El INSTITUTE FOR
FREE SPEECH

December 14, 2018

Via Electronic Mail

Oklahoma Ethics Commission
2300 N. Lincoln Boulevard, (3-27
Oklahoma City, OK 73105

RE: First Amendment Concerns With Amendment 2019-02 (Disclosures for printed or
broadcast communications advocating for or against pending legislation)

Dear Commissioners:

Yesterday evening, with mere minutes remaining in the work day, the Ethics Commission
released draft language for Amendment 2019-02. The proposed amendment would signi?cantly
expand the scope of Rule 5.2, going beyond what is normally thought of as lobbying paid
communications with members of the government on behalf of a lobbyist principal to capture
nearly any conversation related to governmental policy generally. The Institute for Free Speech1
is seriously concerned about the First Amendment implications of Amendment 2019-02.

This proposal, on its face, seeks to regulate grassroots political activity, and accordingly
raises signi?cant First Amendment concerns. Because it goes well beyond the regulation of
lobbying professionals accustomed to the Commission?s rules and procedures, and instead would
regulate the political activity of normal Americans unaccustomed to the technical niceties of
lobbying registration and reporting requirements, the Amendment also raises technical questions
of law and, more importantly, signi?cant practical considerations. These concerns are presumably
why, in part, the Commission intends to discuss the proposal at a public meeting this morning.

But by releasing its draft language less than 24 hours before that meeting, the Commission
has failed to provide the public with adequate notice. It cannot now expect to receive meaningful
feedback on these dif?cult questions. Whether by design or negligence, the Commission has
operated by ambush while claiming to value transparency. Its approach is especially egregious
because Amendment 2019-02 would regulate ordinary political conversations by ordinary people,
none of whom can be expected to know what the Commission is planning. Few, doubtless, even
know it exists.

 

1 The Institute is a nonpartisan, nonpro?t 501(c)(3) organization that promotes and protects the First Amendment political rights
of speech, press, assembly, and petition. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley
A. Smith, a former chairman of the Commission. In addition to scholarly and educational work, the Institute is actively involved
in targeted litigation against unconstitutional laws at both the state and federal levels.

124 S. West Street, Suite 201, Alexandria, Virginia 22314 T: 703-894-6800 F: 703-894-6811

 

For these reasons, the Institute for Free Speech cannot provide the in-depth analysis it
would normally undertake for an issue of this importance. Nevertheless, even a cursory glance at
Amendment 2019-02 raises concerns.

The heart of the issue is the concept of ?indirect lobbying? itself. While other forms of
lobbying are, sensibly, limited to paid communications with a state official, the ?indirect lobbying?
de?nition is not. By its own terms, it would reach, for example, a ?telephone? conversation with
anyone, provided it was ?made for the purpose of in?uencing a vote on pending legislation.? This
raises two obvious questions. First, what is meant by the phrase ?to influence? when the
communication?s recipient need not have any connection to the Legislature itself? Second, why is
the Commission abandoning an objective test in favor of a rule that turns almost entirely on a
speaker?s personal intentions?

This ambiguity, which invites complaints and enforcement based on political animus or
guesswork, is unacceptable in the First Amendment context. But even if the Amendment were
limited to traditional grassroots lobbying, such as paid ads urging citizens to contact their
legislators, the proposed language is far too broad. For instance, ?news or feature reporting
activities and editorial comment? are excluded but only if done ?by working members of the
press.? Does the Commission intend to regulate editorials by members of other professions, and
even news program appearances? Or is this a sign of hasty drafting, like the failure to include any
monetary threshold for reporting by indirect lobbyists? Does the Comrhission intend to reach
volunteers, given its failure to provide a monetary threshold for reporting and its decision to
include those who merely ?organize[]? or ?coordinate[]? these activities?

These are serious questions, and they demand serious consideration with the full input of
the regulated community, outside experts, and ordinary citizens. It is lamentable that the
Commission has proceeded in a manner that makes such feedback impossible.

Accordingly, Amendment 2019?02 should be withdrawn, reworked, and re?released with

adequate notice to the public. If you should have any questions, please contact us at (703) 894?
6800, or by e-mail at adickerson@ifs.org.

Respectfully submitted,

 

 

Allen Dick 11
Legal Dire or
Institute for Free Speech