Good Government

Lawmakers cite constitutional problems with Ethics Commission regulations

May 17, 2019

Ray Carter

Members of the Oklahoma Senate overwhelmingly rejected proposed Oklahoma Ethics Commission rules on Friday, saying the regulations violated constitutional rights.

“Other than impinging on free speech and liberty, the rules were fine,” quipped Sen. Greg McCortney, R-Ada.

The rejected ethics regulations included a “cooling off” period that would have barred state politicians from working as a paid lobbyists for two years after concluding their term in office, regulations regarding what would be considered illegal coordination between a candidate and outside groups, and rules regarding candidate interaction with political action committees.

Senate Joint Resolution 22, by McCortney, declared the commission was “risking legal action if the proposed rule amendments are permitted to take effect,” and disapproved the rules.

SJR 22 passed the Oklahoma Senate on a party-line, 35-8 vote. It now proceeds to the Oklahoma House of Representatives.

McCortney cited several problems with the rules. He said the commission did not have the constitutional authority to regulate the occupations of private citizens, even if they are former legislators, via the proposed “cooling off” period.

“They passed a set of rules that I don’t believe—and I think most of my colleagues do not believe—that they have the constitutional authority to pass,” McCortney said. “The Ethics Commission does not have the right to try to oversee or control private citizens, and that’s what they were trying to do in one of the rules.”

He said other proposed rules appeared to violate First Amendment rights under the U.S. Constitution.

“They tried to control who can and cannot endorse candidates,” McCortney said. “Basically, there’s a rule in there that says if you sponsor a forum, then it’s fine that you sponsor the forum, but to do that you have to give up the right to endorse a candidate at any time during that campaign. To me, that’s a huge free-speech violation.”

The Ethics Commission proposed a similar “cooling off” period in 2018 that was also rejected by lawmakers after the office of the Oklahoma attorney general raised concerns.

In a release issued by the commission prior to the Senate vote, the agency defended the proposed rule, saying “the concerns raised by the Attorney General's office were to an earlier version of the cooling off period proposal that applied the restriction to legislative liaisons. The Commission removed the language from the Rule that applied the cooling off period to legislative liaisons that was of concern to the Attorney General’s office.”

But McCortney said the regulations were virtually identical to those rejected last year and the same constitutional concerns remained.

“Last year they were informed by the attorney general and by us disapproving their rules, and then they came back this year and they passed the exact same rules,” McCortney said. “I’m not sure what will change their mind.”

Lawmakers have also moved to redirect fee revenue from the Ethics Commission. Last year the agency received a $710,000 appropriation. This year’s budget agreement provides a slight increase to $716,621.

But other legislation, House Bill 2745, caps the amount of money raised by fees and fines that can be deposited into the Ethics Commission Fund. Under the bill, no more than $150,000 may be deposited into the fund, and anything collected above that amount will then go to the state’s General Revenue fund for legislative appropriation. The fund held roughly $608,000 this year.

Rep. Kyle Hilbert, R-Bristow, said the cap was determined by examining how much the agency has relied on fee revenue in the past.

“Looking at past years, we don’t have any record of them spending more than $150,000 out of a revolving account,” Hilbert told legislators during a committee meeting this week.

House Bill 2745 passed the Oklahoma House of Representatives on a 68-22 vote on Friday.

The Oklahoma Ethics Commission press release said the agency had requested increased appropriations this year “for in house  I.T. staff to provide IT assistance to Commission staff, those filing with the Commission, and to bring political subdivision campaign reporting online into The Guardian System.”

The release said the agency’s requested funding and the proposed rule changes, combined, “would have enabled the Commission to fulfill its Constitutional mission, perform its statutorily assigned responsibilities and would have provide unprecedented transparency into Oklahoma campaign financing.”

In percentage terms, the appropriation increase sought by the Ethics Commission was massive. On its web site, the agency says it requested “an increase from $0.18/citizen to the funding average of comparably sized states providing the same services as the Ethics Commission, an amount of $0.86/citizen …” That would have translated into a 377 percent appropriation increase in a single year.