Albany Times Union

Court upholds rules for lobbyists

Critic of authority of ethics commission loses long-standing lawsuit

- By Chris Bragg

As New York’s current ethics commission prepares to shutter in July, one of its most significan­t legacies has survived a legal challenge.

By unanimous decision, a state appellate court in Albany upheld key aspects of a lower-court ruling, which had held that sweeping regulation­s governing state lobbyists were legal.

In 2019, the Joint Commission on Public Ethics adopted the lobbying regulation­s, which sought to expand the types of activities that must be publicly disclosed in New York. JCOPE, whose enforcemen­t of ethics laws was often criticized over a decade of existence, also significan­tly expanded the amount of lobbying data available.

Beyond simply requiring the disclosure of traditiona­l lobbying — such as when a lobbyist asks a government official to take an action — the regulation­s sought to cover other types of efforts that have grown prominent. That included so-called “grassroots lobbying” in which an entity seeks to sway lawmakers through mass mobilizati­on of the public around an issue. For the first time, the rules also required lobbyists to disclose the specific name of a public official they’d sought to sway.

Kat Sullivan, an alleged rape victim who fought to pass the Child Victims Act, argued that JCOPE’S efforts had gone too far.

She was the plaintiff in the lawsuit seeking to overturn not only JCOPE’S regulation­s but the entirety of the state lobbying law. Sullivan, who had paid for billboards and an airplane to fly a banner over the Capitol in 2018, had declined to register as a lobbyist, arguing her citizen activism was fundamenta­lly different than the work of a profession­al lobbyist. Sullivan did not stand to financiall­y benefit from the law she sought to pass.

After an extensive investigat­ion, JCOPE dropped the matter, but Sullivan continued to pursue the litigation. In a 2019 complaint, attorney Cameron Macdonald of the nonprofit Government Justice Center, who represente­d Sullivan, argued that “no person of ordinary intelligen­ce can ascertain what conduct is allowable under the Lobbying Act,” and that the regulation­s had dramatical­ly and unlawfully expanded the definition of lobbying.

In the appellate division ruling Thursday, the justices unanimousl­y found that authority to issue the regulation­s was “fairly implied” by JCOPE’S existing powers and noted the Legislatur­e has since passed a law replacing JCOPE with a new ethics commission but leaving JCOPE’S regulation­s intact.

In one smaller victory for Sullivan, the court did affirm her right to bring the case against the outgoing ethics commission.

“JCOPE could not get away with threatenin­g her for more than a year, drop the matter after getting sued by Kat, and then argue she did not have a ripe case for the court to decide,” Macdonald told the Times Union.

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