Where do courts draw the line between lobbyists and politically involved individuals in determining the constitutionality of lobbyist registration laws? Recently, the en banc Eight Circuit addressed this question in Calzone v. Summers by holding that Missouri’s lobbyist registration law violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures. As the court aptly stated: an individual “does not lose his First Amendment rights just because he speaks through an organization that shares his perspective.” Despite the dissenters’ concerns regarding the categorical rule, it is far from clear whether the court’s decision will have the feared effect of broadly undermining such disclosure laws.
Virtually all states have some form of lobbyist registration laws on the books. These laws are designed to provide the public with information regarding lobbying activity, including lobbyist expenditures and the legislation they seek to influence. Missouri law, section 105.473, requires that “lobbyists” file registration forms within five days of commencing lobbying activity. Besides incurring the ten-dollar initial filing fee, they are also required to file monthly reports itemizing lobbying-related expenditures and biannual reports describing the specific legislation they supported or opposed. All of these reports become a matter of public record and are filed under the penalty of perjury.
Ronald Calzone, an “active figure in Missouri politics” who is the sole agent of a nonprofit organization called Missouri First, qualified as a “legislative lobbyist” under Missouri’s statute according to section 105.470(5) because he is a “natural person who acts for the purpose of attempting to influence . . . [legislative] action” and is “designated to act as a lobbyist by any . . . entity.” This is despite the fact that he neither received compensation from Missouri First, nor incurred any expenditures associated with his lobbying activities.
In 2016, after the Missouri Ethics Commission began investigating Calzone for alleged violations of the statute, Calzone filed a federal suit seeking a permanent injunction to prevent enforcement of the law. The district court rejected his as-applied First Amendment challenge, finding that lobbying registration furthered the “important interest” of “government transparency,” thereby satisfying exacting scrutiny as applied to an uncompensated lobbyist. Similarly, it rejected Calzone’s facial challenge based on the statute’s constitutional vagueness.
The Eight Circuit panel affirmed. On appeal, Calzone claimed that the district court erred in applying the statute to an uncompensated lobbyist. Only at oral argument did Calzone raise the issue of “unpaid lobbyists who make no expenditures related to lobbying efforts.” Writing for the majority, Judge Shepherd rejected Calzone’s as-applied challenge on procedural grounds. Since Calzone did not include legal arguments regarding the lack of expenditures until oral arguments, he forfeited the claim and waived the argument. And, the fact that he was uncompensated, alone, would not affect the constitutionality of the statute because the government’s interests are “not limited solely to paid lobbyists.”
Judge Stras dissented. Emphasizing that Calzone was the “alter ego” of the nonprofit on whose behalf he lobbied and dismissing the majority’s procedural concern regarding forfeiture, he argued that Calzone’s individual First Amendment rights were violated, especially since “core political speech” was at stake.
The Eighth Circuit, sitting en banc, vacated and remanded. Writing for the majority and echoing his earlier dissent, Judge Stras dismissed the procedural issues and insisted that Calzone had not forfeited his claims just because he did not emphasize his expenditure theory earlier in the case. Applying exacting scrutiny, he rejected the government’s claim regarding its interest in preventing corruption, because without expenditures, there could be no quid-pro-quo for any of Calzone’s activity. He also concluded that the broader transparency interest—allowing the public to “hold legislators accountable for their votes”—was not “‘sufficiently important’ to justify the burdens placed on Calzone’s speech.”
Judge Grasz concurred, arguing that strict scrutiny should apply to such registration laws, despite the Eight Circuit’s broad reading of Citizens United.
Judge Colloton dissented. He argued that the court should have denied rehearing en banc, given the procedural irregularities that prevented the necessary development of the constitutional question in the district court. Without directly addressing the constitutional question, he suggested that Calzone was not merely an individual whose political speech was being curtailed; by describing himself as the representative of Missouri First, Calzone “exploit[ed] ‘strength in numbers’ to influence lobbyists.”
Judge Shepherd also dissented. He argued that Calzone was not an “average politically involved citizen” and that Missouri First is “more than just [his] alter ego.” Using his association with Missouri First, Calzone told legislators that he was speaking on behalf of others, not himself. This, according to Judge Shepherd, directly relates to the government’s interest in promoting transparency given the reality of “coordinated pressure campaigns.”
Both of the dissents suggested that the “categorical” rule denying application of the statute to lobbyists like Calzone fails to consider the importance of “strength in numbers” and “coordinated pressure campaigns.” This concern is related to Missouri’s broader transparency interest in helping legislators “know[] who is attempting to influence legislators, legislation, or public policy,” thereby enhancing legislative accountability. However, Calzone’s situation—in that he gives legislators the impression that he speaks on behalf of others, but in reality speaks solely on his own behalf—muddles this inquiry. The dissenters’ approach nevertheless implies that what matters is not whether Calzone actually speaks on behalf of others, but whether legislators think he is speaking on behalf of others.
Judge Colloton also suggested that the majority’s broad holding here could mean that all “volunteer” lobbyists affiliated with organizations like the National Rifle Association, for example, would not have to disclose their lobbying activities. While it is unclear whether volunteer lobbyists even fall under the statutory definition of lobbyists (insofar as they might not be considered “designated” by an entity, under section 105.470(5)(c)), if this question should arise in the future, it might be possible to narrow the holding here to lobbyists who 1) are uncompensated, 2) incur no expenditures, and 3) do not in reality speak on behalf of others. This would not address the dissenters’ concerns regarding perceived strength in numbers, but it could take into account lobbyists’ actual strength in numbers. Thus, if Calzone were not the alter ego of Missouri First, then perhaps the government’s transparency interests would have been strong enough to justify the application of the disclosure law to his activity.