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John Schaaf: Legislative Ethics law — related to lobbyists — being defended in federal court

The Kentucky Legislative Ethics Commission met in Frankfort this week to review several issues, including the Commission’s recent trip to federal court in Cincinnati to defend key provisions of the ethics law, which were challenged by State Senator John Schickel of Boone County.

Schickel filed a federal lawsuit in 2015, arguing that his constitutional rights are violated by the ethics law prohibition on legislators receiving campaign contributions from lobbyists, and by limits on lobbyists’ gifts of meals and drinks to legislators. Several ethics statutes were found unconstitutional by Judge William Bertelsman in U.S. District Court in Covington. 

In the Cincinnati hearing, the Ethics Commission argued for the constitutionality of the laws before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, which heard arguments from Kentucky Attorney General Andy Beshear and Schickel’s attorney, Chris Wiest of Ft. Mitchell. 

Beshear defended the ethics laws on behalf of the Ethics Commission, while Wiest attacked the laws as violations of what Schickel claims are his First Amendment rights to receive gifts from lobbyists, and receive lobbyists’ campaign contributions.

John Schaaf

When he filed the lawsuit, Sen. Schickel said he would accept campaign contributions from lobbyists if the ethics law did not prohibit those contributions. Also, he argued that the ethics law prevents him from associating with lobbyists, an argument that is inaccurate, according to the Commission. 

While the law prohibits lobbyists from buying meals or drinks for legislators in certain one-on-one meetings, nothing in the law limits a legislator’s ability to attend lobbyist-sponsored events or meet and talk with lobbyists on any occasion. 

Throughout the case, the Ethics Commission maintained that the ban on lobbyists’ campaign contributions to legislators properly separates the small group of people who are paid to influence legislation from financing the campaigns of the people who vote on that legislation.

Likewise, the Ethics Commission says the limits on meals and drinks are intended to avoid the perception of corruption, and actual corruption such as that which occurred with the lobbyist-funded hospitality that was a key part of the BOPTROT scandal of the early 1990’s.

In federal court, the Commission said that, in addition to their salary, Kentucky legislators receive $158 per day during legislative sessions and $1,800 per month between sessions to pay expenses, including meals and beverages. Kentucky taxpayers provide that money so legislators can pay their own way, and it’s unnecessary and inappropriate for lobbyists to pay for legislators’ meals or drinks. Lobbyists’ payments on behalf of legislators can create a public perception that legislators are corrupt.

To change the way in which legislators and lobbyists interacted, Kentucky’s ethics laws were adopted by the 1993 General Assembly after an undercover FBI investigation resulted in 21 convictions: 15 legislators from both chambers and both parties, including two Boone County legislators, two lobbyists, two state officials, an organization that employed lobbyists, and a racetrack owner.

In federal court trials and plea deals from 1992 to 1995, BOPTROT defendants and witnesses described how corruption in the General Assembly grew in the 1980’s and early 1990’s, as Kentucky’s legislative branch became more independent and equal with the executive branch. 

In those years, when lobbyists were spending significantly more time and effort developing relationships with legislators, there were no ethics guidelines governing lobbyists’ gifts to legislators, or how much lobbyists could spend for legislators’ trips, meals, and drinks.

As a result, it was a short leap from lobbyist-funded hospitality to giving and receiving cash payoffs, illegal cash campaign contributions, or offers of employment in exchange for supporting or opposing legislation.

“Lawmakers and lobbyists here just got too cozy over the years,” Rep. Joe Clarke told The New York Times in 1993. Clarke was the Danville lawyer elected House Speaker after the previous Speaker was indicted for extortion, racketeering, and lying to the FBI.

The General Assembly convened in special session in early 1993 and adopted the Code of Legislative Ethics, creating the independent Legislative Ethics Commission, and enacted the laws limiting lobbyist spending on hospitality, and prohibiting lobbyists from making campaign contributions to legislators and legislative candidates. 

In an unusual twist in his federal lawsuit, Schickel argued that not only did he have a constitutional right to receive gifts and contributions from lobbyists, but also that lobbyists had a constitutional right to give those things to legislators. Despite no lobbyist joining his lawsuit, Schickel made constitutional arguments in favor of lobbyist gift-giving.

In fact, the only Kentucky lobbying organizations which chose to participate in Schickel’s litigation opposed his position that their constitutional rights are violated by the ethics laws. Instead, they participated as “friends of the court” and supported the ethics law provisions that Schickel attacked. 

The Kentucky Chamber of Commerce, Kentucky League of Cities, Kentucky Coal Association, and Kentucky Nonprofit Network filed a brief stating that “the ethics code successfully combats actual and perceived quid pro quo corruption” and “the lobbying restrictions in the ethics code are constitutional, and their invalidation threatens chaos in lobbying activities.” 

The Court of Appeals could decide the case by the end of this year.

John Schaaf is an attorney who has worked with the General Assembly and the Legislative Ethics Commission for 30 years.

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