D.C. Circuit Rejects Constitutional Challenge to Lobbying Disclosure

           The D.C. Circuit ruled this week in National Association of Manufacturers v. Taylor, rejecting NAM’s challenge to the constitutionality of section 207 of the Honest Leadership and Open Government Act (HLOGA), which enhanced a previous disclosure requirement of the Lobbying Disclosure Act (LDA) (hat tip: Election Law Blog).  Under this provision, disclosure is required not only of the organization which nominally conducts lobbying activities, but of any other organization which contributes more than $5,000 toward, and actively participates in, such lobbying activities.  In NAM’s case this would mean that it would be required to identify member companies that fund and actively participate in particular lobbying activities.  NAM argued that this requirement violated its First Amendment rights and “would chill NAM members from participating in public policy initiatives for fear of the consequences of public disclosure.”  It also argued that the provision was unconstitutionally vague. 

            The result in the case is not particularly surprising.  However, some of the court’s language, in an opinion authored by Judge Garland and joined by Judges Ginsburg and Henderson, is noteworthy for how strongly it affirms Congress’s authority to require the disclosure of lobbying-related information.  Although the court acknowledges that the LDA/HLOGA requirements do place a burden on NAM’s First Amendment rights, it finds this burden is justified by the “vital national interest” in public disclosure of “’who is being hired, who is putting up the money, and how much’ they are spending to influence legislation.”  (citing United States v. Harriss, 347 U.S. 612, 625-26 (1954)).  It is also largely dismissive of NAM’s attempts to question the utility of the information disclosed under the statute and the clarity of the statutory definition of “lobbying activities.” 

Finding that the government’s compelling interest in lobbying disclosure has been long settled by Harriss, the court is definitive in its rejection of the constitutional challenge.  Its sweeping language is likely to discourage future challenges to the disclosure requirements of LDA/HLOGA: 

Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject [NAM’s] challenge.

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            For more than sixty years, Congress has sought to expose the lobbying of government officials to public scrutiny.  Acronyms and intricacies aside, the progression from the FLRA [Federal Regulation of Lobbying Act of 1946] to the LDA to the HLOGA marks the legislature’s attempt to shine increasing light on the efforts of paid lobbyists to influence the public decisionmaking process.  We find nothing unconstitutional in the way Congress has gone about that task. (emphasis added)