Public Relations Firms Challenge JCOPE Advisory Opinion

Earlier today, five public relations firms filed a lawsuit in federal in an effort to prevent the Joint Commission on Public Ethics (JCOPE) from enforcing the portion of Advisory Opinion 16-01 that would require people who are being paid to discuss legislation with editorial writers to register and report with JCOPE as lobbyists. (Read my prior blog post on AO 16-01.)

AO 16-01 which addresses “reporting obligations under the Lobbying Act for a party who is compensated for consulting services in connection with lobbying activity.” The Opinion was issued to make it clear JCOPE’s view that the state’s Lobbying Act applies to certain consultants who were engaging in “reportable grassroots lobbying,” but who are not registered with JCOPE.

According to their filing, AO 16-01:

“violates the First and Fourteenth Amendments of the U.S. Constitution by unlawfully subjecting public relations firms like the plaintiffs to a disclosure and punishment regime designed for true lobbyists, when all that they are doing is speaking to the press about public issues. The result is that such firms, their clients, and members of the press are deterred, chilled, and silenced in violation of their First Amendment rights.”

The plaintiffs are asking the court to issue a temporary restraining order, which would prevent JCOPE from taking action to enforce AO 16-01.

Read the lawsuit here.

My sense is that AO 16-01 was primarily intended to address a growing group of “strategic consultants” who do not register to lobby (this Crain’s article from 2014 offers a good explainer). But JCOPE’s inclusion of “public relations” as “grassroots lobbying” is forcing a lot of people who have not registered with JCOPE to consider whether their activities (a) are considered grassroots lobb6ying; and (b) exceed the $5,000 annual compensation/expense threshold that triggers JCOPE registration.

Read news coverage of the lawsuit from the Wall Street Journal, Capitol Confidential, the New York Post, and Politico New York.