Ethics Commission Attack on Citizen Activism

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Judge's Ruling Against Missouri Ethics Commission
Is Victory For Grass-roots Activists!

Jefferson City, MO, September 26, 2016 – Nearly two years after a complaint was illegally filed against one of Missouri First's directors, Ron Calzone, a Cole County circuit judge has ruled that the Missouri Ethics Commission acted outside its legal authority when it accepted and pursued the complaint filed by the Missouri Society of Governmental Consultants.

It is not clear, yet, whether the Ethics Commission will appeal.

The complaint alleged that Calzone was required by law to register and fill out reports the same way professional lobbyists do, even though he has never been compensated for his efforts as a citizen activist.

The Parties Involved

The Missouri Society of Governmental Consultants (MSGC) is a guild or association of professional lobbyists who are hired to promote the agenda of special interests. Over many years quite a few citizen activists, like Calzone, have been very successful in defeating legislation that would subvert constitutional governance, undermine free-market principles, and profit some of those lobbyists and their principals, even though the activists receive no compensation and spend no money on law-makers.

Often times activists beat the high-paid, well-funded professional lobbyists at their own game. Of course, that doesn't make their clients very happy.

The Missouri Ethics Commission is a group of people appointed by the governor to enforce the laws pertaining to campaign committees and various types of lobbying, among other things. They have staff attorneys who decide what complaints to investigate and then, in administrative hearings closed to the public, try to convince their bosses who should be punished.

The Ethics Commission issues "consent orders" which are not authoritative in the same way an order from a real court is. If the accused refuses to "consent" to the order, the Ethics Commission must pursue legal action in a real court to enforce their order. Since most of the people and entities under the Commission's regulatory scheme are funded by campaign donations or special interest principals (it's not really their money at stake), they often acquiesce to consent orders without a fight, even if they don't believe the Commission acted justly.

Unethical Behavior of the Ethics Commission

At every turn in the case against Calzone, the complainant and/or Ethics Commission violated the law and rules pertaining to legal proceedings. In the end, a real judge in a real court of law, following the proper rules of civil procedure, ruled that the Ethics Commission was operating outside the law.

Central to the case is a simple Missouri statute, § 105.957(2), RSMo: "Complaints filed with the commission shall be in writing and filed only by a natural person."

The Complaint filed against Calzone included a cover letter from the attorney the MSGC secured to file their complaint. It included this statement that made it clear from the start that the entity filing the complaint was NOT a "natural person":

Enclosed herewith for filing and action by MEC is the complaint, along with supporting Exhibits A-E, against Ron Calzone for violating the requirements imposed on lobbyists by Missouri law that I am submitting on behalf of our client, Missouri Society of Governmental Consultants.

The MSGC is headed by Sam Licklider, president, and Randy Scherr, secretary, and is organized as a nonpartisan, not for profit entity which supports education, regulation and compliance training for professionals engaged in the profession of serving clients as governmental consultants.

Any public or media communications should be directed to MSGC, while any communications or questions from MEC should be directed to the undersigned.

(Excerpt from complaint cover letter of Michael Dallmeyer, attorney for MSGC.)

Additionally, Randy Scherr, the secretary for MSGC, testified under oath before the Ethics Commission that the MSGC was approached by some legislators about filing a complaint and his board of directors voted unanimously to do so.

Armed with the knowledge that the complaint was being filed by the Missouri Society of Governmental Consultants and not a "natural person", the Ethics Commission should have immediately dismissed the case. By failing to do so, they broke the very law they are empowered to enforce.

That wasn't the first time the Ethics Commission broke the law in this case. Section 105.957(2), RSMo also says, "Within five days after receipt of a complaint by the commission, a copy of the complaint, including the name of the complainant, shall be delivered to the alleged violator."

Although most of the complaint was, in fact, provided to "the alleged violator" within five days, the cover letter that revealed the true complainant was not included. It was only after Calzone pressed the issue, 2 1/2 months later, that the Ethics Commission revealed the name of the complainant.

Although those examples are the most egregious of the Ethics Commission's violations, there was much more unethical behavior, including mischaracterizations and misquotations in legal briefs throughout the process.

Reform of the Ethics Commission

Ethics reform has been a hot topic at the Missouri Capitol, but much of the efforts have been misplaced. One area not even considered is the need for ethics reform of the Ethics Commission.

In 2010 the Commission sought expanded powers in SB 844. That bill would have allowed them to conduct investigations on their own without having received a complaint. It also expanded fines for being late filing reports from $10 per day to $50 per day.

SB 844, however, was full of constitutional problems and the Missouri Supreme Court struck it down in 2012. Since SB 844 was passed using unconstitutional procedures, the Court declared that it never had the force of law. Nonetheless, the Ethics Commission collected fines at the $50 rate before the ruling and never returned the illegally collected $40 difference once the new rate was found to be unconstitutional.

The First Amendment Question

Because the complaint against Calzone was illegally submitted and processed, the constitutional question in this case was never answered. The Ethics Commission still maintains that Calzone must register as a "legislative lobbyist", even though he doesn't receive any compensation.

Calzone and his attorneys contend that the Commission is misapplying the law and that their application of the law would violate the First Amendment of the U.S. Constitution and Article I, Section 8 of the Missouri Constitution. The lack of judicial consideration of this core question may leave Calzone and scores of other citizen activists in limbo.

The Role of Public Interest Law Firms

Had Ron Calzone had to represent himself or hire lawyers to protect his interests, the cost would have been astronomical. Fortunately, there are public interest law firms whose mission it is to litigate questions like this that have the potential to affect a lot of people.

Calzone was represented pro bono by Allen Dickerson and Zac Morgan of the First Amendment law firm, Center for Competitive Politics (CCP). of Alexandria, VA, with the able help of Dave Roland of the Freedom Center of Missouri. Here's CCP's web page for the case: https://www.campaignfreedom.org/litigation/current-litigation/calzone-v-missouri-ethics-commission/ (All the case documents are available there.)

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Jefferson City, MO, December 21 2015 – It's been over 3 ½ months since the Missouri Ethics Commission issued a “consent order” declaring that I violated state law when I exercised my right to free speech without registering as a lobbyist and filling out regular reports. (The background story is detailed at below.)

Since the September order, my First Amendment legal team has filed an appeal to the Administrative Hearing Commission, and just last Friday they filed a motion for a Judgment on the Pleadings.

The outcome of this case could affect scores of average citizen activists who don't want to leave the making of the laws they and their families must live under up to politicians and professional lobbyists.

I've learned a lot from this experience, including a deeper understanding of how agencies tasked with enforcing the law view themselves as above the law. In this case, the Ethics Commission, of all agencies, has been clearly ignoring the laws that dictate their procedures and conduct.

If you're into reading long legal briefs, I think you will gain a lot of insight into this problem by reading my lawyers' appeal petition and also their motion for a judgment on the pleadings. The appeal lists nine ways the Ethics Commission ignored statutory limits on their power, violated my constitutional rights, or twisted the meaning of statutes and definitions of words beyond reasonableness.

Some of this is not merely poor judgment on the Commission's part – some of it is unethical and illegal behavior.

That should be of particular concern now, since ethics reform bills will get priority treatment in the 2016 legislative session. Citizen activists and the public in general, need to keep a watchful eye on all the ethics bills.

Again, I think it would be worthwhile to invest twenty or 30 minutes to read the Motion for Judgment on the Pleadings, but you can at least get the flavor of the document from its conclusion:

“There is no need for these proceedings to go any further. The Ethics Commission’s finding of probable cause was plainly erroneous. The initial complaint against Mr. Calzone was likely politically motivated, was investigated despite being filed by a non-natural person, and probable cause was found based upon a clearly incorrect reading of the relevant statute and a factual record built upon repeated abuses of process and procedure. Particularly in light of the dubious constitutionality of the MEC’s interpretation of the underlying statute, this body ought to grant Mr. Calzone’s motion for judgment on the pleadings”

Like the Ethics Commission, the Administrative Hearing Commission, the next step in the appeals process, is not a real court of law. If they also rule against the rule of law, due process, and the freedom of speech, we will be appealing to a real court with real judges who will listen to constitutional arguments.

Hopefully, the Administrative Hearing Commission will render a judgment on the pleadings in our favor, but if they don't they will, instead, conduct the appeals hearing on February 3rd.

See the green box in the sidebar for links to legal documents in this landmark case.

For Liberty,

- Ron

On September 3, 2015, the Missouri Ethics Commission conducted a hearing to consider a complaint filed against me by the Missouri Society of Governmental Consultants – a guild, of sorts, of professional lobbyists. They claimed that I should have to register as a legislative lobbyist and complete the regular reports required of legislative lobbyists. They implied that I owed thousands of dollars of penalties for the many years I've spent at the Capitol without being registered.

After 4 to 5 hours of testimony and arguments, the 6 member commission found “probable cause” that I did fall under the statutes that require lobbyist registration and reporting. They issued an order requiring me to register, fill out the required reports, and pay a $1000 penalty for overdue reports. The order also stipulates that I can not represent Missouri First in the future without first registering and then must fill out the reports required of legislative lobbyists.

Their ruling raises questions about what unpaid citizens can and can't do to influence the making of the laws that they must live under. If this ruling stands, there will be a fuzzy gray line that will leave citizen activists unsure about whether they need to register and fill out the same activity reports as do the professional lobbyists who are sometimes paid by dozens of different principals to represent their financial interests.

Is it right for state officials to disregard constitutional protections of free speech, especially when it's “core political speech”?

Is it OK if the Ethics Commission is used by politicians and professional lobbyists as a political weapon to squelch opposition?

Is it OK for the Ethics Commission to ignore the plain meaning of statutes and redefine simple words, like “designated”?

The Missouri Ethics Commission consists of 6 commissioners, each appointed by Governor Nixon. Some are lawyers and some are not. Currently, one is a former legislator.

MEC has approximately 21 employees, including investigators and lawyers who consider complaints and recommend to the commissioners whether they should take action on the complaints. If the commissioners authorize action, the MEC lawyers build a case and argue it before their bosses, the commissioners. The subject of the complaint, me in this case, is given an opportunity to defend himself in front of the MEC lawyers' bosses, too.

MEC says about their mission: “The MEC serves the public interest by promoting and maintaining transparency, accountability, and compliance with campaign finance, lobbying, and conflict of interest laws.”

Their hearings are, by statute, closed, so neither the general public nor friends of those accused of violating ethics laws are allowed to attend hearings.

The Ethics Commission claims they have no responsibility to consider constitutional arguments that might otherwise be presented in a defense against complaints.

While it's true that MEC has no authority to declare a statute unconstitutional like a real court of law would, they do have a responsibility to support the Constitution, so they should actually at least be considering the constitutional implications of various interpretations of statutes relating to a complaint. In other words, if there are two possible ways to interpret a statute – one is constitutional and the other is not – they should feel obligated to choose the constitutional approach. They do not feel thus constrained, however, and that does not bode well for our free speech rights.

History Relating To This Case – Why are Rep. Kevin Engler and Sen. Ron Richard after me?

At the September 3, 2015, hearing before the Missouri Ethics Commission, a witness called by the Commission's own attorney revealed during sworn testimony a very interesting and very telling fact. The testimony was that Representative Kevin Engler and Senator Ron Richard had talked to the Missouri Society of Governmental Consultants (MSGC), asking them if they had any interest in my status as a lobbyist. After that, MSGC filed a complaint against me with the Ethics Commission..

Why would a state senator and rep conspire together to with a professional lobbyist guild against me?

For many years I have made the hour long trip to Jefferson City to promote constitutional governance, individual liberty, and free-market principles. I have always paid my own way and don't give legislators or staff anything other than information in one form or another, just like a lot of other citizen activists.

It's a law of human nature – when you present information and ideas that get in the way of someone else's agenda, you are bound to make some enemies. In fact, in the public policy arena, that's a measure of success.

An example goes all the way back to 2010. That's when I fought against SB 844. It started as a one page bill “relating to contracts for purchasing, printing, and services for statewide elected officials”. After passing the Senate, SB 844 became the vehicle for the 65 page omnibus ethics bill that had crashed and burned with no good procedural way to revive it.

The Speaker of the House at the time, Rep. Ron Richard, instructed the Rules Committee to send SB 844 back to the General Laws Committee so they could perform the transformation. He then asked Rep. Tim Jones to handle the bill on the floor.

The House of Representatives passed the bill and then we found out what was in it – a lot of really bad stuff.

Perhaps the most offensive was a provision that could have made you and I Class D felons just for talking about bills to legislators from districts outside our own House or Senate District. No fooling!

Buried in the new SB 844 was language from Rep. Steve Hobbs' HB 1846 designated to make it harder for me and other citizen activists to participate in the legislative process. Hobbs' bill added to the definition of “legislative lobbyist” anyone who, “Attempts to influence any elected official other than an elected official who represents the legislative district where the person resides.“

Once defined as a “legislative lobbyist” you are required to register as a lobbyist and could be charged with a misdemeanor for the first offense and felony for the second offense if you failed to do so or filed incomplete reports. By law, the reports have to include any and all issues you dealt with – a trap that could catch you for neglecting to report, for instance, an impromptu conversation with a legislator in the hallway.

As evidenced in a Springfield New-Leader article at the time, that provision was aimed at me. Why? Because I had made some politicians mad when, in 2006, I pointed out that Hobbs' eminent domain reform bill (HB 1944) was not going to stop eminent domain for private gain, and continued to make that point into 2008 as we collected 428,000 signatures on two eminent domain reform petitions.

I was also vocal about other grave constitutional problems with Ron Richard's version of SB 844. The Missouri Supreme Court later agreed SB 844 was unconstitutional and struck it down.

In 2008 then Senator Kevin Engler filed SB 909, a bill that would have severely hampered Missouri citizens' constitutional right to use the initiative petition process. I was in the forefront of opposition to that bill. It was the beginning of a six year battle against special interests who were afraid voters would upset their apple cart by going around the legislature, where they have a lot of sway.

In 2013 we finally turned the tide of opposition to the initiative petition process and passed a bill that protects the people's rights, but for the first few years I was helping to kill bills that Engler either sponsored in the Senate or carried there for a House member.

In 2010, along with multitude of Tea Party and Patriot group members, I also quite vocally opposed the election of Senator Engler, who was the majority floor leader, to the position of the Senate's president pro tem. For the first time in decades, the Senate declined to make the majority floor leader their next president pro tem.

As was evident in Senator Engler's scathing farewell to his colleagues on his last day in the Senate, he took the loss hard.

Now that he's back in the House of Representatives, Kevin Engler has been sponsoring and promoting bills that would establish the Prescription Drug Monitoring Program in Missouri. I have also played a key role in opposing those bills, which would result in more government monitoring of law-abiding citizens.

What does the lobbyist guild (Missouri Society of Governmental Consultants) have against me?

The fact is, grass roots citizen activists have become increasingly effective at killing special interest legislation that lines the pockets of private parties. Average citizens have acted in harmony to stop hundreds of millions of dollars worth of graft that would have otherwise benefited the people who hire herds of professional lobbyists. No doubt, it's hard for those lobbyists to explain how average men and women can, with no budget and with no palm greasing, beat them so often!

Perhaps because I've been engaged for so many years, or perhaps because I'm helping to get even more citizens involved with things like the LibertyTools witness form project, they have targeted me. Make no mistake, though, this attack is a threat to every citizen who would dare to encroach on the lobbyists' and politicians' territory.

What does the law say about citizen involvement in the legislative process and lobbyist registration?

These constitutional constraints placed on government by the people underscore the importance of our free speech rights. Courts have long held them to be fundamental rights, particularly when that speech is political in nature.

"The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U. S. 359, 369 (1931)

As a fundamental right, laws impairing your “core political speech” are subject to the highest standard of review in the courts – strict scrutiny.

Strict scrutiny requires that the court start with the assumption that such a law is invalid. The state has the burden to prove it has a compelling interest to protect and that the law is not only necessary to protect that interest, but is also narrowly tailored to accomplish it. The law can't be so broad that it affects situations that are clearly outside the state's compelling interest.

For reasons discussed below, no state interest is furthered by making uncompensated citizens register as lobbyists and file reports, especially when they have no expenditures or principals to report. Such a requirement is clearly an unconstitutional impairment of those citizens' free speech rights

Regardless of what the statutes say, our constitutional right to what's called “core political speech” prevails. Even if it didn't, however, Missouri statutes don't require someone to register as a lobbyist if they are not paid and don't give things of material value to legislators or staff and aren't designated as a lobbyist by some “principal.”

The Ethics Commission claims that I am Missouri First's lobbyist, even though the Missouri First board of directors has never designated me as such. They claim that by disclosing my association with Missouri First I have designated myself as its lobbyist. Besides defying logic and the plain definition of “designate”, the Ethics Commission bases its argument on something that is an impossibility.

Based on statutes and the forms MEC requires you to fill out, a lobbyist must have a lobbyist principal – the person or entity by whom the lobbyist is employed, contracted for pay, or otherwise compensated. Like about every other citizen activist I know, I'm neither employed or compensated in any way by Missouri First or anyone else, so I have no “lobbyist principal”.

To conclude that citizen activists, like myself, have to jump through the same statutory hoops as the professional lobbyists, the Ethics Commission had to do a lot of legal gymnastics. The constitutional experts from the Center for Competitive Politics and the Freedom Center of Missouri, don't believe any reasonable court could possibly agree with MEC.

The laws relating to lobbying are found in Section 105 of the Revised Statutes of Missouri.

Section 105.470(5) defines “legislative lobbyist”:

"Legislative lobbyist", any natural person who acts for the purpose of attempting to influence the taking, passage, amendment, delay or defeat of any official action on any bill, resolution, amendment, nomination, appointment, report or any other action or any other matter pending or proposed in a legislative committee in either house of the general assembly, or in any matter which may be the subject of action by the general assembly and in connection with such activity, meets the requirements of any one or more of the following:

(a) Is acting in the ordinary course of employment, which primary purpose is to influence legislation on a regular basis, on behalf of or for the benefit of such person's employer, except that this shall not apply to any person who engages in lobbying on an occasional basis only and not as a regular pattern of conduct; or

(b) Is engaged for pay or for any valuable consideration for the purpose of performing such activity; or

(c) Is designated to act as a lobbyist by any person, business entity, governmental entity, religious organization, nonprofit corporation, association or other entity; or

(d) Makes total expenditures of fifty dollars or more during the twelve-month period beginning January first and ending December thirty-first for the benefit of one or more public officials or one or more employees of the legislative branch of state government in connection with such activity.

“Lobbyist principal” is also defined there:

(7) "Lobbyist principal", any person, business entity, governmental entity, religious organization, nonprofit corporation or association who employs, contracts for pay or otherwise compensates a lobbyist"

The people of Missouri have a right to expect unimpeachable behavior from all public officials, but it stands to reason that the Ethics Commission would lead the way as an example of lawful conduct.

In my case, their first departure from the law was the moment they accepted the complaint against me. Statutes clearly stipulate that only a “natural person” can file a complaint. That means no business can. Neither can any other group or entity, including the Missouri Society of Governmental Consultants.

Although the complaint against me was drafted by a lawyer on behalf of the Society, he made it abundantly clear in the documents he submitted that it was the Society that was registering the complaint, not a “natural person.”

To make matters worse, the Ethics Commission failed to comply with the legal requirement to reveal the identity of the complainant to the one against whom the complaint is made within 5 days of the filing of the complaint. MEC was 74 days late revealing the identity of the complainant.

Please understand, I'm NOT accusing the Ethics Commission of malicious activities, but I am pointing out the tendency for bureaucrats to hold some to a different level of accountability than others, including themselves. Additionally, the very structure of the Ethics Commission invites conflicts of interest.



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