From the Arguments in NAM v. Taylor, the Lobbying Lawsuit
Friday, September 12, 2008Quentin Riegel, NAM’s Vice President, Litigation, and Deputy General Counsel was at today’s oral arguments in NAM v. Taylor, the association’s lawsuit challenging the “affiliated organizations” provision of Honest Leadership and Open Government Act of 2007. His report follows:
Tom Kirby of Wiley Rein argued on behalf of the NAM today in the U.S. Court of Appeals for the D.C. Circuit in our challenge to Section 207 of the Honest Leadership and Open Government Act of 2007, which requires the NAM and other organizations with lobbyists to disclose the names of certain members who actively participate in its internal lobbying discussions and related activities.
The panel consisted of Judges Karen LeCraft Henderson, Doug Ginsburg and Merrick Garland. Each side was given 15 minutes. Kirby spent much of his time describing how the statute is unconstitutionally vague and imposes “a virtually impossible burden” on the NAM with the possibility of criminal sanctions for violations. Criminal statutes must be clear so that potential defendants know how to comply. He explained the difficulty of knowing how a government prosecutor will evaluate intent to violate the statute since there is no objective bright-line rule defining “active participation” in lobbying activities. It is impossible to know whether the intent of a member company is to engage in efforts in support of lobbying contacts when that company’s employees participate in NAM meetings, teleconferences or other activities. The vagueness of the statute is particularly problematic for an organization like the NAM that holds over 100 meetings a month and that has nearly 11,000 companies as members. The statute produces strong pressure to over-report, and the NAM cannot tell its members what kinds of activities will or will not qualify as active participation.
Judge Garland asked about the exception for listing the entire membership on an Internet site, but Kirby explained the confidential nature of the NAM’s membership, and the problems of complying with the alternative, which requires quarterly disclosure of different lists of members depending on the level of participation and whether dues or similar amounts are paid during the quarter. He said that the statute produces a “patchwork and virtually random” disclosures that do not satisfy any compelling governmental interest. There is no more central interest in the First Amendment that the statute infringes upon: the efforts of people to engage in petitioning the government for redress of grievances.
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