Wednesday, September 9, 2009
In a decision issued yesterday, the U.S. Court of Appeals for the District of Columbia Circuit rejected a constitutional challenge by the National Association of Manufacturers to the Honest Leadership and Open Government Act of 2007 (HLOGA). The relevant part of HLOGA amended the federal Lobbying Disclosure Act (LDA) to require the disclosure of any organization that "actively participates" in the planning, supervision, or control of lobbying activities engaged in by a registered lobbyist and contributes more than $5,000 to support that lobbying. Previously, the LDA only required disclosure of organizations that exceeded the dollar limit and "in whole or in major part" planned, supervised, or controlled the lobbying activities. According to the National Association of Manufacturers (NAM), under the old standard it did not have to disclose the identify of its members who exceeded the dollar threshold as long as at least several members were involved in any lobbying effort such that no single member met the "in whole or in major part" requirement. Under the new standard, however, NAM would have to disclose the identities of many of its members.
NAM challenged the new standard on the grounds that it would chill the speech of NAM members and was unconstitutionally vague. The Court of Appeals rejected both challenges, concluding that Congress' explicitly stated goal of increasing "public awareness of the efforts of paid lobbyists to influence the public decisionmaking process" is a compelling governmental interest that the expanded disclosure provision was narrowly tailored to serve, and that the new standard was not unconstitutionally vague. The Court also, however, carefully noted that the door remained open to an as applied challenge by an organization whose members faced a demonstrated risk of retaliation if their identities became public. It found, however, that NAM failed to make anything close to such a demonstration.
(Hat tip: Election Law Blog)