Updated Jan. 25
An unlikely alliance of groups across the political spectrum raised constitutional concerns over an Oklahoma Ethics Commission proposal to require disclosure of who is behind organized legislative lobbying campaigns.
Commissioners took almost an hour of public comments against the rule at a special meeting Friday and then declined to put it up for a vote, effectively killing it for this year. (Rules must be submitted as a package to the Legislature before session begins.)
ACLU Oklahoma joined the Oklahoma Council of Public Affairs and the Oklahoma Second Amendment Association to oppose the rule. Planned Parenthood Great Plains previously indicated its opposition to the rule as well.
“When you have the ACLU standing with the same position as the Oklahoma Council of Public Affairs, it doesn’t mean we’re right, but it should give folks pause to look at two organizations that are perceived to be on different ends of the political spectrum,” said Ryan Kiesel, executive director or ACLU Oklahoma. “It’s not a partisan issue. It’s not an ideological issue. It really comes to down to the mechanics of how average folks are going to engage with their public officials.”
The indirect or grassroots lobbying proposal would have required groups spending more than $500 on campaigns for or against specific pieces of legislation to disclose their organization’s name and file reports with the Ethics Commission if expenditures exceeded $5,000. It was requested by Rep. Meloyde Blancett, D-Tulsa, and was sponsored by Commission Chairwoman Karen Long.
Long explained her decision not to move forward with the rule by noting the balance between disclosure and the burden it would place on citizens or organizations.
“What is the burden? For me, and I think for many others, this ethics commission should do no harm,” she said.
Blancett said there’s been a growing number of indirect lobbying campaigns funded by what she called “dark money” on TV, Facebook or by direct mail. The groups usually have generic, pleasant-sounding names.
“You can never find out as a citizen who’s funding that advocacy,” she said. “I’m a legislator, and I can’t find out. When you know whose voice it is, you understand better why they’re willing to put significant dollars behind a campaign to influence you as a private citizen.”
Ashley Kemp, the Ethics Commission’s executive director, said the proposal was meant to mirror similar disclosure requirements for candidate campaigns or state questions. Dozens of other states have rules on grassroots lobbying ranging from registration to regular reporting of activities; some have had the rules for more than 20 years. Oklahoma is one of ten states with no indirect lobbying regulations.
At the commission’s Jan. 11 public meeting, OCPA presented a petition with more than 2,300 names who were opposed to the proposed rule. Other groups, like the American Legislative Exchange Council and the Institute for Free Speech, provided comment letters outlining their opposition.
“I am an activist, and the amount of what’s going on with this regulation, if it goes into effect, would be devastating to free speech and is an indirect assault on the Second Amendment,” said Don Spencer, president of the Oklahoma Second Amendment Association. He advised the commission to drop the rule.
Kiesel said the indirect lobbying proposal was well-intentioned but could chill speech and political activity. Large corporate organizations funding indirect lobbying campaigns have the resources to comply with the proposal, but smaller organizations and nonprofits could be dissuaded from any indirect lobbying, he said.
Kiesel said he thought the indirect lobbying proposal was intended to help lawmakers figure out who is behind legislative advocacy efforts, not necessarily the general public, as would be the case in campaign and state question disclosures. Although the commission has changed the proposal several times since it was introduced in December, it remained confusing, he said.
Several nonprofits were alarmed at the first version of the rule, which appeared to require disclosures for “action alerts” typically used to inform members of legislation that could affect their work. The most recent version clarified that to cover disclosures for paid employees of a nonprofit or other organization who direct those efforts, not the members themselves. But this change didn’t appear to have alleviated some politically active nonprofits’ concerns.
“The difference between a lawmaker and a voter in a general election is the lawmaker has a little more power and leverage than the average voter,” Kiesel said. “The power dynamics are different. Lawmakers can demand that kind of transparency as a condition for them to engage with that indirect lobbing effort in a way a voter can’t with a candidate campaign.”
The commission is supposed to regulate lawmakers and campaigns’ activities, not those of individuals petitioning their government, he said.