Untitled Texas Attorney General Opinion ( 1973 )

March13. 1973
Honorable Charles F.,Herring, Chairman
Senator JurisprudenceCommittee
Senate of the State of Texas
Austin, Texas
Opinion B-18
Re: Constitutionalityof House
Dear Senator Herring: Bill 2
Your letter of February 22, 1973 requested our opinion as
to the constitutionalityof H.B.2, called the Lobby Control
Act, particularlywith respect to the rights of petition and
free speech.
Basically, X.D.2 provides in Sections 3 through 5 for reg-
istration of those engaged in efforts to influence legislation
or administrativeaction; for activities reports by those re-
quired to register, and for a State Ethics Commission to inves-
tigate violations of the act, render advisory opisions, and to
advise other State officess of violation.
Although the Legislature undoubtedly has the right to so
provide for the registrationof those engaged in efforts to di-
rectly influence legislativeor executive action, and to require
such registrants to furnish relevant information,the classifica-
tions of persons covered and of the information sought must be
reasonable, so as not to improperly infringe upon Fzrst Amend-
ment rights. and must not be so vague as to violate the concept
of due process. The path to be taken, and much of the ground
to be avoided, was shown by the Supreme Court of the United
States in United States v.-Harriss; 347 U.S. 812, 98 L. Ed. 989,
74 S. Ct. 800 ttiePedexd i@ulation of Lobby-
The legislationlpprwed in Harris8 was oonstrued by the
Court to cover those who solioit,nt, or receive money or
other things of value to directly influence legislation,or who
engage agents to do so. In our opinion, the regulatory scheme
of H.B.2, requiring registration also of those who a end money
or other things of value to directly influence legis at ve or
-;pr
administrativeaction, is equally pennissable. In selecting mon-
etary parameters for such regulations, the Legislature is in-
vested with brosd discretion so long as the selection is rea-
sonable.
p. 85
Honorable Charles F. Herring, Page 2 (H-18)
We further are of the view that the Legislaturemay
reasonably classify the persons to be covered in terms of
amounts of money or other things of value solicited, ool-
lected, received or spent by themselves or by their paid
or reimbursed agents to directly influence legislativeor
executive action. We do not believe, however, that it is
constitutionallypermissible to attempt regulation of grass
roots lobbying activities or campaigns of public persuasion
which do not in themselves amount to direct governmental
contacts. Awakening public concern about an issue is gener-
ically different from personally attempting to directly af-
fect governmental action.
Applying the above discussed general principles to the
legislationat hand, we conclude that Ii.B.2is oonstitutional
in many of its aspects, but not all.
Persons Covered
In the context of this Bill and its purpose, the forced
registration of those who make expenditures "to solicit other
persons by an advertisingaampaign to ooamanicate directly
with members of the legislativeor executive branch to in-
fluence legislationor administrativeaction" goes too far,
we think, and amounts to an improper burden on free speech.
We do not believe the Courts would find a compelling state
interest in the regulation of such activities. Cf. U.S. v.
Bsrrims, supra; U.S. v. Rumely, 345 U.S. 41, 97 L.Ed.73
ti43 (19'53)rEastern Railroad Conference v. Noerr Motor
Prei ht, 365 U.S. 121 5 L Ed Zd 464 81 S Cf 523 (1961)
flimk. Button, 371 6.S. il5; 9 L.Ed: 2d 4;5,'83 S.Ct. 32;
NAACP v. Patty 159 F. Supp. 503 (E.D. Va., 19581,
vaaatd on ocher groun&s, sub nom, Harrison V. NMCT, 360
U.S. 167, 3 L. Ed. 2d 1152, 79 S.Ct.2025 (1959).
We cannot say that excmpptingfrom registrationrequire-
ments those who expend less than $150.00 per quarter, or any
other reasonable figure, to influence legislation is unconsti-
tutionally discriminatory,because the purpose of the Bill is
to identify substantial interests which directly seek to influ-
ence legislativeor administrativeaction. In the political
world, there is a readily ascertainedcorrelation between
the value of interests to be protected snd the amounts of
swney ordinarily 8pubt ia attempting to protact them. Such
legislativedimtinotioas follow a pattern 8et by the Federal
Election Campaign Act, 2 U.S.C. SS431, 432, et seq., and the
Texas Campaign Enpenditur8 Law, Article 14.04, Texa8 Election
Cod..
p. 86
? .
Ronorable Charles P. Herring, Page 3 (H-18)
There are other coverage problems. We believe the exemp-
tion of legielative and executive officers 8nd employees from
the class of salaried persons required to register, without
exempting those attached to the judicial branch, places a bur-
den upon the judiciarywhich amounts to an encroachmentupon
the constitutionalprerogativesof that branch, and cannot be
sustained. Article 2, 91, Texas Constitution:State Board of
Insurance v. Bett8, 308 S.W.2d 846 (Tex. 1958).
Cartain other exemption8 allowed by Section 4 make dis-
oriminationsbased upon the identity of the actor rather than
upon the character of the act. Certain news people, .lawyers
and cleric8 are not required to register, though others en-
gaged in 888entially identical actioitie8 must. Such cla8-
sifioationsappear unreasonable in the context of.the Bill's
purpo8e, and for that reason, 8eem to violate the Equal Pro-
tection Clau8e of the Fourteenth Amendm8nt to the Federal
Constitution,Reed v. Reed, 404 U.S. 71, 30 L.Rd.?d 225, 92
S. Ct. 251 (1971)s Cf. AttOln8y Generai Opinion R-15 (1973).
Vagueness
Vagueness in a statute is oftsm a fatal vice, and while
the courts have &xaet&nea..toleratedlea8 praoise language in
lobby regulatory legi8lation than they might otherwise do (Cf.
U.S. v. Harri88, supra), there are still limits which must be
observed. Texas Liquor Control Board v. Attic Club, 457 S.W.
2d 41 (Tex.-I910).
InClUded in the definition Of nP 8r 8On*
88tout in Section
2 of the Bill, in addition to individual8, Corporations, aeso-
oiations, firms, partnership8, committaes, clubs, or other
organizations,is the further designation, "Or group of persons”.
The designation is not limited to those persons voluntarily
acting in concert, or otherwise intentionallylending their
presence to an identifiable combination, and it is difficult
to determine whom the Bill intend8 to subject to it13provision8
by that designation.
Scme of the disclosures required by the %ctivity Report"
that registrantsmust periodically file appear overly broad and
perhaps impomible of performance. The identifioationof
"other regi8trant8 ” reoeiving benefits from the registrant, for
in8t8ne8, 18 not tid in any way to expenditures or effort6
intended to directly influmce legislative or administrative
action. Th8 requimmnt that measuree.privatelysupported
b8 revealed, as we&l 88 those supported through direct govern-
mental oontaat, is too broad. Nor can.8n unrelatd regis-
p. 87
Honorable Charler,P. fluxing, Page 4 (Ii-18)
trant be made criminally re8ponsible for reporting the activ-
itiee_-of_otherrr! And, certainly the regietrant cannot rea-
8onaBly be t8gulred to report expenditure8by others (even it8
employees) unlese they wue made on its behalf and with its
express or implied oonsent, or which it ratif:ad.
PeIlalti88
The p8nalty prwisio~ of the Bill require attention.
Insofar ss lper8oM* ar8 legal entitie8, w8 be&me the Leg-
islature say comand that they be convicted of crimes com-
mitted in that capacity, as8uming the proper procedural
machinery i8 made available. Cf. Ralph WilIiams Gulfgate
Chrmler Plymouth Inc. v. State, 466 8 W 26 639 (Tex. Civ. App.,
IIouston-14th 19/l, writ ref., n.r.e.1$*&orate Criminal Lia-
24 S.W. L.J. 93 (1970JtCorporate Criminal L.abllity
, 47 T.L.R. 60 (1968)7 Attorney General Gpinfom
k-969) and V-491 (1948). In Attorney General.Opinion
M-348 (1969) it was concluded that though aorporationemight
be convicted of crimes, partierships and associationscould
not be 80 convicted. That opinion overlooJcedthe "entity.
character of partner8hips in Texas today [See Texa8 Uniform
PartnershiuAct, Art. 6132b. V.T.C.S.. and 8uah ca8es as
U.S. V. A i $ Tkoking Co.,-358 U;S. i21, 3 L.Bd.2d 165,
758S.Ct. 203 (1958)) Our reexamination lead8 to 8 diff8rent
wnclu8ion. We be&v8 partnership8 can be mad8 liable for
oriminal conduct.
But the Bill does not presently provide the necessary pro-
CedtUal d8ViCe8. Cf. Article 698c, Section8 8-13, and Article
6986, 88CtiOn8 7-12, V.T.P.C. Moreover, limiting the nwn-
etary penalty for filing false informationto $l,OOO.OO for
individualviolator8, and authorizing a fine of $lO,OOO.OO
against,corporateoffenders, but providing no penalty for
guilty non-corporateentities is, we believe, violative of
the Equal Protection Clause of the Fourteenth Amendment of
the Conlrtitutionof the United States.
Ethics Comnission
Lastly, the Bill'8 provi8ions setting up a State Ethic8
Ccemission are for all practical purposes identical with those
di8ous8ed in AttOXiI8y Gen8ral Opinion B-15 WnCerning H.B. 1,
tha athi Bill, and we refer you there for our commentary on
tho8e pasiages.
Xonor8bl8 Charles P. Herring, Page 5 (H-U))
SUMMARY
The Legislaturemay require registra-
tion by those who 8pend money or other things
of value to directly influence legislativeor
adminirtrativeaotion (and by the agent8
thereof) and may reaclonsblyadopt regiatra-
tion Wquirements ba8cd on amount8 80 spsnt.
The forced regirrtrationof tbo8e who
merely make exp8nditure8 to SOliCit others
adVerti8ing o8mpaign8, etc., to aommioate
3 reotly with member8 of the 8xecutive or leg-
i8lative brenohes impsnhiesiblyburden8 the
right of fre8'8p8Wh im the centut sd the
propoeed legislation.
The omission of judicial personnel from
those governmentaloffioers and employee8
ex~pt8d tram registration r8quir8ment8 when
lotiw officially is impermirsibl8.
Arbitrsry discriminationsamong persons
8itilUly 8itU8tad and engaged in 888entially
identical.activitie8are constitutionally
prohibitcrd.
Vagu8 definition8 and reporting require-
ments should b8 Wrr8cted to avoid overbreadth.
Criminal penalties must not be imposed on
an arbitrarily 8eleotive basis and a special
procedural baa18 must be establi8hed ta effect
the conviction of legal entities other than
natural pamona.
Very tray
.
Y-8,
C&nor81 of Texas
p. 89
Honorable Charles F. Herring, Page 6 (H-18)
APPROVED:
rl
p. 90