The Oklahoma Ethics Commission is proposing to close a gap in state campaign finance laws that keeps certain funding and spending on efforts to influence legislation a secret.
Although sources and amounts of money are typically required to be disclosed when groups seek to influence an election involving candidates or state questions, little must be revealed when a group tries to push or oppose state legislation.
The proposed rule before the Ethics Commission would mandate certain disclosures for groups that pay for communications about pending legislation. It comes in the wake of several well-organized and well-funded campaigns about legislative bills, such as the Step Up Oklahoma package of tax increases and the efforts to stop or defend tax incentives for wind generation.
Chances of approval by the commission and acceptance by the Legislature are unclear. Several well-known organizations that have funded anti-tax campaigns in the state quickly issued statements opposing the proposed rules, citing First Amendment concerns.
Rep. Meloyde Blancett, D-Tulsa, asked the Ethics Commission to develop the rule earlier this year. The measure, which is being sponsored by commission Chairwoman Karen Long, was introduced at Friday’s commission meeting. Commissioners delayed action to gather additional public comment. The proposal could be back before the commission at its Jan. 11 meeting.
Executive Director Ashley Kemp said the commission already requires disclosures about who funds candidate campaigns and state questions, so the proposal just adds another category for what’s called “indirect lobbying” at the Legislature. Unlike rules for paid lobbyists, it wouldn’t require registration of the group before the advocacy efforts.
Other states have similar disclosure rules, which have survived federal court challenges.
“The concept isn’t new, but the idea of the state of Oklahoma requiring some kind of disclosure for that activity is new,” Kemp said at Friday’s commission meeting. “Since we have fairly tried and true reporting methods and concepts and procedures in place for campaign finance, we just mirrored that process.”
Blancett spoke in favor of the rule at the meeting, saying she has been curious about which groups were funding advertising about legislative issues.
“I think the citizens of Oklahoma have been bombarded with a barrage of anonymous, issues-oriented, very sophisticated messaging campaigns to persuade voter behavior,” Blancett said.
The proposal drew criticism from lobbyists and representatives of several groups, including the American Legislative Exchange Council, Americans for Prosperity-Oklahoma and the Oklahoma Council of Public Affairs. They worried the disclosure requirements could curtail First Amendment protections for free speech and political activity.
Attorney A.J. Ferate, who presented comments and letters from ALEC, the Institute for Free Speech and People United for Privacy, said the U.S. Supreme Court in 1958 protected the NAACP’s membership list from being disclosed to Alabama. The state had tried to stop the civil rights organization from carrying out activities there.
“Anonymous speech is free speech as well, and the road you’re going down is a concerning one from the concept of history,” Ferate told the commission. “What I feel you’re trying to do is create a chilling effect on the activities that belong in public discourse.”
Lobbyist Dawn Watson told the commission she worried the rule could affect nonprofit organizations, which frequently ask their members to contact lawmakers about legislation via preformatted “action alerts.” She asked the commission to keep that in mind as it considers the rule.
“The idea behind a lot of this type of communication is to actually increase the involvement of real people in government,” Watson said. “The reason templates are provided is because they aren’t savvy with communicating with legislators and have a little fear there, so you provide them with a little training and background.”
Kemp said she worked with Blancett on the rule, and also sought the advice of Rick Tepker, a professor of constitutional law at the University of Oklahoma. Officials also consulted with the Brennan Center for Justice at New York University.
Washington has had a rule on indirect lobbying that has survived several court challenges, including one in 2013 on procedural grounds. Another 35 states have some kind of disclosure requirements for grassroots lobbying.
Emphasis on Disclosure
“There seems to be a real push in the case law to go away from restricting certain activity, but to go ahead and require disclosure. And that’s reasonable,” Kemp said. “It’s not necessarily providing a chilling impact on the ability to speak. It’s just giving legislators and the public the opportunity to know who is the source of this particular attempt to influence this specific piece of legislation.”
Tepker said courts typically employ balancing tests when they decide First Amendment cases. He said the Oklahoma proposal on indirect lobbying doesn’t impose spending limits on legislative advocacy campaigns, nor does it discriminate against a particular viewpoint. In that respect, its disclosure requirements are similar to those that already apply to campaigns for state questions.
“This is about corporate, organized efforts to influence the Legislature indirectly through the news media,” Tepker said.
Blancett said she’s hopeful the indirect lobbying disclosure rule will properly balance free speech with disclosure on who’s funding legislative campaigns.
“My objective is not to chill free speech at all. If anything, it’s to further enable all our citizens to know what’s being said and who’s saying it,” Blancett said.