National Ass'n of Mfrs. v. Taylor

• Decision Date: 08 September 2009
• Docket Number: No. 08-5085.,08-5085.
• Parties: NATIONAL ASSOCIATION OF MANUFACTURERS, Appellant v. Jeffrey Allen TAYLOR, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

582 F.3d 1

NATIONAL ASSOCIATION OF MANUFACTURERS, Appellant v. Jeffrey Allen TAYLOR, et al., Appellees.

No. 08-5085.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2008.

Decided September 8, 2009.

Thomas W. Kirby argued the cause for appellant. With him on the briefs were Jan Witold Baran, Jan Amundson, and Quentin Riegel.

Brady C. Williamson was on the brief for amici curiae Iowa Association of Business and Industry, et al. in support of appellant.

Nicholas J. Bagley, Attorney, U.S. Department of Justice, argued the cause for appellee Jeffrey A. Taylor. With him on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, Jonathan F. Cohn, Deputy Assistant Attorney General, and Michael S. Raab, Attorney.

Thomas E. Caballero, Assistant Senate Legal Counsel, Office of Senate Legal Counsel, argued the cause for appellees Nancy Erickson, et al. With him on the brief were Morgan J. Frankel, Senate Legal Counsel, Patricia Mack Bryan, Deputy Senate Legal Counsel, Grant R. Vinik, Assistant Senate Legal Counsel, Irvin B. Nathan, General Counsel, U.S. House of Representatives, Kerry W. Kircher, Deputy General Counsel, and Christine M. Davenport and Richard A. Kaplan, Assistant Counsel.

Donald J. Simon, Fred Wertheimer, and J. Gerald Hebert were on the brief for amici curiae Campaign Legal Center, et al. in support of appellees.

Before GINSBURG, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

More than fifty years ago, the Supreme Court held that the public disclosure of "who is being hired, who is putting up the money, and how much" they are spending to influence legislation is "a vital national interest." United States v. Harriss, 347 U.S. 612, 625-26, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Today, we consider a constitutional challenge to Congress' latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. 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 that challenge.

I

A

Congress first enacted comprehensive lobbying regulation in 1946 with passage of the Federal Regulation of Lobbying Act (FRLA), Pub.L. No. 79-601, tit. III, 60 Stat. 839 (1946). The Act required paid lobbyists, defined as persons whose services were engaged for the purpose of influencing legislation, to register with the Secretary of the Senate and the Clerk of the House of Representatives. Id. § 308(a), 60 Stat. at 841. Among other things, registered lobbyists were required to disclose, on a quarterly basis, the identity of each person who contributed $500 or more to fund their lobbying efforts. Id. § 305(a)(1), 60 Stat. at 840. The FRLA remained on the books as the primary font of federal lobbying regulation for fifty years.

In 1995, concerned that the FRLA had "failed to ensure the public disclosure of meaningful information about individuals who attempt to influence the conduct of officials of the Federal government," H.R. REP. NO. 104-339, pt. 1, at 5 (1995), the 104th Congress scrapped the Act and started from scratch. By unanimous vote of both Houses,¹ Congress passed the Lobbying Disclosure Act of 1995(LDA), Pub.L. No. 104-65, 109 Stat. 691 (codified as amended at 2 U.S.C. §§ 1601 et seq.), which began with the following recitation of findings setting forth the need for a more aggressive approach to lobbying regulation:

The Congress finds that —

(1) responsible representative Government requires public awareness of the efforts of paid lobbyists to influence the public decisionmaking process in both the legislative and executive branches of the Federal Government;

(2) existing lobbying disclosure statutes have been ineffective because of unclear statutory language, weak administrative and enforcement provisions, and an absence of clear guidance as to who is required to register and what they are required to disclose; and

(3) the effective public disclosure of the identity and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government.

2 U.S.C. § 1601.

In concert with these findings, Congress enacted a new statutory scheme containing broader disclosure obligations, a more expansive definition of lobbying,² and a more robust enforcement scheme. The LDA requires lobbyists (or their employers) to register with the Secretary of the Senate and Clerk of the House within 45 days of making or being retained to make lobbying contacts. 2 U.S.C. § 1603(a)(1), (2). Each registration must contain identifying information regarding the registrant (i.e., the lobbyist or employer of lobbyists) and each of its clients. Id. § 1603(b)(1), (2). It must also contain a statement of "the general issue areas in which the registrant expects to engage in lobbying activities on behalf of the client" and specific issues that have already been or are likely to be addressed in its lobbying activities. Id. § 1603(b)(5). Each registrant must then submit periodic reports updating those disclosures and stating the income received from its clients as well as the expenses the registrant incurred in connection with lobbying activities conducted on its own behalf. Id. § 1604(b).

Particularly relevant here, the LDA provides that, "[i]n the case of a coalition or association that employs or retains other persons to conduct lobbying activities, the client is the coalition or association and not its individual members." Id. § 1602(2). For the first time, however, Congress took steps to partially pierce the veil of coalitions and associations that lobby Congress on behalf of their members. LDA § 4 required registrants — including coalitions and associations — to disclose not only their clients, but also:

(3) the name, address, and principal place of business of any organization, other than the client, that —

(A) contributes more than $10,000 toward the lobbying activities of the registrant in a semiannual period . . .; and

(B) in whole or in major part plans, supervises, or controls such lobbying activities.

LDA § 4(b)(3), 109 Stat. at 696 (codified at 2 U.S.C. § 1603(b)(3) (1995)). According to the House Judiciary Committee Report that recommended passage of the LDA, this provision was "intended to preclude evasion of the disclosure requirements of the Act through the creation of ad hoc lobbying coalitions behind which real parties in interest can hide." H.R. REP. NO. 104-339, U.S.Code Cong & Admin.News 1996, 644, pt. 1, at 18.

In 2007, after twelve years of experience with the LDA, and spurred by a series of lobbying-related scandals, see H.R. REP. No. 110-161, pt. 1, at 9 (2007), Congress again enacted lobbying reform. According to the House Judiciary Committee Report, Congress' purpose was to close "loopholes in current law." Id. This time, it did not repeal its earlier handiwork. Instead, Congress amended the LDA while keeping much of it intact, including its statement of legislative findings and most of its definitions. The result was the Honest Leadership and Open Government Act of 2007 (HLOGA), Pub.L. No. 110-81, 121 Stat. 735.

Section 207 of HLOGA is the provision at issue on this appeal. It amends LDA § 4(b)(3), 2 U.S.C. § 1603(b)(3), by altering both the monetary and level-of-participation thresholds necessary to trigger disclosure of organizations other than clients. The participation threshold is our focus here. Instead of only requiring the disclosure of an organization that "in whole or in major part" plans, supervises, or controls the lobbying activities of the registrant, HLOGA requires the disclosure of any organization that "actively participates" in the planning, supervision, or control of such lobbying activities.

Amended § 1603(b) now requires that each registration contain (and that each quarterly report update):

(3) the name, address, and principal place of business of any organization, other than the client, that —

(A) contributes more than $5,000 to the registrant or the client in the quarterly period to fund the lobbying activities of the registrant; and

(B) actively participates in the planning, supervision, or control of such lobbying activities[.]

2 U.S.C. § 1603(b)(3) (emphasis added). HLOGA also increased the civil penalties for anyone who "knowingly" fails to make the disclosures required by this and other sections, and added criminal penalties for "knowingly and corruptly" failing to do so. Id. § 1606(a), (b); see infra Part III.C.1. There is, however, a safe harbor from the disclosures required by § 1603(b)(3) for certain organizations that are identified on the registrant's website. 2 U.S.C. § 1603(b); see infra Part III.C.2.³

B

The plaintiff in this case, the National Association of Manufacturers (NAM), is "the nation's largest industrial trade association, representing small and large manufacturers in every industrial sector and in all 50 states." Appellant's Br. ii. Although some of NAM's more than 11,000 corporate members choose to disclose their affiliation with the association, NAM's policy is to keep its membership list confidential. Amundson Decl. ¶¶ 6-8. NAM employs approximately 35 people who make lobbying contacts with the federal government, id. ¶ 9, and it therefore must make disclosures under the LDA, 2 U.S.C. § 1603(a)(2).

According to NAM, hundreds of its corporate members make contributions that exceed the monetary threshold of amended § 1603(b)(3)(A). Amundson Decl. ¶ 7. The plaintiff explains that member groups like NAM "did not have to concern themselves" with disclosures under the 1995 version of § 1603(b)(3) because, "[a]s long as several members were involved, no single member would meet the [`in whole or in major part' parti...