If your are a member of a union, church or virtually any other organization and irritate a lawmaker at the State Capital you could be fined and required to register as a lobbyist and pay the required fee. According to Wikipedia, the First Amendment of the US Constitution guarantees the right to petition government for redress of grievances. This is the right to make a complaint to, or seek the assistance of, one’s government, without the fear of punishment or reprisals. That’s right, just because you don’t receive payment from the organization or give the legislator a gift the Federal Appeals Court believes you meet the Missouri Ethics Commission definition of a Lobbyist.
Several years ago Ron Calzone a co-founder of Missouri First ran afoul of some powerful state legislators and thus the victim in this case. The following is Ron Calzone’s background and comments on the Appeals Court decision.
First of all, no additional help is needed on the legal front. Between the Freedom Center of Missouri (Dave Roland) and the Institute for Free Speech, I have some of the best lawyers on this issue we could find. They are with the case as far as we can take it, including the U.S. Supreme Court. (Donations to the Freedom Center are, however, always a good idea.)
The opinion handed down this week was by a three judge 8th U.S. Circuit Court of Appeals panel. One of the three judges really called the other two on the carpet in his dissenting opinion. See the attachment.
The third judge pointed out error in facts assumed by the majority opinion, most notably the fact that not only do I not receive anything of value, neither do I give anything of material value. (Gifts, etc.) The majority opinion erroneously said that we did not raise that argument, but the dissenting judge include a whole page of footnotes proving my lawyers DID make that argument.
That should make the success of our next move more likely. We intend to ask the entire 8th Circuit — all 15 judges — to review the case en banc. They have the power to reverse the opinion. If that doesn’t work, we will ask SOCTUS to take it up, but that’s a long shot that will take years to work through.
THINGS YOU SHOULD KNOW
First, understand that there are two legal actions under way:
1) The original ethics complaint is still not resolved. This is the one in which the Lobbyist Guild, a corporation, filed an illegal complaint. (Only a “natural person” can file a complaint.) Of course, that means MEC broke the law by accepting the complaint. That’s the case Judge Beetem ruled with us on, saying just that — MEC broke the law. He totally dismissed the case.
MEC, with Josh Hawley representing them, appealed that finding to the Western Court of Appeals, which didn’t disagree with Judge Beetem’s findings, but said that he should have sent the case back to the Administrative Hearing Commission instead of dismissing it himself.
That original case has been on hold while we were hashing our the second, federal, case. MEC may take that case back up right away, or they may wait to see if the 8th Circuit grants our request for an en banc review. I suspect they will wait.
Before the government can make me do anything or fine me, this case must be completed.
2) The second case is one that WE filed in federal court against MEC. In that case, we accused them of violating the constitutions. The “mechanics” of the ethics complaint (e.g. the fact that it was a corporation, not a natural person that filed the complaint) was not at issue in the federal case. It was purely about the constitutionality of the Missouri lobbyist statute, or MEC’s application of it.
We were on the attack in this case, MEC was on the defense.
This was also the most important case. If I get off on the first case because of the technical issue of who filed the complaint, that doesn’t help us in the future — we activists will still be at risk of ethics complaints. That is especially true if your are part of any sort of organization, to include anything from a Tea Party group, a right to life group, a NARAL, Farm Bureau, Missouri Baptist Association, etc.
THE LEVEL OF THE RISK
The dissenting judge wrote:
It [the majority opinion] does not appear to treat a member of a religious or civic organization who has been “designated” to attend a “Lobby Day” any differently from Calzone, who advocates on behalf of Missouri First. The law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of its purpose.
By sweeping so widely, Missouri’s law endangers the free exchange of ideas. Indeed, a political adversary, an unscrupulous government official, or even a legislator tired of being held accountable could simply submit a complaint to the Commission accusing a politically active citizen of lobbying—that is, speaking out—without first registering as a lobbyist. It may just be simpler for a citizen to skip a lobbying day or pass up the opportunity to call a legislator rather than having to complete tedious paperwork or risk sizeable fines and criminal penalties.
Note that the majority opinion pointed to a case involving the NRA executive director. That opinion concluded that he had to register as a lobbyist for sending a mailer out telling people how they should vote! He was, of course, paid, so that’s different than us, but the 8th circuit just removed that difference, since they are saying not being paid doesn’t absolve one from registration requirements. The only conclusion I can draw is that they are saying the state could make you register as a lobbyist just for sending mailers out, even if you don’t talk to legislators!
See what they said, here:
In NRA, we held that the activity that warranted requiring the NRA’s executive director to register and report as a lobbyist was his mailing of letters to Minnesota residents urging them to vote a specific way. NRA, 761 F.2d at 511. It was because of this activity alone, not campaign contributions or the fact that the executive director was paid by the NRA, that we found the director needed to register as a lobbyist.
WHAT NEEDS TO BE DONE
I think this case and the continuing issue needs as much publicity as we can muster. The court needs to know that we are upset, and Missouri legislators especially need to know that citizens will not sit still for the this chilling opinion and the existing statute that makes the opinion dangerous.
Every organization you can think of needs to be aware of this court opinion threatens their activities. As the dissenting judge wrote, every member of a religious or civic organization who has been “designated” to attend a “Lobby Day” is threatened by this. They should be encouraged to contact their state rep and senators to fix the law that the courts have made such a mess of.
We will continue to fight the legal battle, but in the mean time we should work for a bill that says if you don’t take money or give things of material value you don’t have to register as a lobbyist.
Full text of court ruling click Here