On February 6, 2008, the NAM filed suit to declare unconstitutional a provision of the Lobbying Disclosure Act that requires the disclosure of members of the association that actively participate in lobbying activities. The provision, Section 207 of the Honest Leadership and Open Government Act of 2007 (HLOGA), requires registered lobbying organizations like the NAM to disclose the names of any corporate members that contribute more than $5,000 to the lobbying of the organization and that “actively participate[] in the planning, supervision, or control of such lobbying activities.” The provision was nominally targeted at “stealth coalitions,” whatever they are, but missed that mark and hit legitimate, long-standing and well-known organizations like the NAM that have corporate members. Coalitions with individual members are exempted from the provision.
The suit was filed against the U.S. Attorney for the District of Columbia, who is primarily responsible for enforcement, as well as the Secretary of the Senate and the Clerk of the House of Representatives, who have the responsibility to refer deficient filings to the U.S. Attorney for prosecution. Criminal and civil penalties are available.
The NAM believes the disclosure provision is constitutionally deficient because it is not properly tailored to further a compelling state interest. It is both over-inclusive, in that it requires reporting by organizations that are by their nature not “stealth coalitions,” and under-inclusive, in that it exempts coalitions that do not hire their own lobbyists or that are funded by individual rather than corporate contributions. It is also extremely vague, and requires the expenditure of considerable resources to try to determine what it means and how to monitor the myriad member company activities that might be considered “active participation” in lobbying activities. Lobbying organizations may comply simply by listing all their members, including ones that do not meet the $5,000 and active-participation tests, resulting in information to the public that is not responsive to the purported need to scrutinize “stealth coalitions.”
The first lobbying report affected by the new law was due on April 21, 2008. The NAM sought an injunction against enforcement of Section 207, but on April 11, Judge Kollar-Kotelly ruled against us, purportedly applying a strict scrutiny analysis. She found that the government has an "important" and "vital national interest" in knowing who is paying for lobbying and how much, and to avoid "the appearance of corruption." She used the fact that the law has not changed much since 1995 as evidence that it is constitutional, as well as the fact that it took Congress so long to come up with the latest changes, because this "thoughtful and careful effort . . . Deserves respect" (citing her own opinion in a previous case). Other NAM arguments were discussed and rejected.
The NAM appealed this ruling to the U.S. Court of Appeals for the D.C. Circuit. During the week of April 14, the NAM sought a temporary stay of enforcement of Section 207 pending this appeal, but that request was denied, first by Judge Kollar-Kotelly and then by a D.C. Circuit motions panel and Chief Justice Roberts. We then asked for and received an order from the D.C. Circuit to expedite its review of our challenge, as new and different reports are required at the end of each calendar quarter.
On April 30, the NAM filed an amended lobbying disclosure report disclosing the names of organizations that we think may be reportable under Section 207.
See link below for subsequent history of this case in the D.C. Circuit.