Kentucky law on no lobbyist gifts to lawmakers struck down

Tom Loftus | Courier Journal

FRANKFORT, Ky. — A federal judge has struck down key parts of the ethics code governing the Kentucky General Assembly, including its provision that bans lawmakers from accepting "anything of value" from a lobbyist.

Also struck down in the order is a provision that bans lobbyists from making campaign contributions to candidates for the General Assembly.

In a 35-page opinion, U.S. District Judge William O. Bertelsman stated that such ethics laws must be narrowly tailored to combat "quid pro quo" corruption, but that Kentucky's law is unconstitutionally vague and overbroad.

"The scope of the gift ban is so broad that even a glass of water may be considered a violation..." Bertelsman wrote. "Not knowing what otherwise mundane amenities may constitute something of 'value' would cause hesitation on the part of a legislator if invited to a lobbyist's office to discuss a matter of importance."

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As for the ethics codes' ban on lobbyists contributing to the campaign of a legislative candidate, Bertelsman wrote, "Defendants fail to show that a complete ban on campaign contributions from lobbyists is narrowly tailored to prevent quid pro quo corruption."

The case was filed two years ago by state Sen. John Schickel, a Union Republican; David Watson, a Libertarian who ran for a seat in the Kentucky House in 2016; and Ken Moellman, a candidate for Pendleton County judge-executive in 2018, the opinion states.

Defendants in the case are the Kentucky Registry of Election Finance and the Kentucky Legislative Ethics Commission.

Schickel called the decision "a great victory for freedom of speech."

Schickel said, "We have prosecutors to prosecute bribery and corruption, which they should do. But this (ruling) means a legislator doesn't have to worry about being hauled into court for something like having a cup of coffee."

But state Rep. Jim Wayne, D-Louisville, who is not a party to the case, said he was "extremely disappointed" because the ruling will give more influence to well-heeled special interests in shaping legislation.

"It's tragic that the legislature can't regulate itself in this in this regard," Wayne said. "Our law is not perfect, but it is an improvement over how these activities were regulated before we passed a strong ethics code."

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Kentucky's General Assembly adopted a strong ethics code in the 1990s after a federal investigation called Operation BOPTROT rocked the capital and resulted in convictions of some legislators, lobbyists and others on corruption charges.

George Troutman, chairman of the Legislative Ethics Commission, said he has not made a decision as to whether to appeal.

"I'm not surprised by this given the way the courts have been interpreting the Constitution. Whether it will be the best thing for the commonwealth remains to be seen," Troutman said.

John Steffen, executive director of the Kentucky Registry of Election Finance, said he was analyzing the ruling, particularly a potentially major part that deals with the constitutionality of the four legislative caucus committees. Republican and Democratic caucuses in the House and Senate raised huge amounts of money through these committees for their candidates.

The ruling, Steffen said, "in part declares one provision of campaign finance laws dealing with the caucus campaign committees to be unconstitutional while upholding the provision allowing caucus campaign committees to receive contributions."

House Speaker Jeff Hoover, R-Jamestown, and Senate President Robert Stivers, R-Manchester, also withheld immediate reaction. That's partly because details of how the ruling will be carried out await a final order. Bertlesman directed all parties in the case to confer and propose to him within 20 days a final order that conforms with the ruling.

Reach Tom Loftus at tloftus@courier-journal.com.