On February 22, 2017, The Forum published an article on the North Dakota Legislature’s potential elimination of income-tax breaks for new businesses and residents in Renaissance Zones in cities across the state. (“Tax break reform plan could ‘cripple’ downtown Fargo growth, officials say,” http://www.inforum.com/news/4222469-tax-break-reform-plan-could-cripple-downtown-fargo-growth-officials-say). As noted in the story, one of the biggest beneficiaries of such tax breaks has been Kilbourne Group, which is owned and was previously operated by Governor Doug Burgum.
This legislation sets up an interesting dynamic, as Burgum could veto any final bill to help promote ongoing development in Renaissance Zones. Burgum’s detractors and opponents could use a veto against him, arguing that he is simply trying to help his own bottom line. The conflict of interest is clear.
According to the article, “Burgum’s office said he prefers the Renaissance Zone law ‘in its current form.’” Does this mean he would veto the bill? We do not know because, as the article notes, state law prohibits governors for threatening a veto. As a result, beyond his office saying he prefers the existing law, Burgum has not provided any indication of whether he would actually veto the bill.
From a legal perspective, it is not whether Burgum will veto the bill that is of interest. Rather, it is the question of whether the law prohibiting him from threatening a veto is itself constitutional.
Article V, Section 10 of the Constitution of North Dakota provides that a governor “forfeits all right to hold or exercise any office of trust or honor in this state” if he or she “menaces any member [of the legislature] by the threatened use of the governor’s veto power.” As The Forum notes, this is generally interpreted to provide that the governor cannot explicitly state whether he or she will veto a bill before it is passed by the Legislature. This makes for bad public policy, as a governor’s veto threat can help shape legislation before it is passed, instead of having to wait until it is passed and vetoed. But the prohibition against the governor threatening a veto is also unconstitutional under the First Amendment to the U.S. Constitution.
As the North Dakota Supreme Court has explained: “The First Amendment’s protection of freedom of speech applies to states through the due process clause of the Fourteenth Amendment to the U.S. Constitution. The First Amendment generally prohibits the government from proscribing speech based on disapproval of its content.” In re H.K., 2010 ND 27, ¶ 13, 778 N.W.2d 764 (internal quotations and citations omitted). In this situation, Section 10 of Article V provides a content-based prohibition, as it prohibits the governor from talking about specific content in the form of a threat to veto legislation.
According to the U.S. Supreme Court, content-based laws are “presumptively unconstitutional.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015). Courts normally apply a strict scrutiny test to content-based laws, which require the government to establish the law is narrowly tailored to serve compelling state interests. Id. at 2227. Under this standard, it is hard to fathom a compelling interest in favor of the prohibition that would outweigh both the governor’s right to comment upon bills before the Legislature, as well as the public’s interest in knowing the governor’s position about such bills before they are passed by the Legislature. While the state constitution refers to a governor menacing legislators about a veto, most observers would call a veto threat a normal part of the balance of powers between the legislative and executive branches.
Courts outside of North Dakota have addressed the free speech rights of elected officials and routinely found limitations on elected officials to be unconstitutional. As the U.S. Supreme Court has stated, “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395 (1962). Similarly, the Fifth Circuit Court of Appeals has stated “the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general.” Rangra v. Brown, 566 F.3d 515, 523 (5th Cir. 2009) (overruled on other grounds 584 F.3d 206 (5th Cir. 2009) (en banc)). Of course, any state constitutional provision or law that prohibited citizens from commenting upon bills before the Legislature would be unconstitutional under the First Amendment. The same principle should apply to the governor.
In sum, if Governor Burgum intends to veto the bill eliminating tax breaks in Renaissance Zones, or any other bills before the Legislature, he should proudly declare as much. Governor Burgum and his successors are likely the only ones who have standing to pursue a claim to invalidate the prohibition against threatening vetoes, as a governor is the only one who is directly injured or impacted by the law. North Dakota has previously seen cases where the Governor sued the Attorney General and Secretary of State to have legislation impacting the executive branch declared unconstitutional. See State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D. 1979).
The question is whether Governor Burgum will feel his free speech rights are important enough to potentially upset his relationship with the Legislature. Here’s hoping he does.
Graduating from the University of Minnesota Law School, Mr. Foss clerked for Justice Carol Kapsner at the North Dakota Supreme Court before joining O’Keeffe O’Brien Lyson Foss Law. He now focuses on commercial litigation while also working within all areas of business litigation.