Kimbell v. Hooper

• Decision Date: 04 August 1995
• Docket Number: No. 94-180,94-180
• Citation: 164 Vt. 80,665 A.2d 44
• Court: Vermont Supreme Court
• Parties: , 64 USLW 2114 Stephen W. KIMBELL and Robert S. Sherman, d/b/a Kimbell & Sherman, et al. v. Donald M. HOOPER, Secretary of State, and Jeffrey L. Amestoy, Attorney General.

Page 44

665 A.2d 44

164 Vt. 80, 64 USLW 2114

Stephen W. KIMBELL and Robert S. Sherman, d/b/a Kimbell &amp Sherman, et al. v. Donald M. HOOPER, Secretary of State, and Jeffrey L Amestoy, Attorney General.

No. 94-180.

Supreme Court of Vermont.

Aug. 4, 1995.

Charles F. Storrow of Kimbell & Storrow, Montpelier, for plaintiffs-appellants.

Jeffrey L. Amestoy, Attorney General and Phillip J. Cykon, Assistant Attorney General, Montpelier, for defendants-appellees.

Before: ALLEN, C.J., GIBSON, MORSE, JJ., and PECK, J. (Ret.), and JENKINS, Supr. J., Specially Assigned.

MORSE, Justice.

Plaintiffs, professional lobbyists, appeal a declaratory judgment of the Washington Superior Court ruling that Vermont's lobbying disclosure law is not so vague or overbroad as to violate Articles 13 and 20 to Chapter I of the Vermont Constitution or the First Amendment to the United States Constitution. We affirm.

Vermont has regulated the lobbying profession since 1939. See 1939, No. 240 (An Act Requiring Legislative Counsel and Agents to Register During Session of the General Assembly). The lobbying disclosure law under scrutiny today became effective in 1990. See 1989, No. 160 (Adj.Sess.); see also 2 V.S.A. §§ 261-268 (the Act). In general, the 1990 Act requires lobbyists to register with the Secretary of State and to report expenditures related to their efforts to influence legislation. Nothing in the Act as enacted or amended prohibits lobbying or attempts to censor particular messages or points of view.

Plaintiffs have not been charged with a violation of the Act, nor have they expressed their intention to violate its provisions; rather, they facially challenge the 1993 amended definitions of the terms "Expenditure" and "Lobbying" found in 2 V.S.A. § 261(5) and (9). ¹ These amendments require lobbyists to report a broader spectrum of lobbying efforts, such as research and other preparatory work and indirect contacts to influence legislators. Because plaintiffs facially challenge the Act, we have no factual context in which to evaluate its constitutionality. Plaintiffs also challenge the addition of § 266(3), which, among other things, prohibits lobbyists from contributing to political campaigns of members of the General Assembly while the legislature is in session. ²

I.

Without doubt, lobbying implicates First Amendment guarantees of petition, expression, and assembly, as well as similar rights found in the Vermont Constitution. ³ See United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 816, 98 L.Ed. 989 (1954). The United States Supreme Court, however, has never defined the scope of these rights. See generally Thomas, Easing the Pressure on Pressure Groups: Toward a Constitutional Right to Lobby, 16 Harv.J.L. & Pub.Pol'y 149 (1993).

Plaintiffs make numerous arguments that essentially contend the Act sweeps too broadly because, in their view, Harriss and United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953), provide that a state's legitimate interest in regulating lobbying extends only to regulation of direct communications with government officials. The Act requires lobbyists to report expenses for activities that take place outside the presence of legislators or that are less directly related to influencing legislation than person to person contact with a member of the General Assembly. We do not agree, however, that Harriss and Rumely so narrowly limit a state's reach.

In Rumely, 345 U.S. at 47, 73 S.Ct. at 546, the Court construed "lobbying"--undefined in the Federal Regulation of Lobbying Act of 1946--to mean "representations made directly to the Congress, its members, or its committees." The Court construed the term narrowly to avoid deciding the constitutional question presented there, not to define the limits of a state's interests in regulating lobbying activities. See id. at 46-47, 73 S.Ct. at 546 (Court abstained from constitutional adjudication); see also Harriss, 347 U.S. at 623, 74 S.Ct. at 815 (construing similar language narrowly to avoid constitutional doubts).

Provisions that reach "indirect" lobbying activities beyond the parameters found in Rumely and Harriss are not, as plaintiffs would urge, necessarily unconstitutional; in fact, the Court intimated in these cases that Congress could require more stringent reporting. See Harriss, 347 U.S. at 620, 74 S.Ct. at 813 ("If the construction urged by the Government is to become law, that is for Congress to accomplish by further legislation."); Rumely, 345 U.S. at 47, 73 S.Ct. at 546 (if Congress wished to extend reach of statute, it would have used more explicit language). Indeed, even the Court's narrowest construction of "lobbying" included indirect lobbying efforts:

[W]e believe this language should be construed to refer only to "lobbying in its commonly accepted sense"--to direct communication with members of Congress on pending or proposed federal legislation. The legislative history of the Act makes clear that, at the very least, Congress sought disclosure of such direct pressures, exerted by the lobbyists themselves or through their hirelings or through an artificially stimulated letter campaign.

Harriss, 347 U.S. at 620, 74 S.Ct. at 813 (emphasis added). Consequently, plaintiffs' argument that the Act goes beyond the narrow construction of direct communication given lobbying in Harriss and Rumely brings us only to the threshold of analysis. The question then is whether Vermont's lobbying law is not focused enough--narrowly tailored--and sweeps within its coverage protected expressive and associational values.

We begin by noting that lobbying disclosure laws are not subject to the same strict scrutiny as laws that impinge on pure speech. Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830 (1973); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 920-21 (1970) (characterizing lobbying regulation as "remedial," and "remedial element in disclosure laws which generate information of relevance to a democratic public"). Laws regulating such political activities in a neutral, noncensorial manner will be stricken as overbroad only as a last resort. Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. The Supreme Court stated, in upholding a federal act restricting federal employees' partisan political activities, that

facial overbreadth adjudication is an exception to our traditional rules of practice and ... its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct.... [P]articularly where conduct and not merely speech is involved, we believe that the overbreadth must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

Id. at 615, 93 S.Ct. at 2917-18. Thus, claimed flaws must be of a substantial concern in the context of the statute as a whole before we will invalidate the statute. Cf. id. at 616 n. 14, 93 S.Ct. at 2918 n. 14. Because this is a facial overbreadth challenge to a law that does not regulate any particular message or point of view and which does not block access to the political process, we believe that the Act is not substantially overbroad. For the reasons discussed below, we conclude, as the Court did in Broadrick, that any impingement on the First Amendment may be addressed on a case-specific basis. See id. at 615-16, 93 S.Ct. at 2917-18.

In part, we decide not to strike the Act as overbroad on its face because lobbying disclosure laws are supported by several compelling interests. One important governmental interest in requiring disclosure of lobbyist information is protecting the integrity of the governmental process:

Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.

Harriss, 347 U.S. at 625, 74 S.Ct. at 816. The United States Supreme Court has referred to this interest as "vital," id. at 626, 74 S.Ct. at 816, and has held similar governmental interests sought to be vindicated by disclosure requirements to be of sufficient magnitude to counterbalance infringements on First Amendment rights. Cf. Buckley v. Valeo, 424 U.S. 1, 66-67, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976) (per curiam) (interests in aiding voters in evaluating candidates, in deterring corruption and appearance of corruption, and in recordkeeping to detect violations of contribution limits); see also Montana Automobile Ass'n v. Greely, 193 Mont. 378, 632 P.2d 300, 303 (1981) (compiling cases where compelling interests found to support disclosure requirements).

Plaintiffs accurately describe in their brief why the government has an interest in regulating communications with lawmakers. They acknowledge that

lobbying involves considerably more than direct contacts with legislators and executive branch officials ... Lobbying often entails ... considerable amounts of research, extensive meetings with clients and others, preparation of materials, the formation of "coalitions" with others who have similar interests, the inculcation of good will on the part of legislators and executive branch officials, participation in talk shows, and the sending of letters to newspaper editors.

....

The modern day realities of the legislative and administrative processes are such that more often than not it is impractical, if not impossible, for any single individual or organization that is not devoted almost...