North Dakota Can Be a Leader in Requiring Transparency for Political Spending

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Erin Chlopak speaking at a podium
Erin Chlopak testifying before the North Dakota state legislature's interim Judiciary Committee. Photo by Aaron McKean/Campaign Legal Center.

North Dakota legislators are studying the implementation of a new constitutional mandate that could make their state a leader in election spending transparency.

At its most recent meeting, the state legislature's interim Judiciary Committee heard testimony from experts about the problem of secret election spending in North Dakota and throughout the country. Erin Chlopak, Campaign Legal Center’s director of campaign finance strategy, testified on behalf of North Dakotans for Public Integrity (NDPI), the committee that sponsored the transparency ballot measure that passed as a constitutional amendment in 2018.

In her testimony Chlopak described how wealthy special interests pour millions of dollars into state and federal elections, often running ads that are deliberately misleading. Voters need to know who is funding these ads so they can weigh their credibility and cast an informed vote.  

She also explained the U.S. Supreme Court’s long-standing approval of transparency requirements for election spending as foundational to democratic self-government and how loopholes in current state and federal laws allow groups to spend enormous amounts of money in elections without disclosing the true source of that money.

Chlopak identified some key legislative features of election spending transparency rules that will ensure the true sources of election spending are disclosed. NDPI submitted a statement to the Judiciary Committee detailing the legal analysis and examples of secret spending outlined in Chlopak’s testimony.

The Judiciary Committee also heard testimony from former Republican Montana state representative Rob Cook, who gave a first-hand account of how secret political spending had swamped Montana elections, including his own.

In Montana, the cost of a typical state legislative race is relatively low. Cook described how, in 2008, one outside group spent $19,000 in each of fourteen Montana legislative elections—more than four times the amount spent in previous elections—resulting in a significant change in the makeup of Montana’s legislature.

As Cook explained, these outside groups effectively “disenfranchised” local voters, drowning out their voices. And voters had no way of knowing who was behind the spending: no information was available for radio listeners or mailer recipients. “The donors were anonymous, and the money was dark.”

A bipartisan group of Montana legislators, including Cook, passed the state’s Disclose Act in 2015 to illuminate the sources of spending by outside groups and ensure voters could assess for themselves the political messaging used in Montana elections.

North Dakota's new transparency amendment, Article XIV, requires that groups who spend substantial amounts in North Dakota elections disclose the "ultimate and true source" of the funds used for that election spending.

If implemented effectively, the amendment will ensure that North Dakota voters know who is truly funding efforts to influence their votes, even when that money is funneled through organizations with mundane names like, "North Dakotans for a Better North Dakota."

North Dakota’s Legislative Assembly has already passed legislation that begins to address the transparency mandate, but the law has flaws that make it too easy for political spenders to keep their identity hidden.

Among those flaws is the law's attempt to narrow the scope of Article XIV’s transparency requirements by requiring ultimate and true source disclosure only of donations contributed "knowingly" and "solely" for political spending.

This legislative interpretation not only impermissibly narrows the scope of the constitutional mandate, but also allows sophisticated donors to direct large amounts of money for political spending while avoiding disclosing their identity.

Under that standard, a person could donate a million dollars to a group that spends money on elections and shield her entire donation from disclosure by earmarking $100 of the million dollars for non-election expenses.

Following the lead of the voters who passed Article XIV, the North Dakota legislature can improve North Dakota’s law to ensure that it complies with the constitutional mandate and ensures that North Dakotans have the information they need to effectively participate in our democracy.

Voters have a right to know which wealthy special interested are spending big money to secretly influence our vote and our government to rig the system in their favor.

Erin works on appellate and district court litigation and Federal Reform and State & Local Reform programs.
Aaron works with CLC's State & Local Reform program to help state and local stakeholders achieve pro-democracy policy reforms.