Deja vu all over again: Lobbyist fees unconstitutional?
Feb. 5, 2013 — How soon they forget. Georgia tried once before to charge hundreds of dollars for citizens to lobby state legislators, and a federal judge ruled it unconstitutional.
A parade of witnesses last week described a proposed $300-a-year lobbyist registration fee as an attack on their First Amendment rights. Some accused the bill’s author, House Speaker David Ralston, of retaliating against them for pushing ethics reform at the Capitol.
Even before a House subcommittee heard critics’ testimony, members announced a substitute bill was in the works to deal with their concerns. Rep. Rich Golick, the chairman, repeatedly assured activists that legislators would not restrict anyone’s First Amendment rights, and he seemed a bit hurt that anyone would think they would.
The proposed fee would apply to anyone, paid or unpaid, who wanted to lobby state or local officials on behalf of an organization.
Just two years ago, the state ethics commission was roundly criticized for an opinion that anyone who’s being paid — even nurses or pipefitters or architects given the day off work — must register as a lobbyist before buttonholing legislators at the Capitol. Legislative leaders chided the commission members, who said they were just applying the language in the law, for chilling citizens’ right to free speech.
But U.S. District Judge Marvin Shoob had reached a similar conclusion in 1995, when he enjoined the commission from collecting a $200 lobbyist registration fee. Shoob ruled that the agency’s two-tiered fee schedule — $20 for some non-profit groups, $200 for everybody else — violated the free-speech and equal-protection clauses of the U.S. Constitution.
In that case, the AFL-CIO challenged the higher fee, which the union said stymied its plan to send dozens of members to the Capitol:
Since plaintiffs are non-profit organizations, they cannot afford to register as many lobbyists as they would like due to the financial restraints placed upon them by the defendants. … The fee scheme is unconstitutional as it gives the State Ethics Commission unbridled discretion as to which organizations it may provide a tax exemption status to for registering lobbyists.
Georgia law at the time allowed non-profits organized under sections 501(c)(3) and 501(c)(4) of the IRS code — essentially religious, charitable, educational and civic groups — to pay the nominal $20 fee to register their lobbyists. The union, though, was organized as a 501(c)(5), the designation for labor, agricultural and horticultural organizations.
At the time, state law defined a lobbyist as anyone who was being paid “to promote or oppose the passage of any legislation by the General Assembly, or any committee thereof, or the approval or veto of legislation by the Governor.” Union members fell under that definition, Shoob found, because the unions compensated those who took the occasional day off work to lobby elected officials.
Shoob also ruled that the fees generated tens of thousands of dollars more than it cost the commission to run the lobbyist registration and disclosure program:
[D]efendants have not justified the $200 fee to union members, who are infrequent lobbyists and apparently do not file extensive disclosure reports. The record indicates that most of the administrative costs are attributed to tracking disclosure reports, not processing registration applications. As a result, the Act unfairly burdens plaintiffs’ First Amendment rights. For these reasons, the Court concludes that the fee provision of the Act violates the First Amendment.
The two-tiered structure also violated the 14th Amendment to the U.S. Constitution, which guarantees equal protection under the law, Shoob found:
Defendants apparently attempt to justify the fee differential on the grounds of the state’s interest in benefiting organizations that have a charitable or educational purpose and that use their funds for the good of the public at large. However, the state cannot burden the First Amendment rights of certain individuals to accomplish this interest. While the government may grant charitable and educational organizations a tax exemption or may subsidize them directly from the public fisc, the government may not burden the exercise of the fundamental rights of a distinct group of people in order to benefit charitable and educational organizations by shifting the cost of administering the registration and disclosure program through a preferential fee structure.