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National Association of Manufacturers v. Taylor

April 11, 2008

NATIONAL ASSOCIATION OF MANUFACTURERS, PLAINTIFF,
v.
HONORABLE JEFFREY A. TAYLOR, UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, the National Association of Manufacturers ("NAM"), brings this action against Defendants, the Honorable Jeffrey A. Taylor, United States Attorney for the District of Columbia ("Taylor"), the Honorable Nancy Erickson, Secretary of the Senate of the United States ("Erickson"), and the Honorable Lorraine C. Miller, Clerk of the House of Representatives of the United States ("Miller," and collectively with Erickson, the "Legislative Defendants"). The NAM challenges § 207 of the Honest Leadership and Open Government Act of 2007 ("HLOGA"), Pub. L. No. 110-81, 121 Stat. 735, which amended § 1603(b)(3) of the Lobbying Disclosure Act of 1995 ("LDA"), 2 U.S.C. § 1601 et seq., and requires disclosure of organizations (hereinafter referred to as "affiliates") that contribute significantly to the lobbying activities of a lobbyist's client and actively participate in the planning, supervision, or control of those lobbying activities. The NAM argues that § 207 violates the First Amendment by impermissibly burdening its rights and those of its members to speak, associate, and petition the government, and further argues that § 207 is unconstitutionally vague both on its face and as applied to the NAM.

The NAM filed its Complaint in this action on February 6, 2008, along with a Motion for a Preliminary Injunction barring Defendants from implementing or enforcing § 207 until this Court issued a final ruling on the merits of the NAM's First Amendment claims. The parties and the Court thereafter agreed to convert the NAM's Motion for a Preliminary Injunction into a decision on the merits, with the NAM's Preliminary Injunction application serving as its opening brief. As a result, this opinion addresses the NAM's motion as one for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). The Court has conducted a searching review of the NAM's opening brief, the Opposition filed by Defendant Taylor and the Opposition filed by the Legislative Defendants, the two amici briefs filed in this case by Citizens for Reform and Ethics in Washington ("CREW") and Campaign Legal Center, Democracy 21, and Public Citizen (jointly the "CLC Amici"), and the NAM's Reply brief, as well as the relevant statutes and case law. Based upon the foregoing, the Court concludes that § 207 is narrowly tailored to serve compelling government interests, and is neither vague on its face nor as applied to the NAM. The Court shall therefore DENY [3] the NAM's motion for judgment on the pleadings.

I. BACKGROUND

A. The Parties

Plaintiff, the National Association of Manufacturers, is a non-profit trade association founded in 1895 "to promote trade, advocate for economic growth, and represent the interests of its members," to "members and employees of the United States Senate and House of Representatives, as well as policy-level employees and officers of the Executive Branch." Pl.'s Compl. for Decl. and Inj. Relief (hereinafter "Compl.") ¶ 4. The NAM's membership includes "over 11,000 corporate members whose interests are allied with America's manufacturing sector." Id. ¶ 14. The NAM asserts that its website and other publicly-available materials make clear the types of interests it represents and identifies some of its members, including those represented on its board and in other leadership positions. Id. ¶ 4. Nevertheless, the NAM does not publicly list its members, id., and its membership list has been kept confidential for at least the past 30 years, see Decl. of Jan Sarah Amundson, Senior Vice Pres. and Gen. Counsel of the NAM, submitted in support of the NAM's Motion for a Preliminary Injunction (hereinafter "Amundson Decl.") ¶ 8.

The NAM describes itself as a member-led organization, and asserts that "its members participate in a number of committees and a wide range of related activities to define and advance the NAM's goals." Id. ¶ 14. These activities include approximately 100 meetings per month and a "wide range of other contacts and activities, including telephone calls, emails, and mailings that provide the opportunity for members to participate in the NAM's lobbying." Id. In addition to this member participation, the NAM has approximately 35 employees who regularly engage in lobbying activities and whom it has identified in filings under the LDA since that law was enacted in 1995. Id. ¶ 15.

The Honorable Nancy Erickson is Secretary of the Senate of the United States, id. ¶ 6(a), and the Honorable Lorraine C. Miller is Clerk of the House of Representatives of the United States, id. ¶ 6(b). Under the amended LDA, Defendants Erickson and Miller's official responsibilities include receiving mandatory reports concerning lobbying activities, reviewing them for any deficiencies, and referring cases of apparent noncompliance to the United States Attorney for the District of Columbia for enforcement action. Id. ¶¶ 6(a)-(b); 2 U.S.C. § 1605(a). In addition, the Legislative Defendants are directed by the amended LDA to "provide guidance and assistance on the registration and reporting requirements of [the LDA] and develop common standards, rules, and procedures for compliance." Compl. ¶ 7; 2 U.S.C. § 1605(a)(1). Pursuant to this provision, Defendants Erickson and Miller promulgated a document entitled "Lobby Disclosure Act Guidance," which became effective on January 1, 2008. Compl. ¶ 7; see http://www.senate.gov/legislative/resources/pdf/S1guidance.pdf (hereinafter "LDA Guidance"). As the NAM notes in its Complaint, the Introduction section of that document states that the LDA "does not provide the Secretary or the Clerk with the authority to write substantive regulations or issue definitive opinions on the interpretation of the law," and further states that the "guidance document does not have the force of law, nor does it have any binding effect on the United States Attorney for the District of Columbia." Compl. ¶ 7; LDA Guidance at 1.

The Honorable Jeffrey A. Taylor is the United States Attorney for the District of Columbia. Compl. ¶ 6(c). His official responsibilities include enforcing the penalty provisions of the LDA, which provide that the Legislative Defendants shall "notify the United States Attorney for the District of Columbia that a lobbyist or lobbying firm may be in noncompliance." Id.; 2 U.S.C. § 1605(a).

B. Statutory Background

1. Previous Lobbying Disclosure Regulations

a. The Federal Regulation of Lobbying Act of 1946

In 1945, Congress established a Joint Committee on the Organization of Congress, which received numerous complaints about the "attempts of organized pressure groups to influence the decision of Congress on legislation pending before the two Houses or their committees," and found that "professionally inspired efforts to put pressure upon Congress cannot be conducive to well considered legislation." See Legis. Defs' Opp'n at 5-6 (citing H. Con. Res. 18, 79th Cong. (1945) and quoting S. Rep. 79-1011, at 26). The Joint Committee recognized "the right of any citizen to petition the Government for the redress of grievances or freely to express opinions to individual Members or to committees on legislation and on current political issues." S. Rep. 79-1011, at 26. Nevertheless, the Joint Committee concluded that it was "possible to improve the situation without impairing in any way this freedom of expression," by providing for disclosure of information that "would prove helpful to Congress in evaluating their representations," and recommended that Congress enact legislation "providing for the registration of organized groups and their agents who seek to influence legislation and that such registration include quarterly statements of expenditures made for this purpose." Id. at 26-27.

Congress reacted to the Joint Committee's recommendations by enacting the Federal Regulation of Lobbying Act ("FRLA"), title III of the Legislative Reorganization Act of 1946, Pub. L. No. 79-601, §§ 301-311, 60 Stat. 812, 839-42, codified at 2 U.S.C. §§ 261-270.

See Legis. Defs' Opp'n at 7. The FRLA required persons engaged for pay for the "principal purpose" of attempting to influence the passage or defeat of legislation in Congress to register with the Clerk of the House and the Secretary of the Senate, and to disclose: their name and address; the name and address of the client for whom they work; how much they are paid and by whom; all contributors to the lobbying effort and the amount of their contribution; an accounting of all monies received and expended, specifying to whom the money was paid and for what purposes; the names of any publications in which the lobbyist has caused articles or editorials to be published; and the particular legislation they have been hired to support or oppose.

Id. (citing H.R. Rep. No. 104-339, pt. 1 at 2 (1995)). The FRLA provided for criminal penalties for violations. See Pub. L. No. 79-601, § 310, 60 Stat. 842.

In 1954, the Supreme Court reviewed and upheld the constitutionality of the FRLA in United States v. Harriss, 347 U.S. 612 (1954). The Supreme Court first addressed a due process vagueness claim, and construed the FRLA to apply to "persons" (1) who had "solicited, collected, or received contributions;" (2) where "one of the main purposes of such 'person,' or one of the main purposes of such contributions," was "to influence the passage or defeat of legislation by Congress;" and (3) where "the intended method of accomplishing this purpose" was "through direct communication with members of Congress." Id. at 623. So construed, the Supreme Court held that the FRLA met "the constitutional requirement of definiteness." Id. at 624. The Harriss Court then considered and rejected a First Amendment challenge to the FRLA, holding that, as narrowed, the statute "do[es] not violate the freedoms guaranteed by the First Amendment-freedom to speak, publish, and petition the Government." Id. at 625. In so doing, the Supreme Court identified the "vital national interest" that the FRLA was designed to safeguard by explaining that:

Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the [FRLA] was designed to help prevent.

Id. at 625-26. Significantly, the Court noted that Congress had "not sought to prohibit these pressures," but had "merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose." Id. at 625. According to the Court, Congress "want[ed] only to know who is being hired, who is putting up the money, and how much." Id. The Court therefore concluded that the FRLA was constitutional, because Congress had used its "power of self-protection . . . in a manner restricted to its appropriate end." Id. at 625-26.

b. The Lobbying Disclosure Act of 1995

Within a few years of the FRLA's adoption, President Harry S. Truman began calling for Congress to make changes to the FRLA in order to close loopholes already evident in the bill. See 141 Cong. Rec. S10512 (daily ed. July 24, 1995) (statement of Sen. Levin). Reform efforts continued in each decade through the 1990s, with one or both Houses of Congress passing lobbying reform bills that were never enacted into law. Id. Attempts to reform the FRLA picked up steam in the early 1990s, as the Subcommittee on Oversight of Government Management of the Senate Committee on Governmental Affairs ("Senate Subcommittee") held hearings on the FRLA's shortcomings and considered potential reform legislation in 1991 and 1992. See Legis. Defs. Opp'n at 8-9 (citing The Federal Lobbying Disclosure Laws: Hrgs Before the Subcomm. on Oversight of Gov't Mgmt. of the Senate Comm. on Gov'tal Affairs, 102d Cong., S. Hrg. 102-377 (1991), and S. 2279, The Lobbying Disclosure Act of 1992: Hrgs Before the Subcomm. on Oversight of Gov't Mgmt. of the Senate Comm. on Gov'tal Affairs, 102d Cong., S. Hrg. 102-609 (1992)). Among other things, the testimony before the Senate Subcommittee indicated that "[c]orporations or other organizations occasionally hid their identities behind a coalition established or available for the purpose of preventing the public from learning of their efforts to influence congressional action. This plainly circumvents the [FRLA's] public disclosure goals."

S. Hrg. 102-609, at 83 (statement of Thomas M. Susman, Chair, ABA Section of Admin. Law and Reg. Practice); see also id. at 34 (statement of Ann McBride, Sr. Vice Pres., Common Cause) ("Very often those coalition groups operate under very lovely-sounding names, without the public or sometimes even the Congress having a clear understanding of the groups that are backing them. The public has a right to know who is backing these coalition groups . . ."). The 103d Congress came particularly close to passing a lobbying disclosure bill, with both the Senate and the House passing bills mandating disclosure of affiliates that played a substantial role in lobbying by an association or coalition. See 139 Cong. Rec. 9435 (1993) (passing S. 349); 140 Cong. Rec. 6532 (1994) (passing S. 349 as amended).*fn1

In 1995, Congress finally reached agreement on lobbying reform, passing the Lobbying Disclosure Act of 1995 without opposition, which was signed into law by President William Jefferson Clinton. See 141 Cong. Rec. 20195 (1995) (bill passed Senate by vote of 98-0); id. at 34815-20 (bill passed House by vote of 421-0). Inter alia, the LDA:

* Expanded coverage of lobbying to include contacts with congressional staff and senior executive officials, see Pub. L. No. 104-65, § 3(8), 2 U.S.C. § 1602(8);

* Broadened the definition of lobbyist to include "any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a six month period," id. § 3(10), 2 U.S.C. § 102(10);

* Added a minimum expenditure threshold that triggered disclosure of lobbying activities on behalf of a specific client, see id. §§ 3(7), 3(8), 4, 2 U.S.C. §§ 1602(7), 1602(8), 1603;

* Mandated semi-annual reporting of (a) the total amount of lobbying-related income from a specific client (or expenditures by an organization lobbying in its own behalf), (b) the specific issues that were the subject of a lobbyist's efforts, (c) the Houses of Congress and the federal agencies contacted by the lobbyist, (d) the employees of the registrant who acted as lobbyists on behalf of the client, and (e) whether a lobbyist had been employed in the previous two years as a covered executive or legislative branch official, id. §§ 4(b), 5(b), 2 U.S.C. §§ 1603(b), 1604(b); and

* Created civil penalties for violations of the LDA, id. § 7, 2 U.S.C. § 1606. See Legisl. Defs' Opp'n at 10-11.

In particular, with respect to affiliates, the LDA required registrants to disclose "the name, address, and principal place of business of any organization, other than the client that--

(A) contributes more than $10,000 toward the lobbying activities of the registrant in a semiannual period . . . ; and

(B) in whole or in major part plans, supervises, or controls such lobbying activities.

LDA, § 4(b)(3), 2 U.S.C. § 1603(b)(3). The LDA defined "lobbying activities" as "lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others." Id. § 3(7), 2 U.S.C. § 1602(7).*fn2

The House Judiciary Committee report on the LDA explained that the affiliate disclosure requirement was "intended to preclude evasion of the disclosure requirements of the [LDA] through the creation of ad hoc lobbying coalitions behind which real parties in interest can hide." H.R. Rep. No. 104-339, at 18. However, the LDA, and the House Judiciary Committee report made clear that the term "organization" did not include individuals, LDA, § 3(13), 2 U.S.C. § 1602(13), and was only intended to require the disclosure of the identity of individual member organizations when those members had "become a client," H.R. Rep. No. 104-339, at 13, 18 (citing NAACP v. Alabama, 357 U.S. 449 (1958)).

Further, section 8(a) of the LDA explicitly stated that the provisions of the LDA were not to be "construed to prohibit or interfere with -- (1) the right to petition the Government for the redress of grievances; (2) the right to express a personal opinion; or (3) the right of association -- protected by the first amendment to the Constitution." LDA, § 8(a), 2 U.S.C. § 1607(a). Like the FRLA, the LDA required lobbyists and entities whose employees act as lobbyists on their own behalf to file reports with the Secretary of the Senate and the Clerk of the House, see LDA, §§ 3(2), 4(a)(1), 5(a), 2 U.S.C. §§ 1602(2), 1603(a)(1), 1604(a), and directed those officers to "provide guidance and assistance on the registration and ...


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