FL League of Professional v. Meggs ( 1996 )

  •                  United States Court of Appeals,
                            Eleventh Circuit.
                               No. 95-2555.
       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.
          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
    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.
          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.
             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
         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
    (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
          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-
    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.
           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
    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").
            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
    ("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
    (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.
         Therefore, we decline to validate the facial challenge.3 But,
          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.
          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.
    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
          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.
             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.
          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.