Schickel takes on part of ethics law that was a result of BOPTROT

John Schaaf

Note: John Schaaf has given permission for KPA member newspapers to publish this story as an op-ed article with credit given to the Kentucky Legislative Ethics Commission. John is executive director of KLEC.

By John Schaaf, KLEC Executive Director

Cincinnati, Ohio – The Kentucky Legislative Ethics Commission went to federal court in Cincinnati earlier in October to defend key provisions of the ethics law enacted in the wake of the BOPTROT scandal of the early 1990’s, and strengthened by the 2014 General Assembly.

Sen. John Schickel of Boone County 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.

In the appeal 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 Sen. Schickel’s attorney.

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

Sen. John Schickel

In his complaint, Sen. Schickel said he would accept campaign contributions from lobbyists if the ethics law did not prohibit those contributions. Also, he incorrectly argued that the ethics law prevents him from associating with lobbyists.

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.

In federal court, the Commission said that, in addition to their salary, 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 for lobbyists or others to pay for legislators’ meals or drinks.

To change the way in which legislators and lobbyists interacted, the 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.

Based on legislative corruption convictions in nearby states and in Washington, D.C., the ethics code was amended in 2014, when the General Assembly adopted laws banning lobbyists from paying for legislators’ out-of-state travel expenses, prohibiting lobbyists from soliciting campaign contributions for legislative campaigns, and adopting a “no cup of coffee” rule, which limits the situations in which legislators can accept meals and beverages paid for by lobbyists.

Sen. Schickel was the only legislator in either chamber to vote against the 2014 ethics law changes, and after the bill passed, he went to federal court to challenge original and amended provisions of the ethics code.

In an unusual twist in his federal lawsuit, Sen. 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, Sen. Schickel made constitutional arguments in favor of lobbyist gift-giving.

In fact, the only Kentucky lobbying organizations which chose to participate in Sen. 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 Sen. 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.

The three judges on the Court of Appeals panel who heard the arguments in Sen. Schickel’s case are Judge Deborah L. Cook of Ohio, Judge Joan L. Larsen of Michigan, and Senior Judge Gilbert S. Merritt of Tennessee.

A recording of the oral argument is available at the following link: http://www.opn.ca6.
uscourts.gov/internet/court_audio/aud2.php?link=recent/10-18-2018
. If the link won’t open, click on the Opinions and Oral Arguments link, and look for Audio Files of Completed Arguments. The case number is 17-6456 and 17-6505 John Schickel v. Craig Dilger et al.

 

For the first time in 25 years, no business will be lobbying under the name “Ashland.”

Several businesses and organizations have registered to lobby in the past month. Those include: 180 Skills LLC, which sells on-line training courses to schools and manufacturers; Family Scholar House, a Louisville non-profit which serves over 3,500 single-parent families a year by providing affordable housing, academic counseling, career development, childcare, and life skills; Fern Creek Fire Department; Med Center Health, a Bowling Green-based healthcare system which serves south central Kentucky; and Treatment Advocacy Center, national non-profit working to eliminate barriers to treatment of severe mental illness.

Ashland, LLC terminated its lobbying registration, effective October 1. That means that for the first time since 1993, in the modern era of lobbying registration, there is no business lobbying in Kentucky under the name of “Ashland”.

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