Kansas Attorney General Opinion 2012-022

September 28, 2012
ATTORNEY GENERAL OPINION NO. 2012- 22
The Honorable Scott Schwab
State Representative, 49th District
14953 W. 140th Terrace
Olathe, Kansas 66062
Re: 	Legislature—State Governmental Ethics—Registration of Lobbyists; Fees;
Constitutionality
State Departments; Public Officers and Employees—Secretary of State—
Information and Services Fees; Technology Communication Fee Fund;
Fees Remitted and Credited; Constitutionality
Constitution of the United States—Freedom of Religion, Speech and
Press; Rights and Immunities of Citizens—Freedom of Speech; Lobbying;
Fees; Constitutionality
Synopsis: 	Increases in the lobbyist registration fee, the information and services fee,
and the technology communication fee may be only in such amounts as
are necessary to defray the expense of regulating lobbyists or providing
certain services and materials. Failure to associate increases in such fees
with the costs of the activities could subject the increases to challenges
under the Freedom of Speech Clause of the First Amendment of the
United States Constitution. 	Cited herein: 	K.S.A. 25-4119e; K.S.A. 2011
Supp. 46-265; K.S.A. 75-435; K.S.A. 2011 Supp. 75-438; 75-444; K.A.R.
7-16-1; K.A.R. 7-16-2; L. 2003, ch. 143, § 1; L. 1982, ch. 363, §§ 1, 4;
U.S. Const., Amend. I.
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Representative Scott Schwab
Page 2
Dear Representative Schwab:
As State Representative for the 49 th District, you request our opinion regarding whether
increasing certain fees collected by the Secretary of State from persons who engage in
lobbying is unconstitutional when the amounts of the increased fees would exceed the
costs of performing the administrative functions required under the statutes. 	You ask
specifically 	whether 	proposed 	increases 	in 	the 	lobbyist 	registration 	fee 	charged
pursuant to K.S.A. 2011 Supp. 46-265, the information and services fee charged
pursuant to K.S.A. 2011 Supp. 75-438, and the technology communication fee charged
pursuant to K.S.A. 2011 Supp. 75-444 would violate the Freedom of Speech Clause of
the First Amendment to the United States Constitution.
Every lobbyist is required under K.S.A. 2011 Supp. 46-265(a) to register with the
Secretary of State by completing and signing a registration form and paying the
statutorily required fee. The amount of the fee is based in part on anticipated spending
of the lobbyist. 1 The collected fees are remitted by the Secretary of State to the State
Treasurer who "deposit[s] the entire amount in the state treasury to the credit of the
governmental ethics commission fee fund." 2 "All moneys credited to such fund shall be
used for the operations of the commission in the performance of powers, duties and
functions prescribed by law."3
Pursuant to K.S.A. 2011 Supp. 75-438 and 75-444, the Secretary of State is required to
charge and collect an information and services fee and a technology communication
fee, respectively, the amounts of which are fixed by rules and regulations of the
Secretary of State.4 The fees are credited into segregated accounts 5 and are intended
to cover the costs of the services and materials for which the fees are imposed. 6 The
fees may be in addition to any other fees charged for such activities.7
The First Amendment of the United States Constitution states in part that "Congress
shall make no law . . . abridging the freedom of speech. . . ." "A state may not impose a
1 K.S.A. 2011 Supp. 46-265(b). 	If the lobbyist anticipates spending $1,000 or less on behalf of an
employer, a fee of $35 must be paid. Exceeding the $1,000 anticipated amount requires payment of an
additional $220 fee. If the lobbyist anticipates spending more than $1,000 on behalf of an employer, the
required fee is $300. Any lobbyist who is an employee of a lobbying group of firm and not an owner or
partner of such entity is required to pay an annual fee of $360.
2 K.S.A. 2011 Supp. 46-265(b).
3 K.S.A. 25-4119e.
4 See K.A.R. 7-16-1; 7-16-2. 	An information and services fee is assessed as follows: 	(a) $12 for a
lobbyist anticipating spending $1,000 or less; (b) $72 for a lobbyist anticipating spending more than
$1,000; and (c) $87 for a lobbyist who is an employee of a lobbying group or firm. 	The technology
communication fee is $3. Ryan Kriegshauser, Correspondence, April 10, 2012.
5 K.S.A. 2011 Supp. 75-438(a) (information and services fee fund); K.S.A. 2011 Supp. 75-444(c)
(technology communication fee fund).
6 See K.S.A. 75-435; K.S.A. 2011 Supp. 75-444(a); L. 1982, ch. 363, §§ 1, 4. The information and copy
service fee established in L. 1982, ch. 363, § 4 was the precursor of the information and services fee.
See L. 2003, ch. 143, § 1.
7 K.S.A. 2011 Supp. 75-438(a); 75-444(a).

Representative Scott Schwab
Page 3
charge for the enjoyment of a right guaranteed by the federal constitution." 8 "[A] person
cannot be compelled 'to purchase through a license fee or license tax, the privilege
freely guaranteed by the constitution.'" 9 A fee may be charged to defray the expense of
administering legitimate regulation of First Amendment activity. 10 "[L]egislative lobbying
is an activity protected by the First Amendment 11 and a state may only charge a fee as
a precondition for lobbying where that fee is 'calculated to defray the expense' of
lobbying regulation." 12
The impetus for your request appears to be the introduction of 2011 Senate Bill No.
102. 13 Under that bill, the registration fees charged to a lobbyist would have tripled.
The bill also provided for increases in filing fees to be paid by candidates for state and
local office and by political action committees. 	The bill did not propose increasing the
information 	and 	services 	fee 	or 	the 	technology 	communication 	fee, 	leaving 	such
authority with the Secretary of State. 	A fiscal note prepared by the Division of the
Budget showed the proposed fees would have increased revenue to the Governmental
Ethics Commission by $259,690 in FY 2013. 14 The fiscal note did not separate the
amount that would be raised through the increased candidate filing fees from the
amount resulting from increased lobbyist registration fees. 	No party has presented
information regarding the actual costs associated with lobbyist regulation or providing
the 	services 	and 	materials 	for 	which 	the 	information 	and 	services 	fee 	and 	the
technology communication fee are collected.
We do not determine the factual question of whether the lobbyist registration fee, the
information and services fee, and the technology communication fee exceed the costs
of lobbyist regulation or providing the respective services and materials. 15 However,
any increases in those fees may be only in such amounts as are necessary to defray
the expense of regulating lobbyists or providing the services and materials. 	Failure to
associate increases in such fees with the costs of the activities could subject the
8 Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943).
9 Id. at 114, quoting Blue Island v. Kozul, 379 Ill. 511, 519 (1942).
10 Id. at 116-17. See American Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1248-49 (10 th Cir. 2000);
Jacobsen v. Lambers, 888 F.Supp. 1088, 1094 (D. Kan. 1995).
11 Cammarano v. United States, 358 U.S. 498, 513 (1959).
12 ACLU of Illinois v. White, 692 F.Supp.2d 986, 992 (N.D. Ill. 2010) (internal citation omitted), quoting
Murdock, 319 U.S. at 116.
13 The language in 2011 Senate Bill No. 102 was eventually removed; the bill became House Substitute
for Senate Bill No. 102 that proposed new State Representative districts and State Board of Education
member districts. We review the bill in its form as introduced.
14 Steven J. Anderson, Fiscal Note for SB 102 by Senate Committee on Ethics and Elections, February
10, 2011.
15 Attorney General's Statement of Policy Relating to the Furnishing of Written Legal Opinions, ¶ 8 (only
questions of law will be answered).

Representative Scott Schwab
Page 4
increases to challenges under the Freedom of Speech Clause of the First Amendment
of the United States Constitution.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
DK:AA:RDS