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Lloyd Omdahl, Published February 09 2009

Madison’s warning resonates

‘The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

This was the observation of James Madison, the most articulate of the Founding Fathers, when he was explaining in Federalist Paper No. 38 that the branches of government needed protection “against the invasion of the others.”

As in other states, the North Dakota Legislature manifests this inclination for “drawing all power” in a number of ways, most prominently in higher education.

The Board of Higher Education was created as a fourth branch of government when the reckless politics of Gov. William Langer in the 1930s threatened the integrity of the institutions. In reaction, North Dakotans adopted a constitutional amendment to protect the colleges from encroachment by creating this independent board and vesting it with programmatic autonomy.

Even though the Legislature’s authority is now limited to funding, bills wandering into the Board’s administrative turf continue to appear in every legislative session. As for the current session, we have bills to authorize concealed weapons on campuses and to prescribe North Dakota State University – University of North Dakota football games, neither of which is within the scope of legislative authority.

In 1996, the Legislature proposed a constitutional amendment to put the speaker of the House and the president pro tem of the Senate on the committee charged with nominating members for gubernatorial appointment to the board. A low-profile issue, the amendment slipped past the voters and the Legislature now has its nose firmly in the tent.

Then in the 1999 session, the Legislature launched inquiries into the strategy and goals of colleges, a legitimate inquiry for appropriations committees. However, over the past eight years this undertaking has mushroomed into a full-blown forum that engages in a wide variety of subjects that invade board territory.

If this movement goes unchallenged, the Legislature will continue to expand these activities far beyond its constitutional authority. Their attitude reflects what former House Majority Leader Earl Strinden once said – in jest – that the Legislature considered the state constitution advisory. Maybe it wasn’t so much a joke as a wish.

Every session seems to prove that constitutional protection is still necessary because the Legislature continues to be a political institution with political objectives that are sometimes adversarial to the true mission of higher education. Academic freedom, primary research and intellectual integrity could all be subverted for short-term goals and knee-jerk impulses. Higher education is not a political venture.

The Legislature also demonstrates its affinity for “drawing power into its impetuous vortex” in other areas. As an obvious example, cities and counties with home rule charters are never sure from one session to the next which of their powers will be curtailed or abolished. Occasionally, legislators meddle in the executive branch by putting themselves on state boards and committees.

Madison’s advice may be 220 years old, but it still rings true at every gathering of the “legislative department.”


Omdahl is a former N.D. lieutenant governor and retired University of North Dakota political science teacher.