BISMARCK — A North Dakota board historically charged with allocating federal money between biennial legislative sessions has been hamstrung by a new policy that state lawmakers passed earlier this year to give themselves more control over spending decisions.

Now, some lawmakers are rethinking the measure just two months after voting for it.

The Emergency Commission, which includes Gov. Doug Burgum, Secretary of State Al Jaeger and four top lawmakers met Wednesday, June 16, to consider state agencies' requests to spend federal and special funds, but the all-Republican board declined to act on a pair of big-ticket items, citing constraints on its authority imposed by the recently passed legislation.

The law, which went into effect in April, requires the governor to call lawmakers in for a special session if the total amount of federal funds doled out by the commission exceeds $50 million during the two-year budget cycle.

Supporters of the legislation said lawmakers, not the Burgum administration, should have command of the state's purse strings. Last year, Burgum and the commission wielded significant discretion over how the state rationed a $1.25 billion federal coronavirus relief package amongst agencies and programs.

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Burgum vetoed the bill after it passed both chambers of the Legislature, saying it "clearly violates the separation of powers doctrine" and tries to force him to call lawmakers into a special session when they already know the state is due to receive much more than $50 million over the next two years via President Joe Biden's recently approved coronavirus stimulus package. The state has gotten more than $1 billion in spending money from the package, which remains unspent.

Lawmakers voted overwhelmingly to override the governor's veto, pushing the bill into law despite Republican Attorney General Wayne Stenehjem's remark that the legislation is "very problematic and would be difficult to defend against a constitutional challenge."

Senate Appropriations Chairman Ray Holmberg, who voted for the bill and sits on the Emergency Commission, said Wednesday the new law clearly has some flaws. The cap on the commission's allocation abilities was set too low, and large chunks of federal money can't be spent until the full 141-member Legislature convenes for a special session, he said.

"We have boxed ourselves in regarding the receipt of federal money," the Grand Forks Republican said.

Earlier this week, Holmberg assigned an expedited study of the new law to the interim Government Finance Committee, which could result in a recommendation to amend or repeal the policy. Given the problems with the law, Holmberg said lawmakers can't wait until the next regular session in 2023 to readdress the policy and action could come later this year at a special session planned for approving new legislative districts.

For his part, Holmberg said he thinks the law should be repealed, but he noted the interim committee might find elements of the rule that should remain on the books.

Senate Majority Leader Rich Wardner, R-Dickinson, said he thought the parts of the law are salvageable, but the cap on the commission must be raised. Wardner said changes to the law could probably wait until 2023.

North Dakota Senate Majority Leader Rich Wardner, R-Dickinson, speaks at a bill signing on April 21, 2021, next to Gov. Doug Burgum, left, and House Majority Leader Chet Pollert, R-Carrington. Jeremy Turley / Forum News Service
North Dakota Senate Majority Leader Rich Wardner, R-Dickinson, speaks at a bill signing on April 21, 2021, next to Gov. Doug Burgum, left, and House Majority Leader Chet Pollert, R-Carrington. Jeremy Turley / Forum News Service

Holmberg and Wardner said the Legislature will likely look to make some allocations of the incoming federal money at the redistricting session, which could save lawmakers from gaveling in on a separate occasion.

Burgum said Wednesday the law is hindering the commission from taking the simple action of accepting federal funds that could be used for health care and other beneficial services to North Dakotans.

The commission did not act on two requests from the state Department of Human Services on Wednesday to accept millions in federal funds that would mostly go toward Medicaid-related services if approved. Kicking the can down the road until a special session could have "some potential negative impact" because of delays in the programs, said Office of Management and Budget Director Joe Morrissette.

Burgum, whose office sued the Legislature over a similar dispute in 2018, did not express an intention to challenge the new law in court, but noted the policy is "troublesome."

Gov. Doug Burgum reads a speech in the North Dakota Capitol on April 19, 2021. Jeremy Turley / Forum News Service
Gov. Doug Burgum reads a speech in the North Dakota Capitol on April 19, 2021. Jeremy Turley / Forum News Service