By Jeffrey Gould
Vice President & General Counsel, The Saint Consulting Group
There is an increasing trend across the nation to expand the definition of lobbying to include grassroots efforts to organize people to support or oppose land use development projects. Many states, counties, and municipalities now require registration and onerous disclosures for efforts that should be protected under the First Amendment’s constitutional right to petition. Petition is the right to ask government at any level to right a wrong or correct a problem. The U.S. Supreme Court has affirmed that the right to engage in such activity is a fundamental liberty, protected against encroachment by federal, state and local governments.
Lobbying restrictions such as registration and disclosure requirements are constitutional because they do not effectively prevent exercise of the right to petition. Yet the Court has not affirmatively recognized lobbying as a constitutionally protected activity anchored in the petition clause. Whether a lobbyist, as a paid agent, stands in the same position as a citizen requesting government consideration is increasingly unclear. The Court has recognized the right to freely associate and take collective action as inherent in lobbying, but it has not highlighted the unique role petitioning plays in such activities. And with the expansion of the definition of lobbying to include grassroots efforts in zoning and land use matters, the clash between lobby laws and land use petitioning is inevitable.
For example, the New York State Lobbying Act includes in its definition of “lobbying,” any attempt to influence the adoption or rejection of any rule, regulation, or resolution having the force and effect of a local law, ordinance, resolution or regulation. This would include citizens who support or oppose zoning bylaw changes at the municipal level, and even citizens who show up at local public hearings on applications for permits and variances, so long as it is a county or town that has a population of 50,000 or more and the expenditures exceed $5,000.
Maryland also expressly includes within its lobbying act grassroots efforts by individuals, groups, organizations that spend $2,000 or more for the purpose of soliciting others to communicate with any official to influence any legislative or executive action. This would include grassroots efforts to mobilize citizens for or against zoning changes and development permits.
Similarly, Hawaii defines “lobbying” as communicating directly or through an agent, or soliciting others to communicate with any official in the legislative or executive branch, for the purpose of attempting to influence legislative or administrative action or a ballot issue. This too would include grassroots efforts to mobilize citizens for or against zoning changes. These state lobby laws present significant legal issues as to the constitutionality of such proscriptions of what otherwise is protected petitioning activity under the First Amendment. And many cities, counties and towns have followed suit.
Nashville, for example, has a municipal ordinance that prohibits grassroots efforts to organize citizens for or against development projects, without first registering as a lobbyist and making onerous disclosures as to where the funding is coming from and where and why it is being spent. Serious constitutional and other legal concerns are raised by these kinds of laws, and soon the courts and legislatures will be called upon to resolve the inherent conflict between overly expansive lobby laws and constitutionally protected land use petitioning rights. Lobby laws need to be revised to ensure that they continue to serve their important purposes – avoidance of corruption or the appearance of corruption arising from paid lobbying – while also preserving and encouraging legally protected political expression and petitioning activities.
Serious constitutional questions exist as to whether certain actions by citizens who show up at a municipal hearing to express their support or opposition to a land use development project should be considered lobbying or whether, even if so, application of a registration requirement is warranted or reasonable under these circumstances. Any effort to apply the lobbyist registration law under these circumstances would impose extensive and unwarranted burdens, chill the expression of protected speech, and interfere with citizens’ rights to petition the government.
The legal and practical questions confronted by a person or board charged with enforcing the lobbyist registration laws, are significantly complicated by the broad statutory definitions of “lobbyist” and “lobbying.” There are few court rulings offering meaningful guidance on the proper scope or application of the relevant statutory terms. There are few or no opinions, rulings or regulations that would fairly alert people that their support or opposition to a land use development project required them to either register or face enforcement action. Nor is there any evidence that legislatures intended the lobbyist registration laws to apply in these circumstances.
Uncertainty flowing from the broad definition of the operative statutory terms, as well as lack of interpretive guidance clarifying the proper scope and application of lobby laws, raises additional constitutional concerns. Perhaps most significant is the intolerable risk of chilling constitutionally protected petitioning activity and political expression by ordinary citizens. Without clarification, many lobbying registration laws could be applied in a manner violating fundamental First Amendment rights of free speech and petitioning.
Legislative guidance on the proper scope of the lobbyist registration laws would greatly benefit the public when it comes to zoning and land use development. It would also help the dedicated public servants who are responsible for enforcing those laws. They must do so now, without adequate statutory guidance, and with little or no common law authority.
Jeffrey Gould is Vice President and General Counsel for The Saint Consulting Group, email firstname.lastname@example.org phone 781.749.7290 Ext. 7115