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Ethics commission seeks one‑word caption change to clarify lobby restriction applies to elected officials; opponents point to possible free‑speech challenge
Summary
The North Dakota Ethics Commission asked the Judiciary Committee to add the word "elected" to a code caption so the constitutional prohibition on elected officials acting as lobbyists is clearer; a lobbyist opposed the change and warned of a potential federal constitutional challenge but the committee voted to recommend the bill.
The North Dakota Ethics Commission asked the Senate Judiciary Committee to change a caption in state code to clarify that the constitutional prohibition on public officials serving as lobbyists applies to elected public officials.
Rebecca Binstock, executive director of the Ethics Commission, described Senate Bill 2052 as a narrow drafting change: the commission seeks to add the word "elected" to the caption so readers clearly understand that subsection 2 of section 2 of Article XIV of the North Dakota Constitution — which prohibits an "elected public official" from serving as a lobbyist while in office and for two years after leaving office — applies only to elected officials. Binstock said the commission receives many inquiries from appointed officials (cabinet members, board members and staff) who are unsure whether the constitutional restriction applies to them, and the caption change would reduce confusion.
Binstock told the committee the change would not alter the substance of the law but would align the caption with the constitutional text. She noted that legislative counsel recommended bringing the change by bill to create a record.
Jeff Simon, a registered lobbyist and the former chair of the group that opposed the ethics measure in 2018, testified in opposition. Simon told the committee a federal appeals court (Eighth Circuit) had found a similar Missouri lobbying restriction unconstitutional under the First Amendment and said he expected the North Dakota provision could face a similar challenge if applied broadly. "At some point, I suspect that there will be, perhaps a former legislator or...state office holder who would challenge this," Simon said.
Committee members asked whether the caption change actually alters the law; Binstock repeatedly said the change is aimed at clarifying the existing constitutional limitation. After testimony, Senator Merdahl moved a due‑pass recommendation; the committee voted and the motion carried. Senator Brownberger agreed to carry the bill.
The committee record shows the ethics commission sought the change to reduce advisory‑opinion requests and public confusion about who the prohibition covers, while opposition testimony flagged potential First Amendment litigation risks.
