FL League of Professional v. Meggs

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 9, 1996
• Docket: 95-2555
• Status: Published

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 95-2555.

FLORIDA LEAGUE OF PROFESSIONAL LOBBYISTS, INC., Plaintiff- Appellant,

v.

William N. MEGGS, as State Attorney for the Second Judicial Circuit of Florida, Defendant-Appellee.

July 9, 1996.

Appeal from the United States District Court for the Northern District of Florida. (No. 93-CV-40277), Maurice Mithcell Paul, Chief Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and LOGAN*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Florida, like every other state in the union,1 has enacted

legislation regulating the conduct of those who "lobby" the state's

legislative or executive officials. This appeal requires us to

determine whether Chap. 93-121, Laws of Florida, is

unconstitutional so far as it requires extensive disclosure by

lobbyists and their principals and bars lobbyists from receiving

fees contingent on their success in affecting legislative or

executive outcomes. We hold that Florida's disclosure requirements

survive the facial challenge that Appellant brings today. And, we

uphold the ban on contingency-fee lobbying despite whatever doubts

* Honorable James K. Logan, Senior U.S. Circuit Judge for the Tenth Circuit, sitting by designation. 1 See Steven Browne, Note, The Constitutionality of Lobby Reform: Implicating Associational Privacy and the Right to Petition the Government, 4 Wm. & Mary Bill Rts. J. 717 (1995) (observing that all fifty states have statutes regulating lobbying). recent cases may have cast on its constitutionality. About the

contingency fee, we deem ourselves to be bound by some old

pronouncements of the Supreme Court; and we lack the power to

overrule these pronouncements, even if more recent cases suggest

that the Supreme Court might someday reach a result contrary to the

one we reach today.

I.

Appellant is an organization of professional lobbyists. The

lobbyist-members contend the disclosure and contingency-fee

provisions of the statute violate their constitutional rights and

assert that they fear imminent reprisal.

The legislation challenged here, Chapter 93-121 of the Laws of

Florida, amended the provisions of Fla.Stats. §§ 11.045 and

112.3215. Those provisions define "Lobbying," "Lobbyist," and

"Principal." As amended, the sections provide that a lobbyist

hired by a principal shall disclose all lobbying expenditures,

whether made by the lobbyist or by the principal, and the source of

funds for all such expenditures. See id. § 11.045(3)(a). In

addition, the statute requires disclosure of expenditures by

category, and provides a non-exclusive list of categories: "food

and beverages, entertainment, research, communication, media

advertising, publications, travel, and lodging." Id. Furthermore,

the Florida legislature has provided for an administrative

procedure, so that persons in doubt about the precise operation of

the statute may, in writing, seek clarification of the intended

reach of the statutes. Id. § 11.045(4). As noted, the statute

also precludes would-be lobbyists from exchanging their services for an award contingent on legislative outcome. See id. § 11.047.

The League does not argue that the statute has been

unconstitutionally applied to penalize its members. And, from the

record, nothing indicates that any member of the League has

requested an advisory opinion as provided for in the statute. The

only contentions are that the statute is overbroad and, therefore,

facially invalid in its disclosure provisions and that the

contingency-fee ban is unconstitutional in the light of recent

Supreme Court precedent. After the parties proffered extensive

documentary evidence, the district court granted summary judgment

in favor of the state.

II.

If the League is correct that the greater number of this

statute's applications are unconstitutional, then its members face

an unattractive set of options if they are barred from bringing a

facial challenge: refrain from engaging in protected First

Amendment activity or risk civil sanction for alleged unethical

conduct. Therefore, this action is ripe; and the League has

standing to bring it, even though it makes no allegation that its

members have actually been sanctioned. See generally Abbott Lab.

v. Gardner, 387 U.S. 136, 152-53, 87 S.Ct. 1507, 1517-18, 18

L.Ed.2d 681 (1967) (holding that action was ripe before prosecution

occurred where appellants faced choice between complying with

possibly void regulation and risking "serious" civil penalties).

Thus, we address the constitutional challenge even in the absence

of concrete indicators on how it will be applied.

We do not say that the absence of allegations of prosecutions under the Act is irrelevant to our disposition of this case.

Because Appellant has failed to allege a specific unconstitutional

application, its challenge must be characterized as a facial—as

distinct from as-applied—challenge. This characterization requires

Appellant to meet a higher burden because, as the Supreme Court has

indicated, "[a] facial challenge to a legislative Act is, of

course, the most difficult challenge to mount successfully...."

United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100,

95 L.Ed.2d 697 (1987) (holding Bail Reform Act of 1984 not facially

invalid).

Some disagreement has appeared lately among members of the

Supreme Court on exactly how high the threshold for facial

invalidation should be set. As we understand it, some Justices

interpret Supreme Court precedent to indicate that a statute is not

facially invalid unless there is no set of circumstances in which

it would operate constitutionally; others contend the cases

require only that a statute would operate unconstitutionally in

most cases. Compare Janklow v. Planned Parenthood, --- U.S. ----,

---- & n. 1, 116 S.Ct. 1582, 1583 & n. 1, 134 L.Ed.2d 679 (1996)

(Mem.) (Stevens, J.) (asserting that statute is facially invalid if

unconstitutional in large fraction of cases) with id. at ----, 116

S.Ct. at 1586 (Scalia, J., dissenting from the denial of

certiorari) (statute is facially invalid only if it would never

operate constitutionally).2 But, because we conclude (below) that

2 Also, we note that this case is a First Amendment case, where because of the overbreadth doctrine, facial challenges may succeed more often. See New York v. Ferber, 458 U.S. 747, 767- 74, 102 S.Ct. 3348, 3360-63, 73 L.Ed.2d 1113 (1982); see also Salerno, 481 U.S. at 744-45, 107 S.Ct. at 2100. Appellant has failed to show that the Florida lobbying amendments

would operate unconstitutionally often enough to satisfy either

test, we can safely conclude that this facial challenge fails.

III.

Within the framework of the facial challenge, we measure the

Act against the appropriate First Amendment standard. In defining

that standard, we turn first to United States v. Harriss, 347 U.S.

612, 74 S.Ct. 808, 98 L.Ed. 989 (1954), where the Supreme Court

upheld the Federal Regulation of Lobbying Act against a First

Amendment challenge. The Court construed that Act as addressing

only face-to-face, "direct" contact between lobbyists and

officials. (As discussed above, the language of the Florida

statute seems to sweep somewhat more broadly, bringing more

"indirect" lobbying, such as research and media campaigns, within

its scope.)

In Harriss, the Supreme Court was not explicit about the level

of constitutional scrutiny applied. It appears, however, that the

Court did not subject the lobbying restrictions to the demands of

strict scrutiny. Instead, the Court satisfied itself that the

government had asserted sufficient interests—specifically,

"maintain[ing] the integrity of a basic governmental process," 347

U.S. at 625, 74 S.Ct. at 816, and preserving to Congress "the power

of self-protection." Id. Having recognized these interests, the

Court rejected the facial challenge, stating that the appellants'

predictions of constitutional infringement amounted to

"hypothetical borderline situations," and identifying as "too

remote" the possibility that persons would engage in substantial self-censorship. Id.

In Minnesota State Ethical Practices v. Nat'l Rifle Ass'n, 761

F.2d 509, 512 (8th Cir.1985), the court looked to Harriss in

upholding a statute similar in operation to the one challenged

here. The Eighth Circuit read Harriss as demonstrating broad

approval for lobbying restrictions. See Minnesota State Ethical

Practices, 761 F.2d at 512. The regulations approved in Minnesota

State Ethical Practices were considerably broader than those in

Harriss, extending to internal communication among members of an

organization as well as to "direct" contacts with legislators.

Several other courts have similarly interpreted Harriss and

have rejected broad constitutional attacks on lobbying disclosure

requirements. In Fair Political Practices Comm'n v. Superior Ct.

of Los Angeles, 25 Cal.3d 33, 157 Cal.Rptr. 855, 863-64, 599 P.2d

46, 54 (1979), the court concluded that under Harriss,

"[a]pplication of the burdens of registration and disclosure of

receipts and expenditures to lobbyists does not substantially

interfere with the ability of the lobbyist to raise his voice."

The court, therefore, declined to apply strict scrutiny to, and

ultimately sustained, the registration and expenditure-reporting

requirements. Id. See also Commission on Indep. Colleges & Univs.

v. New York Temporary State Comm'n on Reg'n of Lobbying, 534

F.Supp. 489, 497 (N.D.N.Y.1982) (upholding New York lobbying

statute); ACLU v. New Jersey Election Law Enforcement Comm'n, 509

F.Supp. 1123, 1130 (D.N.J.1981) (upholding lobbyist disclosure

provisions of New Jersey statute); Fritz v. Gorton, 83 Wash.2d

275, 517 P.2d 911, 931-32, appeal dismissed, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974) (upholding disclosure requirements of

Washington state lobbying initiative). But cf. Fair Political

Practices, 157 Cal.Rptr. at 863-64, 599 P.2d at 54 (striking

"transaction reporting requirements" of California statute, which

required reporting of "lobbyist and employer transactions with

others, which may be entirely unrelated to lobbyist activities").

IV.

Against the standard of Harriss and its progeny, we are

unpersuaded that a substantial number of the applications of

Chapter 93-121 will offend the First Amendment. So, we reject the

facial challenge.

The League contends that the First Amendment demands strict

scrutiny of the reporting requirements. Thus, in the League's

estimation, the law is overbroad and facially invalid to the extent

the state cannot show both a compelling interest in its ends and

that the statute is narrowly tailored to avoid undue interference

with the exercise of legitimate speech rights. The League

concludes that the statute is not narrowly tailored to the extent

it requires reporting of "indirect expenses when there is no direct

contact with governmental officials." In the light of the case law

summarized above, we disagree.

The League concedes, as it must, that the state has

articulated legitimate interests. The Supreme Court has made clear

that circumstances like these implicate the correlative interests

of voters (in appraising the integrity and performance of

officeholders and candidates, in view of the pressures they face)

and legislators (in "self-protection" in the face of coordinated pressure campaigns). See, e.g., McIntyre v. Ohio Elections Comm'n,

--- U.S. ----, ----, 115 S.Ct. 1511, 1519, 131 L.Ed.2d 426 (1995)

("In a republic where the people are sovereign, the ability of the

citizenry to make informed choices among candidates for office is

essential, for the identities of those who are elected will

inevitably shape the course that we follow as a nation."); Buckley

v. Valeo, 424 U.S. 1, 67, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976)

(discussing governmental interest in "alert[ing] the voter to the

interests to which a candidate is most likely to be responsive and

thus facilitat[ing] predictions of future performance in office");

Harriss, 347 U.S. at 625, 74 S.Ct. at 816 ("Congress, at least

within the bounds of the Act as we have construed it, is not

constitutionally forbidden to require the disclosure of lobbying

activities. To do so would be to deny Congress in large measure

the power of self-protection.").

And, these interests continue to apply when the pressures to

be evaluated by voters and government officials are "indirect"

rather than "direct." See Minnesota State Ethical Practices, 761

F.2d at 512-513 (recognizing state interest in applying reporting

requirements to intra-organization "lobbying" activity not

involving direct contact with government officials). In fact, the

government interest in providing the means to evaluate these

pressures may in some ways be stronger when the pressures are

indirect, because then they are harder to identify without the aid

of disclosure requirements. Harriss appears to have acknowledged

as much when, even reading the statute narrowly to apply only to

"direct communication," it nonetheless defined direct communication to include "artificially stimulated letter campaign[s]." Harriss,

347 U.S. at 620, 74 S.Ct. at 813.

Because the interests of the state of Florida are compelling,

the facial challenge can succeed only if the League has shown that

a substantial fraction of the applications of the challenged law

will fail to further these articulated interests. On the record

before us, we conclude that the League cannot satisfy this burden.

We reach this conclusion in the light of both Harriss 's notation

that mail campaign expenses may be required to be reported and the

reasoning of Minnesota State Ethical Practices, which we find

persuasive; these sources strongly indicate that the First

Amendment permits required reporting of considerably more than

face-to-face contact with government officials.

As for the League's hypothesized, fact-specific worst-case

scenarios, we also decline to accept the facial challenge based on

these perceived problems. The League suggests, for example, that

the state may begin applying the expense reporting requirements

against editorial writers who urge a legislative result, simply

because the journalists are employed by corporate structures that

employ lobbyists for totally unrelated reasons. The Supreme Court

in Harriss discounted similar "hypothetical borderline situations."

Harriss, 347 U.S. at 626, 74 S.Ct. at 816. For now, we discount

them here also.

Therefore, we decline to validate the facial challenge.3 But,

3 One commentator has suggested that two interests in particular are served by sparing use of the power to void a statute on its face, both of which interests are applicable in in the future courts can, to the extent necessary, evaluate the

statute's constitutionality as-applied. They can also sever those

parts of the statute, if any, that factual development shows can

never be applied constitutionally. See, e.g., Harriss, 347 U.S. at

627, 74 S.Ct. at 817 (noting, in upholding statute against facial

challenge, that act contained severability clause that could be

used to remedy later problems). But, we now see no indication that

part of this statute must fall to preserve its constitutionality;

and, therefore, we decline to strike any provision. We, however,

express no opinion on the constitutionality of particular

fact-based challenges that may arise in the future. We just

conclude that the district court committed no error of law in

denying relief to the Plaintiff on its facial challenge to the

lobbying disclosure requirements.

VI.

Appellant also argues that the First Amendment bars the

prohibition on the receipt of fees contingent on the passage of

favorable legislation. The League relies chiefly on Meyer v.

Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), in

which the Court subjected to "exacting scrutiny" and struck down a

state statute prohibiting payment of fees to petition circulators,

and on Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 108 S.Ct.

2667, 101 L.Ed.2d 669 (1988), in which the Court again struck down

this case. These interests are, first, in restraining the power of the judiciary to interfere with the prerogatives of the political branches of government and, second, in ensuring that the courts are confronted with concrete facts, thereby reducing the rate of error in constitutional decisionmaking. See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan.L.Rev. 235, 245-46 (1994). a state statute under the heightened First Amendment standard, this

one a prohibition on the receipt of "unreasonable" fees by

professional fundraisers working for charitable organizations.

Florida points out that in cases decided well before the

articulation of "exacting scrutiny," the Supreme Court specifically

held that contracts to lobby for a legislative result, with the fee

contingent on a favorable legislative outcome, were void ab initio

as against public policy: Hazelton v. Sheckels, 202 U.S. 71, 78,

26 S.Ct. 567, 568, 50 L.Ed. 939 (1906), and Providence Tool Co. v. Norris, 69 U.S. (2 Wall.) 45, 55, 17 L.Ed. 868 (1864).4 The League

does not contest the applicability of these older decisions to this

case. And, we are persuaded that these decisions permit a

legislature to prohibit contingent compensation. The League,

however, suggested at argument that the extensive, interim

developments of First Amendment law establish conclusively that the

Supreme Court today would strike a contingency-fee ban on

4 For example, in Norris, a case involving a contract to lobby for contracts with the Department of War, the Court wrote:

Legislation should be prompted solely from considerations of the public good.... Agreements for compensation contingent upon success, suggest the use of sinister and corrupt means for the accomplishment of the end desired. The law meets the suggestion of evil, and strikes down the contract from its inception.

69 U.S. (2 Wall.) at 55. The Court also noted that "[t]here is no real difference in principle between agreements to procure favors from legislative bodies, and agreements to procure favors in the shape of contracts from the heads of departments." Id. In Hazelton, Justice Holmes held invalid an agreement to pay an individual a sum equal to the excess of the dollar amount of a desired government contract over a set amount. 202 U.S. at 78, 26 S.Ct. at 568. lobbying.5

This prediction may be accurate, but we are not at liberty to

disregard binding case law that is so closely on point and has been

only weakened, rather than directly overruled, by the Supreme

Court. The Court instructed, in Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 482-86, 109 S.Ct.

1917, 1921-22, 104 L.Ed.2d 526 (1989), that Courts of Appeals

should continue to follow directly applicable precedent that rests

on reasoning seemingly rejected in analogous cases, "leaving to

this Court the prerogative of overruling its own decisions." Id.

We take this admonition to heart, and we decline to take any step

which might appear to overrule Norris and Hazelton.

Therefore, the decision of the district court is AFFIRMED.

AFFIRMED.

5 Some support for this argument appears in the decision of the Montana Supreme Court in Montana Auto. Ass'n v. Greely, 193 Mont. 378, 632 P.2d 300, 308 (1981), which struck down a ban on contingency-fee lobbying as overbroad.