In the midst of a Kansas Governmental Ethics Commission investigation into the activities of top lawmakers and state officials from the Republican Party, lawmakers are considering a massive overhaul of the agency that could limit its ability to conduct future investigations.
The agency leader said the bill, House Bill 2391, would make Kansas’ campaign finance laws among the weakest in the nation.
That legislation, reviewed Thursday by the House Election Committee, would end the agency’s subpoena power unless it has already established probable cause — a standard the agency said would be nearly impossible to meet without access to key documents .
His consideration comes after revelations that subpoenas had been issued to major interest groups, Republican Party officials and lawmakers.
The bill would legalize activities the agency is believed to be examining as part of its investigation, while also greatly expanding the power of political action committees and handcuffing the commission’s powers, Ethics Commission Executive Director Mark Skoglund said .
“He’s arrogant. He’s cheeky and he’s sad,” Skoglund told lawmakers.
Supporters of the bill say the commission’s activities have had a “chilling effect” on free speech.
“The idea that even questioning our ethical laws or asking if they could be done better, asking if there is room for more checks and balances is inherently unethical, I categorically reject that assumption,” Rep. Pat Proctor, R-Leavenworth , chairman of the House Election Committee, told reporters.
Bill arrives during an ethics investigation, he could influence the ongoing investigation
The battle over the Ethics Commission’s ongoing investigation has become increasingly public in recent months.
The Ethics Commission went to court in August in an effort to coerce the production of documents by seven people, essentially a move to enforce a series of previously issued subpoenas. Those targeted include former leaders of local Republican parties in Johnson, Sedgwick and Shawnee counties.
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Brett Berry, attorney for the Ethics Commission, said in court in December that the agency believes a number of conservative political action committees gave local Republican parties plans to transfer those funds to the statewide GOP in a move to circumvent limits on donations and, potentially, target them to particular candidates.
“These contributions, the way they’re made, wouldn’t make much sense to us as a detective agency if there hadn’t been an effort to get around the contribution limits set by law,” Berry said at the time.
Copies of the subpoenas show that the investigation was expanded to examine the potential involvement of Kansas’ top lawmakers and Senate and House staff, other Republican Party officials in the county, and political campaign advisers.
Lawyers for the named parties denounced the investigation in the court proceedings as nothing more than a fishing expedition that would amount to nothing and sought to have the subpoenas dismissed for being excessively broad.
Republican lawmakers have echoed these criticisms.
Senate Chairman Ty Masterson R-Andover confirmed to reporters last week that he had been contacted by the Ethics Committee as part of the investigation, but that the matter had been dropped.
“It’s like I’m guilty until proven guilty,” she said. “I didn’t do anything…I’m not worried about that.”
In Skoglund’s testimony, he indicated that the investigation looked into potential coordination between political committees and candidates, as well as lawmaker involvement in PACs.
Both of these things would become legal under the bill, unless the nominee or his treasurer was orchestrating the partnership with an outside group.
The legislation, in fact, would allow other activities that the Ethics Commission is currently examining.
Under the proposal, candidates could donate money to a third party, such as a committee or political party, and order the funds to be directed to another campaign or entity.
Also legalized would be the ability to make a contribution on behalf of another person or entity, even if it is an attempt to circumvent the donation limits under the Campaign Finance Act. This would mean that an individual could donate the maximum amount allowed by law to a given candidate and then route funds through additional sources beyond that.
Such a move is not allowed anywhere else in the United States, Skoglund said.
“There is absolutely no reason to have contribution caps on the books — a cornerstone of any campaign finance law — if HB 2391 passes,” Skoglund said in written testimony. “A wealthy donor could give their all to a campaign and then route money through countless shell companies, business associates, family members, PACs or dark money groups and this conduct would be legal.”
Supporters of the review say the commission has gone too far
Supporters of the overhaul argue that it’s a long-overdue move that makes Ethics Commission proceedings fairer, though critics counter that fairness comes at the expense of any meaningful regulation.
“The KGEC is structurally broken,” Joshua Ney, a prominent conservative lawyer, told lawmakers. “Nearly every provision of this bill is directly related to an important due process issue or point of law that has come up in one of my many cases before the committee over the past few years.”
Ney is largely responsible for crafting the bill and has been a familiar face before the committee.
He pointed to the case of an Overland Park civic group, Fresh Vision OP, and whether it forms a political committee. The case was eventually dropped in the fall, but Ney said it was riddled with what he called due process violations.
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That case was used as justification for an initial effort last year to remove Skoglund as director of the Ethics Commission, though lawmakers ultimately backed down.
Chengny Thao, a leader of Fresh Vision OP, told lawmakers her case before the commission was “bullying” shortly before placing a scale on the stage to highlight the need for justice. Her counterpart, James Muir, likened the agency to the Soviet Union.
Ney said he pointed to broader issues, arguing that the commission acts as both arbiter and prosecutor 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 sounds like you were enlightened by that comment as duly elected lawmakers,” Ney said.
The Fresh Vision case has since been used as justification to change the definition of CAP, which the bill would do.
According to its language, PACs should only register with the commission and report their activities if they spend more than $2,500 on posts they clearly argue for or against a candidate and have 50% of its total spend in a two-year period for expenses that must be reported to the Ethics Commission.
Currently, it is defined as two or more persons whose primary purpose “is to expressly support the nomination, election, or defeat of a clearly identified candidate” and who spend to achieve that goal.
Skoglund said the changes were “preposterous”.
“Frankly there would be no more need to register as a PAC for any vaguely experienced 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 that the current framework allows for judicial review and that subpoenas currently can only be issued with the 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 that many LEO agencies have,” he said. “We can essentially have people come to talk to us or sue… These are our only mechanism for investigative power.”
But Republican lawmakers argued that contesting a subpoena meant an expensive legal process, though Skoglund said the agency tries to handle any concerns in a “condescending” manner.
The legislation would also establish a two-year statute of limitations, meaning any active investigations focusing on activities more recent than 2021, including the coordination investigation, would be closed.
But Proctor said the problem went beyond an investigation and Skoglund’s conduct in his role, although he expressed frustration with the director’s rhetoric which he called “hyperbolic”.
“It’s not about Mark Skoglund and whether he’s a good director or a bad director,” she said. “It’s about whether our system is suppressing free speech and I think the investigative powers are so broad and the definitions are so broad and open to interpretation that there is room to add some specificity.”
