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.<br>
<br>
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.<br>
<br>
Here is the way the complaint (at p. 16) states the issue:<blockquote>
<br>
[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.</blockquote>
<br>
<b>Fairness</b><br>
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.<br>
<br>
<b>Gifts vs. Campaign Contributions</b><br>
The cases upon which the plaintiffs base their First Amendment
arguments are <i>Green Party of Conn.</i> v. <i>Garfield</i>, 616
F.3d 189 (2d Cir. 2010); <i>Lavin </i>v. <i>Brunner</i>, 2010
U.S. Dist. LEXIS 114210 (S.D. Ohio 2010), and <i>Barker </i>v. <i>Wisconsin
Ethics Bd</i>., 841 F. Supp. 255 (1993).<br>
<br>
The <i>Green Party</i> 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.<br>
<br>
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 <i>Green Party</i> decision on campaign
contributions to include gifts.<br>
<br>
As it is, the <i>Green Party</i> 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 <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Dis…
argument against a disclosure-only approach to gifts</a>).
However, passage of the Kentucky gift ban did follow directly after a big scandal.<br>
<br>
The complaint calls for strict scrutiny on the basis of the First
Amendment, but the <i>Green Party</i> 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 <i>Green Party</i> opinion, see <a href="http://www.cityethics.org/content/important-court-decision-limiting-and…
blog post on it</a>.<br>
<br>
<b>Ethics vs. Criminal Laws</b><br>
The complaint also argues that the gift ban provisions are not
“closely drawn” towards preventing <i>quid pro quo</i> corruption.
This mixes apples and oranges, since preventing <i>quid pro quo</i>
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 <i>quid
pro quo</i> 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.<br>
<br>
<b>Rights and Obligations</b><br>
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.<br>
<br />
Robert Wechsler<br />
Director of Research-Retired, City Ethics<br />