Legal Commentary

Court Temporarily Blocks Increased Fees for Lobbying in Illinois, Partly Based on the Exemption for Certain Kinds of Religious Groups

By Eugene Volokh

The ACLU of Illinois ? the lead plaintiff ? summarizes the issue thus:

Illinois recently raised the registration fee for lobbyists from $350 to $1,000, for each person who lobbies, and for each organization that employs such a person. Thus, for a non-profit organization that employs one lobbyist, the registration fee has jumped from $700 to $2,000. The ACLU of Illinois, with two full-time legislative advocates, must now pay $3,000. In this regard, Illinois is an anomaly: in 42 states, the lobby registration fee is $150 or less for a non-profit group and its lobbyist employee; and in the other 7 states, that fee is less than $365. The federal government charges no lobby registration fee at all. Moreover, Illinois exempts from this fee media organizations, and certain lobbying by religious groups.

Here?s what the court said last week, in granting a temporary restraining order (to see the citations, look at the linked-to court decision):

While the ACLU must show that it has a reasonable likelihood of success on the merits, it is the Secretary?s burden affirmatively to ?establish the reasonable fit? between the Levy and the costs of administering the activities covered by the Amended Act. To date, the Secretary has offered only conjuncture in support of his position that the Levy is reasonably related to the costs of administering the Amended Act. By contrast, the 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. And whether the Secretary will eventually be able to do so, he has not done so yet. The fact that the Secretary has so far failed to carry his burden and the reasonable likelihood that he will fall short of carrying his burden at trial establishes that the ACLU has a reasonable likelihood of success. Accordingly, the court finds that the ACLU has sufficiently shown that it has a reasonable likelihood of success on the merits of its challenge to the size of the Levy.

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. To pass muster under the establishment clause, the court must find that the Amended Act (1) neither advances nor inhibits religion, (2) has a secular legislative purpose, (3) does not foster an excessive government entanglement with religion. 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.

The text of the revised statute is here. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on December 29, 2009 (boomark / email).