This post is the second of three I am doing on the initiated measures we will decide on by November 4th. Rob and all his other cast of supporting bloggers are having fun giving their take on the measures, as am I. Last week I addressed Measures 1, 2, and 3 (Yes, Yes, and Yes). This week I take a swing at the middle of the ballot by reviewing 4, 5, and 6.

MEASURE 4

What it says: This constitutional measure would amend and reenact section 2 of Article III of the North Dakota Constitution. This measure would require that initiated measures that are estimated to have a significant fiscal impact must be placed on the general election ballot. The measure would also prohibit the approval for circulation of any petition to initiate a constitutional amendment that would make a direct appropriation of public funds for a specific purpose or require the legislative assembly to appropriate funds for a specific purpose

My Take: Of all eight measures on the November ballot, this is the one I have gone back and forth on the most. Logically it makes a lot of sense, but philosophically I saw this measure as the proverbial camel’s nose under the tent. North Dakota has a great process giving our citizens one more tool to hold our elected leaders accountable, outside of the actual elections for those leaders. That tool is the initiated measure, and when applied well it can be a great accountability tool.

As I mentioned a few weeks back in my post on the sheer volume of elected offices in this state,  the “if you don’t like your officials than elect other people” argument sounds great on the surface; but when you have to elect roughly one office for every 203 people in the state, the math doesn’t work out. Our bench of quality leaders will never be deep enough to assure the electorate a lot of excellent choices for each office. Another method is needed to hold these elected officials accountable without necessarily “throwing the bums out”, and the initiated measure is that method.

Thus when we want to tinker with this accountability tool, I get a bit nervous, especially when that method is proposed by the very people that get held accountable by initiated measures more often than not. But they have a point with this measure, and here is why.

Spending has no business being written into the Constitution. It simply does not belong there, or the flexibility that same Legislature needs to address the ever-changing needs of this state will be impacted. The Constitution simply isn’t flexible enough to adapt to those needs. That is why it is the perfect place to affirm the rights we have as citizens (rights not given us by the government, but instead ones we already have by virtue of being here) which our government is responsible for protecting on our behalf. We don’t WANT flexibility in that respect. Rights are for the protection of the individual; not a majority, and never for government.

To address those ever-changing needs, our Legislature must be able to pivot funding priorities to ensure people priorities are adequately addressed. That is part of their Constitutional responsibilities. While they don’t always do this job as well as they should (i.e. spending on the wrong priorities, often spending too much or occasionally not enough, etc), the reason the Legislature meets on a periodic basis is in part to pivot that funding where it is needed. When we start putting up fences around funding in the form of constitutionally-mandated spending, those fences have the unintended consequence of serving as an obstacle to fully and adequately addressing the true funding priorities of this state.  Maybe one fence can be maneuvered around, but once one fence is built in the form of mandated spending, more certainly will follow. Soon, you have potential for a maze of fences that will lead our Legislators away from what the true spending priorities of this state should be. That can only hurt us in the long run.

The other aspect of this measure — requiring those measures with a significant fiscal impact be voted on in a General (i.e. November) Election — makes nothing but sense. I do have some concern with the word “significant” though. To me that’s $5.00 when applying my own standards for what significant is, but I also feel challenges to this word can be resolved without too many hurt feelings or proverbial bloodshed.

I also don’t think this part of the proposal goes far enough. I would like to see all measures (except repealers; they need to be a near immediate bind on bad policymaking) — spending or not — voted on in elections where the greatest turnout of voters will generally occur. If we are going to dabble in self-governance, we need as many as possible contributing to the decision. If you want a great example of this, just watch your local school board at work when trying to pass a bond issue. These are rarely done in a General Election, simply because it is harder to slip big spending by voters when they actually plan to show up and vote (although people are waking up to this trick — reference the last special election conducted by the Fargo School Board). That is why these elections are usually special ones, generally conducted in vacation months when no one is paying attention. The same technique is effective for controversial issues which may not always involve spending.

I would also like to see a much looser requirement for repealers, but that is another column for another week.

MEASURE 5

What it says: This initiated measure would add a new section to Article X of the North Dakota Constitution creating the Clean Water, Wildlife, and Parks Trust (the “Trust”) and the Clean Water, Wildlife, and Parks Fund (the “Fund”) to be financed by five percent of the revenues from the State’s share of oil extraction taxes. Ten percent of that amount of annual revenues would be deposited in the Trust with the principal invested by the State Investment Board; the earnings from the Trust would be transferred to the Fund to be spent on programs after January 1, 2019. Ninety percent of the annual revenues would be deposited into the Fund to be used to make grants to public and private groups to aid water quality, natural flood control, fish and wildlife habitat, parks and outdoor recreation areas, access for hunting and fishing, the acquisition of land for parks, and outdoor education for children. The Fund would be governed by a Clean Water, Wildlife, and Parks Commission comprised of the governor, attorney general, and agriculture commissioner. A thirteen-member Citizen Accountability Board would be appointed for three-year terms to review grant applications and make recommendations to the Commission. Every twenty-five years, the people would vote on the question of whether to continue the financing from the oil extraction taxes.

My Take: Have you caught your breath yet after reading all that? Good.

I hate this measure. It puts mandated spending in the Constitution — see my remarks above on Measure 4. It is also very bothersome that the mandated spending has an actual, you know, spending mandate — whether enough legitimate needs exist to spend that funding or not. The crafters of this measure also went out of their way to confuse the public with it’s name, and have followed up on that confusion thorough their marketing efforts. Too many special interests at crossed purposes to the vitality of North Dakota’s economic engines are pushing for it, with too few of them originating inside our borders.

Yes, we all want “Clean Water, Wildlife, and Parks”. But if these ideas are so great, then they are great enough to survive the state budgetary process. If they don’t survive, it is because the devil of the details did not live up to the name of the bill. The same applies to this measure. Great name, but a horrible concept to carry it through should it pass.

Oh, and did I mention even today there exists no bona fide list of actual projects the proponents of this measure would like to divert money too? I am sure that is more by design than omission.

MEASURE 6

What it says: This initiated measure would amend section 14-09-06.2 of the North Dakota Century Code to create a presumption that each parent is a fit parent and entitled to be awarded equal parental rights and responsibilities by a court unless there is clear and convincing evidence to the contrary; the measure would also provide a definition of equal parenting time.

My Take: This measure will refocus on the child be reinforcing the role and importance of two fit parents in their lives. The opponents of this measure claim it removes the focus of custody and parenting arrangements from the child and puts it instead on the parents.

They are wrong of course. The current focus of the family court system has been on generating billable hours for attorneys and grant funding for Social Services organizations at the expense of kids and their parents. It is time that changed.

That is evidenced by the only significant financial support in opposition to this measure coming from the State Bar. This measure will marginalize the role of attorneys in decision making regarding the future welfare of children. They know it, and they are fighting for their survival as an industry. I have no issue with anyone making a legal living (to include in the legal profession), and earning as much as they legally can in doing so. But, I draw the line when it comes to making children pay the price that comes with backwards laws that simply are not working. The current family court system does just that by facilitating and promoting an adversarial environment pitting parents against each other, with attorneys stoking the fire. Kids have not benefited from this arrangement at all. They have instead suffered from it by being denied the benefits that come from balanced access to mom and dad.

This measure is an excellent first step towards reforming a very broken system, while still assuring those parents truly unfit to have a significant role in their kids lives will not. Oh yes, I almost forgot to mention, it will reaffirm the role of the father in a child’s life by giving him more of a fair shot at an equitable (not necessarily 50/50 equal…. a common misconception) parenting arrangement which will promote a true nurturing role for his children, over simply garnishment of wages through court ordered child support. As hard as it may be for those in the Social Services community to accept, many men would prefer this role; they simply need to be given a fair shot at this role. For too long men have had to justify how they are suitable parents — guilty until proven otherwise — while women have been for the most part been given the benefit of the doubt. Now, both parents enter the debate on a level playing field unless there is clear evidence why they should not. That really is what is best for children in the long run.

See you in a week for 7-8!