(Updated to reflect live testimony from Thursday’s hearing)
The Kansas ethics commission is sounding alarms over a bill that seeks to make changes in state campaign finance law amid an ongoing investigation that appears centered on the Republican Party apparatus.
A social media post criticizing the bill has heightened tensions between the Legislature and the ethics commission, which has been under increasing pressure as it undertakes a broad investigation into alleged campaign finance law violations.
First publicly disclosed last spring, the investigation led to subpoenas being issued to many Republican Party leaders.
It prompted suggestions at the Capitol that it’s overstepping its bounds with overly broad requests for information related to its probe.
The future of the agency’s direction is in question with Republican legislative leaders appointing two new members to the commission and the House minority leader appointing a member of his staff to the commission.
In a lengthy thread on Twitter this week, the ethics commission urged opposition against legislation that will be up for debate Thursday afternoon before the House Elections Committee.
The commission called the bill “shocking,” saying it would “undermine all campaign enforcement” by the agency.
“Stand up for ethics in Kansas,” the agency tweeted.
“Spread the word – make sure that legislators know that you are paying attention to this shameless effort to destroy campaign finance law and attack the ethics commission,” the agency said.
Republican state Rep. Pat Proctor, chair of the House Elections Committee, said in an email that he was “deeply disappointed” that that the executive director of the Governmental Ethics Commission decided to engage in “political mudslinging.”
“Contrary to his accusations that we are trying to ‘undermine all campaign finance enforcement,’ the Elections Committee is hearing a bill intended to restore due process to a system that has been weaponized to suppress speech,” he said.
“The Governmental Ethics Commission regulates a fundamental right: free speech,” Proctor wrote in an email. “There is no more serious matter and it deserves a serious discussion, not a Twitter war.”
Among other things, the bill would restrict the commission’s ability to issue subpoenas, which are now the focus of four court cases in Topeka stemming from the wide-ranging ongoing ethics investigation.
The commission, under the bill, would not have the power to issue a subpoena without probable cause. It would be required to request the attorney general or a local prosecutor and a judge for a subpoena.
Mark Skoglund, the executive director of the ethics commission, testifed against the bill later Thursday when he laid out how the legislation would hurt campaign finance enforcement in Kansas.
“This shameless bill should be met with unflinching opposition,” Skoglund said in written testimony sent to reporters on Wednesday.
When he appeared before the committee on Thursday, Skoglund emphasized that the bill was authored by attorney Josh Ney, who has multiple clients under investigation by the ethics commission, including political consultant Jared Suhn.
“This bill would make the conduct his clients may have engaged in legal so they can continue same the activity,” he said.
“It is arrogant. It is brazen. And it is sad,” he said. The bill “would virtually eliminate any point to have campaign finance law in Kansas.
“Even in the rare case that a violation could occur, they could never be investigated or enforced,” he said.
Ney called Skoglund’s comments a “complete smokescreen.”
“It’s pure and simple gaslighting,” Ney said after the hearing.
In his testimony, Ney told the committee that ethics commission was “structurally broken.”
“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,” he said.
He described Skoglund as an “activist.”
“There’s no question,” Ney said.
“You can read that in his comments in the newspaper. You can read that in his legislative proposals. You can read that in his Twitter feed. He wants the campaign finance act to look a certain way and to restrict certain type of activities.”
Skoglund largely focused his remarks on the bill and how it could affect the enforcement of campaign finance law in Kansas.
Skoglund told the committee without the ability to subpoena witnesses, the commission would not be able to undertake the most serious campaign finance law violations, which would be unprovable and unenforceable.
The bill, he said, would require the agency to show probable cause “without providing any means to obtain that proof.”
The current law, he said, requires a lower threshold of reasonable suspicion, which means the commission can’t carry out a “fishing expedition,” but can investigate matters where a violation is likely.
He notes that the commission’s current subpoena power depends on judicial oversight.
The commission, he said, has no ability to enforce its own subpoenas.
If a subpoena is provided to a witness, and they don’t respond, the commission must file an action in district court to enforce the subpoena, something that was already done in Shawnee County district court in the ongoing investigation.
A district judge is now deciding whether to allow the ethics commission to compel former local Republican Party leaders to respond to a subpoena seeking a variety of communications with GOP leaders, consultants and other officials.
District Judge Teresa Watson has expressed doubt about the legal sufficiency of the subpoenas issued in the ongoing investigation.
Watson said the findings of fact and the conclusions of law that are supposed to be issued with the subpoena showed little indication that there was a reasonable suspicion of a violation that is required by law.
In a point-by-point response to the ethics commission’s tweets from earlier this week, Proctor said the bill doesn’t eliminate the agency’s ability to carry out an investigation.
“It just makes him go to a district attorney and a judge for an investigatory subpoena,” Proctor wrote.
“This is the same requirement for law enforcement investigating the very same laws,” he wrote.
“If you want a subpoena or a search warrant, go to a judge.”
Skoglund also points to other issues with the bill, including areas that are now under investigation such as legislators running political action committees.
He says the bill legalizes legislators establishing political action committees as long as they are not the chair or treasurer.
He said legislators establishing PACs is a “component” of the ongoing investigation into campaign finance violations.
The bill, as drafted, would legalize the conduct currently under investigation, he said.
The current campaign finance law, he said, currently prohibits legislators from “establishing” a PAC, intending to prohibit federal-style leadership PACs.
“This prohibition is already rather weak, and (the bill) manages to weaken it further by specifically permitting ‘participating in the activities’ of a political committee, which appears to conflict with the prohibition against establishing a PAC,” he said in testimony he will present later Thursday.
The bill, he said, “functionally legalizes coordination” with PACs, saying the bill as drafted would legalize the conduct currently under investigation.
Currently, someone who makes decisions on behalf of a campaign cannot coordinate with a PAC that is making “independent” expenditures to benefit the campaign, he said in testimony.
“This should be obvious: An expenditure is not independent unless it is actually done without cooperation of a candidate or their agent,” he said.
Cooperation and coordination would become “functionally legal” under the bill as long as it “occurs through someone who does not have a formal power of attorney with the campaign,” he said.
In his response to the ethics commission’s tweets, Proctor said campaign finance law needs to define who is responsible for activities of a candidate.
“Otherwise, it’s completely arbitrary and everyday unpaid volunteers could be rung up for mere association with a candidate or PAC,” Proctor wrote.
“The Legislature needs to define who is responsible for campaign finance violations under the laws,” he wrote.
“This is not a foreign concept under federal and other state laws,” he wrote.
Skoglund also criticizes another provision in the bill that he said would prohibit cooperation agreements with witnesses.
Without the ability to work with witnesses, the commission would be the only law enforcement agency unable to seek witness cooperation by satisfying them that they would not be a target of subsequent enforcement, he said.
“This language is likely included in the bill because cooperating witnesses are a successful avenue for proving violations of the campaign finance act and this prohibition would impede ongoing investigations,” Skoglund says in his testimony.
The bill, he said, “lacks much of a mask for the bill’s intended purpose, but what little mask exists is torn off on this prohibition.”
In his response, Proctor said the commission does not have the authority to give criminal immunity.
He said case law has said that the commission must go to the attorney general or a district attorney to grant immunity for cooperating witnesses.
“Skoglund thinks he’s an elected prosecutor, and he’s not,” Proctor wrote in his response to the Twitter thread.
“‘Administrative immunity’ without criminal immunity by a DA is not a thing,” he said.
“This bill just clarifies that. He can’t trick someone into providing information when he has no control over an A.G. or D.A. prosecution based on his investigation.
“If Mark wants cooperating witnesses, he can get the A.G. or a D.A. to grant immunity,” he wrote.
