Federal Circuit Court: Missouri Unpaid Activists Aren’t Lobbyists

The 8th U.S. Circuit Court of Appeals has issued an opinion saying that unpaid volunteers, even when working for a nonprofit organization and dealing directly with policymakers, cannot be compelled to register as lobbyists. If appealed and considered on a national scale, the ruling could have broad effects on public ethics laws.

From an article in the St. Louis Post-Dispatch :

The 6-5 ruling overturned a decision last November by a three-judge panel of the same court. That panel had declared that the Missouri Ethics Commission could require Ronald Calzone to register in the name of transparency and preventing corruption. Calzone, the president and sole officer of the nonprofit Missouri First organization, frequently speaks to lawmakers at the state Capitol in Jefferson City, often at public hearings. But he says he does not buy food or gifts for legislators.

Businessmen shaking hands after meeting in a cafeCalzone was the subject of a 2014 ethics complaint for never registering as a lobbyist despite his many interactions with legislators. He was then issued a fine of $1,000 and ordered to cease and desist his actions until he filed paperwork. Calzone and his lawyers  argued that because he does not receive a salary from his organization or make expenditures on legislators during his efforts, he is not a lobbyist, and therefore requiring him to publicly disclose his activities revokes his anonymity and violates his First Amendment rights.

From the majority decision:

What Missouri has failed to establish, however, is that applying the law to Calzone, who neither spends nor receives money in connection with his advocacy, bears a substantial relationship to its anti-corruption interest.

Missouri’s other transparency interest is broader. Missouri claims that legislators need to know who is speaking to determine how much weight to give the speech. Missouri also insists that the public has a right to know who is speaking so that it can hold legislators accountable for their votes and other actions. These concerns, however, are not “sufficiently important” to justify the burdens placed on Calzone’s speech. See Swanson, 692 F.3d at 876. As the Supreme Court has recognized, speakers ordinarily have the right to keep their identities private.

Given that Calzone’s political activities do not involve the transfer of money or anything of value, either to him or to anyone else, Missouri’s interest in transparency does not “reflect the seriousness of the actual burden on [his] First Amendment rights.” Swanson, 692 F.3d at 876 (citation omitted). Accordingly, the application of the law to Calzone violates the First Amendment.

Missouri’s Ethics Commission has not issued word on whether they will appeal the most recent decision to the Supreme Court. If successfully appealed through the federal appeals process, the nationwide consequences for state and local lobbyist regulations could be far reaching. In Maryland (unaffected by this decision in another federal circuit, but potentially affected if the decision gets appealed to a national scale, citing Constitutional grounds) both the State and county governments have ethics laws that govern lobbyist registration.

The National Conference of State Legislatures prepared a summary of state ethics laws, with their definition of lobbyists in each state.