Attempt to Make Gift Bans Unconstitutional in KY

It was only a matter of time before the U.S. Supreme Court's campaign finance opinions (and decisions at the trial and appellate level that have applied them to other situations) would be used to argue that conduct prohibited or limited by government ethics provisions are also protected as free speech by the First Amendment of the U.S. Constitution.

In August 2015, a complaint against the state legislative ethics commission (attached; see below) was filed in the Eastern District of Kentucky by a state senator and two candidates for state legislative office (in the 2016 and 2018 races) asking, among other things, that a gift ban limited to lobbyists and their principals (that is, to restricted sources) is an unconstitutional infringement on the free speech and free association rights of these restricted sources and the state legislators to whom they would like to make gifts.

Here is the way the complaint (at p. 16) states the issue:

[M]embers of the public can invite legislators to holiday parties, including events for political parties, and allow the legislators to receive snacks and other de minimis items, but if the same event is organized by a lobbyist or employer of a lobbyist, the legislator cannot attend. This infringes on the legislator’s, lobbyist’s, and employer of lobbyist’s right to freedom of association, and freedom of speech.

Fairness
This fairness argument does not hold up. When it comes to gifts, there is no fairness problem. Ordinary people do not make sizeable gifts to government officials or invite them to parties. It's hard enough to get ordinary people to make campaign contributions. This is why gifts to officials are seen by most ordinary people to be a way of purchasing influence over them beyond the limits on campaign contributions. Government ethics laws seek, by preventing such appearances of impropriety, to protect the reputation of government and to preserve trust in government officials.

Gifts vs. Campaign Contributions
The cases upon which the plaintiffs base their First Amendment arguments are Green Party of Conn. v. Garfield, 616 F.3d 189 (2d Cir. 2010); Lavin v. Brunner, 2010 U.S. Dist. LEXIS 114210 (S.D. Ohio 2010), and Barker v. Wisconsin Ethics Bd., 841 F. Supp. 255 (1993).

The Green Party decision involved a ban on campaign contributions by restricted sources involved in state contracts. While it is arguable that campaign contributions are political expressions protected by the First Amendment, the plaintiffs make no argument that gifts to officials are political expressions (this would be a very difficult argument to make). Nor does their complaint differentiate between contributions to a campaign committee and personal gifts to officials, which are two very different sorts of gift. Instead, the complaint makes a fairness argument.

Candidates for public office need campaign contributions in order to run. Officials do not need gifts for any political purpose. Campaign contributions are very different from gifts, and there is no reason to extend the Green Party decision on campaign contributions to include gifts.

As it is, the Green Party decision does allow limits on campaign contributions from restricted sources, and would allow a ban were there evidence of recent scandals involving contractors and their lobbyists. Recognizing this, the Kentucky complaint asserts that gifts from restricted sources have not led to recent scandals in Kentucky, and that gifts over $100 have to be reported (implying that disclosure of gifts should be sufficient; see my argument against a disclosure-only approach to gifts). However, passage of the Kentucky gift ban did follow directly after a big scandal.

The complaint calls for strict scrutiny on the basis of the First Amendment, but the Green Party decision calls for strict scrutiny because soliciting a campaign contribution is a form of speech that effectively makes the statement, "You should support this candidate, not only at the polls but with a financial contribution.” Soliciting a personal gift does not make any statement at all. Therefore, gift bans do not require courts to treat them with strict scrutiny. For more information and a link to the Green Party opinion, see my blog post on it.

Ethics vs. Criminal Laws
The complaint also argues that the gift ban provisions are not “closely drawn” towards preventing quid pro quo corruption. This mixes apples and oranges, since preventing quid pro quo corruption is a goal of criminal laws, while gift laws are administrative in character and impose far lower fines, allow for no imprisonment, and do not require guilty officials to be removed from office. Government ethics laws are not intended to prevent quid pro quo corruption. They are intended to increase trust in government by requiring officials to deal responsibly with their conflicts of interest, including those that arise from gifts offered to them by restricted sources.

Rights and Obligations
It appears that the complainants want to assert rights without acknowledging obligations. Legislators have a special obligation to preserve trust in government by, for example, sacrificing gifts that might be given to them by restricted sources. If an individual wants rights without obligations, that individual is free not to seek public office. Once in office or campaigning for an office, an individual must fulfill the obligations that go with the office.

Robert Wechsler
Director of Research-Retired, City Ethics