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HomeMy WebLinkAbout99-1026 Lowman1 1 • • • Lowman S. Henry Chairman & CEO Lincoln Institute of Public Opinion Research, Inc. 453 Springlake Road Harrisburg, PA 17112 Dear Mr. Lowman: DATE DECIDED: 11/23/99 DATE MAILED: 12/7/99 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger _ Frank M. Brown Susan Mosites Bicket 99 -1026 Re: Lobbying, Corporation, Nonprofit, Educational Foundation, Exemption, Public Opinion Research, Public Affairs Program, Broadcasting, Radio Program, Publishing, Newsletter, Individual. This Opinion is issued in response to your advisory request received on September 30, 1999. 1. ISSUE: Whether a non - profit educational foundation which has a stated mission of: (1) promoting certain ideals through the conduct of public opinion research; and (2) conducting extensive public information and education programs designed to foster, inter alia, state public policy as to identified values, would be a principal subject to the registration and reporting requirements of the Lobbying Disclosure Act, specifically with regard to the conduct of public opinion research on public policy issues; the production of a syndicated radio program; the publication of a quarterly newsletter; or other educational outreach efforts. II. FACTUAL BASIS FOR DETERMINATION: As Chairman and CEO of the Lincoln Institute of Public Opinion Research, Inc. ( "the Lincoln Institute "), you request an advisory from this Commission as to whether the Lincoln Institute would be subject to the registration and reporting requirements of the Lobbying Disclosure Act (Act), 65 Pa.C.S. §1301 gect. A • • Henry, 99 -1026 December 7, 1999 Page 2 The Lincoln Institute is a 501c(3) non - profit educational foundation that conducts public opinion research (polling, surveys and focus groups) on state and local public policy issues. It also produces a syndicated radio program and a quarterly newsletter, the latter of which you state is to disseminate the results of its research projects. You have submitted a copy of the Lincoln Institute's Bylaws and Annual Report for 1998, which documents are incorporated herein by reference. The Annual Report states the mission of the Lincoln Institute as follows: The Lincoln Institute of Public Opinion Research, Inc. was founded in 1993 to promote the ideals of free market economics, individual liberty and limited government through the conduct of public opinion research. Further, the Lincoln Institute is committed to the conduct of extensive public information and education program [sic) designed to foster federal and state public policy based upon these traditional American values. The Linco /n /nstitute 1998 Annual Report, at 1. The Annual Report lists the broadcast services which the Lincoln Institute offers, the research which it conducts, the publications which it issues, and the funding which it received for 1998. Included in the "Educational Outreach" portion of the Annual Report are summaries relating to the Lincoln Institute's quarterly newsletter, the Lincoln Journal; the Lincoln Institute's website; media outreach; and commentaries which are submitted to and carried by newspapers throughout eastern Pennsylvania. The Annual Report indicates that the quarterly newsletter, the Linco /n Journal, includes commentary columns. See, The Linco /n /nstitute 1998 Annual Report, at 6. The Annual Report further states that the "Marketplace of Ideas" section of the newsletter "provided an outlet for a wide range of pro -free market issue analysis during 1998." Id. According to the Annual Report, the Linco /n Journal is "distributed to a wide range of governmental leaders, public policymakers, business leaders, colleges and universities, and the news media throughout Pennsylvania." Id. You state that as a corporation engaged in the activity of public opinion research, the Lincoln Institute does not lobby for the passage of specific legislation because such action would compromise its objectivity. You further state your view that the Lincoln Institute should qualify for exemption from the registration and reporting requirements of the Act pursuant to Section 1306(2) of the Act, 65 Pa.C.S. § 1306(2). You request an advisory opinion from this Commission as to whether the Lincoln Institute would be required to register under the Act. By letter dated November 2, 1999, you were notified of the date, time, and location of the public meeting at which your request for an Opinion was to be considered. • III. DISCUSSION: It is initially noted that pursuant to Section 1308(c) of the Act in conjunction with Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor based upon the facts which • Henry, 99 -1026 December 7, 1999 Page 3 the requestor has submitted. The Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted, in issuing advisories. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In order to decide the issues which you have raised, this Commission must review the pertinent definitions and substantive provisions of the Act. Section 1303 of the Act defines "lobbying" as follows: "Lobbying." An effort to influence legislative action or administrative action. The term includes: (1) providing any gift, entertainment, meal, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal; and 65 Pa.C.S. § 1303. (2) direct or indirect communication. The key terms "legislative action," "administrative action," "direct communication," and "indirect communication" that are within the definition of "lobbying" are themselves defined as follows: "Legislative action." An action taken by a State official or employee involving the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of legislation; legislative motions; overriding or sustaining a veto by the Governor; or confirmation of appointments by the Governor or of appointments to public boards or commissions by a member of the General Assembly. "Administrative action." Any of the following: (1) An agency's: (I) proposal, consideration, promulgation or rescission of a regulation; (ii) development or modification of a guideline or a statement of policy; or (iii) approval or rejection of a regulation. (2) The review, revision, approval or disapproval of a regulation under the act of June 25, 1982 (P.L.633, No.181), known as the Regulatory Review Act. • (3) The Governor's approval or veto of legislation. (4) The nomination or appointment of an individual as an • • • Id. Henry, 99 -1026 December 7, 1999 Page 4 65 Pa.C.S. § 1303. officer or employee of the Commonwealth. (5) The proposal, consideration, promulgation or rescission of an executive order. "Direct communication." An effort, whether written, oral or by any other medium, made by a lobbyist or principal, directed to a State official or employee, the purpose or foreseeable effect of which is to influence legislative action or administrative action. "Indirect communication." An effort, whether written, oral or by any other medium, to encourage others, including the general public, to take action, the purpose or foreseeable effect of which is to directly influence legislative action or administrative action. The term includes letter- writing campaigns, mailings, telephone banks, print and electronic media advertising, billboards, publications and educational campaigns on public issues. The term does not include regularly published periodic newsletters primarily designed for and distributed to members of a bona fide association or charitable or fraternal nonprofit corporation. The terms "principal" and "lobbyist" are defined in the statute as follows: "Principal." Any individual, firm, association, corporation, partnership, business trust or business entity: (1) on whose behalf a lobbyist influences or attempts to influence an administrative action or a legislative action; or (2) that engages in lobbying on the principal's own behalf. "Lobbyist." Any individual, firm, association, corporation, partnership, business trust or business entity that engages in lobbying on behalf of a principal for economic consideration. The term includes an attorney who engages in lobbying. Section 1306(2) of the Act provides: § 1306. Exemption from registration and reporting The following individuals and activities shall be exempt from registration under section 1304 (relating to registration) and reporting under section 1305 (relating to reporting): • Henry, 99 -1026 December 7, 1999 Page 5 65 Pa.C.S. § 1306(2). (2) An individual who is an employee of an entity engaged in the business of publishing, broadcasting or televising while engaged in the gathering and dissemination of news and comment thereon to the general public in the ordinary course of business. In applying the above provisions of law to the facts which you have submitted, we shall first consider whether the Lincoln Institute is a "principal" as defined by the Act. As a nonprofit corporation, the Lincoln Institute is within the forms of entities which may qualify as a principal. Thus, the Lincoln Institute is a principal under the Act if it either has a lobbyist lobbying on its behalf or engages in lobbying on its own behalf. The facts which you have submitted make no mention of whether the Lincoln Institute has a lobbyist lobbying on its behalf. As for whether the Lincoln Institute engages in lobbying on its own behalf, we are unable to reach a conclusive determination based upon the insufficiency of the facts which have been submitted, but we shall give guidance to the extent possible. We initially observe that the Mission Statement of the Lincoln Institute quoted in the factual recitation above clearly reflects that the Lincoln Institute was founded to promote certain idea /s through the conduct of public opinion research, and that the Lincoln Institute is committed to conducting extensive public information and education programs designed to foster those identified values. See, The Lincoln Institute 1.9.98 Annual Report, at 1. Thus, the Lincoln Institute has a mission of its own which goes beyond merely conducting research or reporting results of research to advancing certain identified ideals or values. Based upon the facts which you have submitted, the Lincoln Institute's activities fall into 4 categories: (1) conducting public opinion research (polling, surveys, and focus groups) on state and local public policy issues; (2) producing a syndicated radio program; (3) publishing a quarterly newsletter; and (4) engaging in educational outreach through its own website, media outreach, and commentaries submitted to and carried by newspapers throughout eastern Pennsylvania. These 4 categories shall be reviewed seriatim. With regard to public opinion research, we determine that the conducting of public opinion research on public policy issues would generally not constitute lobbying. However, given the stated mission of the Lincoln Institute to "promote the ideals of free market economics, individual liberty and limited government through the conduct of public opinion research," we condition the above general conclusion upon the assumption that such research would not include any effort to influence legislative action or administrative action as defined by the Act, such as, for example, by encouraging those participating to contact their legislators on an issue. The production of a syndicated radio program could constitute lobbying, depending upon program content. We lack sufficient facts as to the content of the Lincoln Institute's radio programs to conclusively determine whether its production of such radio programs would constitute lobbying. As for the Lincoln Institute's publication of its quarterly newsletter, the Linco /n Henry, 99 -1026 December 7, 1999 Page 6 Journal, we are unable to determine from the facts whether such would fall within the definition of indirect communication and therefore constitute lobbying, or whether the exclusion in the statutory definition of "indirect communication" would apply. We provide the following guidance on the question. We note that your advisory request letter states that the Lincoln Institute publishes the quarterly newsletter to disseminate the results of its research projects. Merely disseminating the results of public opinion research on public policy issues would generally not constitute lobbying, conditioned upon the assumption that such would not include any effort to influence legislative action or administrative action as defined by the Act, such as, for example, by encouraging the reader to contact his or her legislator on an issue. However, it would appear that the Lincoln Institute's quarterly newsletter is being used as a forum to not only publish research results but to advance the ideals set forth in the mission statement of the Lincoln Institute. Although you have not submitted to this Commission any copies of the newsletter itself, the Annual Report for 1998 states that the "Marketplace of Ideas" section of the newsletter "provided an outlet for a wide range of pro -free market issue analysis during 1998." The Linco /n /nstitute 1998 Annual Report, at 6 (Emphasis added). Additionally, the newsletter carries commentary columns. Id. We point this out not to imply that there is anything wrong with your organization advancing ideals or values, but simply to demonstrate that they are being advanced. Not having reviewed the Linco /n Journal, we lack sufficient facts as to its content to make a determination of whether it might be within the definition of "indirect communication." We also lack sufficient facts to determine whether the statutory exclusion to the definition of "indirect communication " - -which pertains to periodic newsletters- - would apply in this case. Therefore, we are limited to providing the following general guidance as to the statutory exclusion. Two conditions would have to be met in order for the exclusion to apply. First, the Lincoln Institute would have to be a bona fide charitable or fraternal nonprofit corporation. Second, the periodic newsletter, the Lincoln Journal, would have to be primarily designed for and distributed to Lincoln Institute members. The 1998 Annual Report indicates that the Linco /n Journal is "distributed to a wide range of governmental leaders, public policymakers, business leaders, colleges and universities, and the news media throughout Pennsylvania." See, The Linco /n Institute 1998 Annual Report, at 6. Since we do not know factually whether the Linco /n Journal is primari /y for members or for others, we cannot conclusively determine whether the exception to the definition of "indirect communication" would apply in this instance. The fourth category of activity involves the educational outreach of the Lincoln Institute through its website, media outreach, and commentaries submitted to and carried by newspapers throughout eastern Pennsylvania. We note that the definition of "indirect communication" specifically includes "educational campaigns on public issues" in the list of examples of qualifying activities. 65 Pa.C.S. §1303. Educational outreach by the Lincoln Institute would constitute "indirect communication" and therefore "lobbying" to the extent that such educational efforts would encourage those being educated to take action, the purpose or foreseeable effect of which would be to directly influence legislative action or administrative action. We shall next consider whether the Lincoln Institute would qualify for the • Henry, 99 -1026 December 7, 1999 Page 7 exemption from registration and reporting set forth in Section 1306(2) of the Act quoted above. Exemptions are strictly construed under the Act. See, Cook, Opinion 99 -1001; Artz, Opinion 99 -1007. The exemption at Section 1306(2) of the Act applies only to Individua /s, and consequently it is only available to individuals. See, Cook, Opinion 99 -1001 (deciding a similar issue under the Section 1306(1) exemption). Since the exemption by its own terms does not apply to an entity, the Lincoln Institute would not qualify for that exemption. Turning finally to the question of whether the Lincoln Institute must register under the Act, the answer to the question depends upon whether the Lincoln Institute has a lobbyist lobbying on its behalf or engages in lobbying on its own behalf, and if so, whether its lobbying expenses exceed $2500 in any quarter. A principal is subject to the registration and reporting provisions of the Act if its expenses for lobbying exceed $2500 in any reporting period. 65 Pa.C.S. § 1306 (3)(iv). The facts which you have submitted lack complete specificity, and so it will be incumbent upon the Lincoln Institute to factually determine whether it expends in excess of $2500 for lobbying activities in any quarter. The propriety of the proposed conduct has =only been addressed under the Act and derivatively the Ethics Act to the extent applicable; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been considered in that they do not involve an interpretation of the Act. • IV. CONCLUSION: A corporation which is a non - profit educational foundation is within the statutory definition of "principal" under the Lobbying Disclosure Act if it either has a lobbyist lobbying on its behalf or engages in lobbying on its own behalf. A principal must satisfy the registration and reporting requirements of the Lobbying Disclosure Act if its total expenses for lobbying exceed $2500 in any quarter. The exemption in Section 1306(2) of the Lobbying Disclosure Act by its own terms does not apply to an entity such as a corporation. The conducting of public opinion research or the dissemination of the results of such research would generally not constitute lobbying, conditioned upon the assumption that such activities would not include any effort to influence legislative action or administrative action as defined by the Act. The production of a syndicated radio program could constitute lobbying, depending upon program content. The publication of a quarterly newsletter could constitute lobbying depending upon its content. The statutory exclusion to the definition of "indirect communication" would apply to the periodic newsletters of a bona fide charitable or fraternal nonprofit corporation if such newsletters would be primarily designed for and distributed to the corporation's members. Educational outreach by a nonprofit corporation would constitute "indirect communication" and therefore "lobbying" to the extent such educational efforts would encourage those being educated to take action, the purpose or foreseeable effect of which would be to directly influence legislative action or administrative action. Pursuant to Section 1308 of the Act, a requestor who truthfully discloses all material facts in a request for an advisory and who acts in good faith based upon a written opinion of the Commission issued to the requestor shall not be held liable for • • • Henry, 99 -1026 December 7, 1999 Page 8 a violation of the Act. This Opinion is a public record and will be made available as such. Finally, a party may request this Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §39.1. By the Commission, & ua4ti 6 l Daneen E. Reese Chair