflict with anything else in the North Dakota Constitution, that it reigns supreme! That’s unconscionable and something few North Dakotans would have agreed to, had they been aware of it when voting on the measure. Just consider the fact that this relatively new, unelected, unaccountable Commission has thus been granted Constitutional supremacy over the executive branch officials, legislators, and Supreme Court justices who we, the people, elect!

The good news, so far, is that those appointed to this Commission have not sought to wield unreasonable power. But recently there have been pleas to increase its power—a troubling sign.

The Governor is right!

The Ethics Commission has recently issued a ruling which may have crossed the line.  It sought to define and dictate how campaign donations could be used, something law currently governs.

To his credit, Gov. Kelly Armstrong called them on it. He has publicly questioned whether the Ethics Commission has the authority to create such public policy.

An attorney and former state and federal legislator himself, he knows well that lawmaking is an authority entrusted to those the people elect to represent them in the legislative branch of government. Hopefully, he also recognizes the absence of an appropriate check and balance here.

The Ethics Commission has reportedly invited the Governor to come and visit with them about this. Let’s hope this results in either the Ethics Commission throttling back its overreach or in its overreach being struck down.  

Let’s hope some guardrails over its unbridled authority are erected soon. Let’s hope the people will strike down the absurdity of one portion of the Constitution having supremacy over all the others.

If there was any doubt, recent developments make it clear that those who were advertised to be the watchdogs in government need more watching, themselves.