United States Court of Appeals,
Eleventh Circuit.
No. 95-2555.
FLORIDA LEAGUE OF PROFESSIONAL LOBBYISTS, INC., Plaintiff-
Appellant,
v.
William N. MEGGS, as State Attorney for the Second Judicial
Circuit of Florida, Defendant-Appellee.
July 9, 1996.
Appeal from the United States District Court for the Northern
District of Florida. (No. 93-CV-40277), Maurice Mithcell Paul,
Chief Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and LOGAN*, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
Florida, like every other state in the union,1 has enacted
legislation regulating the conduct of those who "lobby" the state's
legislative or executive officials. This appeal requires us to
determine whether Chap. 93-121, Laws of Florida, is
unconstitutional so far as it requires extensive disclosure by
lobbyists and their principals and bars lobbyists from receiving
fees contingent on their success in affecting legislative or
executive outcomes. We hold that Florida's disclosure requirements
survive the facial challenge that Appellant brings today. And, we
uphold the ban on contingency-fee lobbying despite whatever doubts
*
Honorable James K. Logan, Senior U.S. Circuit Judge for the
Tenth Circuit, sitting by designation.
1
See Steven Browne, Note, The Constitutionality of Lobby
Reform: Implicating Associational Privacy and the Right to
Petition the Government, 4 Wm. & Mary Bill Rts. J. 717 (1995)
(observing that all fifty states have statutes regulating
lobbying).
recent cases may have cast on its constitutionality. About the
contingency fee, we deem ourselves to be bound by some old
pronouncements of the Supreme Court; and we lack the power to
overrule these pronouncements, even if more recent cases suggest
that the Supreme Court might someday reach a result contrary to the
one we reach today.
I.
Appellant is an organization of professional lobbyists. The
lobbyist-members contend the disclosure and contingency-fee
provisions of the statute violate their constitutional rights and
assert that they fear imminent reprisal.
The legislation challenged here, Chapter 93-121 of the Laws of
Florida, amended the provisions of Fla.Stats. §§ 11.045 and
112.3215. Those provisions define "Lobbying," "Lobbyist," and
"Principal." As amended, the sections provide that a lobbyist
hired by a principal shall disclose all lobbying expenditures,
whether made by the lobbyist or by the principal, and the source of
funds for all such expenditures. See id. § 11.045(3)(a). In
addition, the statute requires disclosure of expenditures by
category, and provides a non-exclusive list of categories: "food
and beverages, entertainment, research, communication, media
advertising, publications, travel, and lodging." Id. Furthermore,
the Florida legislature has provided for an administrative
procedure, so that persons in doubt about the precise operation of
the statute may, in writing, seek clarification of the intended
reach of the statutes. Id. § 11.045(4). As noted, the statute
also precludes would-be lobbyists from exchanging their services
for an award contingent on legislative outcome. See id. § 11.047.
The League does not argue that the statute has been
unconstitutionally applied to penalize its members. And, from the
record, nothing indicates that any member of the League has
requested an advisory opinion as provided for in the statute. The
only contentions are that the statute is overbroad and, therefore,
facially invalid in its disclosure provisions and that the
contingency-fee ban is unconstitutional in the light of recent
Supreme Court precedent. After the parties proffered extensive
documentary evidence, the district court granted summary judgment
in favor of the state.
II.
If the League is correct that the greater number of this
statute's applications are unconstitutional, then its members face
an unattractive set of options if they are barred from bringing a
facial challenge: refrain from engaging in protected First
Amendment activity or risk civil sanction for alleged unethical
conduct. Therefore, this action is ripe; and the League has
standing to bring it, even though it makes no allegation that its
members have actually been sanctioned. See generally Abbott Lab.
v. Gardner, 387 U.S. 136, 152-53, 87 S.Ct. 1507, 1517-18, 18
L.Ed.2d 681 (1967) (holding that action was ripe before prosecution
occurred where appellants faced choice between complying with
possibly void regulation and risking "serious" civil penalties).
Thus, we address the constitutional challenge even in the absence
of concrete indicators on how it will be applied.
We do not say that the absence of allegations of prosecutions
under the Act is irrelevant to our disposition of this case.
Because Appellant has failed to allege a specific unconstitutional
application, its challenge must be characterized as a facial—as
distinct from as-applied—challenge. This characterization requires
Appellant to meet a higher burden because, as the Supreme Court has
indicated, "[a] facial challenge to a legislative Act is, of
course, the most difficult challenge to mount successfully...."
United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100,
95 L.Ed.2d 697 (1987) (holding Bail Reform Act of 1984 not facially
invalid).
Some disagreement has appeared lately among members of the
Supreme Court on exactly how high the threshold for facial
invalidation should be set. As we understand it, some Justices
interpret Supreme Court precedent to indicate that a statute is not
facially invalid unless there is no set of circumstances in which
it would operate constitutionally; others contend the cases
require only that a statute would operate unconstitutionally in
most cases. Compare Janklow v. Planned Parenthood, --- U.S. ----,
---- & n. 1, 116 S.Ct. 1582, 1583 & n. 1, 134 L.Ed.2d 679 (1996)
(Mem.) (Stevens, J.) (asserting that statute is facially invalid if
unconstitutional in large fraction of cases) with id. at ----, 116
S.Ct. at 1586 (Scalia, J., dissenting from the denial of
certiorari) (statute is facially invalid only if it would never
operate constitutionally).2 But, because we conclude (below) that
2
Also, we note that this case is a First Amendment case,
where because of the overbreadth doctrine, facial challenges may
succeed more often. See New York v. Ferber, 458 U.S. 747, 767-
74, 102 S.Ct. 3348, 3360-63, 73 L.Ed.2d 1113 (1982); see also
Salerno, 481 U.S. at 744-45, 107 S.Ct. at 2100.
Appellant has failed to show that the Florida lobbying amendments
would operate unconstitutionally often enough to satisfy either
test, we can safely conclude that this facial challenge fails.
III.
Within the framework of the facial challenge, we measure the
Act against the appropriate First Amendment standard. In defining
that standard, we turn first to United States v. Harriss, 347 U.S.
612, 74 S.Ct. 808, 98 L.Ed. 989 (1954), where the Supreme Court
upheld the Federal Regulation of Lobbying Act against a First
Amendment challenge. The Court construed that Act as addressing
only face-to-face, "direct" contact between lobbyists and
officials. (As discussed above, the language of the Florida
statute seems to sweep somewhat more broadly, bringing more
"indirect" lobbying, such as research and media campaigns, within
its scope.)
In Harriss, the Supreme Court was not explicit about the level
of constitutional scrutiny applied. It appears, however, that the
Court did not subject the lobbying restrictions to the demands of
strict scrutiny. Instead, the Court satisfied itself that the
government had asserted sufficient interests—specifically,
"maintain[ing] the integrity of a basic governmental process," 347
U.S. at 625, 74 S.Ct. at 816, and preserving to Congress "the power
of self-protection." Id. Having recognized these interests, the
Court rejected the facial challenge, stating that the appellants'
predictions of constitutional infringement amounted to
"hypothetical borderline situations," and identifying as "too
remote" the possibility that persons would engage in substantial
self-censorship. Id.
In Minnesota State Ethical Practices v. Nat'l Rifle Ass'n, 761
F.2d 509, 512 (8th Cir.1985), the court looked to Harriss in
upholding a statute similar in operation to the one challenged
here. The Eighth Circuit read Harriss as demonstrating broad
approval for lobbying restrictions. See Minnesota State Ethical
Practices, 761 F.2d at 512. The regulations approved in Minnesota
State Ethical Practices were considerably broader than those in
Harriss, extending to internal communication among members of an
organization as well as to "direct" contacts with legislators.
Several other courts have similarly interpreted Harriss and
have rejected broad constitutional attacks on lobbying disclosure
requirements. In Fair Political Practices Comm'n v. Superior Ct.
of Los Angeles, 25 Cal.3d 33, 157 Cal.Rptr. 855, 863-64, 599 P.2d
46, 54 (1979), the court concluded that under Harriss,
"[a]pplication of the burdens of registration and disclosure of
receipts and expenditures to lobbyists does not substantially
interfere with the ability of the lobbyist to raise his voice."
The court, therefore, declined to apply strict scrutiny to, and
ultimately sustained, the registration and expenditure-reporting
requirements. Id. See also Commission on Indep. Colleges & Univs.
v. New York Temporary State Comm'n on Reg'n of Lobbying, 534
F.Supp. 489, 497 (N.D.N.Y.1982) (upholding New York lobbying
statute); ACLU v. New Jersey Election Law Enforcement Comm'n, 509
F.Supp. 1123, 1130 (D.N.J.1981) (upholding lobbyist disclosure
provisions of New Jersey statute); Fritz v. Gorton, 83 Wash.2d
275, 517 P.2d 911, 931-32, appeal dismissed, 417 U.S. 902, 94 S.Ct.
2596, 41 L.Ed.2d 208 (1974) (upholding disclosure requirements of
Washington state lobbying initiative). But cf. Fair Political
Practices, 157 Cal.Rptr. at 863-64, 599 P.2d at 54 (striking
"transaction reporting requirements" of California statute, which
required reporting of "lobbyist and employer transactions with
others, which may be entirely unrelated to lobbyist activities").
IV.
Against the standard of Harriss and its progeny, we are
unpersuaded that a substantial number of the applications of
Chapter 93-121 will offend the First Amendment. So, we reject the
facial challenge.
The League contends that the First Amendment demands strict
scrutiny of the reporting requirements. Thus, in the League's
estimation, the law is overbroad and facially invalid to the extent
the state cannot show both a compelling interest in its ends and
that the statute is narrowly tailored to avoid undue interference
with the exercise of legitimate speech rights. The League
concludes that the statute is not narrowly tailored to the extent
it requires reporting of "indirect expenses when there is no direct
contact with governmental officials." In the light of the case law
summarized above, we disagree.
The League concedes, as it must, that the state has
articulated legitimate interests. The Supreme Court has made clear
that circumstances like these implicate the correlative interests
of voters (in appraising the integrity and performance of
officeholders and candidates, in view of the pressures they face)
and legislators (in "self-protection" in the face of coordinated
pressure campaigns). See, e.g., McIntyre v. Ohio Elections Comm'n,
--- U.S. ----, ----, 115 S.Ct. 1511, 1519, 131 L.Ed.2d 426 (1995)
("In a republic where the people are sovereign, the ability of the
citizenry to make informed choices among candidates for office is
essential, for the identities of those who are elected will
inevitably shape the course that we follow as a nation."); Buckley
v. Valeo, 424 U.S. 1, 67, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976)
(discussing governmental interest in "alert[ing] the voter to the
interests to which a candidate is most likely to be responsive and
thus facilitat[ing] predictions of future performance in office");
Harriss, 347 U.S. at 625, 74 S.Ct. at 816 ("Congress, at least
within the bounds of the Act as we have construed it, is not
constitutionally forbidden to require the disclosure of lobbying
activities. To do so would be to deny Congress in large measure
the power of self-protection.").
And, these interests continue to apply when the pressures to
be evaluated by voters and government officials are "indirect"
rather than "direct." See Minnesota State Ethical Practices, 761
F.2d at 512-513 (recognizing state interest in applying reporting
requirements to intra-organization "lobbying" activity not
involving direct contact with government officials). In fact, the
government interest in providing the means to evaluate these
pressures may in some ways be stronger when the pressures are
indirect, because then they are harder to identify without the aid
of disclosure requirements. Harriss appears to have acknowledged
as much when, even reading the statute narrowly to apply only to
"direct communication," it nonetheless defined direct communication
to include "artificially stimulated letter campaign[s]." Harriss,
347 U.S. at 620, 74 S.Ct. at 813.
Because the interests of the state of Florida are compelling,
the facial challenge can succeed only if the League has shown that
a substantial fraction of the applications of the challenged law
will fail to further these articulated interests. On the record
before us, we conclude that the League cannot satisfy this burden.
We reach this conclusion in the light of both Harriss 's notation
that mail campaign expenses may be required to be reported and the
reasoning of Minnesota State Ethical Practices, which we find
persuasive; these sources strongly indicate that the First
Amendment permits required reporting of considerably more than
face-to-face contact with government officials.
As for the League's hypothesized, fact-specific worst-case
scenarios, we also decline to accept the facial challenge based on
these perceived problems. The League suggests, for example, that
the state may begin applying the expense reporting requirements
against editorial writers who urge a legislative result, simply
because the journalists are employed by corporate structures that
employ lobbyists for totally unrelated reasons. The Supreme Court
in Harriss discounted similar "hypothetical borderline situations."
Harriss, 347 U.S. at 626, 74 S.Ct. at 816. For now, we discount
them here also.
V.
Therefore, we decline to validate the facial challenge.3 But,
3
One commentator has suggested that two interests in
particular are served by sparing use of the power to void a
statute on its face, both of which interests are applicable in
in the future courts can, to the extent necessary, evaluate the
statute's constitutionality as-applied. They can also sever those
parts of the statute, if any, that factual development shows can
never be applied constitutionally. See, e.g., Harriss, 347 U.S. at
627, 74 S.Ct. at 817 (noting, in upholding statute against facial
challenge, that act contained severability clause that could be
used to remedy later problems). But, we now see no indication that
part of this statute must fall to preserve its constitutionality;
and, therefore, we decline to strike any provision. We, however,
express no opinion on the constitutionality of particular
fact-based challenges that may arise in the future. We just
conclude that the district court committed no error of law in
denying relief to the Plaintiff on its facial challenge to the
lobbying disclosure requirements.
VI.
Appellant also argues that the First Amendment bars the
prohibition on the receipt of fees contingent on the passage of
favorable legislation. The League relies chiefly on Meyer v.
Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), in
which the Court subjected to "exacting scrutiny" and struck down a
state statute prohibiting payment of fees to petition circulators,
and on Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 108 S.Ct.
2667, 101 L.Ed.2d 669 (1988), in which the Court again struck down
this case. These interests are, first, in restraining the power
of the judiciary to interfere with the prerogatives of the
political branches of government and, second, in ensuring that
the courts are confronted with concrete facts, thereby reducing
the rate of error in constitutional decisionmaking. See Michael
C. Dorf, Facial Challenges to State and Federal Statutes, 46
Stan.L.Rev. 235, 245-46 (1994).
a state statute under the heightened First Amendment standard, this
one a prohibition on the receipt of "unreasonable" fees by
professional fundraisers working for charitable organizations.
Florida points out that in cases decided well before the
articulation of "exacting scrutiny," the Supreme Court specifically
held that contracts to lobby for a legislative result, with the fee
contingent on a favorable legislative outcome, were void ab initio
as against public policy: Hazelton v. Sheckels, 202 U.S. 71, 78,
26 S.Ct. 567, 568, 50 L.Ed. 939 (1906), and Providence Tool Co. v.
Norris, 69 U.S. (2 Wall.) 45, 55, 17 L.Ed. 868 (1864).4 The League
does not contest the applicability of these older decisions to this
case. And, we are persuaded that these decisions permit a
legislature to prohibit contingent compensation. The League,
however, suggested at argument that the extensive, interim
developments of First Amendment law establish conclusively that the
Supreme Court today would strike a contingency-fee ban on
4
For example, in Norris, a case involving a contract to
lobby for contracts with the Department of War, the Court wrote:
Legislation should be prompted solely from
considerations of the public good.... Agreements for
compensation contingent upon success, suggest the use
of sinister and corrupt means for the accomplishment of
the end desired. The law meets the suggestion of evil,
and strikes down the contract from its inception.
69 U.S. (2 Wall.) at 55. The Court also noted that "[t]here
is no real difference in principle between agreements to
procure favors from legislative bodies, and agreements to
procure favors in the shape of contracts from the heads of
departments." Id. In Hazelton, Justice Holmes held invalid
an agreement to pay an individual a sum equal to the excess
of the dollar amount of a desired government contract over a
set amount. 202 U.S. at 78, 26 S.Ct. at 568.
lobbying.5
This prediction may be accurate, but we are not at liberty to
disregard binding case law that is so closely on point and has been
only weakened, rather than directly overruled, by the Supreme
Court. The Court instructed, in Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 482-86, 109 S.Ct.
1917, 1921-22, 104 L.Ed.2d 526 (1989), that Courts of Appeals
should continue to follow directly applicable precedent that rests
on reasoning seemingly rejected in analogous cases, "leaving to
this Court the prerogative of overruling its own decisions." Id.
We take this admonition to heart, and we decline to take any step
which might appear to overrule Norris and Hazelton.
Therefore, the decision of the district court is AFFIRMED.
AFFIRMED.
5
Some support for this argument appears in the decision of
the Montana Supreme Court in Montana Auto. Ass'n v. Greely, 193
Mont. 378, 632 P.2d 300, 308 (1981), which struck down a ban on
contingency-fee lobbying as overbroad.