Posted September 8, 2009 by Tara Malloy
Court Shoots Down NAM Bid to Overturn Lobbying Disclosure Law 
Today’s decision is a huge victory for sunlight on our political process. The ink was barely dry on the Honest Leadership and Open Government Act (HLOGA) before the National Association of Manufacturers (NAM) challenged the law in an attempt to keep the membership of its lobbying coalition secret. The challenged provision of HLOGA simply requires trade associations to reveal those member organizations that spend large sums of money to support the coalition’s lobbying efforts. The Court of Appeals rightly found that the law was a reasonable measure to ensure “transparency in government” which “remains a vital national interest in a democracy.”
NAM’s case against the Honest Leadership and Open Government Act is a clear indication that the goal of the anti-reform community is no longer to simply overturn laws that regulate their campaign or lobbying activities, but to conduct those activities with complete anonymity. Emboldened by recent decisions from the U.S. Supreme Court, this disturbing effort is likely to continue as corporations and unions attempt to turn back the clock and return to an era where their political sway in Washington went largely unchecked.
Some excerpts from the decision follow:
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. (Opinion, p. 1)
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. (Opinion, p. 15)
After discussing the campaign finance disclosure regime upheld in the Supreme Court’s decision in Buckley v. Valeo, the Court of Appeals noted the parallels to lobbying disclosure:
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. (Opinion, p. 19).
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. (Opinion, p. 48).
The Court of Appeals rejected NAM’s argument that HLOGA was unconstitutionally underinclusive because it allowed a coalition to evade disclosure by “relying on the lobbyists of one or two members to make actual lobbying contacts,” noting:
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 not require lobbying disclosure from a coalition that does not engage in lobbying.” Id. at 15.(Opinion, p. 26-27)
To read the decision click here.
