Fight judge’s gutting of ethics law

In an era when the U.S. Supreme Court has decreed that money is speech and corporations are people, the federal courts keep killing anti-corruption laws.

The latest casualty is Kentucky’s ban on lobbyists lavishing drinks, gifts and campaign contributions on lawmakers.

The ban is part of an ethics code that lawmakers enacted after a bribery scandal rocked the General Assembly in 1992. An FBI investigation turned back the covers on a seamy tableau of lawmakers being wined and dined and vacationing on lobbyists’ tabs, and selling their votes for $100 bills. Fifteen legislators, including a House speaker and Senate minority leader, were convicted of crimes, along with a governor’s nephew and a pair of prominent lobbyists.

Kentucky lawmakers responded by putting themselves under one of the toughest legislative ethics laws in the country — a law that will be gutted if a ruling by Senior U.S. District Judge William O. Bertelsman is allowed to stand.

Kentucky’s Legislative Ethics Commission should protect the legislature’s integrity by appealing Bertelsman’s ruling.

Yes, an appeal would go against a tide of federal judges smashing limits on money in politics. But the case against Kentucky’s ethics law is built on shaky ground. Bertlesman spins out ridiculous hypotheticals to conclude that the law is too broad and vague.

He speculates, for example, that a lawmaker could be prosecuted for violating the gift ban if he is cooled by a lobbyist’s air conditioner. Or that a visit to a manufacturer that lobbies the legislature would be construed as an illegal economic benefit. Or that a lawmaker could unknowingly partake of post-funeral refreshments paid for by a lobbyist and be prosecuted. Puh-lease.

Bertelsman also finds that the law suppresses lobbyists’ First Amendment right to association and creates a chilling effect on their protected political speech. But, far from “chilled,” the lobbying industry is booming in Kentucky. A record $20.8 million was spent lobbying the legislature in 2016, up 11 percent from 2014. Most of that ($18.7 million) was compensation to lobbyists who now persuade without feeling pressure or temptation to bankroll lawmakers’ vacations or campaigns. No lobbyist is seeking to end the ban on gifts and campaign contributions. Like lawmakers, they recognize that the ban serves to protect their reputation as a whole.

Only one lawmaker, Sen. John Schickel, R-Union, challenged the ban, contending that he needs to raise campaign money from lobbyists to compete with opponents backed by independent groups that can raise vast sums without disclosing their donors. The flood of money unleashed by the Supreme Court has become the rationale for unleashing even more money into politics and elections. Shickel also says he could innocently run afoul of the ban on accepting anything of value from a lobbyist.

Based on rulings in other states, Bertlesman suggests that Kentucky’s law would pass constitutional muster if it applied only when the legislature is in session. But opening the gates on money and gifts from lobbyists to lawmakers before or after a session would render the ethics law fairly meaningless.

The judge said he was shown no evidence of recent quid pro quo (this money for that vote) corruption to justify such a broad ban. But the law was tailored to prevent a repeat of the quid pro quo scandal that remains only too vivid in Kentuckians’ memories. That lawmakers are not being convicted of corruption as frequently as, say, sheriffs or county judge-executives, is evidence that their ethics law is working — and worth defending.

This story was originally published June 9, 2017 at 8:15 PM with the headline "Fight judge’s gutting of ethics law."