The head of an Oklahoma conservative think tank said newly-proposed Ethics Commission rules that would require donor and spending disclosure by groups seeking to influence votes on legislation are similar to Jim Crow-era laws that sought to force civil rights organizations to turn over membership lists.
Johnathan Small, president of the Oklahoma Council of Public Affairs, also said the proposed rules would classify even casual conversations about legislation as “indirect lobbying,” and could require organizations to publish their membership lists.
“As an Oklahoman who happens to be black, I am appalled that the Ethics Commission is trying to do what racist government officials attempted in the 1950s,” Small said in media release issued Monday. “In the Jim Crow era, Alabama and Florida officials wanted to force the NAACP to turn over membership lists. Today, the Ethics Commission wants to force similar organizations to turn over the names, addresses, and employers of their supporters.”
The proposed Ethics Commission rules, which were introduced at the commission’s meeting on Friday, would create a new classification of lobbyist, referred to as an “indirect lobbyist,” who would be required to report spending on advertisements or other efforts, such as organizing letter writing or social media campaigns, intended to influence lawmakers to vote a certain way on specific bills.
The proposed rules, which will likely be before the commission again during its Jan. 11 meeting, would also require groups engaged in indirect lobbying to disclose donors and put disclaimers on advertisements, phone calls or other communications stating that the communication was a “lobbyist communication.”
The rules were brought forth for the commission to consider at the request of Rep. Meloyde Blancett, D-Tulsa, and, if passed, must survive the Legislature before going into effect.
Blancett told The Frontier that she has been working with the Oklahoma Ethics Commission for about a year on the proposed rules, and her attention was drawn to the issue thanks to the growing number of advocacy campaigns being conducted in the state that would be considered indirect lobbying.
“From a citizen’s perspective, we’ve been bombarded with these advocacy campaigns,” Blancett said. “Really, they’re blind advocacy campaigns. You don’t know who is behind them. You don’t know where the money is coming from. There’s never really an easy way for citizens to find out who is behind those messages.”
Blancett said the intention of the rules are not to punish organizations, but for citizens to understand who is behind the message being presented to them. She said the issue was an extension of so-called “dark money,” large donations by groups that mask donors, in political campaigns.
“I’ve been told by many people that a lot of the behind the scenes logistics of these organizations is designed to cloak those individuals who are actually funding those kinds of advocacy initiatives,” Blancett said. “That’s a problem.”
Asked about Small’s comments, Blancett said “I think everyone has a right to their opinion. I just don’t happen to agree with that.”
Small said the proposed rules would impact Oklahoma citizens who want to push the Legislature for causes of any political stripe.
“People who support pro-life causes or pro-abortion causes, those who want the Legislature to pass constitutional carry and those who demand more gun restrictions—anyone who works with or supports an organization that cares about Oklahoma law would be regulated and outed by this proposed rule,” Small said, adding that he believed the proposal is unconstitutional.
Blancett also said the proposed rules would affect individuals regardless of their political party or ideology, but in a way that allows them to be more informed about who is advocating for public policy decisions.
“This isn’t a Democratic or Republican issue. Disclosure goes both ways,” Blancett said. “Disclosure benefits everyone, regardless of what their party affiliation is.”
The proposed rules were panned by several lobbyists and groups during the public comment section on the rules during Friday’s meeting. Oklahoma Independent Petroleum Association Vice President of Regulatory Affairs A.J. Ferate, an attorney who has been involved in several campaigns (some of which utilized nonprofit groups to skirt donor disclosure requirements) in Oklahoma and other states, told the commission that the proposed rules would have a “chilling effect” on free speech.
“Anonymous speech is free speech as well. I think that the road you’re going down is a concerning one,” Ferate said, also citing the Jim Crow-era attempts by states to obtain civil rights organization membership lists. “In that same vein, some of the things you’re trying to do in this example is limit speech, restrict speech. You put it in the words of ‘bring it out in the sunlight.’”
Ferate also cautioned the commission, which unsuccessfully sued the Oklahoma Legislature over funding this year, about sending the “seriously flawed” proposed rules — and similar rules — to the Legislature.
“This entity right here I think needs to consider things that it’s likely the Legislature would actually approve,” Ferate told the commission. “Continuing to poke the bear is not a good position for this commission to be in. I would just ask you to consider that in some of the rules you choose to bring forward in the future.”
Groups such as Americans for Prosperity, the American Legislative Exchange Council, the Oklahoma Council of Public Affairs, People United for Privacy, Institute for Free Speech also expressed disagreement with the proposed rules.
Trent England, vice president of OCPA, said the proposed rules would likely cause some Oklahomans who are not regularly involved with the Legislature to either report their personal information to the commission or be in violation.
“Regulating the behavior of people who never come into contact with state officers and employees has nothing to do with the ethics of state officers and employees,” England said.
Blancett said during the meeting that she does not want to restrict free speech, but that disclosure by groups engaged in indirect lobbying should be required.
“My objective is not to chill free speech at all,” Blancett said. “They just want to know where this information is coming from and what is the motivation behind it. That in and of itself I think is the essence of a free democracy and free speech.”
Ashley Kemp, executive director of the Oklahoma Ethics Commission, said other states have similar laws regulating indirect lobbying, similar requirements have passed court challenges and the IRS also requires that groups disclose indirect lobbying costs. The language in the proposed rules, she said, was taken from language in IRS guidelines.
Lower courts “have recognized the need for disclosure may actually in fact be stronger when the pressure for legislative action is the result of indirect lobbying, rather than direct lobbying,” Kemp said, “because those pressures are more difficult to identify without some sort of disclosure requirement.”
Kemp said that the public comments from Friday’s meeting will be used to tighten up the language in the proposed rules before a final version is drafted.
Update 5:55 p.m. 12/17/18: This story was updated to include Rep. Blancett’s comments to The Frontier.