A federal appellate court will hear arguments Friday in a challenge to part of the new lobbying disclosure rules that could have broad implications for the regulation of the influence industry.
If the three-judge panel on the U.S. Court of Appeals for the D.C. Circuit rules in favor of the challenge -- brought by one of the nation's largest industry groups, the National Association of Manufacturers -- it could set a higher judicial standard of review for lobbying rules and threaten some existing lobbying reporting requirements.
"If a higher standard were to be set, that would certainly call into questions a lot of lobbying laws," said Tara Malloy, an associate counsel with the Campaign Legal Center, which filed a brief urging the court to uphold the new rules. "It would be troubling."
The case centers on a specific provision of the Honest Leadership and Open Government Act of 2007 that requires private associations to list the name and identifying information of active members contributing more than $5,000 a quarter toward lobbying.
NAM argues that this requirement violates constitutionally-protected first amendment rights. "It is radically untailored, needlessly burdening long-standing groups when its target is the short-term secret of ad-hoc coalitions," lawyers for the organization wrote in a brief.
Though the case itself is narrow, NAM's argument asks the judges to define the legal standard of review a court must give any regulations on lobbying. What that means is that if the court requires a stricter review, the government will have a greater burden to prove the constitutionality of any new lobbying regulations. And because many earlier rulings on lobbying have relied on a less strict standard, those laws could face renewed challenges.
"This is one of the rare opportunities for the courts to delve into the extent to which government can regulate this constitutionally protected activity," said Jan Baran, an election law attorney representing NAM.
The district court judge sided with the government at the trial court level, but NAM appealed.
The government argues that the disclosure is hardly a burden and "serves the undeniably compelling interests of promoting sound governance and improving public confidence in elected officials," Justice Department lawyers wrote in a brief. "And the provision is narrowly tailored to serve those interests: it applies only to organizations, not individuals; it exempts passive contributors from disclosure; and it requires the identification only of organizations that spend substantial sums on lobbying."
The lobbying industry remains a relatively closed world to the public. Following the boom of lobbyists in the 1980s and 1990s, Congress passed a major piece of legislation, the Lobbying Disclosure Act, in 1995. For the first time that law required all lobbyists spending more than 20 percent of their efforts influencing legislation to disclosure who had hired them. But those disclosures did little to stop some of the more rampant corruption among members of Congress, their staff and lobbyists, which erupted in the public sphere in a series of criminal cases over the past few years.
In the wake of the cases against Jack Abramoff, former Rep. Duke Cunningham (R-Calif.) and others, Congress passed a new bill in 2007 increasing lobbying disclosure requirements, including listing what money lobbyists raised for lawmakers.
But whatever the ultimate outcome, it will come a bit too late for NAM, which was forced to release its membership this spring.