In The Legislature, A Debate Over Direct Democracy Versus Representative Democracy


Today the House Judiciary Committee played host to a packed room full of people testifying on HCR3011 which would, if passed by the legislature and approved by voters, amend the state constitution to put some limits on the initiated measure process.

Here are the changes proposed:

* Measures with more than a $20 million fiscal impact can only be approved on general election ballots, not the June primary ballots.

* Petition circulators cannot be paid at all.

* The total amount of signatures required must include at least 3% of the resident population from 50% of the state’s counties for changes to statue, and 4% for constitutional amendments.

This is just one of several proposals intended to change the initiated measure process in the wake of rampant signature fraud involving two measures and a group of NDSU football players.

Another amendment, SCR4006, has already been passed by the Senate. That one would require that measures with a more than $50 million impact be subjected to a legislative vote. If more than 60% of legislators vote against the measure approved by the voters, it fails.

For obvious reasons, these proposals and others have set off a lot of debate. Many of my conservatives friends tell me that this is an assault on their 1st amendment rights. But what’s really going on is a debate about two different forms of democracy – direct democracy versus representative democracy – and it’s one our founders had at the dawn of our nation.

“A pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit no cure for the mischiefs of faction,” wrote James Madison in the Federalist papers. “A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

What Madison was afraid of was the rights of the individuals being tramped by mob rule. And really, that’s what direct democracy is. Governance through the rule of the mob.

Don’t get me wrong, voters should have an outlet through which they can take governance into their own hands. The question is, how easy should that process be?

The bar is set pretty low in North Dakota right now, and I’m not so sure the process shouldn’t be a bit more arduous. And subjected to legislative scrutiny. We can all say cynical things about the politicians we elect to represent us, but more often than not policy produced by elected officials through the legislative process is going to be superior to that enacted through popular vote.

I think changing the law should be a difficult process. I wrote earlier this week about the growth in the size of North Dakota’s code of laws since territorial days. We’d all be served well by slowing the process down a little bit. That’s what this amendment does for the initiated measure process, and my only criticism is that we ought to amend the legislative process to require super-majority votes to pass all laws.

If we’re going to establish policy we all have to live under, what’s wrong about an arduous and lengthy process that requires broad consensus before said policy is established?

Rob Port is the editor of In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters.

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  • reggy

    Banning the payment of petition gatherers might be the most hypocritical pile of crap I’ve ever seen. Campaigns can spend on staffers and get out the vote employees, but citizen initiatives can’t?

    • Rob

      That’s a really good point.

      I think the sort of reform i’d like to see would be more about giving the legislature a veto over initiatives passed by the people.

      • Rick Olson

        Rob, they do have a veto of sorts under the present law, constitutional mandate. The Legislative Assembly may amend or repeal an initiative that has been passed by the people only with a two-thirds vote of both the state House and the state Senate within seven years of said initiative being approved by the people and being enacted into law.

        Just as an example, let’s say a group is finally successful in getting the pharmacy ownership law overturned via an initiated measure. The only way that the Legislature could repeal that within the first seven years of it being approved by the voters would be by a two-thirds vote of both the House and the Senate at the next legislative session, or at a special session of the Legislature, called by the governor for that purpose.

        A special session to repeal an initiated measure would only take place under very extraordinary circumstances, as neither the governor nor lawmakers would want to be seen as interfering with the will of the people. Some big time issue would have to come to light that would require the initiative to be invalidated, thus requiring immediate legislative action. I’m pretty sure that before a special session would be called for, most likely, a lawsuit would be filed by an aggrieved party or parties to seek to have the measure declared unconstitutional by the courts. In order to do that the plaintiff(s) would need to be able to convince a judge that they have been personally harmed in some way by the initiative becoming law. In other words, they would need to have the proper legal standing in which to file their lawsuit.

        Once an initiated measure is approved by the voters, it generally becomes law in 30 days following the election in which said measure was approved by the voters in. The measure is enacted into law and written into the Century Code following the required canvassing of the votes by the state canvassing board. I believe the above also applies to referendums.

      • SusanBeehler

        Why? If people vote for why shouldn’t they have it?

      • Rick Olson

        Some states that have the powers of initiative, referendum and recall already give their legislatures the right to veto initiatives passed by the people. I don’t have a list of those states right at hand, but I think Michigan is one of them. In other words, an initiated measure in those states has the tangible effect of being merely advisory upon the Legislature. Before an initiated measure that is passed by the people goes on the books, it has to be approved by the Legislature and signed into law by the governor as any legislative bill would.

    • Lynn Bergman

      Campaign staffers have NOT been charged with breaking laws. Circulators of petitions HAVE been charged… with increasing frequency. Campaign staffers who work on North Dakota campaigns are responsible for more candidate losses than candidate wins. In such cases, only the candidate loses. When a paid vendor solicits for signatures, the incompetence of such a vendor has resulted in far more damage than the loss of a single race for public office, namely the failure of scores of people who expected to see their issue placed on the ballot. Because the initiative and referendum are BOTH being attacked with a vengance, by the legislature in this session, the elimination of paid solicitors is, at once the ONLY… and the MINIMUM action that must be taken.

      • SusanBeehler

        I disagree. Our legislators are paid by the taxpayers to make laws. It is not FREE to petition. Time and resources are expended. Legislators get mileage, hotels and meals reimbursed, why shouldn’t we at least be able to cover costs. It will take over 500 hours to collect the needed signatures to get something on the ballot, a legislator can get something on a ballot with a couple of meetings and swoop of their pen. When the “tryanny” of government needs to be address with out use of the 2nd Amendment, the 1st is the way to go!

  • Rick Olson

    The purists out there would say leave the initiative, referendum and recall powers as they are; and do not make the process any tougher. I also would be okay with allowing legislative oversight in the process in the ways described under both measures. However, as we saw with the debachle over this past summer with those NDSU football players being charged for petition fraud, I think the system that we have does need some tightening.

    • RCND

      I think a better option than legislative review is to allow the Legislative Council to attach a fiscal note to the circulated petition with the language of the petition itself. Then those signing the petition can decide for themselves if the cost is worth their signature.

      • Rick Olson

        I think that would be a good idea as well. In other words, when a sponsoring group for a measure turns in their paperwork with the secretary of state, seeking permission to begin the petition circulating process; the secretary of state’s staff would be required to request a fiscal note from the Legislative Council staff first, before the measure could be approved for circulation. I know there are a lot of sitting legislators who will determine their votes on a particular bill that is up for consideration just based upon the fiscal note.

    • SusanBeehler

      Yeah like the people who hire do a better job minding their employees aka football players

  • The Fighting Czech

    Well we really have found ourselves in a predicament…. as you said democracy is another name for Mob Rule…. not a very good way to run a country…. or the Representative form of government we currently use… of which we elect the people who abide by mob rule, via polling data, in order to maintain their political power at election time. is there a third choice?

    • Roy_Bean

      Right now the legislature meets for 80 days every 2 years and it’s relatively easy to initiate or refer a law. I think we should implement all these restrictions on initiative and referendum and then have the legislature meet for 2 days every 80 years. That would cut down on stupid laws.

      • slackwarerobert

        Or, you can only write a law in one session , and vote them up or down in the following one. That way you have two years to analyze and study any law before they can implement it. Gives you 24 months to campaign against stupid ideas. special interests would go bankrupt trying to sway the idiots for two years.

  • camsaure

    I like to idea to be able to refer a dumb/bad law. But the ability for out of state special interests to influence and get laws forced upon us (ex; smoking ban) not so much. After this legislative meeting, I can see the need to get rid of a bunch of dumb laws.

    • SusanBeehler

      Smoking ban was not out of staters.

    • Mike

      If an idea comeas from out of state, only North Dakotans can sign the petition and only North Dakotans can vote on it.

      The legislative process is also heavily influenced by out of staters. Look up ALEC (American Legislative Exchange Council).

      The only difference is that it’s harder to buy a majority of voters than it is to buy 72 legislators.

  • Mike

    I think some of these responses are tantamount to banning alcohol as a response to DUIs. The solution is to get tougher on petition fraud. There is a bill to do that, which is a step in the right direction. The problem was falsifying signatures, not people getting paid to circulate petitions.

    • Lynn Bergman

      The problem with the NDSU students was that they were paid and that they took illegal shortcuts in order to maximize the rate of such pay. If North Dakota citizens feel strongly enough to initiate or refer, they should be willing to do it themselves… Money should not be the prevailing factor in the success of any measure to be placed on the ballot.

      • SusanBeehler

        It is not about the money it is about our First Amendment right. And why shouldn’t we allow some form of reimbursement the NDSU fiscaso is no reason to through out a process which we have used for years.

        • slackwarerobert

          I could see maybe a 1-2 year ban on an organization that hires crooks as a simple remedy. But that goes on the head of the company so they can’t just change their name like ACORN did.

  • JoeMN

    what’s wrong about an arduous and lengthy process that requires broad consensus before said policy is established?
    But knee jerk law based on feelings and emotion requires haste.

  • Waski_the_Squirrel

    It should be difficult to pass a law. Our government is designed to make passing a law an arduous process. We don’t want knee-jerk or emotional laws. We want laws passed slowly after a lot of debate and reasoning, long after the emotion and feelings have worn off. Laws are not meant to be quick responses. The executive branch exists for quick response.

    One fear I have with ballot measures is that those who pass the law are not on the hook for a dumb law or for the unintended consequences. The passage of the smoking ban is just one example. Nobody who voted for it had their name attached to that vote. When my senator or representative votes for a law, I can hold them responsible in the next election.

    Voters want things done, but they don’t like the consequences and tradeoffs, or to figure out how to pay for it. The more we can drag out the process of passing a law, the better.

    • SusanBeehler

      If you want it to be a slow process and alot of debate and reasoning, you must not have been to the North Dakota legislature. 100’s of laws are decided in a few short months every other year.

  • Rick Olson

    Unfortunately, there is really no way to keep out of state interests from the ballot measure process in North Dakota. All the law requires is that each measure have a sponsoring commitee of no fewer than 25 qualified North Dakota voters, and one of the committee members is designated the committee chairperson. This is simply a legal requirement and the sponsoring committee doesn’t even have to meet together as a group. I’ve been a sponsor on a few ballot measures and was never asked to attend a meeting of the sponsors.

    As far as out of state interests are concerned; there is presently no law to prevent that. As long as the sponsors of the measure as alluded to above are qualified North Dakota voters (the law refers to them as qualified electors), then all is good.

    I am also okay with not allowing petition circulators to be paid whatsoever. It seems to me that a ballot measure campaign should be a totally volunteer effort, as the spirit of the initiative, referendum and recall throughout North Dakota history have been. At present, the law says a sponsoring group cannot pay circulators per signature i.e., pay them on commission for each signature obtained. The circulators may be paid an hourly salary, a flat fee, etc. for the time they devote towards obtaining signatures; and any money paid out in this manner by the sponsoring group of the measure must be disclosed in the campaign finance disclosure reports of the ballot measure organization; just as they are required by law to report all money received, campaign contributions, etc. as well as all money spent.
    We all know what happened with those NDSU football players who got caught up in that ballot fraud case here in Fargo; and if those guys weren’t being paid for circulating the petitions, this likely wouldn’t have happened. They obviously had incentive to turn in questionable signatures, ones they wrote in themselves, etc. All definitely illegal.

    • SusanBeehler

      I am sick of hearing “out of state” interests, North Dakota is not an island, we are part of the United States. The government welcomes businesses with incentives and tax exemptions they bring jobs to North Dakota, we can’t all be farmers and people who serve the ag industry.

      • John_Wayne_American

        so you’d be ok with for say, Continental Oil, to pay a couple hundred folks 2-3000 dollars per week to promote drilling taxes to be eliminated? or drilling in downtown Medora? How about BNSF paying a few grand a week to 500 “volenteers to collect sigs, to allow railroads to charge whatever they want to ship oil, coal and grain, our PSC be damned?

        • John_Wayne_American

          my point is, it is really cheap to run a race in ND, as soon as the out of state folks realize this, ND will be the beachhead for spreading whatever they the out of state interest groups want to spread.

          Look at the Berg vs Reid I mean Heitkamp race, look at the money dumped into ND it can and will happen again.

          • SusanBeehler

            And you have run a North Dakota state campaign?

          • John_Wayne_American


            You really cannot be that ignorant on how the process works, Big oil rail, pharma, Organized labor, AARP whoever, hire a consulting group, they design a budget and a plan and then they try to step back out of the spotlight and hope there name doesn’t get mentioned in the news…

            Some special interests could very well afford to spend whatever it might cost to get their issue on the ballot, then once accomplished the consulting group, sets up a budget for the election, which is far far cheaper to market there issue in ND than say FL, OH or NJ. After 3 months of marketing the message that connects with the majority of low to no information voters the measure has a great chance of passing.

            The smoking ban seems to me a recent example.

          • SusanBeehler

            so you think this is a problem and I freaking don’t

          • John_Wayne_American

            apparently you work for a consulting group since you didn’t find a single point of my observation as incorrect.

            It will be a problem when special interests chip away at our liberties till there is nothing left to take.

            I pity you.

          • SusanBeehler

            Obviously you are willing to give up a liberty you do not use because this proposed legislation is restricting something as an individuals we can do now for no other reason than retaliation for M2 it has nothing to do with power for corporations they exercise their power directly with legislator if you can’t see this than how can you even defend your position on the 2nd Amendment. The 1st has to be protected because it comes before the 2nd. Both were enacted to 1st and 2nd amendments are to protect from “tryanny” of the government not the “tryanny” of a corporation.

          • slackwarerobert

            See, the follow up to a smoking ban is a ban on sales. Once the state can’t get the tax money they will repeal the ban on smoking.

          • Rick Olson

            All one has to do is look through the campaign finance disclosure reports from the 2012 election; and you’ll find that the three major North Dakota Congressional candidates — Kevin Cramer for the U.S. House, and (now-former) Congressman Rick Berg and Heidi Heitkamp for the U.S. Senate — themselves were outspent by nearly 4-to-1 by out of state special interest groups, such as Harry Reid’s Majority Pac.

            For every one ad that Rick Berg and Heidi Heitkamp’s campaigns ran, there were about three or four ads out there that were being run by these out of state special interest groups.

            Now that Heidi has been sworn in to the U.S. Senate, she is already toeing Harry Reid’s line. (Surprise…surprise…) Senator Reid poured millions of dollars into Heidi’s campaign, so now she owes him. Big time.

            Harry’s millions mostly came through the third-party advertising his political action committee sponsored to tar and feather Rick Berg in the eyes of North Dakotans. Heidi won the election thanks to public opinion…Harry Reid made.

            I agree that mass advertising buys in North Dakota can be made fairly cheaply. It’s happened before and it will happen again.

        • SusanBeehler

          When if ever did any corporate write a petition in North Dskota? Do you think they own there employees? I can’t imagine a railroader or a rigger circulating petitions for their company. They have business to conduct no time to run around asking for a vote on the stuff you suggested . You don’t know much about companies or running a business do you? They pay lobbyist to do the influencing of legislators they have to gather signatures to get what they want

        • borborygmi

          Thought they already did;. What was the deal Ed got?

        • slackwarerobert

          The interesting question is cutting out a tax which costs nothing to the state to not collect, still considered a cost so they can stop it?

      • Rick Olson

        Susan, look around you. In many ways, we ARE an island, and unfortunately; many people here in North Dakota like it that way just fine. That is why we are so behind the times on many matters of public policy.

        Several cases in point would include the Pharmacy Ownership Law. We’re the only state in the country which mandates that a pharmacy be must be owned by a licensed pharmacist. This more or less prevents competition in the pharmacy industry and thus artificially drives up prescription drug prices as a result.

        Also, we’re the only state in the country which mandates that retail stores cannot be open for business before 12 noon on Sunday as a state law. I understand there are some local jurisdictions in other states which mandate the later opening on Sunday, but to the best of my knowledge, North Dakota is the only state which still has this strict of a statewide blue law.

        I realize that this is the 21st century; but there are a lot of people in this state who quite frankly are frightened of change. They are the same people who will have to be dragged kicking and screaming all the way into accepting change.

        These people are largely the same folks who’s battle cry is: “This is the way we did things 30 years ago and by golly, this is the way we shall continue to do them!”

        • SusanBeehler

          I agree with you. The petition process is not an area that needs to be addressed at this time. Your statement “This is the way we did things 30 years ago and by golly, this is the way we shall continue to do them!” really rings true with the legislature on the speeding fines, they have not been changed since the 80’s and speed is a killer. Fines are a deterrent and this is a major safety issue on our streets and highways.

          • Rick Olson

            Exactly. No arguments from me about the speeding fines. What is it, $5 per mile over the speed limit on the interstates? So, ten miles over the speed limit would cost someone $50. Mere chump change to many motorists. I’ve had more than a few people tell me something to the effect, “I can’t afford not to speed through your state.” Even if they do get stopped by a state trooper, deputy sheriff or whoever, the fine is a pittance compared to other states.

          • slackwarerobert

            If that many people are getting tickets, it isn’t your fines are to low, it is your speed limits are to low.

  • Janne Myrdal

    A constitutional republic is what we hv. Not a democracy. Representative republic is indeed hard work. If one does not approve of or like what an elected official does then un-elect him/her. Hard work. Of course we now have greater issues of voter fraud, so that is of grave concern.

    • SusanBeehler

      Sometimes you get someone even worse and the process is not as effective, efficient when it comes to exercising your 1st Ammendment right “Congress
      shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

      Just as the Second Amendment is to protect our citizens from government tyranny, so is the First Amendment.

      The Declaration of Independence basically was a statement charging the king with
      ignoring the colonists petitions. “In every stage of these Oppressions We have petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.”

  • borborygmi

    Didn’t the founders fear democracy and the rule of the mob thus we have representative democracy. We are a Republic. Up to us to vote the bums out as long as they are your bums.

  • slackwarerobert

    Except for the legislature veto. I don’t see anything really bad in the proposals.
    Now I would like to add the option of the PEOPLE getting to veto those big spending bills as well when the state passes them. We need a check on them, not the other way around.
    But you also need to let the authoprs of a proposal to write the ballot text. To many times the state rewrites it to confuse and obfuscate the ballot. remember texas had one to end discrimination and treat everyone equal, and they wrote it up as discriminate against blacks or some such stupidity.

  • Commonsense North Dakota

    Falks did you know we are putting more money than required into the legacy fund. We have so much money they do not want the public to know.Yet Al Carlson was blaming the 800 million impact of measure two Wensday as if the sky was going to fall. The legislature would have been in total Armageddon according to his testimony. But it’s ok to give 700 million dollars to out of state students to fill up our colleges. Mr Carlson has demonstrated true hypocrisy, I heard His speech on the seat belt issue and His concern claiming this issue was about liberty, what a crock. He is just like those in Washington who have sold out. He does not understand that the first amendment came first for a reason. It is the most sacred of all the amendments, and with out it we would have no other amendments. The attack on the petition process in North Dakota is pure and simple corruption. It is a major power grab for all the billions now and for the future. When we have Senators like David Hogue who say it’s ok to take rights away from the voters if the voters vote for it. These are not Republican principals by any means and certainly not American. Rep. Kieth Kempenich told a committee that we need to make the petition process so difficult because the voters are dangerous. Who are these people and why are they still in office. If they do not want to defend our Constitution and represent the people they should resign from office. They act like this money is theirs to do with what they want. Representative Maragos from Minot bragged about how easy it was to get 30,000 signatures and no one should ever get paid to circulate a petition. If he believes that then why does he think it’s ok for him to take tax dollars to be a legislator, that’s a civil service position. At least petition circulator’s are paid for with private dollars. But what about the 100’s of thousand of dollars to oppose measure two. It was paid for by more then half of out of state money. Are any of these legislators complaining about that. NO !!!!. You see, complete hypocrisy and corruption. Please stand up for the people of North Dakota and not the special interest that have invaded this state. Charles Tuttle Minot