North Dakota's House majority leader has requested a legal opinion about whether a proposed ballot measure would give a federal agency power to dictate state spending on anti-tobacco efforts.

The measure's chairwoman, former Attorney General Heidi Heitkamp, said the timing of the request by Rep. Rick Berg, R-Fargo, was meant "to throw sand in everybody's face, thinking that some of it might blind people to what actually is happening."

Berg on Friday asked Attorney General Wayne Stenehjem to answer a series of questions about Measure 3, which would establish a new fund for some of the money North Dakota is receiving from a lawsuit settlement against the nation's largest tobacco companies.

The measure puts a committee in charge of establishing a comprehensive plan to reduce tobacco use in North Dakota.

It says the effort should be financed using recommendations by the federal Centers for Disease Control and Prevention, which is currently recommending $18.6 million in anti-tobacco expenditures every two years in North Dakota.

"I don't think it's constitutional to allow some agency outside of our state to set the level of state spending," Berg said. "My concerns, when I look at this, is either these (provisions) were poorly thought through when it was drafted, or done intentionally, to give authority that goes beyond what normal agencies have."

For example, the measure says executive committee members of a proposed tobacco control board may take actions that any private individual may do, Berg said. That would include making political contributions, he said.

Heitkamp said the measure requires the Legislature to set money aside in a fund that may be spent only on approved anti-tobacco programs.

Lawmakers are not ordered to spend the money, but the alternative would be to do nothing, Heitkamp said. "It wouldn't make any sense to have it just sit there," she said.

She said the measure's drafters were sensitive to the Legislature's budget perogatives. Language describing the executive committee's powers was taken from state laws that govern the operation of the state Mill and Elevator, she said. She said the fund could not be used to make political donations.

"Everyone … completely understands that this is public money, and the restrictions that you typically would have regarding public money," she said.

Heitkamp said she believed Berg was attempting to generate opposition to the measure by raising questions about it shortly before the election. Its language and provisions have been known since last spring, she said.

"His motivation is that he doesn't want to spend tobacco money on tobacco control. He does not want to invest in those programs," Heitkamp said. "I don't know how to state it any clearer than that."