Will Attorney General Wayne Stenehjem reign in a state agency that blatantly defies the state's Corrupt Practices Act, which prohibits public funding and resources for political activity and promotion of ballot measures?

Or the agency be allowed the law to be ignored indefinitely?

March 28th, 2016

In North Dakota, there is a state-government agency call the North Dakota Center for Tobacco Prevention and Control Policy, which was created at the ballot box in 2008 with an initiated measure.

To be clear, the issue of smoking is not the focus of this article. Smoking is bad for health and everyone knows that. The issue at hand is whether a government agency should have the ability to use public dollars to promote a political agenda, and more importantly, finance private organizations.

As the data below shows, the organizations that are funded by this state agency have now developed a coalition to push a massive tax increase on tobacco products - they call themselves Raise It For North Dakota.

Last week, the coalition funded by this state agency announced a plan to collect signatures and place another measure on the ballot. This time, a 400% increase in the tobacco tax - from 44 cents per pack to $2.20 per pack. Their motivation is to make it so expensive that people want to stop smoking to save money. It is a tax increase strictly to change behavior.

This agency has its own revenue sources that amount to nothing more than a slush fund, designed to promote certain agenda that want to skip over the hard work of raising money from donors voluntarily in order to fast track changes they believe in. This agency essentially operates like a Political Action Committee, except it is a state agency with its own dedicated revenue source.

The fact is, there is already a law on the books to prevent this sort of thing from happening - but it is not being enforced.

The North Dakota Century Code's Corrupt Practices section states:

16.1-10-01. Corrupt practice - What constitutes.
A person is guilty of corrupt practice within the meaning of this chapter if the person willfully engages in any of the following:
1. Expends any money for election purposes contrary to the provisions of this chapter.
2. Engages in any of the practices prohibited by section 12.1-14-02 or 12.1-14-03.
3. Is guilty of the use of state services or property or the services or property of a political subdivision of the state for political purposes.

16.1-10-02. Use of state or political subdivision services or property for political
purposes.
1. No person may use any property belonging to or leased by, or any service which is provided to or carried on by, either directly or by contract, the state or any agency, department, bureau, board, commission, or political subdivision thereof, for any political purpose.
2. The following definitions must be used for the purposes of this section:
a. "Political purpose" means any activity undertaken in support of or in opposition to a statewide initiated or referred measure, a constitutional amendment or measure, a political subdivision ballot measure, or the election or nomination of a candidate to public office and includes using "vote for", "oppose", or any similar support or opposition language in any advertisement whether the activity is undertaken by a candidate, a political committee, a political party, or any person. In the period thirty days before a primary election and sixty days before a special or general election, "political purpose" also means any activity in which a candidate's name, office, district, or any term meaning the same as "incumbent" or "challenger" is used in support of or in opposition to the election or nomination of a candidate to public office. The term does not include activities undertaken in the performance of public office or a position taken in any bona fide news story, commentary, or editorial. Factual information may be presented regarding a ballot question solely for the purpose of educating voters if the information does not advocate for or against or otherwise reflect a position on the adoption or rejection of the ballot question.

You may ask yourself "Why isn't this law being enforced? And why hasn't Attorney General Wayne Stenehjem stepped in ensure this state agency does follow the law?

Both are good questions for the the Attorney General.

In the news story about the latest ballot measure effort, Tobacco Free North Dakota is listed as one of the coalition partners - meaning their resources are going to the effort.

As the chart below shows, Tobacco Free ND has received $454,135 in direct grant subsidies in the last eight years.

The American Lung Association has received $500,839 in direct grant subsidies in the last eight years.

And finally, the most egregious figure, a California-based organization called the American Non-Smokers Rights Foundation (not listed in the article) received $357,885 in direct subsidy grants in the last eight years.

While these organizations have the good intent in curtailing smoking, the question that remains is: should a government agency use public funds for political purposes, or should those public funds go directly to supporting public health?

As the table above shows, just a few organizations profit from direct subsidies paid out by this state agency.

Now, each of these organizations has done good work on their own in history, but do they really need to be subsidized by a state agency?

The state-subsidized supporters of this effort say: "If the measure does pass, 50 percent of the new revenues would go to a veterans tobacco trust fund. The other 50 percent would benefit a community health trust fund."

That is all fine and good, but the fact is, according to the N.D. Treasurer's website, this agency is sitting on $46.7 million in their "trust fund", accumulated over the last 8 years:

As of December 31, 2015 the balance of the fund was $46.7 million.

Established by initiated measure in 2008, the Tobacco Prevention and Control Trust Fund provides funding for tobacco prevention and control within the state of North Dakota. Funding for this fund comes from all payments made to North Dakota under subsection IX(c)(2) of the Master Settlement Agreement. These annual payments began in 2008 and will continue through 2017. To date this fund has received deposits of $82,782,003.59. For additional information about the Center for Tobacco Prevention and Control Policy visit: www.breathend.com.

While the North Dakota Department of Human Services is being forced to cut their budget due to poor budget forecasting and long-term unsustainable spending, this agency is using its revenue to promote a political agenda that will help to impoverish low-income North Dakota's an extra $1.76 at a time.

By coincidence, this $46 million is very close to the $53 million being cut from the Human Services budget.

Shouldn't state revenue go to actually serving the public rather than to special interest groups?

The crux of the legal side of this issue is the fact that the law clearly covers public resources being used to promote ballot measures.

Why should public citizens expend their own resources to either file a law suit against the state agency or find a states' attorney to charge the agency criminally?

Attorney General Wayne Stenehjem should be held to account for why he has allowed this practice to go on for so many years. And he should immediately act to stop this agency from pursuing their current political agenda.

Just because it has been allowed to run wild until now, does not mean it should continue to happen.

Click here to email Attorney General Wayne Stenehjem to urge him to enforce the state's Corrupt Practices laws.

-Dustin Gawrylow, Managing Director

North Dakota Watchdog Network