Law & Principles, Good Government

'Ethics Commission' vs. free speech (again)

December 10, 2020

Trent England

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.