National Ass'n of Manufacturers v. Taylor

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided September 8, 2009

No. 08-5085

NATIONAL ASSOCIATION OF MANUFACTURERS,
APPELLANT

v.

JEFFREY ALLEN TAYLOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00208-CKK)

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,
 2

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 (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.
 3

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

1
See 141 CONG. REC. 20195, 34815-20 (1995).
 4

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

2
The LDA defines a “lobbyist” as any individual who (with
exceptions) is “employed or retained by a client” for services that
include making “lobbying contact[s].” 2 U.S.C. § 1602(10). The Act
defines a “lobbying contact” as (with exceptions) a communication to
a covered legislative or executive branch official with regard to “the
formulation, modification, or adoption” of (inter alia) federal
legislation, regulations, or policies. Id. § 1602(8)(A). “Lobbying
activities” is defined as “lobbying contacts and efforts in support of
such contacts, including preparation and planning activities, research
and other background work that is intended, at the time it is
performed, for use in contacts, and coordination with the lobbying
activities of others.” Id. § 1602(7).
 5

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
 6

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, 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 --
 7

(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

3
In addition to the provisions described above, HLOGA amended
the LDA in numerous respects that are not at issue on this appeal. For
example, it added a prohibition against lobbyists making certain gifts
to or providing travel for legislative branch officials, HLOGA § 206,
121 Stat. at 747; it changed the window for disclosing prior executive
or congressional employment from two years to twenty, id. § 208, 121
Stat. at 748; and it directed the Comptroller General to audit
compliance by lobbyists and registrants, id. § 213, 121 Stat. at 750.
HLOGA also amended another provision of the U.S. Code to limit
lobbying by former members of Congress and former congressional
employees. Id. tit. I, 121 Stat. at 736-41.
 8

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’ participation] threshold.” Appellant’s Br. 45. The
amended version of § 1603(b)(3), however, requires disclosure
of any member who “actively participates” in planning,
supervision, or control of lobbying activities, and this will
require disclosure of many NAM members.

On February 6, 2008, NAM filed suit in the United States
District Court for the District of Columbia, challenging the
constitutionality of § 207 of HLOGA. The suit contends that 2
U.S.C. § 1603(b)(3), as amended by HLOGA § 207, violates the
First Amendment both facially and as applied to NAM and
similar membership organizations. NAM maintains that the
section will chill NAM members from participating in public
policy initiatives for fear of the consequences of public
disclosure. It further argues that the disclosure requirements of
amended § 1603(b)(3) are impermissibly vague. In the district
court, NAM sought declaratory relief and an injunction against
enforcement of the section. By agreement of the parties, NAM’s
motion for a preliminary injunction was converted into a motion
for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c), and the court decided the merits of the case on
 9

the basis of the parties’ written submissions. See Nat’l Ass’n of
Mfrs. v. Taylor, 549 F. Supp. 2d 33, 37 (D.D.C. 2008).

The district court concluded that amended § 1603(b)(3)
does not violate the First Amendment because the section is
narrowly tailored to serve compelling governmental interests,
and it further found that the section was not unconstitutionally
vague. Accordingly, it denied NAM’s motion and dismissed the
complaint. Id. at 68. NAM now appeals, and we review de
novo the district court’s ruling on the motion for judgment on
the pleadings. See Thompson v. District of Columbia, 428 F.3d
283, 285 (D.C. Cir. 2005). We consider NAM’s First
Amendment challenge in Part II and its vagueness challenge in
Part III.

II

Amended § 1603(b)(3) does not prohibit lobbyists from
saying anything. It requires only disclosure. Nonetheless, NAM
explains that “the disclosures mandated by [amended
§ 1603(b)(3)] will discourage and deter speech, petitioning, and
expressive association.” Appellant’s Br. 26. We agree with
NAM that these are substantial First Amendment interests and
that requiring disclosure can burden them. As the Supreme
Court has noted, “compelled disclosure, in itself, can seriously
infringe on privacy of association and belief guaranteed by the
First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64 (1976)
(citing, inter alia, NAACP v. Alabama ex rel. Patterson, 357 U.S.
449 (1958)).

But we also note that the Court, recognizing the lesser
burdens that disclosure generally imposes on First Amendment
interests, has upheld numerous statutes requiring disclosures by
those endeavoring to influence the political system. For
example, in United States v. Harriss, which we discuss in detail
 10

below, the Court upheld lobbying disclosure requirements of the
FRLA on the ground that the statute served a “vital national
interest” in a “manner restricted to its appropriate end.” 347
U.S. at 626. In so doing, the Court emphasized that Congress
had “not sought to prohibit [lobbying] pressures,” but had
“merely provided for a modicum of information.” Id. at 625.
Similarly, in Buckley v. Valeo, the Court rejected a First
Amendment challenge to campaign finance disclosure
requirements of the Federal Election Campaign Act (FECA),
holding that a disclosure requirement was a “reasonable and
minimally restrictive method of furthering First Amendment
values by opening the basic processes of our federal election
system to public view.” 424 U.S. at 82. And in McConnell v.
FEC, the Court upheld the expanded campaign finance
disclosure provisions of the Bipartisan Campaign Reform Act
(BCRA), including a provision requiring the disclosure of
persons who contribute to groups or individuals that spend
money on electioneering communications. 540 U.S. 93, 195-99
(2003).4 The courts of appeals have been similarly deferential
to disclosure statutes.5

4
See also FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262
(1986) (invalidating limits on independent expenditures made by
certain non-profit corporations, but noting that such corporations are
still required to disclose the source of the contributions that pay for
those expenditures); First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 792 n.32 (1978) (noting that “[i]dentification of the source of
[corporate political] advertising may be required as a means of
disclosure, so that the people will be able to evaluate the arguments to
which they are being subjected”).
5
See, e.g., Alaska Right to Life Comm. v. Miles, 441 F.3d 773,
778-93 (9th Cir. 2006) (upholding an Alaska campaign finance
disclosure statute); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87
F.3d 457, 460 (11th Cir. 1996) (rejecting a facial challenge to a
Florida law requiring lobbyists to disclose their expenditures and the
 11

The question we face at the outset is the level of scrutiny we
should apply to NAM’s First Amendment challenge. The
parties vigorously debate whether the Supreme Court applies
“strict,” or some lesser-but-still-heightened form of scrutiny to
disclosure statutes. On the one hand, the government notes that
in Buckley, the Court used the term “exacting” rather than
“strict” to describe the scrutiny it applied to the disclosure
requirements of FECA. 424 U.S. at 64-68. On the other hand,
NAM notes that the Supreme Court has, on occasion, used the
terms “exacting” and “strict” interchangeably to describe the
same First Amendment test. See Burson v. Freeman, 504 U.S.
191, 198 (1992); see also McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 347 (1995). We, too, have described Buckley’s
test as “strict” scrutiny. AFL-CIO v. FEC, 333 F.3d 168, 176
(D.C. Cir. 2003).

In many respects, this debate over the appropriate adjective
is beside the point. Whatever the test is called, the Court has
clearly described what the test is. Just two Terms ago, in Davis
v. FEC, the Court explained that “we have closely scrutinized
disclosure requirements, including requirements governing
independent expenditures made to further individuals’ political
speech.” 128 S. Ct. 2759, 2775 (2008). “To survive this
scrutiny, significant encroachments ‘cannot be justified by a
mere showing of some legitimate governmental interest.’” Id.
(quoting Buckley, 424 U.S. at 64). “Instead,” the Court said,

there must be “a ‘relevant correlation’ or ‘substantial
relation’ between the governmental interest and the
information required to be disclosed,” and the

identities of clients who provide money for those expenditures); Minn.
State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 761 F.2d 509,
512-13 (8th Cir. 1985) (upholding a Minnesota statute requiring
disclosure of lobbyists’ employers).
 12

governmental interest “must survive exacting
scrutiny.” That is, the strength of the governmental
interest must reflect the seriousness of the actual
burden on First Amendment rights.

Id. (quoting Buckley, 424 U.S. at 64). This test is consistent
with the scrutiny the Court applied to disclosure requirements in
Buckley and McConnell.6

More important, however, the debate over the appropriate
test to apply is irrelevant because it makes no difference to our
disposition. As we said in Blount v. SEC, “if [a statute] can
withstand strict scrutiny there is no need to decide the issue” of
which test to apply. 61 F.3d 938, 943 (D.C. Cir. 1995). To

6
See McConnell, 540 U.S. at 231 (requiring that compelled
disclosure bear a “sufficient relationship” to an “important
governmental interest”); Buckley, 424 U.S. at 68 (“The disclosure
requirements, as a general matter, directly serve substantial
governmental interests. In determining whether these interests are
sufficient to justify the requirements we must look to the extent of the
burden that they place on individual rights.”); see also Buckley v. Am.
Constitutional Law Found., Inc., 525 U.S. 182, 202 (1999) (“In
[Buckley v. Valeo], we stated that ‘exacting scrutiny’ is necessary
when compelled disclosure of campaign-related payments is at issue[,
but] we nevertheless upheld, as substantially related to important
governmental interests, the . . . disclosure provisions of the Federal
Election Campaign Act.”); AFL-CIO, 333 F.3d at 176 (“When facing
a constitutional challenge to a disclosure requirement, courts . . .
balance the burdens imposed on individuals and associations against
the significance of the government interest in disclosure and consider
the degree to which the government has tailored the disclosure
requirement to serve its interests.”); Block v. Meese, 793 F.2d 1303,
1315 (D.C. Cir. 1986) (concluding that the Supreme Court “has
consistently required the application of a balancing test” for the
validity of compelled disclosure).
 13

satisfy strict scrutiny, the government must establish three
elements: (1) “the interests the government proffers in support”
of the statute must be “properly characterized as ‘compelling’”;
(2) the statute must “effectively advance[] those interests”; and
(3) the statute must be “narrowly tailored to advance the
compelling interests asserted.” Id. at 944. In the following
subparts we employ this framework to scrutinize the disclosure
mandate of amended § 1603(b)(3). We conclude, in agreement
with the district court, that the statute satisfies the requirements
of strict scrutiny.

A

1. We begin our examination of the first element of strict
scrutiny -- the requirement that the governmental interest
supporting the statute be “compelling” -- by asking just what
that interest is in this case.

NAM maintains that Congress’ purpose in amending
§ 1603(b)(3) was to require greater disclosure by a very limited
class of entities, not extending to associations like NAM itself.
According to NAM, it is “crystal clear” that amended
§ 1603(b)(3) “was intended to force disclosure of participants in
so-called ‘stealth coalitions,’” Appellant’s Br. 8-9, which NAM
characterizes as “ad-hoc groups that lobby under names that do
not reveal, and may obscure, their membership,” id. at 2.
“That,” NAM insists, “was the only purpose stated for” the
section. Id. At the same time, however, NAM contends that
amended § 1603(b)(3) “does not, in fact, compel greater
disclosures concerning stealth coalitions than were already
required under the LDA. . . . Instead, its substantial new burdens
fall heavily on long-established and well-known membership
organizations like the NAM.” Id. Because this contention --
that the purpose of amended § 1603(b)(3) was to require greater
disclosure by “stealth coalitions” but that it does not do so -- is
 14

central to all three elements of NAM’s strict scrutiny argument,
we have some unpacking to do.

The term “stealth coalition” does not appear anywhere in
amended § 1603(b)(3) (or in the original LDA, for that matter).
That fact alone casts doubt on just how clear it is that Congress
amended § 1603(b)(3) solely to force disclosures by such
groups. The only evidence NAM identifies to support that claim
are floor statements by managers of the legislation and other
members who explained that § 207 of HLOGA “closes a
loophole that has allowed so-called ‘stealth coalitions,’ often
with innocuous-sounding names, to operate without identifying
the interests engaged in the lobbying activities.” Appellant’s Br.
9 (quoting 153 CONG. REC. S10709 (daily ed. Aug. 2, 2007)
(statement of Sens. Feinstein, Lieberman, and Reid)).7 At best,
these statements identify a purpose of the section, not its only
purpose.

More important, the Supreme Court has repeatedly
emphasized that courts should “not resort to legislative history
to cloud a statutory text that is clear.” Ratzlaf v. United States,
510 U.S. 135, 147-48 (1994); see Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 119 (2001) (same). In particular, “[f]loor

7
See 153 CONG. REC. S260 (daily ed. Jan. 9, 2007) (statement of
Sen. Lieberman) (explaining that HLOGA would “remove the cloak
obscuring so-called stealth lobbying campaigns which occur when a
group of individuals, companies, unions, or associations ban[d]
together to form a lobbying coalition. These coalitions frequently
have innocent sounding names . . . .[,] [b]ut in fact, they lobby on a
range of issues that could never be identified by the name of the
coalition.”); 153 CONG. REC. H5743 (daily ed. May 24, 2007)
(statement of Rep. Doggett) (stating that a “stealth lobbyist” is a
“lobbyist for an unpopular cause” that “instead of indicating who they
actually represent, . . . claim they represent a ‘coalition’ . . . and avoid
any indication of the true parties in interest”).
 15

statements” from members of Congress, even from a bill’s
sponsors, “cannot amend the clear and unambiguous language
of a statute.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,
456-57 (2002). Here, the statutory language is quite clear. In
enacting the LDA, Congress found that “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 U.S.C. § 1601(1). “[P]ublic
confidence in the integrity of Government” will be increased,
Congress declared, by “effective public disclosure of the identity
and extent of the efforts of paid lobbyists to influence Federal
officials in the conduct of Government actions.” Id. § 1601(3).
In short, and not surprisingly, the purpose of the lobbying
disclosure statute is to provide greater public information about
who is lobbying Congress and what they are lobbying about.

Although Congress did not repeat these findings when it
enacted HLOGA, it had no reason to do so. HLOGA merely
amended sections of the LDA, leaving the congressional
findings intact. Moreover, a comparison of the text of amended
§ 1603(b)(3) with that of its predecessor renders Congress’
specific purpose in making that amendment clear: Congress
wanted to ensure disclosure not only of any organization that “in
whole or in major part” plans a registrant’s lobbying activities,
but of any organization that “actively participates” in planning
such activities. To that extent, the legislative history confirms
the statutory text: Congress’ specific purpose in amending
§ 1603(b)(3) was to close a “loophole[] in current law by
requiring more rigorous disclosure of lobbying-related
activities.” H.R. REP. NO. 110-161, pt. 1, at 9. But neither the
new nor the old version of § 1603(b)(3) limited its reach to
“stealth” organizations; to the contrary, each expressly required
disclosure of “any” organization other than the registrant’s client
 16

that met the section’s thresholds. 2 U.S.C. § 1603(b)(3)
(emphasis added); see id. § 1603(b)(3) (1995).

Furthermore, even if we were to rely on the cited floor
statements to identify amended § 1603(b)(3)’s purpose, it is not
at all clear that the sobriquet “stealth coalition” fails to
encompass an entity like NAM. As NAM points out, its
membership list is confidential and it prefers not to reveal which
members actively participate in its lobbying efforts, thus
permitting it “to operate without identifying the interests
engaged in [its] lobbying activities.” 153 CONG. REC. S10709.
Although NAM’s name does indicate that it is an association of
“manufacturers,” that term covers a lot of ground. NAM is an
association of more than 11,000 members, “representing small
and large manufacturers in every industrial sector and in all 50
states.” Appellant’s Br. ii. Surely all of their interests are not
the same, and considering the broad range of issues upon which
NAM lobbies, the term “manufacturing” provides relatively
little in the way of identification.

If anything, then, the legislative history that NAM cites
“creates more confusion than clarity about the congressional
intent,” Lamie v. U.S. Trustee, 540 U.S. 526, 539-42 (2004),
which further confirms the wisdom of relying on the legislative
text to determine the purpose of amended § 1603(b)(3). See W.
Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991)
(declaring that “[t]he best evidence of [congressional] purpose
is the statutory text”). As that text makes clear, the purpose of
the challenged provision is to require disclosure of the identity
of “any organization” that meets the statutory thresholds, 2
U.S.C. § 1603(b)(3), in order to serve Congress’ underlying goal
of increasing “public awareness of the efforts of paid lobbyists
to influence the public decisionmaking process,” id. § 1601(1).
 17

2. Having identified the governmental interest at issue, we
next ask whether it is sufficient to justify compelled disclosure.
In making such a determination, we do not write on a blank
slate. Not long after Congress first waded into the lobbying
reform arena with the FRLA, the Supreme Court examined the
law’s validity under the First Amendment. In Harriss, a
decision that NAM does not currently seek to overturn, see
Appellant’s Br. 35, the Court upheld the Act. 347 U.S. at 625-
26. The Court premised that result on the same informational
interest upon which the defendants in this case rely:

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.

Toward that end, Congress has not sought to
prohibit these pressures. It has merely provided for a
modicum of information from those who for hire
attempt to influence legislation or who collect or spend
funds for that purpose. It wants only to know who is
being hired, who is putting up the money, and how
much. . . .

Under these circumstances, we believe that
Congress, at least within the bounds of the Act as we
have construed it, is not constitutionally forbidden to
 18

require the disclosure of lobbying activities. To do so
would be to deny Congress in large measure the power
of self-protection.

Id. at 625 (footnote omitted). This goal of providing Congress
with information with which to evaluate the pressures that
lobbyists bring to bear upon it, the Court concluded, is “a vital
national interest.” Id. at 626.

NAM insists that Harriss did not characterize the FRLA’s
broad disclosure rationale as a “vital” interest, but rather only
the more restricted ends that the Act effectuated after the Court
first narrowed its reach in response to a vagueness challenge.
But the Supreme Court’s language on this score is quite clear:
The Act was “designed to safeguard a vital national interest,”
the Court said, and the passage quoted above sets out just what
that interest was. 347 U.S. at 626.

Two decades later, in Buckley, the Court held that
information about efforts to influence the political system is not
only important to government officials (or candidates for office),
but is also important for the public at large. In reviewing a
statute requiring disclosure of campaign contributions and
expenditures, the Court declared “that there are governmental
interests sufficiently important to outweigh the possibility of
infringement” of First Amendment rights, “particularly when the
‘free functioning of our national institutions’ is involved.” 424
U.S. at 66 (internal citation omitted). “The governmental
interests sought to be vindicated by the disclosure” of such
contributions and expenditures, the Court said, “are of this
magnitude.” Id. The Buckley Court described a category of
such interests as follows:

[D]isclosure provides the electorate with information
as to where political campaign money comes from and
 19

how it is spent by the candidate in order to aid the
voters in evaluating those who seek federal office. It
allows voters to place each candidate in the political
spectrum more precisely than is often possible . . .
[and] also alert[s] the voter to the interests to which a
candidate is most likely to be responsive . . . .

Id. at 66-67 (internal quotation marks and footnote omitted).8

There is nothing to suggest that the public interest in this
type of information is diminished once the candidate has
attained office and is exposed to the pressures of lobbying.
Indeed, just as disclosure serves the important “informational
interest” of “help[ing] voters to define more of the candidates’
constituencies,” id. at 81, it likewise helps the public to
understand the constituencies behind legislative or regulatory
proposals. Transparency in government, no less than
transparency in choosing our government, remains a vital
national interest in a democracy.

The Supreme Court decided Harriss before it adopted the
current language of levels of scrutiny. But we have no doubt
that the “vital national interest” Harriss identified in 1954 is
also, in contemporary constitutional parlance, a “compelling”
one. How else could it be when the “full realization of the

8
See Buckley, 424 U.S. at 68 n.82 (referring to the “important
informational function” played by disclosure requirements); id. at 81
(describing a disclosure provision as serving an “informational
interest” that “increases the fund of information concerning those who
support the candidates”); see also McConnell, 540 U.S. at 196 (stating
that “providing the electorate with information” was one of “the
important state interests that prompted the Buckley Court to uphold
FECA’s disclosure requirements” and that supported the expanded
disclosure requirements of BCRA).
 20

American ideal of government by elected representatives
depends” upon it? Harriss, 347 U.S. at 625. This conclusion is
confirmed by the Buckley Court’s determination that the
“governmental interests sought to be vindicated” by disclosure
requirements are of a magnitude sufficient “to outweigh the
possibility of infringement” of First Amendment rights because
“the ‘free functioning of our national institutions’ is involved.”
Buckley, 424 U.S. at 66 (internal citation omitted). Accordingly,
whatever we call the test we apply, it is plain that the
government has a compelling interest in providing the public
and its elected representatives with information regarding “who
is being hired, who is putting up the money, and how much”
they are spending to influence public officials. Harriss, 347
U.S. at 625.

3. NAM maintains that the congressional findings set forth
in the LDA are insufficient to support this informational interest
and thus to satisfy strict scrutiny. Rather, there must be “studies,
statistics, or empirical evidence explaining why established
organizations like the NAM should be required to file disclosure
statements.” Appellant’s Reply Br. 13. We disagree.

It is true that in Turner Broadcasting System, Inc. v. FCC,
the Court said that “in the realm of First Amendment
questions[,] . . . Congress must base its conclusions upon
substantial evidence.” 520 U.S. 180, 196 (1997). Even in
Turner Broadcasting, however, the Court cautioned that
“substantiality is to be measured” by a “deferential” standard,
and that “deference must be accorded to [congressional] findings
as to the harm to be avoided and to the remedial measures
adopted for that end, lest we infringe on traditional legislative
authority to make predictive judgments.” Id. at 195-96.
Moreover, as the Court subsequently explained in approving a
state’s political contribution limits, “[t]he quantum of empirical
evidence needed to satisfy heightened judicial scrutiny of
 21

legislative judgments will vary up or down with the novelty and
plausibility of the justification raised.” Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 391 (2000). The informational
interest that Congress and the public have in knowing who is
lobbying is hardly novel, see Harriss, 347 U.S. at 625-26, and
given the Court’s decisions in Harriss and Buckley, it cannot be
termed implausible. And although limited, the legislative record
here is no less substantial than the record the Court regarded as
sufficient in Nixon, which consisted principally of newspaper
accounts and the affidavit of a Missouri state senator. See 528
U.S. at 391-94.9

Furthermore, while “[i]t is true that in some First
Amendment cases the Supreme Court has demanded an
evidentiary showing in support of a state’s law,” Nat’l Cable &

9
Compare, e.g., 153 CONG. REC. S10709 (statement of HLOGA
Senate managers that § 207 is needed to “close a loophole” allowing
coalitions “to operate without identifying the interests engaged in the
lobbying activities”); Alison Mitchell, Loophole Lets Lobbyists Hide
Clients’ Identity, N.Y. TIMES, July 5, 2002, at A1. Testimony in the
hearings that preceded the LDA also supports the importance of the
disclosures that these statutes compel. See, e.g., The Lobbying
Disclosure Act of 1992: Hearing on S. 2279 Before the Subcomm. on
Oversight of Gov’t Mgmt. of the S. Comm. on Governmental Affairs,
102d Cong. 83 (1992) (statement of Thomas Susman, Chair, American
Bar Association Section of Administrative Law and Regulatory
Practice) (“Corporations or other organizations occasionally hide their
identities behind a coalition established or available for the purpose of
preventing the public from learning of their efforts to influence
congressional action. This plainly circumvents the [FRLA’s] public
disclosure goals.”); id. at 34 (statement of Ann McBride, Senior Vice
President, Common Cause) (“Very often those coalition groups
operate under very lovely-sounding names, without the public or
sometimes even the Congress having a clear understanding of the
groups that are backing them.”).
 22

Telecomms. Ass’n v. FCC, 555 F.3d 996, 1000 (D.C. Cir. 2009)
(citing Turner Broadcasting, 520 U.S. at 195), “[i]t is also true
that in other First Amendment cases the Supreme Court has
found ‘various unprovable assumptions’ sufficient to support the
constitutionality of state and federal laws,” id. (quoting Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973)).10 At bottom,
this is not a case like Turner Broadcasting, where Congress’
justification for a statute rested on “economic” analysis that was
susceptible to empirical evidence. 520 U.S. at 199. What we
have instead is simply a claim that good government requires
greater transparency. That is a value judgment based on the
common sense of the people’s representatives, and repeatedly
endorsed by the Supreme Court as sufficient to justify disclosure
statutes. See Harriss, 347 U.S. at 625-26; Buckley, 424 U.S. at
66-67; McConnell, 540 U.S. at 196. “The fact that a
congressional directive reflects unprovable assumptions about
what is good for the people . . . is not a sufficient reason to find
that statute unconstitutional.” Paris Adult Theatre, 413 U.S. at
62. It certainly was not a sufficient reason in Harriss, in which
the Court made no inquiry into whether the legislative record
supported the determination that disclosure of who was
endeavoring to influence Congress was “a vital national
interest.” 347 U.S. at 626.

10
See Paris Adult Theatre, 413 U.S. at 61-62 (“On the basis of
these [unprovable] assumptions, both Congress and state legislatures
have, for example, drastically restricted associational rights by
adopting antitrust laws, and have strictly regulated public expression
by issuers of and dealers in securities[,] . . . commanding what they
must and must not publish and announce.”); Blount, 61 F.3d at 944-45
& n.3 (rejecting the contention that the First Amendment requires the
government “to support its findings with record evidence” where the
governmental interest is “self-evident[]”).
 23

4. In sum, we conclude that Congress’ interest in increasing
“public awareness of the efforts of paid lobbyists to influence
the public decisionmaking process,” 2 U.S.C. § 1601(1), is
sufficiently compelling to withstand strict scrutiny.11

B

We next consider whether amended § 1603(b)(3)
“effectively advances” the interest the government proffers in
support of it. Blount, 61 F.3d at 944. On its face, it certainly
appears to. By requiring registrants to disclose the “name,
address, and principal place of business” of any organization
that contributes the monetary threshold and actively participates
in the planning, supervision, or control of the registrant’s
lobbying activities, the section provides the very information --
“who is being hired, who is putting up the money, and how
much” -- that Harriss found to be “a vital national interest.” 347
U.S. at 625-26. As Buckley held with respect to the disclosure
of independent expenditures supporting political candidates,
amended § 1603(b)(3) serves the “informational interest” of
“increas[ing] the fund of information concerning those who
support” legislation. 424 U.S. at 81. And like the FECA
provision upheld in Buckley, the amended section “goes beyond
the general disclosure requirements” of the LDA “to shed the
light of publicity” on lobbying activities that “would not
otherwise be reported” because they do not come under the pre-

11
The defendants argue that, in addition to the informational
interest served by the disclosure requirements of § 1603(b)(3), those
requirements also serve a compelling interest in “deter[ring] actual
corruption and avoid[ing] the appearance of corruption.” U.S.
Attorney’s Br. 27 (quoting Buckley, 424 U.S. at 67); see Legislative
Defendants’ Br. 28. Because we find the informational interest
sufficient to survive strict scrutiny, we have no need to assess the
sufficiency of the anti-corruption interest.
 24

amendment thresholds. Id.; see also id. at 76 (noting that the
FECA provision was “responsive to the legitimate fear that
efforts would be made, as they had been in the past, to avoid the
disclosure requirements by routing financial support of
candidates through avenues not explicitly covered by the general
provisions of the Act” (footnote omitted)).

NAM contends that amended § 1603(b)(3) “[d]oes not serve
its intended purpose of forcing so-called ‘stealth coalitions’ to
disclose the interests they represent.” Appellant’s Br. 1. “The
simple fact,” NAM insists, “is that [amended § 1603(b)(3)]
compels no greater disclosure with respect to active participation
or stealth coalitions than was already required by the LDA.”
Appellant’s Br. 36.

Even if the section does compel no greater disclosure of
stealth coalitions, this argument is only a straw man. As we
discussed in Part II.A, Congress’ interest is not limited to
disclosure by such coalitions, but extends to disclosure by all
associations, including associations like NAM. And the
amended section plainly does advance the interest of greater
disclosure by such associations -- else NAM would not be
complaining and would have no standing to do so. Indeed,
NAM concedes that under amended § 1603(b)(3), “groups like
the NAM will provide some more disclosure concerning their
own confidential associational activities.” Appellant’s Br. 18-19
(emphasis added). As NAM explains, this is because the
original section did not require it to disclose the identities of
corporate sponsors of its lobbying activities unless they planned,
supervised, or controlled those activities “in whole or in major
part.” And “[a]s long as several members were involved” --
even substantially -- “no single member would meet the
threshold.” Id. at 45. By substituting the “actively participates”
language, HLOGA § 207 closed the loophole that had
 25

previously allowed multi-member associations, including NAM,
to avoid disclosing contributing members altogether.

Hence, whether amended § 1603(b)(3) also elicits more
information from some undefined set of “stealth coalitions” is
beside the point, because it elicits more from those its text
covers and thereby increases public awareness of the identities
of those who lobby the federal government. Even if the section
did not elicit more information from “stealth coalitions” as well,
it would at worst be somewhat underinclusive. And “with
regard to First Amendment underinclusiveness analysis, neither
a perfect nor even the best available fit between means and ends
is required.” Blount, 61 F.3d at 946. “Because the primary
purpose of underinclusiveness analysis is simply to ensure that
the proffered state interest actually underlies the law, a rule is
struck for underinclusiveness only if it cannot fairly be said to
advance any genuinely substantial governmental interest,
because it provides only ineffective or remote support for the
asserted goals, or limited incremental support.” Id. (internal
citations and quotation marks omitted). Here, the proffered state
interest extends to increased disclosure by all associations
lobbying on behalf of unnamed parties. Given the injury that
gives NAM standing to pursue this lawsuit, there is no doubt
that amended § 1603(b)(3) effectively advances that interest.

Nor does NAM’s argument that the section will not compel
greater information from so-called stealth coalitions persuade
us. NAM’s argument is as follows:

Like prior law, [amended § 1603(b)(3)] requires
disclosures only from entities that actually hire
lobbyists. Thus, stealth coalitions can avoid any
reporting by the simple and common expedient of
relying on the lobbyists of one or two members to
make actual lobbying contacts. As under prior law,
 26

those members must file reports, but they will not
disclose anything more than prior law already required.

Appellant’s Br. 18. We need not decide whether this
hypothetical in fact envisions a way for coalition members to
avoid disclosure. Notwithstanding NAM’s contention that “this
approach is feasible [and] common,” Appellant’s Reply Br. 21,
it offers no evidence that either is true. As NAM acknowledges,
the individual organizations that actually finance and carry out
the lobbying through their own employees will be subject to
disclosure. Appellant’s Br. 36. And it is not obvious that a
coalition member would agree to serve as the sole public face of
a controversial lobbying campaign just to hide the participation
of fellow members. But even if some would, we see no reason
why Congress cannot enact a scheme that plausibly yields a
significant portion of the information it seeks, with the option of
returning to the drawing board once again if creative and
determined lobbyists succeed in finding and exploiting another
loophole. Cf. FEC v. Nat’l Right to Work Comm., 459 U.S. 197,
209 (1982) (“[C]areful legislative adjustment . . . in a ‘cautious
advance, step by step,’ . . . warrants considerable deference.”
(internal citation omitted)); McConnell, 540 U.S. at 158 (“[W]e
respect Congress’ decision to proceed in incremental steps in the
area of campaign finance regulation.”).

In a way, this hypothetical is itself yet another a straw man.
As amici curiae Campaign Legal Center et al. rightly point out,
“[i]f organizations do not establish a lobbying coalition and
instead lobby individually, there is no lobbying coalition for the
purposes of the LDA.” Amicus Curiae Br. 14-15. And the
statute “is not unconstitutionally underinclusive because it does
 27

not require lobbying disclosure from a coalition that does not
engage in lobbying.” Id. at 15.12

In short, NAM perceives amended § 1603(b)(3) as less
effective than it could be (although too effective with respect to
NAM itself). But as we have said, “neither a perfect nor even
the best available fit between means and ends is required” to
satisfy this prong of the strict scrutiny test. Blount, 61 F.3d at
946. It is sufficient that amended § 1603(b)(3) effectively
advances the LDA’s general purpose of increasing “public
awareness of the efforts of paid lobbyists to influence the public
decisionmaking process,” as well as the amended section’s
specific purpose of requiring disclosure of organizations that
“actively participate[] in the planning, supervision, or control”
of a registrant’s lobbying activities.

12
NAM charges that amended § 1603(b)(3) is fatally
underinclusive in two further respects: it does not require an
association to link its list of active participants to the issues on which
the association has lobbied, which are listed separately, see
Appellant’s Reply Br. 18; and it does not require the disclosure of
individuals (as opposed to organizations) who otherwise meet the
section’s thresholds, see id. at 19-20. But “a regulation is not fatally
underinclusive simply because an alternative regulation, which would
restrict [in this case, which would mandate disclosure of] more speech
or the speech of more people, could be more effective.” Blount, 61
F.3d at 946. “The First Amendment does not require the government
to curtail [or to mandate disclosure of] as much speech as may
conceivably serve its goals.” Id. Moreover, as to NAM’s second
point -- and without minimizing in any way the burden that disclosure
imposes on organizations -- Congress could reasonably conclude that
disclosure requirements are even more burdensome on individuals and
hence should not be as expansive. See NAACP, 357 U.S. at 462-63;
see also McIntyre, 514 U.S. at 353-55.
 28

C

Finally, we consider whether amended § 1603(b)(3) is
narrowly tailored. Under the strict scrutiny test, “narrowly
tailored” means that “less restrictive alternatives” to the statute
would not “accomplish the government’s goals equally or
almost equally effectively.” Blount, 61 F.3d at 944.

NAM argues that § 207 is “radically untailored” because it
“needlessly burden[s] long-standing groups when its target is the
short-term secrecy of ad-hoc coalitions.” Appellant’s Br. 4.
“This raises an obvious question,” NAM says: “Why burden
groups that have been registered as lobbyists for years in an
effort to force disclosures from short term, ad-hoc entities?” Id.
at 39. In NAM’s view, there is a “less restrictive” alternative
that would take care of the problem of short-term stealth
coalitions: Congress could simply make the “statute applicable
only to groups that have not been registered as lobbyists in the
last two or three years.” Id. at 39.

In this argument, we meet a sibling of the same straw man
we met before. As our prior discussion makes clear, amended
§ 1603(b)(3)’s target is not the secrecy of “stealth coalitions” --
short-term or otherwise -- but rather that of any registrant with
members that contribute the threshold amount and actively
participate in the planning, supervision, or control of the
registrant’s lobbying activities. The section “burden[s] groups
that have been registered as lobbyists for years” because its
object is “to force disclosures” by such groups. Hence, even if
an alternative aimed only at recently registered groups would be
“less restrictive,” it would not “accomplish the government’s
goals equally or almost equally effectively.” Blount, 61 F.3d at
944.
 29

But such an alternative would not in fact be “less
restrictive” in the First Amendment sense merely because it
affects fewer entities. Instead, it would introduce the problem
of selectivity, burdening new voices more heavily than
established ones. Arguably, such an “improvement” would be
unlawfully discriminatory. Cf. Davis, 128 S. Ct. at 2774 (“[T]he
unprecedented step of imposing different contribution and
coordinated party expenditure limits on candidates vying for the
same seat is antithetical to the First Amendment.”); Anderson v.
Celebrezze, 460 U.S. 780, 793-94 (1983) (“A burden that falls
unequally on new or small political parties or on independent
candidates impinges, by its very nature, on associational choices
protected by the First Amendment.”). At the very least,
Congress was not required to go down that path.

By choosing a regime based upon disclosure, Congress
already opted for a regime considerably less restrictive than one
based upon the direct regulation of lobbying. In Buckley, the
Court said that “disclosure requirements certainly in most
applications appear to be the least restrictive means of curbing
the evil[]” of ignorance regarding the source and expenditure of
campaign funds. 424 U.S. at 68. Indeed, Buckley described a
disclosure regime as a “reasonable and minimally restrictive
method of furthering First Amendment values.” Id. at 81
(emphasis added). We have no doubt, then, that amended
§ 1603(b)(3) readily passes the “narrow tailoring” element of the
strict scrutiny test.

D

For the reasons discussed above, we conclude that amended
§ 1603(b)(3) meets the demands of strict scrutiny. A fortiori,
the section also satisfies the test the Court specifically applied
to disclosure requirements in Davis, McConnell, and Buckley,
 30

whatever it is called. As we have noted, to survive scrutiny
under that test,

there must be “a ‘relevant correlation’ or ‘substantial
relation’ between the governmental interest and the
information required to be disclosed,” and . . . the
strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment
rights.

Davis, 128 S. Ct. at 2775 (quoting Buckley, 424 U.S. at 64); see
supra note 6.

As discussed in Parts II.B and C, there is more than a
“substantial” relation between the governmental interest in
greater transparency and the information that amended
§ 1603(b)(3) requires to be disclosed; in fact, the section’s
disclosure requirements are narrowly tailored and effectively
advance that interest. Moreover, as discussed in Part II.A, the
governmental interest in providing information about “who is
being hired, who is putting up the money, and how much” they
are spending to influence federal decisionmakers, Harriss, 347
U.S. at 625, is not just “some legitimate governmental interest,”
Davis, 128 S. Ct. at 2775 (quoting Buckley, 424 U.S. at 64). It
is a “vital national interest.” Harriss, 347 U.S. at 626.

We do not minimize the significance of NAM’s concern
that some of its members may be deterred from active
participation in its lobbying activities by fear of the collateral
consequences of public disclosure of their roles, an issue we
address in detail in the next subpart. But it is clear that “the
strength of the governmental interest” in providing greater
information about lobbying “reflect[s] the seriousness of the
actual burden” that disclosure puts “on First Amendment
rights.” Davis, 128 S. Ct. at 2775. This conclusion is confirmed
 31

by the Supreme Court’s repeated determination that the interest
in public disclosure of information concerning those trying to
influence the political process is sufficiently compelling to
outweigh the burdens that disclosure may impose. See
McConnell, 540 U.S. at 230-31; Buckley, 424 U.S. at 82;
Harriss, 347 U.S. at 626; see also Bellotti, 435 U.S. at 792 n.32.

E

None of this is to say that repercussions from compelled
disclosure can never outweigh the government’s interest in
requiring it of a particular organization. In 1958, the Supreme
Court held that the State of Alabama could not require
disclosure of the local membership list of the National
Association for the Advancement of Colored People (NAACP),
because the organization “made an uncontroverted showing that
on past occasions revelation of the identity of its rank-and-file
members has exposed these members to economic reprisal, loss
of employment, threat of physical coercion, and other
manifestations of public hostility.” NAACP, 357 U.S. at 462.
“Under these circumstances,” the Court said, “we think it
apparent that compelled disclosure of petitioner’s Alabama
membership is likely to affect adversely the ability of petitioner
and its members to pursue their collective effort to foster beliefs
which they admittedly have the right to advocate, in that it may
induce members to withdraw from the Association and dissuade
others from joining it . . . .” Id. at 462-63. Upon the same
showing, the Court struck down a municipal ordinance
compelling disclosure of the membership of an Arkansas branch
of the NAACP. Bates v. City of Little Rock, 361 U.S. 516, 523-
24 (1960).13

13
Similarly, in Brown v. Socialist Workers ’74 Campaign
Committee, the Court held that the compelled disclosure of
contributions to and expenditures by the Socialist Workers Party was
 32

In Buckley, the Court reached the opposite conclusion
regarding the compelled disclosure of contributions to
candidates and political parties. The Court first rejected a claim
that such disclosure requirements were facially invalid,
concluding that “certainly in most applications” they survived
exacting scrutiny. 424 U.S. at 68. It then went on to consider
whether the requirements were unconstitutional as applied to
minor parties and independent candidates:

There could well be a case, similar to those before the
Court in NAACP v. Alabama and Bates, where the
threat to the exercise of First Amendment rights is so
serious and the state interest furthered by disclosure so
insubstantial that the Act’s requirements cannot be
constitutionally applied. But no appellant in this case
has tendered record evidence of the sort proffered in
NAACP v. Alabama. Instead, appellants primarily rely
on the clearly articulated fears of individuals, well
experienced in the political process. At best they offer
the testimony of several minor-party officials that one
or two persons refused to make contributions because
of the possibility of disclosure.

Id. at 71-72 (internal citation and footnotes omitted). “On this
record,” the Court said, “the substantial public interest in
disclosure identified by the legislative history of this Act

unconstitutional in light of “substantial evidence” of harassment,
including “proof of specific incidents” of “threatening phone calls and
hate mail, the burning of [party] literature, the destruction of [party]
members’ property, police harassment of a party candidate, . . . the
firing of shots at [a party] office,” and the dismissal of 22 party
members by their employers. 459 U.S. 87, 98-99 (1982).
 33

outweighs the harm generally alleged,” even as to minor parties
and independent candidates. Id. at 72.14

To its credit, NAM does not suggest that its more than
11,000 corporate members -- constituting “the nation’s largest
industrial trade association,” Appellant’s Br. ii -- are as
vulnerable to retaliation as were the individuals who joined the
Alabama NAACP in the 1950s. It must at least show, however,
that they are more at risk than the contributors to minor parties
and independent candidates whose challenge the Court rejected
in Buckley. NAM’s sole evidence consists of a declaration from
its General Counsel, which states as follows:

NAM regularly lobbies on a variety of hot-button
issues, including global warming and nuclear power,
that may lead to adverse consequences for members
identified as “actively participa[ting]” in such efforts.
For example, mob violence has been directed at firms
targeted by anti-globalization forces and the more
extreme advocates [sic] of global warming. . . . Firms
that are identified as actively lobbying on issues
relating to on-going litigation, e.g., asbestos, risk
becoming litigation targets. Taking policy positions
that are unpopular with some groups may lead to
boycotts, shareholder suits, demands for political
contributions or support, and other forms of
harassment.

Amundson Decl. ¶ 10 (internal citations omitted).

14
See Buckley, 424 U.S. at 74 (stating that a minor party can
qualify for exemption from general disclosure requirements by
showing “a reasonable probability that the compelled disclosure of
[the] party’s contributors’ names will subject them to threats,
harassment, or reprisals”).
 34

As the district court found, however, the five newspaper
articles and one lawsuit cited to support this declaration “in no
way indicate that any member of the NAM (or the NAM itself)
has suffered harm or retaliation as a result of the NAM’s
lobbying activities” or as a result of being linked to NAM. Nat’l
Ass’n of Mfrs., 549 F. Supp. 2d at 61. In fact, there is no
mention of NAM at all in any of the materials cited in the
declaration.15 In addition, “[a]lthough the NAM’s website . . .
already discloses the membership of over 250 organizations in
the NAM, the NAM proffers no evidence of any past incidents
suggesting that public affiliation with the NAM leads to a
substantial risk of ‘threats, harassment, or reprisals from either
Government officials or private parties.’” Id. at 61 (quoting
Buckley, 424 U.S. at 74).

This, then, is a case like Buckley, not NAACP. As in
Buckley, the plaintiff has tendered no “record evidence of the
sort proffered in NAACP v. Alabama.” 424 U.S. at 71. Instead,
it primarily relies on “clearly articulated fears” and a few
examples of harassment unconnected to lobbying disclosures by
NAM or any other entity.16 Moreover, the risks that NAM

15
See Amundson Decl. ¶ 10 (citing IBEW, Local 1547 v. Alaska
Util. Constr. Inc., 976 P.2d 852, 859 (Alaska 1999); David Rising,
Clashes Break Out Ahead of Summit, ASSOCIATED PRESS, June 3,
2007; Peter Geier, ‘Sea Change’ in Asbestos Torts is Here: New
Strategies, New Defendants Seen, NAT’L L.J., Oct. 31, 2005; Robert
Pear, Doctors in Antitrust Fight Boycott Merck Products, N.Y. TIMES,
May 23, 2000; Harry Stoffer, Toyota Joins Detroit 3 in CAFE Fight,
AUTOMOTIVE NEWS, July 30, 2007; Jim Lobe, ExxonMobil Takes
Heat on Global Warming, INTER PRESS SERVICE NEWS AGENCY, July
12, 2005, available at http://www.ipsnews.net/print.asp?
idnews=29469).
16
NAM contends that in Davis, the Supreme Court “applied
‘exacting scrutiny’ to hold a reporting provision facially invalid --
 35

claims its members would suffer if their participation in
controversial lobbying were revealed are no different from those
suffered by any organization that employs or hires lobbyists
itself, and little different from those suffered by any individual
who contributes to a candidate or political party. If that kind of
risk rendered amended § 1603(b)(3) unconstitutional, it would
invalidate most compelled lobbying disclosures in contravention
of Harriss, and most compelled campaign finance disclosures in
contravention of Buckley. Accordingly, we reject both NAM’s
facial and as-applied First Amendment challenges.

III

We next address NAM’s contention that amended
§ 1603(b)(3) is unconstitutionally vague. “Due process requires
that a criminal statute provide adequate notice to a person of
ordinary intelligence that his contemplated conduct is illegal
. . . .” Buckley, 424 U.S. at 77; see Hill v. Colorado, 530 U.S.
703, 732 (2000). “Where First Amendment rights are involved,
an even ‘greater degree of specificity’ is required.” Buckley,
424 U.S. at 77 (quoting Smith v. Goguen, 415 U.S. 566, 573

even though there was no evidence that wealthy, self-funding
candidates faced specific injury -- because ‘compelled disclosure, in
itself, can seriously infringe on privacy of association and belief
guaranteed by the First Amendment.’” Appellant’s Reply Br. 10
(quoting Davis, 128 S. Ct. at 2774-75). But that is a misreading of
Davis. The Court held the reporting provision at issue in that case
facially invalid because its only purpose was to implement asymmetric
contribution limits that unconstitutionally discriminated against self-
funded candidates. Davis, 128 S. Ct. at 2775. Because in disclosure
cases “the strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment rights,” and
because the only governmental interest proffered was the enforcement
of unconstitutional requirements, there was no need for the plaintiffs
to show specific injury. Id. at 2775.
 36

(1974)). Nonetheless, “perfect clarity and precise guidance have
never been required even of regulations that restrict expressive
activity.” United States v. Williams, 128 S. Ct. 1830, 1845
(2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
794 (1989)) (internal quotation marks omitted). And “the belief
that the mere fact that close cases can be envisioned renders a
statute vague” is a “basic mistake.” Williams, 128 S. Ct. at
1846; see Harriss, 347 U.S. at 618 (“[I]f the general class of
offenses to which the statute is directed is plainly within its
terms, the statute will not be struck down as vague even though
marginal cases could be put where doubts might arise.”); U.S.
Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S.
548, 579 (1973) (same).

Amended § 1603(b)(3) requires disclosure of any
organization that contributes more than $5000 in a quarterly
period to a registrant or its client “to fund the lobbying activities
of the registrant,” and that “actively participates in the planning,
supervision, or control of such lobbying activities.” 2 U.S.C.
§ 1603(b)(3). NAM objects to two statutory terms as
unconstitutionally vague. The first is the phrase “actively
participates,” which replaced the phrase “in whole or in major
part” in the original version of the LDA. The second is the
phrase “lobbying activities,” which has been defined since 1995
as: “lobbying contacts and efforts in support of such contacts,
including preparation and planning activities, research and other
background work that is intended, at the time it is performed, for
use in contacts, and coordination with the lobbying activities of
others.” Id. § 1602(7) (emphasis added). Specifically, NAM
contends that the definition’s use of the word “intended” renders
it impermissibly vague.17

17
The phrase “lobbying contact” is defined separately, 2 U.S.C.
§ 1602(8); see supra note 2, and is not challenged by NAM.
 37

We conclude that, although the statute may not be a paragon
of clarity, it is not so vague as to violate the Constitution, even
applying the heightened standard applicable to regulation of
speech. We discuss the term “actively participates” in Part A
and the LDA’s use of “intended” to define “lobbying activities”
in Part B. In Part C, we note additional considerations that
further mitigate any vagueness concerns.

A

NAM’s contention that it is impermissibly vague to require
the disclosure of organizations that “actively participate” in the
planning, supervision, or control of its lobbying activities is met
at the start with a significant precedential hurdle. In United
States Civil Service Commission v. National Association of
Letter Carriers, the Supreme Court rejected a vagueness
challenge to the Hatch Act, which barred federal employees
from “tak[ing] ‘an active part’” in political management or
political campaigns. 413 U.S. at 568 (quoting 5 U.S.C.
§ 7324(a)(2) (1973)). It is difficult to see why the term “actively
participates” is cripplingly vague in a statute that merely
mandates disclosure, while “taking an active part” was
acceptable in a statute that directly limited speech.

NAM seeks to distinguish Letter Carriers on the ground
that there, the Court rejected the vagueness challenge “only after
first explicitly incorporating into the phrase ‘active part’ a set of
standards that had been developed by the Civil Service
Commission over a period of five decades, largely through the
process of over 3,000 written adjudicatory opinions.”
Appellant’s Br. 45-46. “It was only after linking the statutory
prohibition back to the body of work produced by the Civil
Service Commission,” NAM contends, “that the Supreme Court
found that the ‘active part[icipation]’ language avoided
vagueness concerns.” Id. at 46. Here, by contrast, there is no
 38

record of “thousands of decisions and other interpretive
statements defining the contours of ‘active part[icipation]’ . . .
on which the NAM may rely.” Id. at 47-48.

This argument has Letter Carriers exactly backwards. The
thousands of Civil Service Commission decisions referred to
were not the Hatch Act’s saving grace; they were its potentially
fatal flaw. An Act of Congress would “unquestionably be
valid,” the Court said, if “in plain and understandable language
[it] forbade . . . actively participating in fund-raising activities
for a partisan candidate or . . . actively managing the campaign
of a partisan candidate for public office.” Letter Carriers, 413
U.S. at 556. The problem with the Hatch Act was that it did not
just bar federal employees from taking “an active part in
political management or in political campaigns,” but rather went
on to define that statutory phrase as “mean[ing] those acts . . .
which were prohibited . . . before July 19, 1940, by
determinations of the Civil Service Commission.” Id. at 550.
Indeed, the lower court had found this definition impermissibly
vague because that court construed it “as incorporating each of
the several thousand adjudications of the Civil Service
Commission . . . , many of which are said to be undiscoverable,
inconsistent, or incapable of yielding any meaningful rules to
govern present or future conduct.” Id. at 571 (citing 346 F.
Supp. 578, 582-83, 585 (D.D.C. 1972)).

The Supreme Court, however, took “quite a different view
of the statute,” which saved it from invalidation. 413 U.S. at
571. In the Court’s view, Congress intended the statutory phrase
to be defined not by the thousands of administrative decisions,
but by “the rules that had evolved over the years from [those]
repeated adjudications.” Id. at 572. “Those rules,” the Court
said, “were restated by the Commission in 1970 in the form of
regulations specifying the conduct that would be prohibited” by
 39

the Hatch Act. Id. at 576. And there was “nothing
impermissibly vague” in those regulations. Id. at 576-77.

Therein lies NAM’s problem. The Hatch Act regulations to
which the Supreme Court referred prohibited federal employees
from, inter alia, “actively participating in a fund-raising activity
of a partisan candidate” and “[t]aking an active part in
managing the political campaign of a partisan candidate for
public office.” Id. at 576-78 n.21 (quoting 5 C.F.R.
§ 733.122(b)(4), (5) (1973)) (emphases added). The Court
expressly rejected the claim that the above-italicized words
rendered the regulations impermissibly vague:

There might be quibbles about the meaning of taking
an ‘active part in managing’ or about ‘actively
participating in . . . fund-raising’ . . . ; but there are
limitations in the English language with respect to
being both specific and manageably brief, and it seems
to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out
in terms that the ordinary person exercising ordinary
common sense can sufficiently understand and comply
with, without sacrifice to the public interest.

Id. at 577-79. If “actively participating” was not too vague a
term for the Hatch Act regulations, “actively participates”
cannot be too vague a term here.18

18
Letter Carriers noted that the clarity of the Hatch Act and the
regulations was further enhanced by their carving out of certain
conduct as specifically permissible. See, e.g., 413 U.S. at 579 (noting
that the Act and regulations “privilege[] the employee to ‘[e]xpress his
opinion as an individual privately and publicly on political subjects
and candidates’”). The LDA contains similar carve-outs. See 2
U.S.C. § 1602(8)(B) (excepting, from the definition of “lobbying
 40

In fact, the amended LDA’s use of “actively participates”
is -- if anything -- narrower and less problematic. Section
1603(b)(3) does not apply to every entity that actively
participates in “lobbying activities” writ large, but only to those
that actively participate in the “planning, supervision, or
control” of lobbying activities. Moreover, NAM need only
identify those entities that actively participate in planning,
supervising, or controlling NAM’s own lobbying. These
limitations give the association “fair notice” of what the statute
requires. Williams, 128 S. Ct. at 1845.

B

As noted, amended § 1603(b)(3) requires disclosure of any
entity that “actively participates in the planning, supervision, or
control of [the] lobbying activities” of a registrant. 2 U.S.C.
§ 1603(b)(3)(B) (emphasis added). The definition of “lobbying
activities” is contained in § 1602(7), a section that was enacted
as part of the LDA in 1995 and that HLOGA did not alter.
Section 1602(7) provides:

The term ‘lobbying activities’ means lobbying contacts
and efforts in support of such contacts, including
preparation and planning activities, research and other
background work that is intended, at the time it is
performed, for use in contacts, and coordination with
the lobbying activities of others.

contact,” nineteen forms of communication, including any
communication “(iii) made in a speech, article [or] publication . . .
made available to the public . . . ; (vii) [made in] testimony given
before a committee . . . of the Congress . . . ; [or] (xiv) filed in the
course of a public proceeding”).
 41

Id. § 1602(7) (emphasis added). NAM contends “that intent is
too vague a concept to employ where core First Amendment
rights may be deterred,” Appellant’s Br. 42, and that the LDA’s
use of an intent standard to define the term “lobbying activities”
renders § 1603(b)(3), which includes that term,
unconstitutionally vague.19

1. At the outset, it is important to point out that § 1602(7)’s
definition of the term “lobbying activities” -- including its use
of an intent standard -- applies not only to the provision that
NAM challenges here, § 1603(b)(3), but to every provision of
the LDA that uses the term. Such provisions form the
cornerstone of the statute. See 2 U.S.C. § 1603(b)(5) (requiring
“[e]ach registration” under the Act to 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 addressed or are likely to be
addressed in lobbying activities”); id. § 1604(a) (requiring each
registrant to file a report “on its lobbying activities during [each
reporting] period”). Hence, if the term is too vague, it brings
down much of the statutory edifice.

But this point is not important only to show how
consequential a vagueness finding would be. Rather, because
the same definition of lobbying activities has been in the statute
since 1995, it also suggests the impressive number of registrants

19
NAM also contends that the “intent standard here is further
clouded because [amended § 1603(b)(3)] does not even make clear
whose intent controls.” Appellant’s Br. 43. We do not find that
question cloudy, and agree with both the district court and the United
States Attorney that “the relevant intent is that of the affiliate who
undertakes the ‘preparation and planning activities, research [or] other
background work’ at issue.” Nat’l Ass’n of Mfrs., 549 F. Supp. 2d at
65.
 42

who apparently have been able to overcome the ambiguity that
NAM perceives. No one filed a vagueness (or any other)
challenge to any part of the LDA during the twelve years before
HLOGA amended it in 2007.

NAM discounts the importance of this fact on the ground
that, under the pre-2007 version of § 1603(b)(3), it had no need
to sue because “groups like the NAM did not have to concern
themselves with assessing the underlying intent” of their
members except for “those members that ‘in whole or in major
part plan[ned], supervise[d] or control[led]’ such ‘lobbying
activities.’” Appellant’s Br. 45 (quoting § 1603(b)(3) (1995)).
But this argument misses the mark. The point is not that groups
like NAM did not challenge the term “lobbying activities” as
vague in the context of § 1603(b)(3), but that no registrant --
including NAM -- challenged the term’s use in any provision of
the statute. The fact that no registrant raised a challenge is
hardly dispositive, but it does suggest that the multitude of
lobbyists and organizations that had to comply with the statute
for a dozen years did not find its definition of “lobbying
activities” too difficult to understand.

2. Proceeding to NAM’s contention that intent is legally
too vague a concept to employ in a lobbying disclosure statute,
we are once again met by the Supreme Court’s first case on the
subject, Harriss. As we discussed in Part II, Harriss upheld the
nation’s first lobbying statute, the FRLA, against a First
Amendment challenge. But Harriss also addressed a vagueness
challenge to the same statute, which (as construed by the Court)
required reporting of “all contributions and expenditures having
the purpose of attempting to influence legislation through direct
communication with Congress.” 347 U.S. at 623 (emphasis
added). The Court concluded that the Act was not too vague to
pass constitutional muster. Id. at 623-24.
 43

Just two Terms ago, the Court confirmed that an intent
standard is not per se vague, even in a statute regulating speech.
The statute at issue in United States v. Williams criminalized the
pandering of “material or purported material in a manner that
reflects the belief, or that is intended to cause another to believe,
that the material or purported material is, or contains” child
pornography. 128 S. Ct. at 1836-37 (emphasis added) (quoting
18 U.S.C. § 2252A(a)(3)(B)). In rejecting a vagueness
challenge, the Court stated:

The statute requires that the defendant hold, and make
a statement that reflects, the belief that the material is
child pornography; or that he communicate in a manner
intended to cause another so to believe. Those are clear
questions of fact. Whether someone held a belief or
had an intent is a true-or-false determination, not a
subjective judgment such as whether conduct is
“annoying” or “indecent.” . . . To be sure, it may be
difficult in some cases to determine whether these clear
requirements have been met. But courts and juries
every day pass upon knowledge, belief and intent -- the
state of men's minds -- having before them no more
than evidence of their words and conduct, from which,
in ordinary human experience, mental condition may
be inferred.

Id. at 1846 (emphasis added) (internal quotation marks and
citation omitted).20

20
NAM’s argument that the notion of “organizational intent” is
“particularly elusive,” Appellant’s Br. 43, is vulnerable to a similar
response. Just as courts every day pass on the intent of individuals, so
too have courts long applied scienter requirements to corporations.
See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 706
(2005); N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S.
 44

NAM seeks to distinguish Williams as a case involving
pornography rather than protected speech, and thus as not posing
the heightened vagueness concerns present in cases involving
the First Amendment. But the Williams Court noted that the
statute at issue there could reach some protected speech, 128 S.
Ct. at 1844, and nothing in its discussion of the void-for-
vagueness doctrine suggests its analysis is inapplicable to
protected speech. To the contrary, the Court began its work by
setting forth the vagueness analysis that applies “in the First
Amendment context.” Id. at 1845. Accordingly, absent special
circumstances not present here, there is no reason to conclude
that the “every day” task of assessing intent is inherently vague
when protected speech is involved.21

481, 494-95 (1909).
21
Notwithstanding the Court’s approval of an intent standard in
Williams, NAM maintains that two earlier cases -- Buckley and FEC
v. Wisconsin Right to Life (WRTL II) -- establish “that intent is too
vague a concept where core First Amendment rights may be deterred.”
Appellant’s Br. 42 (citing Buckley, 424 U.S. at 43-44; WRTL II, 551
U.S. 449, 467-69 (2007)). That description overreads both cases.
Neither Buckley nor WRTL II suggested that intent standards are
generally impermissible in the First Amendment context. Rather,
those cases rejected their use “to distinguish constitutionally protected
political speech from speech that [Congress] may proscribe.” WRTL
II, 551 U.S. at 467. Intent plays no comparable role in the LDA.
Indeed, Buckley itself approved the use of a purpose standard
elsewhere in FECA. See Buckley, 424 U.S. at 23-24 & n.24.
Certainly, Buckley and WRTL II provide no warrant for ignoring the
Court’s holdings in Williams and Harriss -- the latter of which
accepted a purpose standard in the context of lobbying disclosure.
 45

C

To the extent that any vagueness concerns still linger, they
are mitigated by two additional characteristics of the amended
LDA: (1) scienter requirements that must be satisfied before
either criminal or civil penalties may be imposed, and (2) a safe
harbor option that permits a registrant to pretermit consideration
of the terms that NAM regards as vague.

1. A “scienter requirement may mitigate a law’s vagueness,
especially with respect to the adequacy of notice to the
complainant that his conduct is proscribed.” Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499
(1982); see Gonzales v. Carhart, 550 U.S. 124, 149 (2007); Hill,
530 U.S. at 732. Intent is itself a form of scienter that can
perform that function. See Village of Hoffman Estates, 455 U.S.
at 502. But under the LDA, criminal sanctions attach only if the
government proves that a violation was committed “knowingly
and corruptly,” 2 U.S.C. § 1606(b) -- a much stronger form of
scienter. In Arthur Andersen LLP v. United States, the Court
held that “[o]nly persons conscious of wrongdoing” can be said
to act “knowingly . . . [and] corruptly.” 544 U.S. 696, 706
(2005) (ellipses in original). Hence, NAM need not hedge its
associational activity for fear that good faith mistakes will result
in criminal liability.22

22
We also note that, as directed by the statute, the Secretary of the
Senate and Clerk of the House have issued “guidance and assistance
on the registration and reporting requirements.” 2 U.S.C.
§ 1605(a)(1). Although that guidance does not have the force of law,
the United States Attorney would be hard pressed to prove a
“knowing” and “corrupt” violation by an organization that has adhered
in good faith to such guidelines.
 46

Unlike criminal sanctions, civil penalties may be imposed
under the LDA even if a violation is not both “knowing” and
“corrupt” -- a “knowing” failure to comply with the statute will
do.23 Nonetheless, the Supreme Court has found a “knowing”
requirement sufficient to ameliorate vagueness concerns. See
Hill, 530 U.S. at 732. That term requires at least a knowledge
of the relevant facts, United States v. Barnes, 295 F.3d 1354,
1367 (D.C. Cir. 2002), thereby mitigating NAM’s concern that
it may not be able to learn those facts. In particular, intent is
itself a “clear question[] of fact. Whether someone . . . had an
intent is a true-or-false determination.” Williams, 128 S. Ct. at
1846. Hence, as the district court concluded, “if a registrant, in
good faith, misinterprets the purpose of research or background
work performed by one of its affiliates . . . , the registrant cannot
be found to have knowingly (or ‘knowingly and corruptly’)
failed to disclose that affiliate.” Nat’l Ass’n of Mfrs., 549 F.
Supp. 2d at 66.

2. Finally, Congress balanced its adoption of a more
stringent disclosure standard in amended § 1603(b)(3)(B) by
adding a safe harbor provision as well. That provision states:

No disclosure is required under paragraph (3)(B) if the
organization that would be identified as affiliated with
the client is listed on the client's publicly accessible
Internet website as being a member of or contributor to
the client, unless the organization in whole or in major

23
Section 1606(a) states that civil liability attaches to a knowing
failure to “(1) remedy a defective filing within 60 days after notice of
such a defect by the Secretary . . . or the Clerk . . . ; or (2) comply with
any other provision of this chapter.” 2 U.S.C. § 1606(a). Where
notice is given, of course, the 60-day grace period further diminishes
vagueness concerns.
 47

part plans, supervises, or controls such lobbying
activities.

2 U.S.C. § 1603(b). Hence, an active participant in NAM’s
lobbying can avoid being so identified if NAM simply lists it as
a member on NAM’s website -- as long as the member does not
meet the higher participation standard (“in whole or in major
part”) that applied before passage of HLOGA. In addition to
permitting its members to avoid the risk of more direct
association with controversial lobbying campaigns, this safe
harbor allows NAM to avoid the risk of violating those statutory
provisions that it regards as vague.

Of course, reliance on this safe harbor may lead to over-
disclosure, and in some cases disclosing mere association with
an organization may cause substantial harm. See NAACP, 357
U.S. at 462. But the retaliation concerns that NAM has
specifically asserted are based not on its members’ association
with NAM simpliciter, but rather on their association with
NAM’s lobbying on particular issues. NAM has proffered no
evidence that merely being unmasked as one of its members is
hazardous to an organization’s health.24 Hence, the safe harbor
provision provides yet a further opportunity to ameliorate any
vagueness concerns that amended § 1603(b)(3) may engender.

For the foregoing reasons, we conclude that neither the term
“actively participates” nor the term “lobbying activities” renders
amended § 1603(b)(3)(B) impermissibly vague.

24
See Amundson Decl. ¶ 10 (averring that harassment may be
directed at firms identified as “actively participat[ing]” in NAM’s
lobbying on global warming, as “actively lobbying” on issues related
to ongoing asbestos litigation, and as “[t]aking policy positions that
are unpopular”).
 48

IV

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 FRLA
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.
Accordingly, the decision of the district court, rejecting the
appellant’s challenge to the constitutionality of section 207 of
the Honest Leadership and Open Government Act of 2007, is

Affirmed.