Friday, May 15, 2009

Victory for the First Amendment: Ethics rule deemed unconstitutional

The First Amendment got a boost this week when the office of Kansas Attorney General Steve Six, in an opinion sought by the Governmental Ethics Commission, said that it was their opinion that statutes demanding confidentiality by those filing complaints before the commission were unconstitutional. You can get all the details by clicking here.

The case stems from a complaint filed by Kris Van Meteren against Senator Dwayne Umbarger. After speaking to the press, Van Meteren was fined $7500 by the Ethics Commission for literally speaking to the media about his own case. Apparently, in the eyes of the Commission, once you file a complaint, you can't talk about it. So, if you want your complaint aired in public, it would be better never to actually file a complaint but instead just talk to the media about it. In fact, here is a classic quote from Carol Williams, Executive Director:

"The moment you walk in this door and file a complaint, you are prohibited by law, a class A misdemeanor, of discussing the fact that you walked in here and gave us that complaint.”
-- Carol Williams
Executive Director, Kansas Governmental Ethics Commission
Oct. 19, 2008

Well, today, such shenanigans came to an end when the Ethics Commission, in a secret meeting, dropped the complaint against Van Meteren, as a result of the opinion by the Attorney General.


First of all, we have to give a hat tip to the Kansas Meadowlark, which has been on top of the story since day one. Not only has the Meadowlark done a great job in sharing this story, by doing so they have also shed quite a deal of light on the problems with the Ethics Commission, its structure, and the wisdom various rules it is called on to enforce.

Second of all, regarding those rules, today's developments truly represent the first brush back against what has been an all too powerful entity in the Ethics Commission. Hats off to Kris Van Meteren ans his lawyers for fighting this fight to begin with. A lot of the problems with the Ethics Commission were highlighted in this opinion piece by James Meier in the Kansas Liberty.

The commission has a history of draconian fines. In 2006, it fined Kay O'Connor twice -- for a total of $8,000, for two mistakes that resulted in solicitation letters being sent to lobbyists. No warning, no advice, just a fine.

And who can forget the gigantic fines against former State Rep. Patricia Kilpatrick?

This isn't to say that there shouldn't be ethics rules. Of course there should. But when those Ethics rules violate basic Constitutional principles such as the right to speak -- then the commission itself needs to be "checked and balanced" as well as the statutes that it enforces.

So here are some questions to ponder:

In light of today's decision which basically admits that the confidentality rules are unconstitutional, are there other ethics statutes also unconstitutional?

For example, does the state law which bans anyone campaigning for office, including those not even elected yet, from soliciting donations from lobbyists during the legislative session, violate the first amendment?

Do those same rules violate the lobbyists right to free speech as well, by restriciting their ability to contribute?

While the rules are intended to prevent quid-pro-quo types of deals, couldn't a law be passed to prevent dollars-for-votes while still allowing donations and thus protecting the first amendment?

Similarly, does the state law which bars PAC's and businesses from donating to campaigns during the legislative session also violate the first amendment? Aren't PACs and businesses, by definition, collections of individuals?

Not only that, does not the law favor incumbents? Incumbents, for months proceeding the legislative session can seek out donations from lobbyists, while challengers, particularly those in primaries, who are likely to decide to run during the legislative session of a particular election year, are not be able to seek those donations until Sine Die, which is just 2 months prior to the primary. This seems to be more about incumbent protection than anything.

Finally, on that note, even though donations (and soliciation thereof) are allowed by individuals who are not lobbyists during the legislative session, could the fear of a $5,000 fine make a campaign so fearful of accidentally sending a letter to a lobbyist, that they don't send one at all , even to individuals-- and therefore have the effect stifling of free speech as well?

There are other issues as well, beyond first amendment considerations. Some of them are just practical:

1. Regarding the ban on solicitation of lobbysts, should not the burden of the law be on the lobbyist who receives the letter, not the candidate, who with either a small or non existent staff, may accidentally send one to the lobbyist? What's the harm in the lobbyist receiving the letter, unless the lobbyist actually then donates? It seems completely silly to penalize accidental mistakes.

2. Furthermore,wouldn't it make sense to revise the law and simply make campaigns put a disclaimer in any solicitation regarding the prohibition of lobbyists to donate? That way, even if a letter were to end up in the hands of a lobbyists, there would be no question that the letter was not intended to get there? We already require the "Paid for by" disclaimer -- why not this one instead, rather than draconian fines on mistakes?

3. There is also the issue of the size of the fines in some cases. It seems that the $7500 (though rescinded, if Van Meteren hadn't protested it would have stood) and the $8000 for O'Connor were excessive given the crime. It seems that heavier fines should be reserved for those who are breaking the spirit of the law -- i.e., soliciting donations for votes on legislation; misuse of campaign funds for personal purposes; and the like. Perhaps a cap on fines for various violations should be explored.

4. It seems to us that simple full disclosure of contributions and expenditures should be enough to discourage most campaign expenditure abuse. If Candidate X wants to spend $200K on something, his own contributors should be the police force for that, shouldn't they? And not 9 appointed bureaucrats?

5. Finally, there is the issue of the structure of the commission itself. Who checks the commission, other than the courts? Is the current system of appointments by certain elected officials wise anyway, particularly if most of those are occupied by one wing of one party? The party-breakdown rule seems silly too -- all a Democrat would have to do is appoint a liberal Republican and get the same result, or vice versa. There should be some check not only against first amendment violations, but regarding penalties that don't fit the crime as well as politically-motivated penalties as well.

Here is what we would propose:

1. Scrap the commission as is, at least as far as the 9 member board goes. Explore a new commission that would allow greater input from a larger body of elected officials and more checks.

2. Do a complete review of all "ethics" laws as far as campaign donations go. Use common sense in making changes. Ensure the laws do not stifle political activity and speech thus the first amendment.

3. Seek out legal opinion as to the ban on soliciting lobbyists donations during the legislative session, but most particularly, as to the constitutionality of the bans on businesses and PAC's donating during the session.

4. Overturn the ban on businesses and PACs donating during the legislative session, but increase the penalty on proof of "dollars for votes" trading.

5. If the ban is kept, simply require a disclaimer for candidates sending out letters, in case it lands in the wrong hands. Steer the law towards actual solicitation, such as in person meetings or vote trading.

The good news is that the decision this week will likely serve as a boost for legislation in this regard. It's time to reform the Ethics Comission to ensure the statutes themselves, as well as the decisions coming out of those statutes, are ethical themselves.