State laws restricting corporate independent campaign expenditures and requiring registration as a political action committee in Oklahoma are considered unenforceable in the wake of a recent U.S. Supreme Court decision in Citizens United v. Federal Election Commission, according to some state officials.
Changes are needed in the states laws governing city elections to bring it into compliance with the courts 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 Chambers 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 Courts 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 groups filings with the Internal Revenue Service.
The Institute for Justices letter to the state dated Oct. 18, 2010, said Oklahomas 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.
changes are fairly small, but theyre 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.
the jurisdiction for receiving complaints would fall to the district
attorneys office, Hughes said parts of the PSEA and the criminal code
on corporate donations are unenforceable.
(the district attorneys) jurisdiction, but theyre subject to federal
case law, Hughes said. Its a United States Supreme Court case.
Anytime you have a prohibited corporation from having their voice or the
extent of their voice, youre 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.
funds from the Greater Oklahoma City Chambers 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.
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.
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 Gazettes letter.
FAILURE TO DISCLOSE
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
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.
said the states PSEA, which governs municipal elections, states that
complaints related to a city election must be filed with the local
district attorneys 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.
of press time, neither the Oklahoma Ethics Commission nor Praters
office has acknowledged which has jurisdiction over failures to make
required campaign finance disclosures.