ETHICS COMMISSION ISSUES OPINION ON

TENNESSEE CITIZEN ACTION REQUEST

NASHVILLE—Contributions by lobbyists to members of the General Assembly who are seeking local offices such as mayor are prohibited by state law, but questions remain about the constitutionality of such a provision, the Tennessee Ethics Commission has ruled in response to an advisory opinion request submitted by Tennessee Citizen Action (TNCA). 

The Ethics Commission unanimously adopted an interpretation of the Ethics Reform Act of 2006 which clarified the prohibition of contributions by registered lobbyists to the Governor and members of the General Assembly and to candidates for those offices.  The three-part ruling was issued in response to a June 28, 2007, letter to Commission Chairman Tom Garland from Bill Mason, executive director of TNCA. 

In the opinion, the Ethics Commission concluded: 

• Lobbyists may contribute to the campaign of a Governor or state legislator who is seeking federal office, including President, Member of Congress or Senator, since federal law “pre-empts” state statutes.
• Lobbyists may not contribute to the campaign of a Governor or state legislator who is seeking a local office such as mayor or county clerk.
• The prohibition on contributions by lobbyists does not extend to other state officials, such as Commissioners of the various departments in state government, who might be seeking a local office.

Mason appeared before the commission and argued that the second portion of this ruling—prohibiting contributions to an incumbent member of the General Assembly who is seeking a local office—may be unconstitutional under the “equal protection” clause. 

“What your ruling says is that if a State Representative were running for Mayor of Nashville, for instance, that a lobbyist could contribute $1,000 to one of his opponents, but he would be prohibited from giving anything to that State Representative,” Mason told the Ethics Commission members. “That, in my view, is unconstitutional on its face.” 

While members of the Ethics Commission recognized that such an argument may have merit, the opinion stated that “The Commission does not have the authority to determine the constitutionality of prohibiting contributions to a legislator or a governor who is a candidate for a local office.” Chairman Garland  assured Mason that the Commission would bring the matter to the attention of a legislative study committee which is expected to make recommendations for changes and clarifications in the law.  The Commission deferred on TNCA’s request for a formal opinion from the Attorney General. 

“Tennessee Citizen Action is committed to effective ethics legislation, to transparency in government, and to a reduction in the influence that special interest money can have in our electoral process,” Mason said. “We support wholeheartedly the prohibition on lobbyists making personal contributions to candidates for Governor or for the General Assembly. 

“At the same time, we are well aware of the possibility that the entire provision of the Ethics Reform Act dealing with lobbyist contributions is likely to face a constitutional challenge. Our intention in asking for this ruling was to remove a clearly unconstitutional application of this law—an application we believe was not intended when the statute was enacted—in hope that the main provision can meet the test of constitutionality.” 
 

ATTACHMENTS

Ethics Commission Advisory Opinion 07-05

TNCA Letter of June 28, 2007

Tennessee Citizen Action Seeks Clarification on Political Contributions

Tennessee Citizen Action has been a consistent, leading proponent of new and stronger ethics legislation for state officials and lobbyists.  With the creation of the Tennessee Ethics Commission, the application of the Ethics Reform Act of 2006 and the formulation of related regulations has been a major focus of activity and interest.  We are pleased that a process is in place to help ensure that legislators, lobbyists and employers of lobbyists are acting in a consistent, ethical manner.

However, as with any legislation designed to cover a wide range of issues, some details and matters not fully or specifically addressed in the statute need clarification.  The law bans contributions by a lobbyist to the Governor or a member of the General Assembly or to any candidate for those offices.  On June 28, Tennessee Citizen Action has asked the Ethics Commission to issue an “advisory opinion” on whether or not this ban applies to a state official who is running for federal or local office.  We believe that questions of federal pre-emption and equal protection under the law should be addressed.  In addition, lobbyists should have a clear understanding of what is, and is not, permitted under the law.

Ketron, Springer race draws most money in local elections 

More than a half million dollars has been raised in this election cycle to run the campaigns of local state legislative candidates, and Murfreesboro Sen. Bill Ketron is among the biggest spenders. Ketron, a Republican, and Democratic challenger Vince Springer's race for the 13th Senate District seat is a pivotal battle that could make the difference between Republican or Democratic control of the state Senate, explaining the surge in spending. "There are three state Senate races in particular that have attracted a lot of money from both sides," said Bill Mason, director for consumer advocacy group Tennessee Citizen Action, which tracks campaign finances. "There is the Mae Beavers-Bob Rochelle race, the Bill Ketron-Vince Springer race and out in West Tennessee there's the race between Don McCleary, incumbent Republican, and Lowe Finney. "The state Senate has a one-vote margin right now in favor of the Republicans," Mason said. "Republican control of the Senate is at stake this year, and those three districts, which everyone agrees are competitive, are drawing a lot of attention." Mason said his group hasn't been keeping a running total, but the Ketron-Springer race seems to be the second most expensive race in the state this year. Coming into this year, the Ketron campaign treasury had a balance of $73,846. As of Oct. 28, the campaign had received $375,900 and spent $323,411, according to the Tennessee Registry of Election Finance. The Springer campaign has received $146,327 this year, and had spent all but about $40,000 as of Oct. 28. Making best effort New campaign disclosure laws, which require candidates to divulge the occupations and employers of major individual donors, that went into effect Feb. 16 have thrust even more attention onto the race. Springer supporter David Stricklin, who lives in the 13th Senate District, recently charged that Ketron failed to identify the occupation or employer of some 80 percent of individual donors among the 373 contributions Ketron has received during the current election cycle. "Who donated to Mr. Ketron is less troubling than the fact that Mr. Ketron was so cavalier in trying to determine who they are and what they represent," said Stricklin, who filed a complaint against Ketron with the Tennessee Registry of Election Finance. "I'm far less interested in the details about individual contributors than the fact that people in office have such blatant disregard for the spirit of the ethics law," Stricklin said. "It has the appearance that zero effort was put into determining where these people work and what ties they have." The TREF board met Thursday to consider whether Ketron's campaign violated the guidelines, but deferred the matter to its December meeting, well after Tuesday's elections. The board requested TREF Director Drew Rawlins send a letter to Ketron requesting identification of the occupations and employers not identified. The law does allow candidates to list "Best Effort Made" instead of employer or occupation. Asked if the Ketron campaign had in fact done all it could to obtain the information, Ketron spokesman Matt King replied: "Absolutely. "We went above and beyond the guidelines that are prescribed by law," King said. "Most people were mailed multiple mailings and phoned in some instances, trying to track folks down." Mason said it is important for candidates to comply with the new law. "We need to be careful that candidates at the state level are really not paying enough attention about what the law says about full disclosure of employer and occupation on finance disclosures," Mason said. "There appears to be a loophole, where they can put 'Best Effort Made,' when minimal effort would have found the employer and occupation of some contributors. If the law is obeyed in spirit as well as letter, I think we can have more transparency about who is giving and why they are trying to influence this election." Fueling campaigns Occupations of campaign donors that have been listed in campaign disclosures include bankers, health care providers, teachers, firefighters, insurance agents, automotive dealers, retailers, doctors and dentists, among others. While individual donations account for a large portion of the money flowing into campaigns, most comes from the candidates' parties and from political action committees (PACs) representing business, professional and other interests. Among the contributions listed on the TREF website for Ketron is a $5,000 donation from National HealthCare Corp., the Murfreesboro-based nursing home company. The contribution actually came from the National Health Employees Political Action Committee, said Gerald Coggin, senior vice president at NHC. "We contributed to Sen. Ketron because in his first term in office he's been willing to sit down and listen to us regarding issues that affect patients in nursing homes across the state," Coggin said. "Sen. Ketron's background in the insurance industry has been helpful as he helps us work through various problems regarding TennCare funding and eligibility for our patients." Ketron's opponent, Springer, received a similar contribution from Nashville Firefighters Union Local 140. The firefighters union has a number of interests affected by what happens in the General Assembly, said Kevin McGavock, recording secretary for Local 140. "We have a lot of firefighters across the state who are directly affected by the Tennessee pension system," he said. "It doesn't affect us in Nashville, but as part of the brotherhood of the IAFF, we thought we would do what we could to help firefighters across the state with their pension benefits. "The biggest issue we're concerned with is our firefighters having the right to negotiate," he said. "In the last session we had a firefighters negotiation bill, which passed in the House and was defeated in the Senate."

The most important race in the state is not for a seat in the General Assembly, but in the U.S. Senate. David Carlton, a political science professor at MTSU, said that factor may be increasing the level of funding for state house and senate races. "My sense is they're up over midterm elections," Carlton said. "With the U.S. Senate race, it's a function of how competitive the race is. The (Harold) Ford-(Bob) Corker race is one of the three most competitive races in the country." As those two high-profile races receive more money, some of the overflow may be reaching Republican and Democrat General Assembly candidates, he said. "To the extent that both parties are receiving a lot of soft money, that money flows across individual campaign races. Much of it goes to issue adds which effect all Democratic or Republican races," Carlton said. In addition to the rule mandating that employers and occupations of contributors be listed on campaign disclosures, candidates must disclose their finances more often. "The only other big change was that we added two reporting periods," he said. "There had been four. Candidates now must file six times during an election cycle." The TREF website, while it lists individual contributions for each candidate, does not list total amounts of contributions the candidate has received, Rawlins said. Totals will not be available until after the election, he said. One place voters and citizens can look for totals is the Web site www.followthemoney.org <http://www.followthemoney.org>. "We collect all state level contribution data for candidates and party committees, and we have added ballot measure committees," said Rachel Weiss, communications director for the Helena, Mont.-based Institute on Money in State Politics, which maintains the website. "We are committed to making that available online with the idea that knowing where a candidate or future public official is getting their money," Weiss said. "That may be of use to citizens when they want to know why certain policies are proposed or not proposed. Keeping track of the money can let people know why certain public policies are put in place."

President Bush’s 2008 Budget Reflects
All-Too-Familiar, Upside-Down Priorities

Tennessee Citizen Action calls on Congress to reject President's budget
and adopt a plan that invests in Tennessee's future

NASHVILLE – President Bush's proposed budget for fiscal year 2008 would devastate vital public supports that Tennessee’s working families depend on, Bill Mason, executive director of Tennessee Citizen Action, said today.

The President’s budget includes drastic cuts to the State Children’s Health Insurance Program (SCHIP), Head Start, food stamps, child care, job training, Medicare and Medicaid, and many other vital services. In response, the Emergency Campaign for America’s Priorities, of which Tennessee Citizen Action is a member, called on Tennessee’s Congressional delegation, including Senator Bob Corker, to reject the administration’s upside-down priorities and help to craft a budget that works for America's families and reflects an agenda of investment in America's future.

“The president’s budget fails to meet America's basic needs," Mason said. "Despite the clear message American voters sent in November, demanding an end to reckless tax breaks and irresponsible budget cuts that characterized this administration's years of upside-down priorities, President Bush's 2008 budget gives us more of the same."

• Since the president took office, median household income has dropped and the number of Americans living in poverty has grown to 37 million.

• Seventeen states face shortfalls in 2007 in the State Children’s Health Insurance Program (SCHIP); the President has proposed further cuts.

• Food stamp benefits average just $1 per meal, but the administration's proposal would cut benefits to hundreds of thousands of working families and to eliminate the Commodity Supplemental Food Program, which provides help to low-income older Americans and some families with children.

• Even though millions of Americans struggle to make ends meet each week, the administration seeks to cut job-training funding by more than $300 million and eliminate funds reserved for workers dislocated from their jobs by plant closings.

Bush carried Tennessee both times he ran for president, beating Democrat John Kerry 57%-43% in 2004. However, polls and interviews before his speech show the area is not as hospitable as it once was.

A Middle Tennessee State University poll of state residents last November put Bush's job approval rating at 40%, lower than the nationwide 43% rating measured in a USA TODAY/CNN/Gallup Poll on Jan. 20-22.

"Tennessee is a boom state. A lot of people are coming in and bringing their political values with them," says Ken Blake, polling director at the university.

Bush took on the challenge of changing minds with a 67-minute speech Wednesday to about 4,000 enthusiastic supporters in a packed Grand Ole Opry House, sacred ground for country music fans.

"My job is as much educator in chief as it is commander in chief," he said.

Bush repeated themes he sounded Tuesday night in Washington: It's vital to stand fast and win in Iraq. At home, the nation's "economy is roaring," and the administration has solid proposals to keep the United States competitive and to improve education and health care. (Related: Bush paints 2006 as 'decisive'| Analysis)

Events and interviews leading up to the speech showed some in Tennessee were not receptive to the president and his policies.

A cadre of social and labor activists held a news conference in Nashville the day before the Bush visit, denouncing the president's health care and economic policies. The event got coverage in The Tennessean, Nashville's largest newspaper, and on all the local television stations.

"Over 62,000 manufacturing jobs have been lost in Tennessee, with more than 150,000 people looking for work in our state," said Bill Mason of Tennessee Citizen Action.

Tuesday night, a group of about 40 Democrats gathered in The 5 Spot, an East Nashville bar, to watch the State of the Union speech. They found little they liked.

"His policies are terrible, and his enunciation drives me crazy," said Allen May, 30, a computer technician who moved here from Seattle with his wife, Andrea, six months ago.

On Wednesday, a throng of anti-war protesters loudly demonstrated against Bush's Iraq policies outside the hall where he spoke. They, too, got television coverage.

Bush still received the largest amount of media attention. Three Nashville television stations devoted about two hours of live coverage to the Bush visit, including Air Force One's arrival, its departure and the president's speech itself. The president also got front-page billing in The Tennessean.

Jack Geer, a Vanderbilt University political scientist, said Bush is taking to the road to maximize media attention while there is still interest in the State of the Union.

"It's a way of keeping his message front and center. He knows that he will face protesters wherever he goes, but unless the size of the protests dramatically change, he's still going to get the most media space," Geer said.

White House spokesman Scott McClellan said Bush's speech here and those to come are more about gaining support for his programs than boosting his approval numbers. "The speeches will give the president an opportunity to lay out in greater detail his agenda for 2006," McClellan said.

In Nashville, Bush spent more than half of his speech urging listeners not to lose confidence in the ability of the United States to win in Iraq.

Yet he empathized with the public's worries.

"People are uncertain, in spite of our strong union, because of war, and I understand that," Bush said.

With the speech running longer than expected and Bush realizing he had four more points to make, he turned to those sitting on the stage behind him and jokingly asked, "You still awake?"

He mentioned earlier that he promised first lady Laura Bush, "I'd try to keep it under a couple hours."

For all the local media attention, Geer said Bush will need luck along with the hard work to gain public support. "About 40% of the public supports him, 40% is against him and 20% can go either way," Geer says. "He's boxed in at 40-45% approval unless something big happens. That's just the way it is."