Ronald Calzone v. Nancy Hagan , 909 F.3d 940 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2654
___________________________
Ronald John Calzone
lllllllllllllllllllllPlaintiff - Appellant
v.
Donald Summers, in his official capacity as Chairman of the Missouri Ethics
Commission; Kim Benjamin, in her official capacity as Vice-Chairwoman of the
Missouri Ethics Commission; George Ratermann, in his official capacity as
Commissioner of the Missouri Ethics Commission; Wayne Henke, in his official
capacity as Commissioner of the Missouri Ethics Commission; Sherman Birkes,
in his official capacity as Commissioner of the Missouri Ethics Commission;
Cheryl Walker, in her official capacity as Commissioner of the Missouri Ethics
Commission; Elizabeth Ziegler, in her official capacity as Executive Director of
the Missouri Ethics Commission
lllllllllllllllllllllDefendants - Appellees1
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: April 10, 2018
Filed: November 28, 2018
____________
1
Appellees Summers, Benjamin, Henke, Birkes, Walker, and Ziegler are
automatically substituted for their predecessors under Federal Rule of Appellate
Procedure 43(c)(2).
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Appellant Ronald John Calzone seeks a permanent injunction against the
Missouri Ethics Commission (the “Commission”) to prevent the Commission from
enforcing against him Mo. Rev. Stat. §§ 105.470, 105.473 (together the
“Missouri Statutes),2 which he claims violate his First Amendment right to freedom
2
Missouri Revised Statute § 105.470 provides in relevant part:
(5) “Legislative Lobbyist”, any natural person who acts for the purpose
of attempting to influence the taking, passage, amendment, delay or
defeat of any official action on any bill, resolution, amendment,
nomination, appointment, report or any other action or any other matter
pending or proposed in a legislative committee in either house of the
general assembly, or in any matter which may be the subject of action
by the general assembly and in connection with such activity, meets the
requirements of any one or more of the following:
...
(c) Is designated to act as a lobbyist by any person, business entity,
governmental entity, religious organization, nonprofit corporation,
association or other entity[.]
The pertinent sections of Missouri Revised Statute § 105.473 state:
1. Each lobbyist shall, not later than January fifth of each year or five
days after beginning any activities as a lobbyist, file standardized
registration forms, verified by a written declaration that it is made under
the penalties of perjury, along with a filing fee of ten dollars, with the
commission. The forms shall include the lobbyist’s name and business
address, the name and address of all persons such lobbyist employs for
lobbying purposes, the name and address of each lobbyist principal by
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of speech. We disagree and affirm the district court’s3 denial of the permanent
injunction.
I. Background
Calzone is the incorporator, president (the sole officer), director, registered
agent, and one of three members of the Board of Directors (the “Board”) of Missouri
First, Inc. (“Missouri First”). Missouri First is a non-profit organization, and its
charter states that it uses legislative lobbying to influence public policy, mobilize the
public, and meet Missouri First’s objectives. R. Doc. 34, at 4. On its website, it also
states that “there is strength in numbers” when lobbying and solicits new members
to help further advance Missouri First’s legislative agenda. R. Doc. 34, at 5.
Calzone regularly meets with legislators, legislative staff, and other legislative
groups to discuss Missouri legislation. These meetings cover both specific legislation
or proposed legislation and include Calzone and Missouri First’s opinion as to
whether legislation should be passed or blocked. Calzone admits that when he met
with legislators in Jefferson City, Missouri, he usually disclosed his affiliation with
whom such lobbyist is employed or in whose interest such lobbyist
appears or works.
...
3. (1) During any period of time in which a lobbyist continues to act as
an executive lobbyist, judicial lobbyist, legislative lobbyist, or elected
local government official lobbyist, the lobbyist shall file with the
commission on standardized forms prescribed by the commission
monthly reports which shall be due at the close of business on the tenth
day of the following month[.]
3
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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Missouri First, commonly by identifying himself as “Ron Calzone, Director of
Missouri First” or “Ron Calzone, a director of Missouri First.” R. Doc. 34, at 5. As
the Director, sole officer, registered agent, and board member of Missouri First,
Calzone is responsible for determining who will appear before the legislature and
present Missouri First’s agenda. No evidence in the record suggests that anyone other
than Calzone has represented Missouri First before the Missouri legislature. Calzone
does not receive any compensation or make any expenditures when lobbying on
behalf of Missouri First.
In 2014 and 2016, the Commission received two complaints against Calzone
claiming that he violated the Missouri Statues, which define who qualifies as a
lobbyist and require those individuals to register as lobbyists and file regular lobbying
reports. The Missouri Society of Governmental Consultants filed the first complaint,
and the Commission found probable cause to believe that Calzone violated the
lobbying statutes. Calzone appealed the decision, and the Administrative Hearing
Commission ordered discovery. Calzone then sought a writ of prohibition from the
Cole County, Missouri Circuit Court. The circuit court granted the petition, finding
that the Missouri Society of Governmental Consultants is a corporation, and Missouri
law does not allow corporations to file complaints with the Commission. The
Commission appealed and the Missouri Court of Appeals reversed and remanded with
directions to quash the writ. The Administrative Hearing Commission then stayed the
proceedings pending this court’s decision. The second complaint was filed by
Michael Reid, a natural person, and was substantively identical to the first. The
Commission has dismissed the second complaint.
On October 21, 2016, Calzone filed suit in federal court stating the
Commission violated his First Amendment rights and requesting a temporary
restraining order to prevent the Commission from enforcing the Missouri Statutes
against him or any other unpaid lobbyists. Initially, the district court abstained from
hearing the case because the 2016 complaint was pending before the Commission,
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but, after the Commission dismissed the complaint, the district court resumed the
temporary restraining order proceedings. The court denied Calzone’s request for a
temporary restraining order, finding he was not likely to succeed on the merits.
Calzone also moved for a permanent injunction, challenging the
constitutionality of the Missouri Statutes both facially and as applied to him. After
a hearing, the court, applying exacting scrutiny, found that Missouri had a sufficiently
important interest in governmental transparency and that requiring unpaid lobbyists
to register with the government and file lobbying reports was substantially related to
furthering that transparency interest. Thus, the court held Calzone’s as-applied
challenge failed.
The district court then turned to Calzone’s facial challenge and found it lacking
as well. The court determined that the word “designated” in the statute was not
unconstitutionally vague because an ordinary person would have a reasonable
opportunity to understand what the statute required. Because Calzone was the
registered agent of Missouri First, the court reasoned, he had the authority to appoint
himself as a lobbyist for Missouri First. The court held this action is within the plain
meaning of the statute.
Thus, because the district court found both claims failed on the merits, it denied
Calzone’s request for a permanent injunction. Calzone now appeals.
II. Discussion
We normally review the denial of a permanent injunction for abuse of
discretion, Hinz v. Neuroscience, Inc., 538 F.3d 979, 986 (8th Cir. 2008); however,
when “the determinative question is purely legal, our review is more accurately
characterized as de novo.” Entm’t Software Ass’n v. Swanson, 519 F.3d 768, 771 (8th
Cir. 2008) (internal quotation marks omitted) (finding de novo review appropriate for
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grant of permanent injunction related to First Amendment suppression of speech
claim). “[T]o obtain a permanent injunction[,] the movant must attain success on the
merits[,]” and the district court must determine that on balance “the threat of
irreparable harm to the movant, . . . the harm to the other party if the injunction is
granted, . . . and the public interest” weigh in favor of issuing the injunction. Bank
One, Utah v. Guttau, 190 F.3d 844, 847 (8th Cir. 1999).
Calzone makes three separate claims on appeal. First, he argues that the district
court erred by applying the wrong level of scrutiny to his constitutional claims.
Second, he argues that Mo. Rev. Stat. § 150.473 is unconstitutional as applied to him.
Finally, Calzone argues that Mo. Rev. Stat. § 150.470 is facially unconstitutional for
vagueness. We address each issue in turn.
A. Level of Scrutiny
As a preliminary argument, Calzone asserts that the district court did not apply
the correct level of scrutiny, claiming that strict scrutiny rather than intermediate or
exacting scrutiny applies. It does not.
In Citizens United v. FEC, the Supreme Court held that “[t]he Government may
regulate corporate political speech through disclaimer and disclosure requirements,
but it may not suppress that speech altogether.” Citizens United v. FEC, 558 U.S.
310, 318 (2010). In Minnesota Citizens Concerned for Life, Inc. v. Swanson, we held
that “‘[l]aws that burden political speech are [generally] “subject to strict scrutiny,”
. . .’ [b]ut this is not true when the law at issue is a disclosure law, in which case it is
subject to ‘“exacting scrutiny.”’” Minn. Citizens Concerned for Life, Inc. v.
Swanson, 692 F.3d 864, 874-75 (8th Cir. 2012) (en banc) (first alteration in original)
(quoting Citizens United, 558 U.S. at 340, 366). Exacting scrutiny “requires a
substantial relation between the disclosure requirement and a sufficiently important
governmental interest.” Id. at 875 (internal quotation marks omitted).
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Calzone argues that the district court inappropriately relied on Citizens United
for the level of scrutiny because that case concerned campaign finance whereas this
case involves lobbying. Calzone makes an inappropriate distinction. Citizens United
did involve campaign finance, but the Supreme Court referred to disclosure and
disclaimer requirements generally, and it made no distinction between disclosure
statutes in campaign finance versus lobbying cases. Citizens United, 558 U.S. at 366;
see also Swanson, 692 F.3d at 875. Because the statute at issue here is a disclosure
statute, we apply exacting scrutiny. Iowa Right To Life Comm., Inc. v. Tooker, 717
F.3d 576, 589 (8th Cir. 2013).
B. As-Applied Challenge
Next, Calzone argues that the district court erred when it found that, as applied
to him, an uncompensated person, Mo. Rev. Stat. § 105.473 satisfied exacting
scrutiny. The Missouri statute does not differentiate between paid and unpaid
lobbyists.4 Mo. Rev. Stat. § 105.470. Calzone asserts that Missouri only has a
sufficient interest in having paid lobbyists register; thus, as applied to him, the statute
is unconstitutional because he is unpaid. Again, “exacting scrutiny . . . requires a
substantial relation between the disclosure requirement and a sufficiently important
governmental interest.” Swanson, 692 F.3d at 875 (internal quotation marks omitted).
We turn first to whether Missouri has a sufficiently important governmental interest
in having unpaid lobbyists register.
4
For context, inclusion of both the uncompensated and those who make no
expenditures in the definition of “lobbyist” or “lobbying” is not uncommon in the
states of the Eighth Circuit. In addition to Missouri, Iowa, Nebraska, North Dakota,
and South Dakota do not identify compensation or expenditures as essential elements
of the statutory definition of lobbyist or lobbying. See Iowa Code Ann. § 68B.2.13;
Neb. Rev. Stat. Ann. § 49-1434; N.D. Cent. Code Ann. § 54-05.1-02; S.D. Codified
Laws § 2-12-1.
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We do not, as both Calzone and the dissent urge, consider the application of
this statute to unpaid lobbyists who make no expenditures related to lobbying efforts
because this argument was not fairly raised before the district court. Calzone did not
even raise it on appeal until oral argument, where he attempted to recast his claim as
including an as-applied challenge to registration requirements for unpaid lobbyists
who make no expenditures. Whether this narrower claim might have been successful
is an interesting academic question, but Calzone forfeited any such claim in the
district court and waived it on appeal.
Calzone’s complaint alleged a cause of action under the First and Fourteenth
Amendments, stating “specifically” that the state of Missouri violated his rights by
seeking to apply the lobbying statutes to his “uncompensated policy conversations.”
R. Doc. 1, at 11. His motion for a preliminary injunction sought an order preventing
Missouri from enforcing the lobbying statutes “against any individual that acts
without being compensated” and “against those who act without being compensated.”
R. Doc. 2, at 2. The district court properly addressed the issue that Calzone raised.
See R. Doc. 34, at 1 (“Calzone contends that Missouri cannot require him to register
as a lobbyist . . . because he is not paid to be a lobbyist and Missouri’s definition of
lobbyist is unconstitutionally vague.”) (emphasis added); id. at 8 (“Calzone requests
a permanent injunction prohibiting Defendants . . . from enforcing or threatening to
enforce the disclosure requirements . . . against those who act without being
compensated.”) (emphasis added) (internal quotation marks omitted). Calzone’s
stipulation and factual assertions that he does not make expenditures are not the same
as a legal argument premised on that fact.
Further, in his brief on appeal, Calzone’s “Statement of the Issues” raised only
the same legal issue that he presented in the district court: “May the government,
consistent with the First and Fourteenth Amendments to the United States
Constitution, require unpaid individuals to comply with Missouri’s registration and
reporting regime for legislative lobbyists?” Appellant’s Br. 1 (emphasis added). His
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“Summary of the Case” likewise described the question presented as whether an
individual may be regulated as a lobbyist “even if he acts solely as an unpaid
volunteer.” Id. at i (emphasis added). The summary objected to the district court’s
ruling that “Missouri could require unpaid volunteers to carry the same burdens as
professional, compensated lobbyists.” Id. (emphases added). Calzone’s heading in
the “Argument” section of his brief reads: “The district court erred in failing to apply
strict scrutiny to Missouri’s efforts to regulate uncompensated volunteers as
lobbyists.” Id. at 13 (emphasis added). Calzone’s failure to include a narrower as-
applied challenge in his statement of the issues waived the argument. United States
v. O’Neal, 17 F.3d 239, 243 n.8 (8th Cir. 1994); United States v. Simmons, 964 F.2d
763, 777 (8th Cir. 1992). And even if the issue had been stated, a passing reference
to the absence of lobbying expenditures in the argument section of his opening brief
is insufficient to present a legal issue for review. Anderson v. Durham D & M, LLC,
606 F.3d 513, 515 n.2 (8th Cir. 2010).
Even where the record factually supports what might be a better legal argument
for reversal, it is not our place to raise it for a litigant who forfeits and waives the
contention. See, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2272 (2018)
(Gorsuch, J., dissenting). Deciding the case based on an argument that was not
properly raised either in the district court or on appeal would be unfair to the district
court, which had no occasion to decide it, and to the state of Missouri, which had no
reason to address it. And with no adversarial briefing on the question, this court is
not in a good position to ensure that it is resolved correctly. Of course, the “entire
case is before us,” post, at [3], but what constitutes the “entire case” depends on what
arguments were properly preserved in the district court and properly raised on appeal.
Accordingly, we analyze only the as-applied challenge as to unpaid lobbyists.
Before Citizens United and its progeny established the exacting review
standard for disclosure statutes, this Court held that requiring lobbyists to register
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their activities was a compelling state interest that satisfied the strict scrutiny
standard. Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509, 512 (8th Cir.
1985) (per curiam) (finding that the NRA’s “communication with lawmakers through
an artificially stimulated letter campaign” was a lobbying activity and the state could
require individuals running the campaign to register as lobbyists). Citing to United
States v. Harriss, 347 U.S. 612, 625 (1954), we held that there is a vital national
interest in requiring the disclosure of lobbying activities. NRA, 761 F.2d at 512. As
we established earlier, the appropriate level of scrutiny is now exacting scrutiny,
which is a lesser standard than strict scrutiny. Thus, rather than having a compelling
interest, the government need only have a sufficiently important interest. See
Swanson, 692 F.3d at 874-75. If the interest in lobbyists registering their activities
is a compelling interest, then it is certainly also a sufficiently important interest.
However, Calzone argues that the interest in having lobbyists register should
apply only to paid lobbyists. He asserts that we should distinguish Harriss and
Minnesota State Ethical Practices Board v. NRA from this case because those cases
dealt with paid lobbyists and the government does not have a sufficient interest in
having unpaid lobbyists like him register. This is a novel argument that presents an
issue of first impression in the federal courts. But, upon reviewing existing case law,
we find that the government retains a sufficiently important governmental interest in
registering lobbyists whether the lobbyist is paid or unpaid.
In NRA, we held that the activity that warranted requiring the NRA’s executive
director to register and report as a lobbyist was his mailing of letters to Minnesota
residents urging them to vote a specific way. NRA, 761 F.2d at 511. It was because
of this activity alone, not campaign contributions or the fact that the executive
director was paid by the NRA, that we found the director needed to register as a
lobbyist. See id.; see also Fla. Ass’n of Prof’l Lobbyists, Inc. v. Div. of Legislative
Info. Servs., 525 F.3d 1073, 1080 (11th Cir. 2008) (per curiam) (holding that “the
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state has a compelling interest in self-protection in the face of coordinated pressure
campaigns directed by lobbyists . . . [and] allow[ing] voters to appraise the integrity
and performance of officeholders and candidates, in view of the pressures they face”
(internal quotation marks omitted)); SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C.
Cir. 2010) (stating that “[b]ecause disclosure requirements inhibit speech less than
do contribution and expenditure limits, the Supreme Court has not limited the
government’s acceptable interests to anti-corruption alone[,] [and] [i]nstead, the
government may point to any sufficiently important governmental interest” (internal
quotation marks omitted)).
The Commission argues that it has an interest in transparency, which includes
avoiding the fact or even the appearance of public corruption and knowing who is
attempting to influence legislators and public policy. This interest, it argues,
transcends whether that person is being paid. We agree that transparency is a
sufficiently important governmental interest to satisfy exacting scrutiny. Though the
lobbyists may not be receiving money, unpaid lobbyists could still offer things of
value to legislators, creating a sufficiently important governmental interest in
avoiding the fact or appearance of public corruption. Furthermore, the government
and the public have a sufficiently important interest in knowing who is pressuring and
attempting to influence legislators, and the ability to pressure and influence
legislators is not limited solely to paid lobbyists.
Next, we turn to the question of whether the registration requirements in Mo.
Rev. Stat. § 105.473 are substantially related to Missouri’s interest in transparency.
“[T]here must be a relevant correlation or substantial relation between the
governmental interest and the information required to be disclosed. . . .” Swanson,
692 F.3d at 876 (internal quotation marks omitted). “Regulatory provisions no more
than tenuously related to the substantial interests disclosure serves . . . fail exacting
scrutiny.” Id. (alteration in original) (internal quotation marks omitted). “[T]he
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strength of the governmental interest must reflect the seriousness of the actual burden
on First Amendment rights.” Id. at 881 (internal quotation marks omitted).
In Swanson, we found that Minnesota’s expenditure disclosure law “fail[ed]
this test because its ongoing reporting requirement . . . [was] untethered from
continued speech [and did] not match any sufficiently important disclosure interest.”
Id. at 876. We stated that “Minnesota [could] accomplish any disclosure-related
interests—providing the electorate and shareholders information concerning the
source of corporate political speech, deterring corruption, and detecting violations of
campaign finance laws—[t]hrough less problematic measures, such as requiring
reporting whenever money is spent . . . .” Id. at 876-77 (second alteration in original)
(internal quotation marks omitted).
The regulation at issue here requires lobbyists to register each year that they
plan to engage in lobbying activities, pay a $10 filing fee, and submit forms that
include “the lobbyist’s name and business address, the name and address of all
persons such lobbyist employs for lobbying purposes, the name and address of each
lobbyist principal by whom such lobbyist is employed or in whose interest such
lobbyist appears or works.” Mo. Rev. Stat. § 105.473(1). The statute additionally
mandates that “[d]uring any period of time in which a lobbyist continues to act as
a[] . . . legislative lobbyist . . . the lobbyist shall file with the commission on
standardized forms prescribed by the commission monthly reports which shall be due
at the close of business on the tenth day of the following month[.]” Id. § 105.473(3).
It is clear that the Missouri statute is directly related to Missouri’s interest in
knowing who is acting as a lobbyist to influence legislators and public policy and to
avoid the fact or appearance of corruption. We further find that the burden of these
requirements does not outweigh Missouri’s interest in transparency. In fact, these
requirements are minimal, imposing a very slight burden on those required to register
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and report. The registration process takes little time, effort, and money to complete,
and those requirements, respectively, need only be completed in the months or years
in which Calzone actually engages in lobbying activities. Moreover, this legislative
scheme is precisely that which we have previously held would satisfy the substantial
relationship test. See Swanson, 692 F.3d at 876-77. Furthermore, Calzone would
have an even easier time producing the lobbying reports than most because the
reports simply require Calzone to make statements regarding expenditures related to
his lobbying activities, Mo. Rev. Stat. 105.473(3), which he claims he does not
engage in. Because the statute directly furthers Missouri’s interest in transparency
and the burden placed on Calzone is not disproportionate to that interest, we find that
the statute is substantially related to Missouri’s sufficiently important governmental
interest. Therefore, we hold that Mo. Rev. Stat. § 150.473 is not unconstitutional as
applied to Calzone.
C. Facial Challenge
Finally, Calzone argues that Missouri’s statute is facially unconstitutional
because the word “designated” in the definition of a “legislative lobbyist” in Mo.
Rev. Stat. § 105.470(5)(c) is vague.
“Facial challenges are disfavored . . . .” Phelps-Roper v. City of Manchester,
697 F.3d 678, 685 (8th Cir. 2012) (en banc). A successful facial challenge requires
“establish[ing] that no set of circumstances exists under which [the statute] would be
valid, or that the statute lacks any plainly legitimate sweep.” Id. (internal quotation
marks and citations omitted).
When “[c]onstruing a statute, [we] look[] first to its plain meaning.” United
States v. Berger, 553 F.3d 1107, 1109 (8th Cir. 2009). “A statute can be
impermissibly vague . . . if it fails to provide people of ordinary intelligence a
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reasonable opportunity to understand what conduct it prohibits . . . .” Reprod. Health
Servs. of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1143
(8th Cir. 2005) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). “[I]f from the
plain meaning of the statute [legislative] intent is clear, except for rare instances, ‘that
is the end of the matter.’” In re Old Fashioned Enters., Inc., 236 F.3d 422, 425 (8th
Cir. 2001) (quoting Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842 (1984)).
The Missouri statute, in relevant part, defines a legislative lobbyist as:
[A]ny natural person who acts for the purpose of attempting to influence
the taking, passage, amendment, delay or defeat of any official action on
any bill, resolution, amendment, nomination, appointment, report or any
other action or any other matter pending or proposed in a legislative
committee in either house of the general assembly, or in any matter
which may be the subject of action by the general assembly and in
connection with such activity, meets the requirements of any one or
more of the following:
...
(c) Is designated to act as a lobbyist by any person, business entity,
governmental entity, religious organization, nonprofit corporation,
association or other entity[.]
Mo. Rev. Stat. § 105.470(5).
Black’s Law Dictionary defines “designate” as “choos[ing] (someone or
something) for a particular job or purpose.” Designate, Black’s Law Dictionary (10th
ed. 2014). Similarly, the Oxford English Dictionary defines “designate” as
“[a]ppoint[ing] (someone) to a specified office or post.” Designate, English Oxford
Living Dictionaries, https://en.oxforddictionaries.com/definition/designate (last
visited Oct. 2, 2018).
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Calzone essentially argues that the term “designated” is vague because the
Commission found that Calzone had been “designated” a lobbyist even though the
Board had taken no official action to name him a lobbyist. We note that this
argument appears to be another as applied challenge; however, Calzone insists that
he is bringing a facial challenge and that the word “designated” is unconstitutionally
vague. Accordingly, we will consider this claim as a facial challenge.
The term “designated” is clearly defined, and the statute uses the word within
its plain meaning; thus, “people of ordinary intelligence” would have a “reasonable
opportunity to understand” what “designated” means in the context of the statute.
Reproductive Health Servs., 428 F.3d at 1143. Because the plain meaning of
“designated” is clear and well understood, Missouri’s legislative intent is also
clear—anyone who has been chosen or appointed to lobby the legislature on behalf
of a nonprofit corporation must register and report their activities. See Mo. Rev. Stat.
§§ 105.470(5), 105.473. Calzone argues that, in his situation, legislative intent is
unclear because the Board has taken no official steps to name him as a lobbyist for
the organization. However, the statute neither requires specific official action, nor,
contrary to Calzone’s assertions, does it require any evidence of an official action to
find that someone has been chosen as a lobbyist. Because “from the plain meaning
of the statute [Missouri’s legislative] intent is clear . . . ‘that is the end of the matter.’”
In re Old Fashioned, 236 F.3d at 425 (quoting Chevron, 467 U.S. at 842). Further,
it is evident that Calzone is an appointed lobbyist for Missouri First. As the sole
incorporator, director, president, agent, and board member of an organization whose
stated intent is to use legislative lobbying to influence public policy, mobilize the
public, and meet their objectives, Calzone asks us to reject common sense to find that
he was not appointed to a position that involved lobbying the legislature—especially
given Calzone’s admission that he regularly disclosed his affiliation with Missouri
First during meetings with legislators at the capitol.
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Because Calzone’s claims fail on the merits, it is unnecessary for us to address
the other elements for a permanent injunction. See Guttau, 190 F.3d at 847-48.
Accordingly, we find that Calzone is not entitled to a permanent injunction.
III. Conclusion
For the foregoing reasons, we affirm.
STRAS, Circuit Judge, dissenting.
The government “depends upon the ability of the people to make their wishes
known to their representatives.” E. R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 137 (1961). At the core of the First Amendment is the
ability of all citizens to influence government through petitioning and speech. See
U.S. Const. amend. I; McDonald v. Smith, 472 U.S. 479, 482 (1985) (explaining that
“James Madison made clear in the congressional debate on the [First Amendment]
that people may communicate their will” by petitioning and speaking to “the
legislature and government officials” (internal quotation marks and citation omitted)).
Yet Missouri regulates these First Amendment activities as “lobbying,” even
if no money changes hands, precisely because they influence government. Missouri’s
lobbying-disclosure law crosses the constitutional line by burdening Calzone’s core
First Amendment activities without either adequate justification or narrow enough
tailoring. I accordingly dissent.
I.
Missouri law treats Calzone as a lobbyist because he has been “designated . . .
by . . . [a] nonprofit corporation” to act on its behalf “for the purpose of attempting
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to influence” legislation. Mo. Rev. Stat. § 105.470(5)(c). But let us be clear about
what, exactly, Missouri means by “lobbying.” Calzone is a Missouri citizen who
speaks to legislators. No one pays him to do so, and he does not pay anyone in
connection with his activities. To be sure, Calzone created a nonprofit “alter ego,”
as Missouri characterizes it, to amplify his voice. But even so, Calzone is not who
we typically think of as a lobbyist.
The court insists on ignoring the fact that Calzone does not spend money on
his advocacy efforts based on a crabbed reading of his complaint and motion for
injunctive relief. In my view, we cannot overlook Calzone’s lack of expenditures
because it has been a piece of his as-applied challenge to Missouri’s lobbying-
disclosure law all along.
The meat of Calzone’s as-applied challenge has always been, as one might
expect, that Missouri cannot constitutionally apply its registration and reporting
requirements to him. It simply is not true, as the court claims, that Calzone raised the
issue of expenditures for the first time at oral argument. Beginning with his
appearance before the Missouri Ethics Commission and continuing with his
complaint in the district court, memorandum in support of his motion for a permanent
injunction, stipulation of facts, briefing to this court, and oral argument, the record
is stuffed full of references to Calzone’s lack of expenditures, leaving no doubt that
a key piece of his argument is that he does not give money or gifts to legislators.5 The
5
See, e.g., Transcript of Oral Argument at 12, Calzone v. Mo. Ethics Comm’n,
No. 15-1450 EC (Mo. Admin. Hr’g Comm’n Feb. 3, 2016) (“[Calzone does not]
dispute that someone who gives a gift to a legislator may be regulated as a lobbyist.
That’s simply not the case here.”); Suggestions in Support of Plaintiff’s Motion for
a Temporary Restraining Order and Preliminary Injunctive Relief at 1 (“[Calzone]
does not provide gifts, meals, or anything of value to legislators or legislative staff
in connection with his activism.”); id. at 9 (arguing that the Missouri law is
unconstitutional because it requires registration even for those who do not “receiv[e]
any compensation and [who do not] expend[] any money”); id. at 11 (noting that
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district court and Missouri were on notice that Calzone’s constitutional argument
folds in both his lack of compensation and his lack of expenditures, and so are we.
Missouri’s interest in identifying who is “putting up the money, and how much,” is
not served by forcing Calzone to register because he does not “spend money on
legislators and legislative staff” (citation omitted)); Joint Stipulation at 1 (“Plaintiff
does not make expenditures for the benefit of one or more public officials or one or
more employees of the legislative branch of state government in connection with
[speaking with legislators].”); Plaintiff-Appellant’s Opening Brief at 2 (making clear
that Calzone “does not make expenditures . . . in connection with” his advocacy
activity (internal quotation marks omitted)); id. at 2–3 (same); id. at 11–12 (arguing
that Missouri, in applying its law to him, has taken “the extraordinary position . . .
that the receiving or spending of money is completely irrelevant to a person’s status
as a lobbyist”); id. at 19 (noting that Missouri requires registration of advocacy
efforts divorced from any “monetary dimension whatsoever”); id. at 20 n.10, 21,
23–26, 25 n.13 (emphasizing that lobbyist-disclosure laws have been upheld in the
past, but only as applied to individuals who have been hired to influence legislators
or who spend money on their lobbying); id. at 26 (claiming that the district court
erred “[b]y permitting the government to regulate Mr. Calzone—who was not hired,
has not put up money, and has spent nothing to petition his government”);
Plaintiff-Appellant’s Reply Brief at 2 (noting that “there is not even a suggestion that
Calzone gives gifts to legislators”); id. at 4–5 (arguing that the state’s interest in
combating corruption is not served by regulating an unpaid volunteer who does not
“expend[] money . . . in connection with his political activism”); id. at 6 (“[T]his
Court is not at liberty to extend the reasoning applied in Harriss to allow regulation
of citizen activists whose political statements are completely unrelated to monetary
expenditures.”); id. at 10 (arguing that campaign-finance-disclosure cases are
distinguishable, “especially on these facts,” because here there is no “financial
dimension”); id. at 12–14 (claiming that this case is distinguishable from
constitutional applications of lobbyist-disclosure laws because here “there is no
suggestion that a citizen is receiving or expending money to promote political ideas”
and hence no concerns over corruption); id. at 15–16 (distinguishing an unpublished
opinion from California because Calzone does not spend any money); id. at 17–18
(noting that a state’s interest in combating corruption “must involve money,” but
Calzone is uncompensated and spends no money); id. at 19 (asserting that if an
activist has not given “anything of value” to legislators, there can be “no suggestion
of quid pro quo” corruption).
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Just because Calzone’s lack of compensation is the lede does not mean that we get
to bury the rest of the story.
The procedural posture provides us with yet another clue about the scope of our
review. The district court’s denial of a permanent injunction is just one ingredient of
Calzone’s appeal. The other is the court’s decision to enter final judgment against
him. By dismissing Calzone’s complaint, the court rejected his request for a
declaration that Missouri’s lobbying-disclosure law is unconstitutional as applied to
him, an individual who, as his complaint makes clear, neither is paid nor pays anyone
else in connection with his advocacy. See Verified Complaint 1, 12 (stating that
“[Calzone] does not give legislators any gifts” and requesting declaratory relief). The
entire case is accordingly before us, not just Calzone’s unsuccessful motion for a
permanent injunction and not just the narrow issue the court addresses.
II.
Turning to the merits of Calzone’s First Amendment challenge, the court would
apply exacting scrutiny because Missouri’s law calls for disclosure. Exacting
scrutiny “requires a substantial relation between the disclosure requirement and a
sufficiently important governmental interest.” Minn. Citizens Concerned for Life,
Inc. v. Swanson, 692 F.3d 864, 874–75 (8th Cir. 2012) (en banc) (internal quotation
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marks and citation omitted).6 “Though possibly less rigorous than strict scrutiny,
exacting scrutiny is more than a rubber stamp.” Id. at 876 (citations omitted).
Missouri defends its right to regulate Calzone’s activities based on a desire for
transparency.7 Missouri’s asserted transparency interest, which the court accepts, has
two layers: (1) an interest in “avoiding the fact or even the appearance of public
corruption” and (2) an interest in “knowing who is attempting to influence legislators
and public policy.” Ante at 11. The first layer of its argument falls short because, as
applied to Calzone, there is no “substantial relation between the disclosure
requirement” and the government’s anti-corruption interest. Swanson, 692 F.3d at
874–75 (internal quotation marks and citation omitted). The second layer fares no
better because an interest in transparency for transparency’s sake is not “sufficiently
6
It is not clear to me that exacting scrutiny applies here. The only Supreme
Court case analyzing a lobbying-disclosure law is United States v. Harriss, which
applies a test resembling strict scrutiny. 347 U.S. 612, 626 (1954) (upholding a law
because it was “designed to safeguard a vital national interest” and “restricted to its
appropriate end”). We have adopted a similar approach when presented with
challenges to lobbying-related statutes. See Minn. Citizens Concerned for Life, Inc.
v. Kelley, 427 F.3d 1106, 1111 (8th Cir. 2005); Minn. State Ethical Practices Bd. v.
Nat’l Rifle Ass’n of Am., 761 F.2d 509, 511 (8th Cir. 1985) (per curiam). Even if
recent campaign-finance decisions cast some doubt on these earlier cases, they have
not been expressly overruled, and we have no power to anticipatorily overrule them.
See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
But because I would reach the same conclusion regardless of the level of scrutiny, it
is sufficient to note the discrepancy without resolving it.
7
One could imagine other potential interests that could conceivably justify a
less aggressive form of regulation. For example, if a so-called unpaid lobbyist filled
a position of trust as a representative fiduciary of another party, the state could assert
an interest in regulating the relationship to prevent exploitation or self-dealing, much
like with attorneys. But Missouri has neither asserted nor tailored its law to serve
such an interest here.
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important” to justify the burden on Calzone’s First Amendment rights. Id. (citation
omitted).
Missouri begins with its theory that Calzone must register as a lobbyist to
prevent the fact or the appearance of corruption. The Supreme Court has recognized
that the government has an important, if not compelling, interest in preventing
corruption and the appearance of corruption. See McCutcheon v. FEC, 572 U.S. 185,
199 (2014) (plurality opinion). Beginning with United States v. Harriss, courts have
generally upheld lobbying-disclosure rules based on the need for the public to know
about potentially corrupting financial arrangements. See 347 U.S. 612, 625 (1954)
(describing Congress’s goal as “want[ing] only to know who is being hired, who is
putting up the money, and how much”); Minn. Citizens Concerned for Life, Inc. v.
Kelley, 427 F.3d 1106, 1111 (8th Cir. 2005) (recognizing the government’s
compelling interest in “avoiding even the appearance of corruption”). Missouri must
still prove, however, that its disclosure requirement, as applied to Calzone, bears a
“substantial relation” to its anti-corruption interest. It does not come close to meeting
its burden.
Missouri has not pointed to “any plausible reason” why extending its reporting
requirements to Calzone—who neither spends nor receives any money—is “necessary
to accomplish [its] interest[].” Swanson, 692 F.3d at 877. Nor has it “provide[d] any
real-world examples” of pure advocacy efforts, divorced from the expenditure of
money, leading to the type of corruption (or even the appearance of corruption) that
it apparently fears. McCutcheon, 572 U.S. at 217–18 (plurality opinion). If Missouri
is concerned about the corrupting influence that money could play in connection with
Calzone’s advocacy, it can address this concern “through less problematic measures,”
Swanson, 692 F.3d at 876–77 (brackets and citation omitted), by, for example,
applying the unchallenged portions of its lobbying-disclosure law, see Mo. Rev. Stat.
§ 105.470(5)(a), (b), (d) (extending the registration requirement to individuals who
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are paid to lobby and to individuals who spend “fifty dollars or more” in a calendar
year to influence legislation).
The court bakes up an alternate theory by speculating that “[t]hough the
lobbyists may not be receiving money, unpaid lobbyists could still offer things of
value to legislators, creating a sufficiently important governmental interest in
avoiding the fact or appearance of public corruption.” Ante at 11 (emphasis added).
But Missouri already requires people who offer something of value to register. See
Mo. Rev. Stat. § 105.470(5)(d). So extending the registration requirement to people
like Calzone, who have not given anything to anyone, is unnecessary. “[M]ere
conjecture” cannot justify burdening First Amendment rights, Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 392 (2000), and neither the court nor Missouri offers us
anything more.
All that remains, then, is Missouri’s “important interest,” as the court puts it,
“in knowing who is pressuring and attempting to influence legislators . . . .” Ante at
11. But “pressuring and attempting to influence legislators,” id., is just another way
of describing core political speech, see Meyer v. Grant, 486 U.S. 414, 421–22 (1988)
(“[I]nteractive communication concerning political change . . . is appropriately
described as ‘core political speech.’”); see also McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 346 (1995) (“Discussion of public issues . . . [is] integral to the
operation of the system of government established by our Constitution. The First
Amendment affords the broadest protection to such political expression . . . .”
(citation omitted)); United States v. Fin. Comm. to Re-elect the President, 507 F.2d
1194, 1201 (D.C. Cir. 1974) (“Lobbying is of course a pejorative term, but another
name for it is petitioning for the redress of grievances.”). The court, like Missouri,
fails to explain why compiling a public list of people who are engaging in core
political speech is “important.”
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Indeed, the court’s decision in this case is in tension with McIntyre, which
recognized that the “decision to remain anonymous,” like the decision to speak itself,
“is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S.
at 342. To be sure, McIntyre involved anonymous handbills published in an attempt
to influence a referendum. But there, like here, the state attempted to justify its law,
and in particular the penalty it imposed on violators, based on an “interest” in having
the “electorate” receive what the state deemed to be “relevant information.” Id. at
348.
The Supreme Court rejected Ohio’s asserted transparency-related interest,
holding that “providing voters with additional relevant information does not justify
a state requirement that a writer make statements or disclosures she would otherwise
omit.” Id. at 348–49. So too here. Calzone engages in core political speech just like
the anonymous speaker in McIntyre, wants to retain control over his communications,
and objects to being forced to disclose the “content of [his] thoughts on . . .
controversial issue[s]” to the world. Id. at 355; see also Mo. Rev. Stat. § 105.473(12)
(requiring lobbyists to report all of the legislation they supported or opposed).
Even so, the court assures us that the burdens on Calzone are “minimal” or
“very slight.” Ante at 12. The court’s assurances, however, offer little comfort in
light of the “minimal” justifications and evidence that Missouri provides for
regulating the activities of individuals like Calzone. Moreover, the court’s
characterization understates the burden of complying with Missouri’s
lobbying-disclosure law.
Under the law, Calzone has to submit up to fourteen reports and to re-register
with the Commission each year. See Mo. Rev. Stat. § 105.473. The court says,
however, that these reports would be “eas[y]” for Calzone to produce because he has
no “expenditures related to his lobbying activities.” Ante at 13. But this argument
proves my point. Missouri cannot possibly have a greater interest in receiving blank
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reports than Calzone has in avoiding unnecessary paperwork, especially because
meeting Missouri’s technical filing rules is a legal requirement for exercising his First
Amendment rights and the penalties for noncompliance are steep. Mo. Rev. Stat.
§§ 105.478, 558.011(1)(5) (authorizing a punishment of up to four years in prison);
see also id. § 105.473(7) (setting a fine of up to $10,000 for employing an
unregistered lobbyist). The only thing “minimal” about Missouri’s
lobbying-disclosure law is the registration fee of $10, but even that is too high when
all Calzone wants to do is speak.
The completed puzzle here is more troubling than the sum of its parts.
Although Calzone presents an as-applied challenge, which prevents us from
considering other potential challengers to Missouri’s law, the scope of the law is far-
reaching. It does not appear to treat a member of a religious or civic organization
who has been “designated” to attend a “Lobby Day” any differently from Calzone,
who advocates on behalf of Missouri First. The law seemingly sweeps up all unpaid
political advocacy by anyone who acts on behalf of someone else, no matter how
often it occurs and regardless of its purpose.
By sweeping so widely, Missouri’s law endangers the free exchange of ideas.
Indeed, a political adversary, an unscrupulous government official, or even a
legislator tired of being held accountable could simply submit a complaint to the
Commission accusing a politically active citizen of lobbying—that is, speaking
out—without first registering as a lobbyist. It may just be simpler for a citizen to skip
a lobbying day or pass up the opportunity to call a legislator rather than having to
complete tedious paperwork or risk sizeable fines and criminal penalties.
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III.
Missouri’s lobbying-disclosure law, as applied to Calzone, does not withstand
exacting scrutiny. I would accordingly remand this case to the district court for
consideration of what relief, if any, Calzone is due.
______________________________
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