Federal Judiciary

NAM seeks to protect lobbying partners

By Akin Gump Supreme Court Practice Group

The National Association of Manufacturers on Monday afternoon asked Chief Justice John G. Roberts, Jr., to temporarily bar enforcement of a new federal lobbying law designed to force public disclosure of donations to the trade group’s lobbying by its members — including major corporations.  In an emergency application (NAM v. Taylor, et al., 07A848), the Association asked Roberts for an injunction against the law and a temporary stay, pending its appeal of a federal judge’s ruling upholding the new disclosure mandates.  (The application is not yet available for download, but will be posted promptly when it is.)

In filings in its unsuccessful challenge in lower courts, the NAM has argued that the new law — specifically, Section 207 of the Honest Leadership and Open Government Act of 2007 — will chill its members’ right to lobby Congress and could lead to “boycotts, political pressure, shareholder suits, or other forms of harassment” for supporting such “hot-button topics…as global warming, nuclear power, or labor relations.”

U.S. District Judge Colleen Kollar-Kotelly dismissed the NAM’s First Amendment challenge on April 11, and followed up on April 18 with a denial of the group’s plea for a stay of her ruling pending appeal and an injunction against Section 207’s enforcement against anyone covered by that law.  The judge mildly scolded the NAM for waiting almost five months after President Bush signed the law before starting its court challenge.  The judge concluded that the law “is narrowly tailored to serve compelling government interests, and is neither vague on its face nor as applied to the NAM.”

A three-judge panel of D.C. Circuit Court in a brief order on Monday refused the same requests for emergency relief, saying that the trade group “has not satisfied the stringent standards required” for such relief.  (The texts of Judge Kollar-Kotelly’s two opinions and the Circuit Court’s order can be found at this link provided by the Campaign Legal Center — a group that opposes the NAM challenge. The opinions and orders are also available on those courts’ websites for those with PACER accounts.)

In passing the new lobbying disclosure requirements, Congress intended — according to the bill’s sponsors — to close “a loophole that has allowed so-called ’stealth coalitions,’ often with innocuous-sounding names, to operate without identifying the interests engaged in the lobbying activities.”

The law applies to “affiliates” of groups that have registered with Congress to engage in lobbying. For any entity that contributes $5,000 or more in any three-month period, if that entity “actively participated” in the registered group’s lobbying activities, the identity of the donor/participant — name, address and principal place of business — must be publicly disclosed.  Reports are to be made quarterly; the first one was due on Monday.

The Chief Justice has the option of acting on the new application alone, or of sharing it with his colleagues on the Court.  No action is likely until after a response has been filed by those sued by the NAM — the U.S. attorney in Washington, Jeffrey A. Taylor, and officers of the U.S. Senate and U.S. House of Representatives.

Full post as published by SCOTUSBLOG on April 21, 2008 (boomark / email).