Judge strikes ethics law that bans lobbyists from giving gifts, money to Ky. lawmakers

By Jack Brammer | Lexington Herald-Leader

FRANKFORT – A federal judge has struck down part of Kentucky’s legislative ethics code, ruling that state lawmakers can accept gifts from lobbyists and that lobbyists can make campaign contributions to candidates for the state legislature.

U.S. District Judge William O. Bertelsman handed down the 35-page order Wednesday in Covington.

The ruling was a victory for state Sen. John Schickel, R-Union, and two Libertarian political candidates who sued in September 2015 to overturn state laws limiting campaign donations to $1,000 and prohibiting gifts to legislators from lobbyists.

Bertelsman declined to rule on the issue of campaign contribution limits, saying the issue is moot because the legislature this year doubled the limit. He did, however, rule that legislators cannot set up caucus campaign committees, which give unlimited contributions to campaigns. Caucus campaign committees gave nearly $800,000 to winning campaigns in Kentucky’s 2016 elections.

“I don’t know if legislative leadership will be happy about that,” said Schickel.

In their lawsuit, the politicians argued that the ethics laws violate their constitutional rights to free speech and equal protection by restricting their access to people who want to help them.

State regulators countered that the laws were meant to prevent bribery at the state Capitol. Most of the rules were enacted after Operation BOPTROT, an FBI investigation in 1992 that exposed 15 current or former legislators who sold their votes. Don Blandford, the House speaker, was among those sent to prison.

In his decision, Bertelsman wrote that “influencing the government through the act of lobbying is at the heart of the political process. A law that specifically restricts what a lobbyist can and cannot do regarding a legislative member of government is a suppression on their freedom of association with those individuals.”

The judge, who was appointed to the federal bench by former President Jimmy Carter, said the state’s prohibition on gifts included “anything of value.” He said that was too vague.

Officials with the Kentucky Legislative Ethics Commission and the Kentucky Registry of Election Finance, which oversees campaign spending, said Wednesday they were reviewing the judge’s order and considering an appeal.

Schickel said he was “overjoyed” with the order. “He got it exactly right, noting that a lobbyist couldn’t even give a legislator a glass of water” under existing laws, Schickel said.

The lawmaker said any legislator who commits bribery should go to prison, “but we’ve had ethical problems since the ethics code was created. There always will be corruption.”

Kentucky Attorney General Andy Beshear

Attorney General Andy Beshear called the judge’s order “a very dangerous decision that opens the door for a significant amount of corruption.”

Under the order, a lobbyist pushing a certain bill could give legislators gifts or campaign contributions that could influence the vote, Beshear said.

“It is very concerning,” he said. “I hope that that decision is appealed by the parties in it and I hope they seek an injunction during that appeal so we don’t see lobbyists and legislators involved in what could easily be viewed as corrupt activities during that interim.”

Beshear added that he will consider whether his office can intervene in the case.

George Troutman, chairman of the Legislative Ethics Commission, said he considers the order “unfortunate for the people of Kentucky.”

“We have seen that the giving of gifts has led to corruption,” Troutman said. “However, we don’t make the law and the ball is now in the legislative court to address what should be done.”

Longtime lobbyist Bob Babbage of Lexington suggested that the General Assembly might want to alter the law so that legislators must publicly disclose gifts “over a set value.”

“Overall, the ethics code may not be constitutional but it has served our purposes very well,” Babbage said.

Richard Beliles, chairman of the ethics watchdog group Common Cause of Kentucky, said he is “sorry for the public. This will have disastrous consequences.”

John Steffen, executive director of the Kentucky Registry of Election Finance, said he was still reviewing Bertelsman’s order to determine how it would affect the state’s campaign finance laws.

“At this point, we’re not sure of all the consequences,” he said.