Tuesday, January 12, 2010

AG Opinion on Lobbyist Contributions During Legislative Session

(12/16/2009) It is, therefore, the official Opinion of the Attorney General (2009 OK AG 37) that:

1. The requirements of 21 O.S.Supp.2008, § 187.1(G), that no lobbyist or lobbyist principal shall make or promise to make a contribution to or solicit or promise to solicit a contribution for a member of the Oklahoma Legislature, or a candidate for a state legislative office during any regular legislative session and for five days thereafter, and the companion requirement that members of the Oklahoma Legislature and candidates for the Legislature may not intentionally solicit or accept contributions from lobbyist and lobbyist principals during the same time period:

a. Apply only to contributions to members of the Oklahoma Legislature and candidates for the Oklahoma Legislature;

b. Apply to contributions to incumbent statewide elected offices (such as the Governor, Lieutenant Governor, Attorney General and Treasurer) and incumbent members of Congress only if such incumbents are also candidates for the Oklahoma Legislature. In such instances, it is the status as candidate for the Legislature that triggers Section 187.1's application, not the status as an incumbent office holder; and

c. Apply to candidates for statewide elected office (such as candidates for Governor, Lieutenant Governor, Attorney General and Treasurer) or other state or county office only if the candidate is also a member of the Oklahoma Legislature. In such instances it is the status as member of the Legislature that triggers Section 187.1(G)'s application, not the status as a candidate for non-legislative office.

3. Because of the effect that restrictions on political contributions have on First Amendment free speech and associational rights, such restrictions can survive constitutional challenge only if the restrictions: (1) serve compelling state interests, and (2) are narrowly tailored to avoid unnecessary abridgment of such rights.

4. The United States Court of Appeals for the Fourth Circuit, in North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 714-19 (4th Cir. 1999) cert. denied 528 U.S. 1153 (2000), upheld prohibitions on political contributions during the legislative session by lobbyists and those who employ them, finding that prohibiting lobbyist contributions and solicitations while the Legislature is in session: (1) served the compelling state interests of preventing both actual corruption and the appearance of corruption, and (2) the prohibitions were narrowly tailored, as they applied only to contributions by lobbyists and their employers -- "the two most ubiquitous and powerful players in the political arena," and because the prohibitions were "only temporary" and were limited during the legislative session -- the "period during which the risk of an actual quid pro quo or the appearance of one runs highest." Id. at 716. The Vermont Supreme Court, in Kimbell v. Hooper, 665 A.2d 44, 51 (Vt. 1995), came to a similar conclusion in upholding Vermont's prohibition on contributions during the legislative session.

5. Given the courts' reasoning and conclusions in these cases, we cannot say, as a matter of law, that the restrictions on contributions in 21 O.S.Supp.2008, § 187.1(G) are clearly, palpably and plainly inconsistent with the U. S. Constitution's First Amendment or the Equal Protection Clause of the Fourteenth Amendment. We therefore must presume that 21 O.S.Supp.2008, § 187.1(G) conforms to both the state and federal Constitutions.

Attorney General of Oklahoma

Senior Attorney General
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