Citizen Activist or Professional Lobbyist? Eighth Circuit Decides That Political Activity is "Lobbying" Only When Money Is Involved: Calzone v. Summers.

• Author: Green, Maddie McMillian

1. INTRODUCTION

   In determining the constitutionality of lobbyist registration laws, where do courts draw the line between lobbyists and politically active citizens? (1) What is the difference between a citizen simply sharing their ideas with their elected officials and influencing them? In 2019, the United States Court of Appeals for the Eighth Circuit attempted to draw the line in Calzone v. Summers by holding that Missouri lobbyist registration laws violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures relating to his lobbying efforts. (2) This decision protects individuals who neither spend nor receive any money in connection with their political activities from the requirement that they register as lobbyists in the State of Missouri. After hearing the decision of the Eighth Circuit, the plaintiff, Ronald Calzone, stated in an interview:

   It has been a long time coming, but I'm pleased that the Court of Appeals got this right. Unpaid citizen activists like myself keep our elected officials informed and accountable by sharing our views about public policy. A government cannot force unpaid activists to jump through regulatory hoops in order to exercise their First Amendment rights. (3) His lawyer affirmed, "Our system of government depends on people like [Calzone] actively sharing their policy ideas with those in power, but for years powerful legislators have been trying to silence him." (4) However, while they may not receive monetary compensation for their efforts, "unpaid lobbyists could still offer things of value to legislators." (5) Some argue that the decision gives lobbyists permission to "influence lawmakers in secret so long as they don't spend or receive any money in the process." (6)

   Part II of this Note outlines the facts and holding of Calzone v. Summers. Part III explains Missouri's lobbyist requirements and how the First Amendment comes into play in this case. Part IV examines the reasoning the Eighth Circuit used in reaching is decision in Calzone v. Summers. Finally, Part V argues that the dissenting opinion more accurately portrays the state of lobbying and lawmaking in Missouri.

2. FACTS AND HOLDING

   Ronald Calzone lives in central Missouri, where he raises cattle and horses and owns a small manufacturing business. (7) He is also an "active figure" in Missouri politics. (8) He speaks to members of the Missouri General Assembly "regularly" both in private, one-on-one meetings with them and when testifying before them in public committee hearings. (9) While he speaks to legislators only when pressing his own views with them, Calzone often acts through a nonprofit organization called Missouri First, Inc. ("Missouri First"). (10) Calzone is the "incorporator, sole officer, president, director, and registered agent" of Missouri First, which both parties agree is his "alter ego." (11) According to its charter, Missouri First seeks to "evaluat[e] and produc[e] public policy ideas with an emphasis on individual liberty, free market capitalism, constitutionally limited government, and other principles that are consistent with the concept of an American constitutional republic." (12) The organization supports specific legislative and ballot initiatives as well as specific candidates who promote its objectives, but it will not campaign for a particular political party. (13) It recruits like-minded citizens to help advance its legislative agenda by either joining the organization, (14) volunteering, or providing financial support. (15) However, neither Calzone nor Missouri First spends or receives any money in pursuit of that mission. (16)

   Merriam-Webster defines a "lobbyist" as "one who conducts activities aimed at influencing or swaying public officials and especially members of a legislative body on legislation." (17) Missouri law defines "lobbyist" as any natural person defined either as an executive lobbyist, judicial lobbyist, elected government official lobbyist, or a legislative lobbyist. (18) According to the State of Missouri, because of his connection to Missouri First, Calzone is a "legislative lobbyist." (19) As relevant here, a legislative lobbyist is any person who attempts to influence state legislative actions and has been "designated to act as a lobbyist by any [...] nonprofit corporation, association[,] or other entity." (20) Calzone admits that he lobbies the Missouri General Assembly so he is a lobbyist in the most general sense of the word--meaning he seeks to influence public officials--but he contends he is not a "legislative lobbyist" as defined by Missouri statute. (21)

   In accordance with state law, all lobbyists--executive lobbyists, judicial lobbyists, elected government official lobbyists, and, most notably, legislative lobbyists--must complete a list of legal requirements. All lobbyists must file a registration form with the Missouri Ethics Commission ("MEC") within five days of beginning lobbying activities. (22) The form costs ten dollars to file and must include the lobbyist's name and business address, the name and address of anyone employed by the lobbyist for lobbying purposes, and the name and address of each principal by whom the lobbyist is employed or in whose interest the lobbyist appears or works. (23) Once filed, the information becomes a matter of public record. (24) Lobbyists must update the MEC within one week of a change in their employment or representation. (25) They are required to file monthly expenditure reports, including any money spent on behalf of "public officials, their staffs and employees, and their spouses and dependent children." (26) They must also file a monthly statement detailing "any direct business relationship or association or partnership" they have with any public official. (27) Twice a year, each lobbyist must provide a description of any piece of legislation they or their principal supported or opposed. (28) All of these reports become public record too. (29) Anyone who does not comply with the requirements could face fines or prison time. (30)

   Anyone can initiate an investigation by filing a complaint with the MEC alleging a violation of lobbyist requirements. (31) In 2014 and 2016, two official complaints were filed with the MEC against Calzone, (32) asserting that he violated Section 105.473 of the Missouri Revised Statutes because he was designated as a lobbyist for Missouri First but failed to register as a lobbyist, pay a lobbying fee, or make regular reports to the state as required by the statute. (33) In 2016, the MEC ordered Ronald Calzone to pay a one thousand dollar fine and prohibited him from talking policy with state officials until he registered as a "legislative lobbyist." (34)

   Calzone was convinced the lobbyist requirements violated his First Amendment rights to free speech and to petition the government. (35) With assistance from the Institute for Free Speech and the Freedom Center of Missouri, (36) he filed suit in federal court. (37) Calzone first sought a temporary restraining order to prevent members of the MEC from enforcing the law against him. (38) However, the district court denied Calzone's request, finding that he was not likely to succeed on the merits. (39) Next, Calzone moved for a permanent injunction, challenging the constitutionality of the Missouri statutes both facially and as applied to him. (40) Ultimately, the district court denied a permanent injunction and entered final judgment against Calzone. (41)

   The court found that Calzone's facial challenge failed because an ordinary person could reasonably understand what the statute required, so it was not unconstitutionally vague. (42) Since Calzone had the authority to act on behalf of Missouri First as its agent, he had the authority to appoint himself as a lobbyist for Missouri First, meaning he was "designated to act as a lobbyist." (43) The court, using exacting scrutiny, (44) found that Calzone's as-applied challenge failed because Missouri had a sufficiently important interest in governmental transparency and requiring unpaid lobbyists to register with the government and file lobbying reports was substantially related to furthering that interest. (45)

   The Eighth Circuit panel affirmed two-to-one. (46) On appeal, Calzone made three separate claims: (1) the district court applied the wrong level of scrutiny to his constitutional claims; (2) Section 105.473 of the Missouri Revised Statutes--the statute that describes lobbyist duties--is unconstitutional as applied to him; and (3) Section 105.470 of the Missouri Revised Statutes--the statute that defines a "legislative lobbyist"--is facially unconstitutional for vagueness. (47)

   First, Calzone argued that the district court erred in applying exacting scrutiny to his constitutional claims instead of strict scrutiny. (48) Like the district court, the Eighth Circuit panel relied on Citizens United v. FEC in rejecting this claim. (49) In Citizens United v. FEC, the United States Supreme Court held that "The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether." (50) Citing Citizens United, the Eighth Circuit held in Minnesota Citizens Concerned for Life, Inc. v. Swanson that laws that burden political speech are subject to strict scrutiny, unless the law is a disclosure law, in which case it is subject to exacting scrutiny. (51) Based on that precedent and the fact that the statute at issue here is a disclosure law, (52) the court found that exacting scrutiny is the correct standard of review for Calzone's First Amendment claim. (53) Second, Calzone claimed that Section 105.473 of the Missouri Revised Statutes is unconstitutional as applied to him--an uncompensated lobbyist--considering he "does not accept money for his activism, nor does he spend money on legislators or legislative staff when he communicates with them about his public policy...