Anonymity and its dubious relevance to the constitutionality of lobbying disclosure legislation.

• Author: Luneburg, William V.
• Position: Symposium: The Law of Lobbying

INTRODUCTION

Imagine, if you will, the following exchange taking place at a televised press conference called by a Senator as Congress is considering legislation overhauling the Clean Air Act:

Senator: Later today on the floor, I will propose an amendment that will simplify the process whereby industries can expand their manufacturing facilities in areas meeting the National Ambient Air Quality Standards and yet, at the same time, comply with air quality protection goals. This amendment is good for the economy and good for clean air.

Reporter: Senator, is this amendment responsive to concerns brought to your attention by any particular company or trade association? And if so, who pitched the proposal to you, and could you tell us what arguments they made that convinced you that the amendment makes sense?

Senator: While I certainly respect your right to ask me those questions, I won't, indeed I cannot in good conscience, answer them candidly. Every American has the right under the First Amendment to petition their government and, if I answer your questions, I may deter my constituents or others from seeking my assistance as a legislator. Those persons have a constitutionally protected interest in remaining anonymous in asking for my help. If I were a lawyer and you put such questions to me regarding my discussions with my clients, I would have every right to decline to answer them.

Is there something wrong with this picture? Does the picture change significantly if the proposed amendment appeared to be responsive to the demands of a national alliance of environmental protection activists? It is the purpose of this Article to examine whether the asserted constitutional interest in anonymity exists in the lobbying context. It is accepted constitutional doctrine that speech activities aimed at the public in general or specific sectors thereof (the public sphere of speech) may require anonymity for the speaker in order to ensure full-bodied debate of issues relevant to the task of self-government. Without that anonymity, speech may not occur for fear of harassment or other adverse consequences. However, where the intended audience is legislative or executive branch officials acting in their official capacities, this Article concludes that a distinctive interest in anonymity should carry no weight in the balance of factors applied under the First Amendment to judge the constitutionality of lobbying disclosure legislation.

Lobbying disclosure may impose a variety of burdens on the exercise of the right to speak and petition guaranteed by the First Amendment. The economic cost of compliance with reporting obligations may, in some cases, practically foreclose the option of lobbying for some groups and, thereby, create serious, if not insuperable, constitutional objections. And there may be other imaginable burdens of compliance with lobbying disclosure obligations that may run afoul of the First Amendment. The loss of anonymity (sometimes expressed as a loss of privacy) with regard to the holding and expression of ideas and beliefs has also been viewed in the legal literature as a burden that should count in determining the constitutionality of required registration of lobbyists and reporting of their activities. However, this Article entirely rejects that point of view. Moreover, it takes the position that existing Supreme Court precedent is consistent with that rejection. If directly confronted with a First Amendment challenge to lobbying disclosure legislation today, the Court should expressly limit the constitutional relevance of anonymity to the private and public spheres of speech while ensuring the transparency of speech and petitioning activities directed at the legislative and administrative processes absent other significant burdens (such as cost) imposed on the exercise of First Amendment rights.

This Article will first describe briefly the contours of existing federal lobbying disclosure legislation, which was amended most recently during the fall of 2007. (1) It will then offer an overview of one of the most commonly referenced theories of the relationship of the First Amendment to self-government (that of Alexander Meiklejohn), which, among other things, suggests the general distinction proposed in this Article between lobbyists' speech and that directed to the public, though it offers a rationale that is problematic at best. The Article then turns to examine those Supreme Court cases involving the private, associational, and public spheres of speech where anonymity may be a necessary protection for First Amendment values. In thereafter dealing with direct lobbying activities involving Congress and federal agencies, various reasons are presented why, in this distinctive communicative sphere, an interest in anonymity should not weigh against disclosure despite contentions and assumptions to the contrary found in the legal literature. The Article thereby attempts to provide a more defensible rationale than that offered by Meiklejohn in drawing the distinction between the constitutional protection that should be afforded lobbyists' speech, as contrasted with other varieties of speech. Finally, the Article will conclude with an application of its proposed First Amendment analysis to various amendments, enacted or proposed, to the Lobbying Disclosure Act of 1995.

1. A BRIEF OVERVIEW OF THE LOBBYING DISCLOSURE ACT OF 1995

   In adopting the Lobbying Disclosure Act of 1995 (LDA), (2) Congress expressly found that "responsible representative Government requires public awareness of the efforts of paid lobbyists to influence the public decision-making process in both the legislative and executive branches of the Federal Government" and that "the effective public disclosure of the identity and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government." (3)

   The LDA applies only where lobbyists are paid for their work. Specifically, lobbying firms (4) that serve other individuals or entities and that earn (or expect to earn) more than $2,500 for three months of lobbying activities on behalf of a client (5) and organizations whose own employees engage in lobbying on its behalf and that expend (or expect to expend) more than $10,000 for such activities during a three month period (6) must register with the Secretary of the Senate and the Clerk of the House of Representatives. (7) The registration form (LD-1) provides certain information regarding lobbyist and client, including: their names; the name of any organization other than the client (known as an affiliated organization) that contributes more than $5,000 to fund the lobbying activities of the registrant during a three-month period and "actively participates in the planning, supervision, or control" of those lobbying activities; the name of any foreign entity bearing specified close relationships with the client or any affiliated organization; and a listing of the general and specific issues as to which lobbying is anticipated. (8) For the purpose of the Act, a "lobbyist" is defined as a person who makes more than one "lobbying contact" and spends at least twenty percent of her time during a three-month period on lobbying activities for the client. (9) Under the LDA, lobbying either Congress or federal agencies may trigger registration, though various types of communications do not count as lobbying "contacts" (10) and therefore do not, by themselves, trigger registration obligations. (11)

   More significant than the registration form in terms of providing information regarding past or ongoing lobbying campaigns is the report (the LD-2) that each registrant must file with the Secretary and Clerk four times during the year. (12) While, in a sense, no particular actual report could be described as "typical," the following mid-year report for 2002 filed by one of the lobbying firms that has represented General Motors gives a good sense of the nature of disclosures required by the LDA. (13)

   [FIGURE 1 OMITTED]

   As indicated on this form, the registrant must set forth fees earned (if a lobbying firm) or expenses incurred (if a self-lobbying organization) during the quarterly reporting period (14) For each general issue area(s) (identified by a code, in this case, "Tax") as to which lobbying activities took place during the reporting period, the LD-2 must indicate the "specific" issues (which should include, at a minimum, bill numbers) lobbied, which House(s) of Congress and/or federal "agencies" were contacted by a lobbyist, the names of those lobbyists, and the interest of any foreign entity in the issues lobbied. (15) While in actual practice the statutory language draws some fine distinctions in terms of what must be disclosed, (16) crucial for current purposes is the general nature of the disclosures mandated by the LDA (even as amended in 2007) with regard to the contours of lobbying campaigns. (17) For those seriously interested in the nature and extent of federal lobbying, these disclosures cannot, in any true sense, be considered terribly informative.

2. SELF-GOVERNMENT AND THE FIRST AMENDMENT

   Whatever other functions are served by the First Amendment freedoms of speech and petition for redress of grievances, the Supreme Court, most recently in Federal Election Commission v. Wisconsin Right to Life, Inc., (18) has time and again emphasized the core function as the protection of political speech, that is to say, communications relevant to the activity of governing, whether at the local, state, or federal levels. (19) As Justice Brennan noted in his concurring opinion in Richmond Newspapers, Inc. v. Virginia,

   the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government ... [citing...