Changes are needed in the state’s laws governing city elections to bring it into compliance with the court’s decision, according to an official at the Oklahoma State Ethics Commission.
Although the laws remain on the books, they conflict with the 2010 U.S. Supreme Court decision Citizens United v. Federal Election Commission, which took limitations off corporate donations to noncandidate groups involved in elections, said Oklahoma Ethics Commission Executive Director Marilyn Hughes.
During the contentious Oklahoma City Council election for wards 2, 5, 6 and 8 in March and the Ward 2 runoff election in April, two groups making independent expenditures participated in the election, spending more than half a million dollars combined on the races.
Both groups — A Better Local Government Political Action Committee and Committee for Oklahoma City Momentum — received their funding from two separate nonprofit groups that were set up just prior to the election, thereby concealing the identity of the individual donors.
Later, it was revealed that the group funding A Better Local Government, named A Voice for Responsible Government Inc., was funded mostly through firefighter donations, while the nonprofit funding Momentum, A Better Oklahoma City Inc., was funded in part by the Greater Oklahoma City Chamber’s Forward OKC IV program.
The Citizens United decision might have made part of the criminal code prohibiting corporate election donations “unenforceable,” according to a letter from then-Attorney General Drew Edmondson to former Senate President Pro Tempore Glenn Coffee and former House Speaker Chris Benge dated Feb. 9, 2010. The letter was also sent to the Oklahoma District Attorneys Council.
Under state law, a corporation shall not make a contribution or expenditure to or for the benefit of a candidate or committee in connection with an election, except through or for a PAC, or a campaign or committee solely for or against a ballot measure.
In his letter, Edmondson wrote that the barring of corporate donations was “unconstitutional and unenforceable” and asked that the language be removed from the statute.
“In light of the Supreme Court’s Opinion, this office will not be enforcing the unconstitutional provisions of this statute, and — by way of a copy of this letter to the District Attorneys Council — I am advising the District Attorneys across the State to also refrain from enforcing these provisions,” Edmondson wrote.
The state also received a potential legal shot across the bow from the nonprofit group Institute for Justice. The libertarian-leaning law firm, which has been involved in several high-profile cases, filed an amicus brief with the Supreme Court in the Citizens United case asking that parts of the Bipartisan Campaign Reform Act be overturned, according to the group’s filings with the Internal Revenue Service.
The Institute for Justice’s letter to the state dated Oct. 18, 2010, said Oklahoma’s laws are not in compliance with the Citizens United decision and asked the state Ethics Commission to amend the statutes.
The Ethics Commission has already asked the Legislature to do away with the criminal statutes limiting corporate donations and amend the Political Subdivisions Ethics Act to come into compliance with the ruling, Hughes said, although the measure did not pass during the most recent session and is being studied further.
“The changes are fairly small, but they’re pretty significant,” Hughes said. “They allow corporations to make those kinds of expenditures in unlimited amounts. It allows PACs to be formed solely for the purpose of making such expenditures and receive unlimited contributions from unlimited sources. So, small changes, but a big impact.”
Although the jurisdiction for receiving complaints would fall to the district attorney’s office, Hughes said parts of the PSEA and the criminal code on corporate donations are unenforceable.
“It’s under (the district attorneys) jurisdiction, but they’re subject to federal case law,” Hughes said. “It’s a United States Supreme Court case. Anytime you have a prohibited corporation from having their voice or the extent of their voice, you’re going to be out of compliance.”
In response to inquiries by Oklahoma Gazette in early May, Lee Slater, the attorney and registered agent for A Better Oklahoma City Inc., the funding group for Momentum, said the group is not required to file with the city.
“A Better Oklahoma City Inc. is not required by law to file campaign contribution and expenditure reports with the Oklahoma City clerk,” Slater wrote.
Because funds from the Greater Oklahoma City Chamber’s Forward OKC IV program went to fund A Better Oklahoma City, letters from the Gazette also were sent to both the chamber and Forward OKC IV.
Roy Williams, president and CEO of the chamber, stated that because the chamber did not use its PAC to participate in the municipal elections, it did not have to register with the city.
“The Greater Oklahoma City Chamber Political Action Committee does file with the Oklahoma state Ethics Commission as required by Oklahoma state law,” Williams wrote. “The chamber PAC did neither endorse any candidates nor make any financial contributions to any efforts related to the recent municipal elections. Therefore, there is no requirement to file any reports, since there is no information to report.”
A Voice for Responsible Government, which funded the Better Local Government PAC, did not respond to the Gazette’s letter.
FAILURE TO DISCLOSE
The Institute for Justice, in its letter to the Oklahoma Ethics Commission, acknowledged that disclosure laws are unaffected by Citizens United v. FEC, stating “we recognize that narrow disclosure laws are constitutional as they apply to advocacy in support of or opposition to candidates.”
The Gazette has reported on numerous entities that failed to file campaign disclosure forms in the 2011 Oklahoma City municipal elections. They include A Better Oklahoma City Inc., Forward OKC IV and A Voice for Responsible Government Inc.
Hughes said the state’s PSEA, which governs municipal elections, states that complaints related to a city election must be filed with the local district attorney’s office.
Oklahoma County District Attorney David Prater said he met with the state Ethics Commission and was determining which entity has the authority to take citizen complaints regarding possible violations of municipal election law under the PSEA. The PSEA and the Oklahoma City Charter require disclosure of campaign expenditures in support of or opposition to candidates.
As of press time, neither the Oklahoma Ethics Commission nor Prater’s office has acknowledged which has jurisdiction over failures to make required campaign finance disclosures.