Law & Principles , Good Government
Trent England | December 10, 2020
'Ethics Commission' vs. free speech (again)
The Oklahoma Ethics Commission is an agency set up to regulate campaign finances and lobbying of state officials. Unhappy with this narrow but important responsibility, the Commission has a history of trying to expand its own power. Tomorrow it will consider a blatantly unconstitutional proposal to regulate “informational materials,” specifically including “books, written materials, electronic, audio and/or video materials,” provided to state officials or employees.
That’s right, the Ethics Commission wants to regulate books, at least if they get into the hands of state officials. We’re unsure what problem they’re trying to solve. Are wind-energy companies buying off regulators with copies of The Wind in the Willows? Maybe the Oklahoma District Attorneys Association is mailing out Silence of the Lambs DVDs to reduce support for criminal justice reforms?
The real problem is regulators looking to expand their own power, along with blatant ignorance of basic constitutional law.
The Ethics Commission’s proposal would make it illegal for a professor at the University of Oklahoma to give a study to a member of the governor’s staff, unless the professor filed a public report of this shady transaction. It would likewise regulate—and potentially criminalize—a staff member at a Boys & Girls Clubs from loaning a book to a state legislator. And if the Chickasaw Nation sent DVDs of their latest television commercials to the Tourism Department? The Commission says: “Papers, please!” File a report or face prosecution.
Nearly every major Oklahoma business, organization, and union hires lobbyists, which means they’re already required to register as a “lobbyist principal.” Any informational materials they happen to provide to someone in state government would be regulated and could become a criminal act if the Oklahoma Ethics Commission approves Rule Amendment 2021-02.
If adopted, would this ultimately be struck down in court? Of course. State agencies cannot regulate basic speech like this unless the rule is as narrow as possible and written to solve a compelling problem. This rule is not narrow, and the problem ... well, there is no problem.
Hopefully, the Commission will vote down or simply withdraw this proposal, rather than set up the State of Oklahoma for an embarrassing court loss.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.