Education, not specific bills, stressed

By Tom Humphrey

Tennessee Ethics Commission ruling on Mikhael Shor complaint

National Institute on Money in State Politics

State lobbying expenses

Instate lobbying events

NASHVILLE ? After a tentative move in 2008 to require more people advocating positions on legislation to register as lobbyists, the Tennessee Ethics Commission has retreated to interpret state law so that some can avoid disclosure of expenses related to influencing lawmakers.

Such interpretations may have further softened the scope of Tennessee's laws on lobbying, which a recent national study found lacking in some respects in disclosure of lobbyist spending.

During this year's legislative session, for example, the Tennessee Center for Policy Research staunchly advocated tort reform as Gov. Bill Haslam was pushing the idea in the General Assembly.

The group set up a website named focus577.org, based on the premise advanced by a TCRP study declaring that tort reform would produce 577 new jobs per week in Tennessee. It aired radio commercials and erected billboards statewide urging citizens to contact their legislators in support of tort reform. The website asked visitors to sign a petition to lawmakers.

When the bill passed, TCRP issued a news release with TCRP Executive Director Justin Owen declaring a "tremendous victory" in "our campaign to bring about lawsuit abuse reform."

But that wasn't considered lobbying under state law, Owen said in an interview, so none of the spending was reported as a "lobbying-related expense" in TCRP's annual disclosure.

Owen does register as a lobbyist for advocacy of other issues as leader of the conservative organization that declares its purpose as supporting "free market policy solutions to public policy issues." TCRP reported its lobbying-related expenditures only as "less than $10,000," though Owen acknowledges the tort reform campaign cost more than that.

"We very carefully avoided mentioning a specific bill," he said, instead striving to "educate the public" on the need for tort reform in general terms.

Owen's distinction between advocacy of an idea in general as "education" and advocacy of a specific bill is appropriate, said Drew Rawlins, executive director of the Bureau of Ethics and Campaign Finance. He cited the 2010 Ethics Commission decision that finally resolved a long-running controversy.

That case began with then-Sen. Doug Jackson, D-Dickson, asking the commission for a formal opinion on whether a campaign against legislation to allow the sale of wine in grocery stores should be considered lobbying with registration and disclosure required.

That campaign involved Seigenthaler Public Relations of Nashville contracting with the state's liquor wholesalers organization, a leading opponent of the wine-in-grocery-stores legislation then and now. The effort included a website where viewers could have an email automatically sent under their names to their legislators urging opposition to the legislation under the premise that it would increase teenage drinking.

In a draft opinion issued in response to Jackson's request, commission staff declared that the public relations firm was engaged in a lobbyist-related activity. But that draft was then thrown out on a technicality ? that state law did not permit legislators to ask for such opinions unless personally involved in the dispute.

Subsequently, Mike Shor, a Vanderbilt University professor, in 2008 tried a different tack, filing a formal complaint against Seigenthaler. That triggered a secret investigation under state law, culminating in a closed-door ethics commission hearing in 2010. Shor did not attend; lawyers for the public relations company, the liquor wholesalers and others opposing his position did.

In the resulting decision, which became public after finally being resolved, the commission unanimously decided that no law was broken.

"There are other types of expenditures that are for influencing legislative or administrative action but that are not for lobbying," the opinion states.

The opinion declares that corporations, associations and limited liability companies are not people and therefore cannot be lobbyists under state law.

"A majority of the Commission holds that under the Act, an entity cannot be a lobbyist and that only an individual can be a lobbyist and for this reason Seigenthaler was not lobbying in performing the services described in the complaint," the opinion states.

The National Institute for Money in State Politics recently completed a 50-state survey of lobbying laws, concluding that few states require comprehensive reporting and Tennessee is not one of them.

Twenty-five states require reporting of individual lobbyist compensation and related expenditures ? though there are many variations on what legally amounts to lobbying expenditures ? while Tennessee requires reporting only the "aggregate total" of some expenses within a broad "range," for example, more than $50,000 but less than $100,000.

The Institute report notes that Tennessee, unlike many other states, does provide an online listing of lobbyists and their employers and conducts periodic audits of randomly selected lobbyists and employers to assure they have properly reported expenditures.