On Monday the Oklahoma Ethics Commission staff issued a revision to proposed rule 2019-02. Interestingly, it is labeled as “Option 2” not “Revision 2”. Does this mean they are giving the Commissioners two choices? You can read the revised rule here: https://www.ok.gov/ethics/documents/2019-02%20proposed%20Long%20indirect%20lobbying%20option%202%20revised.pdf From a practical standpoint the revised rule is still a nightmare for “grass roots” lobbying.
For example, Rule 5.2.6.a defines indirect lobbying as any communication advocating support or opposition made through a paid advertisement. No dollar amount for advertising is included in the rule. Thus I could spend as little as $5 on a facebook ad and be involved in indirect lobbying and subject to its requirements. Or I could pay for an ad in the Bartlesville Sunrise Reporter, or pay for an ad in the Bartlesville Examiner-Enterprise and I would be subject to the Indirect Lobbying rules. Note that I said “I.” The rule applies to individuals as well as organizations. As I read it no entity could engage in paid advertising regarding legislation without becoming subject to this rule. Those who provide advertising space better take notice because this may cause your revenue stream to decrease. This will certainly discourage me as an individual from engaging in grass roots advocacy through the medium of paid ads.
But it gets worse. Rule 5.2.6.c defines indirect lobbying as expenditures in excess of $500 in a calendar year for the purpose of advocating support or opposition of legislation. Suppose I am sending out emails, as I am prone to do, advocating or opposing legislation. Does the $500 limitation include my cable fees for access to the internet, or a portion thereof? Does it include my subscriptions to newspapers and magazines that I use partly for the purpose of staying informed about legislative agendas?
Or what if I decide to send out postcards to several hundred Bartlesville residents? I actually did this on one occasion in the past. If I do that on several issues over a year I will easily exceed the $500 just in postal fees alone. A local organization for or against a piece of legislation that particularly impacted them could easily become subject to the rule simply by contacting one thousand Bartlesville residents only.
What about churches? If a church were to include advocacy/opposition in its weekly bulletin it would easily exceed the $500 trigger. In fact, such a church could easily exceed the $5000 trigger for having to file a report with the ethics commission [Rule 5.19.B]. But of course a church (or any other organization for that matter) could avoid all this hassle if only they would not encourage their members to influence others to their way of thinking for Rule 5.2.6 at line 22 excludes from indirect lobbying any “internal communications by an organization with its members indicating the organizations position on legislation so long as the communications do not encourage its members to advocate for or against pending legislation.” This hints at the Obama/Clinton era approach of always framing the First Amendment protection for “freedom of religion” [actually “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”] as a protection for “freedom of worship.” In other words, they were cleverly suggesting that our First Amendment religious protections are limited to what we do within the four walls of the church building. This proposed rule cleverly proposes it is okay for churches to suggest to their members how to vote on an issue, but it is not acceptable for a church to suggest its members take that knowledge outside the church and proselytize to others. Similarly, a pro-life organization could not suggest that its members advocate for a pro-life piece of legislation. A local fly fishing club or bass fishing club could not suggest its members advocate against legislation allowing tons of junk to be dumped in the Caney River without potentially subjecting the club to indirect lobbying rules.
For organizations the rules are particularly onerous. For instance, if I gave $51 to my local fly fishing club for the purpose of defraying mailing costs to send out postcards to Bartlesville residents (thus exceeding the $500 threshold) notifying them that the legislature was authorizing XYZ Corporation to dump 100 tons of pollutants into the Caney River and encouraging them to oppose the proposed bill, my local club would have to report my contribution to the Ethics Commission, giving them my name and address.
I also oppose this rule from a philosophical viewpoint. Some argue that the intent of the Ethics Commission is to separate and identify the true grass roots efforts from the well-funded special interests. If this really is their motive, they have cast their regulatory net far too wide. In trying to force well-funded special interest groups to reveal their funders/supporters the Ethics Commission has burdened every individual and group in the state of Oklahoma with disclosure requirements, potential Ethics Commission reporting requirements and potential legal problems for failure to abide by said rules. All in the name of “sunlight.”
I too would like to know who is funding some of these campaigns, but I believe that as long as they stick to political speech and are not paying anyone to do lobbying they, as well as myself, should be free from ANY reporting requirements about our free speech opinions. I am not willing to trade any reporting of my political speech in order to learn the names of those funding anonymous campaigns. If we as individuals allow these types of rules to be passed regarding our free speech, then what will be the next requirement that the Ethics Commission imposes on us?
Do you remember Publius? Over a period of ten months he wrote eighty-five articles encouraging New Yorkers to support the proposed U.S. Constitution. I am quite sure that a commission at that time that thought like the Oklahoma Ethics Commission, would have demanded that those behind the pseudonym Publius expose themselves as “indirect lobbyists.” I doubt Alexander Hamilton, John Madison and John Jay (collectively Publius) would have agreed with such an assertion.
Existing Ethics Commission Rule 5.2.4.c states that the following individuals shall not be considered lobbyists: “any person exercising his or her constitutional right to petition the government who receives no compensation or anything of value for lobbying.” You mean I am not a lobbyist? Under the proposed rule this useful definition of a lobbyist is ignored when talking about an indirect lobbyist. You see the Ethics Commission got it right the first time, but in their desire to find out who is funding those anonymous campaigns they are willing to overlook the basic principle that if all I am doing is exercising free speech and I am not being compensated in any way for doing so, then I should not be subject to any rule of any type. If I want to write as Publius I am free to do so.
Another argument against this rule is that it simply isn’t something that the Ethics Commission is authorized to get involved with. I have not had time to research this argument, but if you got to the Oklahoma Council of Public Affairs website you will find this argument well documented.
By the way, on December 26, 2018, the Tulsa World published an editorial in support of the proposed rule. The editorial writer seems to think that the rule only impacts anonymous groups seeking to influence the Oklahoma legislature. The Tulsa World summarizes the problem as, “The who’s-paying-for-it question is often critical to informed voters interested in the potential for ulterior motives in the group’s agendas.”
The World then goes on to attack those of a different opinion writing: “Overwrought lobbyists immediately went on the defensive. It’s an outrage! A civil rights travesty! Anonymous speech is still protected free speech, they proclaimed” and “Here’s a pretty good rule of thumb about lobbyists: When they start foaming at the mouth about public disclosure, you’re going in the right direction.” This is the typical approach of those who have no sound basis for their argument – they attack the other person, not the argument! I really wonder if the Tulsa World even read the proposed rule before they wrote their glowing editorial in support of it.
You can read the Tulsa World editorial here:
If you agree with my arguments that the proposed rule is not a “ray of sunshine” as advertised but instead a dampening of true grass roots political involvement, then I suggest you write the Tulsa World at wayne.greene@tulsaworld.com and tell him so. Be polite and do not attack the messenger, attack the message.
Also write your state senator and your representative and express your opinion on this proposed rule. And if you feel so led, feel free to forward this blog post to your friends. We need to get the word out quickly if we hope to have any success in killing this bad rule.
The Ethics Commission votes on this proposed rule on January 11th. You can sign a petition against this rule at the following site: https://www.ocpathink.org/say-no-way-to-regulating-free-speech
Lobbying Statement: My name is Gary Kilpatrick. I approved this message. Heck, I thought it up, wrote it, typed it, edited it, and posted it on this blog all by myself. No one paid me anything to write this blog. I did it all because I love my country and my state. And I am looking forward to my next citizenship location where I will not have to put up with any of this nonsense.
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