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Federal Court Enjoins Illinois Hike In Fees For Lobbyists, Partly on Establishment Clause Grounds

By Howard M. Friedman

In American Civil Liberties Union of Illinois v. White, 2009 U.S. Dist. LEXIS 119476 (ND IL, Dec. 23, 2009), an Illinois federal district court issued a temporary restraining order and preliminary injunction against enforcement of Illinois amended Lobbyist Registration Act. At issue were large increases in registration fees that were scheduled to go into effect January 1.
ACLU alleged that the portion of the registration fee diverted to the Illinois General Fund and other amounts in excess of the cost of administering the statute are an unconstitutional tax on speech. It also claimed that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination as well as a violation of the Establishment Clause. (See prior posting.) Finding that the federal Tax Injunction Act does not divest the court of jurisdiction over the suit, the court held that the ACLU had demonstrated a reasonable likelihood of success on the merits:

[T]he ACLU has proffered figures derived from public records showing that the LRF has run an approximately $ 100,000 surplus for the last two fiscal years, during which the Secretary collected lobbyist registration fees one-third as large as the fees authorized in the Amended Act. .... These surpluses suggest that the Secretary may be unable to show that the three-fold increase in the lobbyist registration fee adequately relates to the costs of administering the Amended Act....

Moreover, on its face the statute appears to privilege religious over non-religious speech. The ACLU is therefore also likely to prevail on its claim that the Amended Act's exemptions for religious organizations and the newsmedia impermissibly discriminate against the ACLU based on the content of its speech. Indeed, by only exempting religious speakers who are "full-time employees of a religious organization" and who speak to the legislature about "protecting the right of the members [of that organization] to practice the religious doctrines of that church or religious organization" the statute also requires another content-based determination focused on religious speech.....

The ACLU's likelihood of success on its establishment clause challenge is equally plain..... On its face the content based determinations discussed above require the state to set the boundaries of a religious organization's exempt advocacy by inquiring into what the doctrines of a church or religious organization are and how the lobbying activities promote them. Requiring such an examination is likely to violate the establishment clause by fostering excessive government entanglement in religion....

Full post as published by Religion Clause on December 25, 2009 (boomark / email).