Law & Principles
Ray Carter | December 14, 2020
Ethics Commission targets ‘informational materials’
The Oklahoma Ethics Commission has temporarily tabled a proposed rule that would require lobbyists and nonprofit organizations to report when they provide certain “informational materials” to state lawmakers.
Commission officials said the rule was intended to prevent the use of rare books as legislative bribes, but a wide range of critics warned the regulation was overly broad and would effectively curtail free-speech rights.
“I am weary of coming before this body and spending the precious nonprofit resources that are given to us to hire attorneys to defend ourselves against rules that are proposed by this body that ultimately end up finding their way to being illegal in court or struck down by the Legislature,” said Jonathan Small, president of the Oklahoma Council of Public Affairs. “Instead of resources that the Oklahoma Council of Public Affairs, the NAACP, the Sierra Club, the ACLU, the Red Cross—you name it, you pick your favorite nonprofit in Oklahoma—being spent on serving those individuals that we are intended to serve, they’re being spent having to deal with and pay general counsel to analyze yet another proposed rule from this commission.”
The proposed Oklahoma Ethics Commission regulation, which was considered during the group’s regular December meeting, states that “books, written materials, electronic, audio and/or video materials, and similar informational materials” may be provided to the governor or members of the Legislature, but only “provided such informational materials are related to the recipient’s duties as an officer or employee of the State of Oklahoma.”
The regulation requires those who provide “informational materials” to executive- and legislative-branch officials to report those activities to the Oklahoma Ethics Commission in many instances.
The proposed regulation was advanced following a preliminary injunction issued in July by Chief U.S. District Judge Timothy D. DeGiusti that barred the Oklahoma Ethics Commission from enforcing a similar rule. That case focused on the Institute for Justice’s plan to distribute a $15 book to officers and employees of the state’s legislative and executive branches.
The Institute for Justice argued the Ethics Commission rule violated the organization’s First and Fourteenth Amendment rights by restricting the ability to distribute informational materials to state officers and employees and petition the government.
In his order, DeGiusti wrote the Institute for Justice had demonstrated “a sufficient likelihood of succeeding on the merits.”
While the Ethics Commission argued its ban on informational materials in that case is similar to limits on campaign-speech through contribution limits, DeGiusti wrote that “the relationship between the distribution of informational materials to public officials and what is traditionally understood to be ‘campaign speech’ is simply too attenuated.”
DeGiusti noted that the case “involves something much different than financial campaign contributions. Bottleneckers, the book in question, is meant to inform and educate public officials about a topic of public policy; this is not something that squarely falls under the typical ‘campaign speech’ categories—such as contribution limits, expenditure caps, and political funding disclosure requirements.”
Critics of the Ethics Commission’s latest proposed regulation said it contains many of the same flaws identified in the regulation at the center of the Institute for Justice case.
“This rule can only be constitutional if it is narrowly tailored to preventing corruption or its appearance,” said Shauna Peters, an official with the Oklahoma Society of Professional Advocates, a statewide group of lobbyists and government affairs professionals. “This rule is anything but narrowly tailored to that legitimate interest at this time. The rule sweeps a broad array of speech that has nothing to do with preventing corruption.”
Under the rule, she said it would be illegal to provide a pamphlet on judicial philosophy to a judicial-branch official.
“The rule severely burdens speech by requiring an enormous level of reporting,” Peters said. “The rule is so broad and the definition so elusive as to be virtually limitless in scope.”
“My concern is just ‘information materials’ is such a broad concept,” said Josh McGoldrick, general counsel at the Oklahoma Department of Commerce. “I mean, essentially anything or almost anything can be a legislative or informational material.”
He noted the agency routinely provides summary documents for legislation and proposed bill language, and said it appeared any of those documents could fall under the proposed rule.
“We just don’t want to be in a position—and the way it’s drafted, it sounds like we might be—to where we have to report on every email we provide to a legislator,” McGoldrick said.
Attorney A.J. Ferate said the proposal is “far too grand, far too large, and frankly, reaches even farther than the previous regulation that the judge has declined.”
Ferate said the commission should focus on “not only doing its duty, not only fulfilling the mission, but not attempting to overreach and create new regulations in new places where, frankly, there may not have been any sort of issue in the first place that needed to be addressed other than someone thought it was a good idea.”
“This is an attempt to expand this body’s regulatory power in an area that a judge has already had to step in and smack you all down,” said Trent England, David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs.
Numerous other officials submitted written comments opposing the proposed regulation.
Don Spencer, president of the Oklahoma Second Amendment Association, wrote that the proposed rule “appears to completely ignore our First Amendment right and has the full intention to prohibit free speech and related activities.”
John Tidwell, state director of Americans for Prosperity, called the proposed rule a “vague and ambiguous” measure that “advances no legitimate governmental interest and would do little to ensure ethical conduct. He warned the regulation “would impermissibly infringe on the constitutionally protected right to freedom of speech” and “insofar as it dissuades citizens from engaging in the political process and creates a disincentive for distribution, could damage the quality of political discourse.”
Attorney Geoffrey D. Long wrote, “Lobbyists, lobbyist principals, and any other interested party should be free to broadly provide informational materials to the legislature that relate to the legislature’s purpose and function. Restrictions and burdensome reporting requirements are inconsistent with the freedom of interested parties to petition their government and advocate for their policy positions.”
Howard L. (Bud) Ground, a lobbyist, noted that lobbyists routinely provide lawmakers position papers and talking points about legislation.
“These informational materials are worth only pennies and the burden on a lobbyist to report these materials would be enormous,” Ground wrote.
In response, Ashley Kemp, executive director of the Oklahoma Ethics Commission, said similar regulations have already been applied to state vendors, but not to lobbyists, and that critics did not understand the regulation.
“There’s this blurring of ‘written communications’ and ‘informational materials’ that’s going on,” Kemp said, adding that “those items are separate and distinct.”
The website Law Insider defines “informational materials” to include “press releases, advertisements, brochures, flyers, handouts, web pages” and similar materials.
Commission officials also said the intent of the regulation was to bar the gift of expensive books as a form of bribery.
“If a person, a lobbyist, gave to a legislator a unique book that had been purchased at Sotheby’s for $10,000, would you say that the Ethics Commission doesn’t have any right to regulate that?” asked Commissioner Charlie Laster, a former state senator.
“If that’s the reason for this, that legislators are being bribed with expensive books, this is not what you’d write,” England responded.
During a lengthy discussion period, members of the commission voiced support for making significant revisions to the proposed rule to reduce its scope. Kemp often argued against making those changes.
Laster said the proposed regulation should be rewritten to make its purpose clear.
In response to public feedback, Commissioner Jarred Brejcha suggested the reporting requirements should be removed.
“Unless that information material is the $10,000 book, I don’t know why we’re worried about it,” Brejcha said, “because it seems to open up so many other problems and issues.”
He suggested officials should only have to report items as gifts that have a specific monetary value.
“If we’re going to say this isn’t really a gift because it’s informational material, and it doesn’t hold some kind of economic value that’s going to create an ethical dilemma with the giver and receiver, then I don’t know why if we’re not going to regulate it why we need to monitor it either,” Brejcha said.
Kemp pushed back against that suggestion and argued for mandatory reporting of informational items as a form of “public transparency.”
“The reporting aspect becomes important because, while citizens of Oklahoma may not care if a state officer or an employee receives a book or a manual that explains something that’s related to their job because it assists them in fulfilling their responsibilities to the state of Oklahoma, I think they very much do care if they receive a first edition book that then can be sold for $10,000,” Kemp said.
She also said reporting of lower-value informational materials was needed for the commission to determine if a gift was job-related or not.
“From an enforcement standpoint, if it’s not being reported, how would you know whether or not it was related to their responsibilities as a state officer or employee?” Kemp said.
The commission set aside the regulation but is expected to take up potential revisions at a special meeting later this month.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.