Kansas Legislature considers bill to overhaul Ethics Commission as it probes GOP officials

Amid a Kansas Governmental Ethics Commission probe into activities of prominent legislators and state Republican Party officials, lawmakers are considering a massive overhaul of the agency that could limit its ability to conduct future investigations.

The agency's leader said the bill, House Bill 2391, would make Kansas' campaign finance laws among the weakest in the nation.

That legislation, considered Thursday in the House Elections Committee, would end the agency's subpoena power unless it has already established probable cause — a standard the agency has said would be nearly impossible to meet without being able to access key documents.

Its consideration comes after revelations that subpoenas had been issued to prominent interest groups, Republican Party officials and lawmakers.

The bill would legalize activities the agency is believed to be examining as part of its investigation — at the same time as it vastly expands the power of political action committees and handcuffs the commission's powers, Ethics Commission Executive Director Mark Skoglund said.

"It is arrogant. It is brazen, and it is sad," Skoglund told lawmakers.

Advocates of the bill say the commission's activities have had a "chilling effect" on free speech.

"The idea that even questioning our ethics laws or asking if they could be done better, asking if there is room for more checks and balances is inherently unethical, I reject that presupposition categorically," Rep. Pat Proctor, R-Leavenworth, chair of the House Elections Committee, told reporters.

Bill comes amid ethics investigation, could affect current probe

The battle over the Ethics Commission's ongoing investigation has become increasingly public in recent months.

The Ethics Commission in August went to court in a bid to compel the production of documents from seven individuals, essentially a move to enforce a series of previously issued subpoenas. The individuals targeted include former leaders in local Republican parties in Johnson, Sedgwick and Shawnee counties.

More:A battle over subpoenas of Kansas Republican officials is heating up. Here is what's at stake.

Brett Berry, attorney for the Ethics Commission, said in court arguments in December that the agency believes a series of conservative political action committees gave to local Republican parties with the intent of them passing those funds to the statewide GOP in a move to circumvent limits on donations and, potentially, earmark them for particular candidates.

"These contributions, the way they’re done, doesn’t make a lot of sense to us as an investigative agency had there not been an effort to get around the contribution limits in statute," Berry said at the time.

Copies of subpoenas show the investigation was expanded to examine the potential involvement of top Kansas Senate and House lawmakers and staff, other county Republican Party officials and political campaign consultants.

Attorneys for the parties subpoenaed have decried the investigation in court proceedings as nothing more than a fishing expedition that would not amount to anything and have sought to get the subpoenas tossed out for being overly broad.

Republican legislators have echoed these criticisms.

Senate President Ty Masterson, R-Andover confirmed to reporters last week that he had been contacted by the Ethics Commission as part of the investigation but that the matter had been dropped.

"It's like you're guilty until proven innocent," he said. "I didn't do anything. ... I'm not worried about it."

In Skoglund's testimony, he indicated the investigation examined potential coordination between political committees and candidates, as well as legislator involvement in PACs.

Both of those things would become legal under the bill, unless the candidate or their treasurer was orchestrating the collaboration with an outside group.

Indeed, the legislation would allow other activities that the Ethics Commission is currently probing.

Under the proposal, candidates could donate money to a third-party, such as a political committee or party, and instruct the funds be routed to another campaign or entity.

Also legalized would be the ability to make a contribution in the name of another person or entity, even if it is in an attempt to circumvent donation limits in the Campaign Finance Act. This would mean an individual could donate the maximum amount allowed under law to a given candidate and then route funds through additional sources on top of that.

Such a move is not allowed anywhere else in the United States, Skoglund said.

"There is absolutely no reason to have contribution limits on the books — a cornerstone of any campaign finance law — if HB 2391 were to pass," Skoglund said in his written testimony. "A wealthy donor could give the maximum to a campaign and then route money through innumerable shell corporations, business associates, family members, PACs, or dark money groups and this conduct would be legal."

Supporters of overhaul say commission has gone too far

Proponents of the overhaul argue it is a long-overdue move that makes Ethics Commission proceedings fairer, though critics counter that the fairness comes at the expense of any meaningful regulation.

"The KGEC is structurally broken," Joshua Ney, a prominent conservative attorney, told lawmakers. "Nearly every one of the provisions in this bill is directly related to a significant due process issue or question of law that has arisen in one of my many cases before the commission over the past several years."

Ney is largely responsible for crafting the bill and has been a familiar face in front of the commission.

He pointed to the case of an Overland Park civic group, Fresh Vision OP, and whether it constitutes a political committee. The case was ultimately dropped in the fall, but Ney said it was rife with what he called due process violations.

More:Kansas governmental ethics leader under fire amid law license questions. Legislature eyes response.

That case was used as justification for an initial effort last year to remove Skoglund as director of the Ethics Commission, though lawmakers eventually backed off.

Chengny Thao, a leader of Fresh Vision OP, told lawmakers her case before the commission was "bullying" shortly before placing a set of scales on the dais to underscore the need for justice. Her counterpart, James Muir, compared the agency to the Soviet Union.

Ney said it pointed to broader issues, arguing the commission is acting as arbitrator and prosecutor at the same time in a way that harms those who have business before it.

Skoglund, he added, is an "activist" and the commission itself is a "kangaroo court."

"It feels like you are being gaslit by that comment as duly elected legislators," Ney said.

The Fresh Vision case has since been used as justification for changing the definition of a PAC, which the bill would do.

Under its language, PACs would only have to register with the commission and report their activities if they spend more than $2,500 on messages that clearly advocate for or against a candidate and have 50% of its total spending in a two-year period be on expenditures that must be reported to the Ethics Commission.

Currently, it is defined as two or more people whose major purpose "is to expressly advocate the nomination, election or defeat of a clearly identified candidate" and who spend in order to achieve that goal.

Skoglund said the changes were "absurd."

"There frankly wouldn’t be any need to register as a PAC ever again for any vaguely savvy organization," he said.

Bill would mean major changes to subpoena powers

The major change to the commission's subpoena powers, Skoglund said, would effectively make it impossible for the agency to investigate cases. He noted the current framework allows for judicial oversight and that subpoenas currently can only be issued with approval of at least seven of the nine commission members and "reasonable suspicion" of wrongdoing.

"Without a subpoena power, we don’t have the resources many LEO agencies do," he said. "We can essentially have people come talk to us or subpoena them … These are our only mechanism for investigative power."

But Republican legislators argued that challenging a subpoena meant a costly legal process, though Skoglund said the agency attempts to handle any concerns in an "amenable" manner.

The legislation would also institute a two-year statute of limitations, meaning that any active investigations focusing on activity more recently than 2021, including the coordination investigation, would be shut down.

But Proctor made the case that the issue stems beyond one investigation and Skoglund's conduct in his role, though he expressed frustration with rhetoric from the director that he called "hyperbolic."

"This isn't about Mark Skoglund and whether he is a good director or a bad director," he said. "This is about whether our system is suppressing free speech and I feel like the investigative powers are so broad and the definitions are so broad and open to interpretation that there is room to add some specificity."

This article originally appeared on Topeka Capital-Journal: Kansas ethics commission change proposed amid subpoenas, investigation