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Constitutionality of Revolving Door Statute Called into Question

            A federal judge has preliminarily enjoined enforcement of the Ohio revolving door statute against a former state legislator who sought to lobby his former colleagues on an uncompensated basis.  (hat tip—Election Law Blog). In Brinkman v. Budish, No. 1:09-cv-326 (S.D. Ohio Aug. 4, 2009), the court found a substantial likelihood that the law, as applied, would violate the First Amendment.  It accepted that the statute furthered a compelling governmental interest in preventing corruption or the appearance of corruption, but concluded that it was not narrowly tailored to advance this interest.  Specifically, the court was not persuaded that the statute, “at least as applied to the situation of a former member seeking to represent an organization on an uncompensated basis, furthers the interest in curbing quid pro quo corruption.”  Moreover, given that the statute prohibited lobbying on matters even if the former member had not personally participated in the matter while in office, the court did not believe that the law was narrowly tailored to curb the inappropriate use of inside information. 

            It is worth noting that federal law (18 U.S.C. 207(e)) prohibits lobbying by former Members of Congress (as well as congressional officers and senior staff) “on behalf of any other person” during a cooling off period.  This prohibition applies even to lobbying that is done on an uncompensated basis.  Thus, the reasoning of this decision would seem to call into question the constitutionality of that aspect of the federal law. 

            The Brinkman court also found merit to the claim that the Ohio statute violated equal protection “because it treats former General Assembly members who seek to represent a state agency on a matter before the General Assembly more favorably than it treats former General Assembly members who seek to represent a private client on a matter before the General Assembly.”  The court was not persuaded by the argument that representing a state agency does not raise the same type of corruption concerns as representing a private organization.  This would also be an issue that could be raised with regard to federal law, which excepts representing the United States from revolving door restrictions.

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