Supreme Court of the United States

In Re: Pub.L. B.227 (The Independent Congress Lobbying and Reform Act)

Case No. 16–14, 100 M.S.Ct. 120

The Chief Justice delivered the opinion of the Court, joined by taterdatuba and SancteAmbrosi, JJ.

Before us is a challenge to The Independent Congress and Lobbying Reform Act (“ICLR Act”), signed into law by President WaywardWit on May 25, 2016. The ICLR Act seeks to limit the influence of professional lobbyists, by preventing those who have worked in that capacity from engaging in campaign fundraising on behalf of lawmakers, and by preventing those who have engaged in fundraising from becoming registered lobbyists.

The Petitioner challenges the ICLR Act on several grounds, arguing primarily that it is a violation of lobbyists’ First Amendment right to free speech.

The primary form of the ICLR Act’s restrictions comes in preventing registered lobbyists from fundraising on candidates’ behalf, or from those who have engaged in fundraising from then becoming registered lobbyists. Again, though, it is unclear just how this infringes upon the free speech rights of either group.

I

We will first consider the provision that prevents those who have previously engaged in certain specific service to the government from subsequently working as lobbyists. ICLR Act §7 (hereinafter “Section 7”).

In every case where a law was struck down as violating this provision of the First Amendment, the government has attempted to put some specific restrictions on who may speak, and more often what they may speak about. We have always looked far more dimly on restrictions of speech that are based on content rather than some other factor. We have also recognized the particular importance of speech in the political arena. See, e.g., Buckley v. Valeo, 424 U. S. 1, 14 (1976) (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”).

In order to evaluate the ICLR Act’s constitutionality, of course, we must look at what exactly it does. Section 7 bars anyone who has been a Member of Congress (or their staff), certain members of the Executive (including President, Vice President, Cabinet Secretary, et al.), or member of the federal judiciary from subsequently serving as a registered lobbyist.

One need only return to the language of the First Amendment to see that such a distinction is anathema. As relevant here, it says simply that “Congress shall make no law … abridging the freedom of speech.” While volumes upon volumes have been written, both in court opinions and the broader scholarly literature, about this one phrase, it is always best to start with first principles. We have recognized that even corporations retain the right to this freedom. First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 (1978). In addition, this Court has struck down laws that attempted to prevent speech based on its content (e.g. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000)) or the nature of the speaker (Bellotti, supra).

But this is not what the ICER Act does. After all, nothing in the ICLR Act prevents anyone from contacting his or her representative to air their grievances or concerns. Nor does it prevent a corporation or advocacy group from hiring lobbyists. Granted, it may prevent a specific choice of lobbyist, but the First Amendment guarantees “freedom of speech,” not an organization’s choice of one specific speaker over another. This is an important distinction, and one that often gets lost in the judicial shuffle. A corporation’s whole purpose is to be an entity separate from its shareholders, in order to reduce the risk born by those investors. But a corporation may not have it both ways: it defies logic to suggest that a corporation may hold itself as separate from the human beings that form it when it comes to, say, tort liability, but to then say that the corporation’s rights are equivalent to those of its human constituents when it comes to other areas.

Petitioner seems to in essence be arguing for two standards of First Amendment protection: one for most people, and then a separate one for registered lobbyists. As pointed out by Chief Justice Rehnquist in the Court’s decision in United States v. National Treasury Employees Union, 513 U. S. 454, 490 (1995) (hereinafter NTEU), “[t]he ban [on honoraria] neither prohibits anyone from speaking or writing, nor does it penalize anyone who speaks or writes…” (Rehnquist, J., dissenting). Again, the ICER Act does not prevent any individual or corporation from speaking to Members of Congress or the government.

While we have in the past struck down restrictions on payment for speech, those cases are distinguishable from the present one. First, in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), this Court found that New York’s “Son of Sam” law could not be reconciled with the First Amendment. But this law made payment for certain kinds of speech (in this instance works by a convicted criminal describing his or her crime) be redistributed to someone else. In other words, only certain content received a financial penalty, and the law thus “impose[d] a financial disincentive only on speech of a particular content.” Id at 116 (emphasis added).

Petitioner also cites NTEU, but that case too is inapposite. NTEU arose from a law which made then-current federal employees (including Members of Congress and the Judiciary) ineligible to receive any payment for meeting with or speaking to outside groups that may wish to influence policy, as well as for published works. In striking down the law, this Court looked particularly at its wide reach (covering every federal employee on the General Schedule, for example), combined with the absence of any showing by the Government that there was sufficient evidence of wrongdoing or possibility of influence on all federal employees, as opposed to just those in management. However, the restriction from the ICLR Act is on very specific people in very specific circumstances, rather than the far broader applications (both in the people involved and the types of conduct) that we found unacceptable in NTEU. The ICLR Act only prevents paid lobbying by certain individuals, and has no bearing on broader speech. As explained above, the individuals covered by this law are free to contact their representatives just as anyone else. Finally, the Court in NTEU also relied on the limits in the extent to which the government may govern the speech of its employees, as set out in Pickering v. Board of Ed. of Township High School Dist., 391 U. S. 563 (1968). But Section 7 deals only with employment in specific roles post-government service, rather than on what may be said or written by federal employees.

It is not even entirely clear to what extent this restriction touches the First Amendment at all. It could easily be seen as more akin to qualifications for employment that already exist. Moreover, as the Government points out, federal law already restricts certain actions by former high-level employees, such as a two-year ban on any such employee “knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia), in connection with a particular matter…” 18 U.S.C. §207(a)(2). This Court previously upheld its provisions, noting that,

Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.

United States v. Hariss, 347 U.S. 612, 625 (1954). Petitioner does not ask us to revisit this issue, and it is difficult to distinguish the restrictions found there with those in Section 7.

II

We now turn to the other challenged provision, namely ICLR Act §4 (hereinafter “Section 4”). This portion of the ICLR Act bans any registered lobbyist from

(1) lobby[ing] a member of Congress for whom they engaged in campaign fundraising during the past three years[, or]

(2) engag[ing] in campaign fundraising for a member of Congress whom they have lobbied during the past three years.

While Section 7 changes little in terms of what individuals, companies, and the like may do, Section 4 has a much broader impact. In particular, it attempts to limit the degree to which certain people can engage in the election process. This must inherently be viewed more cautiously, but Congress instead drafted this section about as broadly as could be imagined.

This is especially true with Section 4(2), and it is this breadth that is, at least in part, fatal. A blanket ban on “fundraising” goes far beyond what is allowable under our reading of the First Amendment. First, the law does not define “fundraising,” and this could easily cover a wide variety of activities. For example, would informal activities, as simple as advocating in a social media post, be sufficient to be considered “fundraising”?

More to the point, this provision would prevent basic participation in the political process. While we recognize that registered lobbyists are subject to some greater restrictions on what they may do, by virtue of their employment, this does not mean that they forego all First Amendment protection whatsoever. As always, the Government’s interests must be balanced against those protections. It is of course easy to imagine the type of corruption that Congress sought to prevent: it is reasonable to worry that an Member of Congress would be more likely to listen to the concerns of an organization or corporation that has, in turn, helped him or her raise money to be elected.

But as we pointed out in NTEU, there must be at least some connection between the evils to be prevented and Congress’ method of doing so. Section 4(2) as it currently exists goes too far. Just as the law in NTEU, it creates a blanket provision that would cover far too many people without any concomitant benefit to the United States. There is little to suggest that someone making the transition from lobbying to fundraising would then be able to exert undue influence on a Member of Congress or any other official. This is especially true in light of Section 4(1), which is on the right side of causality. With Section 4(1) in place, Section 4(2) is at best redundant, but also goes far over the line in terms of impermissibly limiting speech. There is far too little corruption that may be prevented by Section 4(2) to outweigh the heavy burden on speech.

As is no doubt obvious, we do not find the same to be true for Section 4(1). Preventing a registered lobbyist from attempting to influence an official for whom he or she has recently raised money is a very different equation. The interest from the Government’s perspective is strong: it is easy to imagine the temptation for an official to give special weight to the concerns of those who have, in essence, helped him or her to attain their government position. It also gives those lobbyists undue influence in the form of threats to cut off that funding; this is especially dangerous when fundraising is now a constant process, and not just limited to campaign season. See, e.g., Conor Friedersdorf, “Constant Fundraising: The Other Campaign-Finance Problem,” THE ATLANTIC (April 18, 2012) (last accessed September 27, 2016).

For far too long, this Court and the other branches of Government have blinded themselves, willfully or otherwise, to the dangers of corruption in our political process. Congress of course must take care in how this is addressed, and cannot overstep what is permitted by the Constitution. But there is nothing to suggest that the First Amendment was ever intended to preclude any attempts to curtail undue influence. Indeed, it is the importance of the First Amendment that drives our decision today: if it is to have any meaning for our citizens, then the People, through their Representatives and Senators, must be able to guard themselves against those “special interests” who would “drown [them] out, Hopkinss, supra, that this Court warned about. We decline to adopt a double standard for some citizens (or organizations) and protect their speech to the exclusion of others’. Our Constitution views all equally.

For the foregoing reasons, we find that Sections 7 and 4(1) are permissible. Section 4(2) oversteps, however, and does not satisfy the balancing necessary. Moreover, there is little doubt that the law may stand even without Section 4(2) removed.

It is so ordered.

BSDDC, J., joined by AdmiralJones42, J., dissenting.

The Court upholds a law designed to prevent the abuse of the Government by a so-called privileged few — lobbyists. The profession’s very name evokes dread from many. And perhaps this class wields, as the Court proclaims, “undue influence” in Congress. But the fact remains that their influence is based on an ability to effectively petition the Government: a laudable and benign accomplishment.

It seems to me that lobbying is speech. And while lobbyists are paid for their speech, so too are writers, reporters, and spokespersons. Should the value of speech diminish simply because someone finds value in procuring it? I do not think it should. Getting paid to advocate for a cause does not change the nature of the individual’s action — it is speech entirely. A paid lobbyist’s purpose is no different from a private citizen when they climb the Capitol’s steps and approach the sovereign Congress’s doors. They both come to do the same thing: speak to their Government.

However, the Court upholds this law because the lobbyists’ speech is too influential. This law does not exist to prevent dangerous speech. It hopes to restrict, from what I can tell, conflicts of interest, where lobbyist may use their knowledge to gain influence. But it is important to remember that lobbyists have no votes in Congress — the singular authority to cast a vote on the House floor remains with our Representatives. And the Senate is still run by our Senators. If anyone is to blame for the illusory specter of undue influence it is politicians who give in to outside pressure. If Congress wants to restrict the influence of lobbyists it can do so through self-restraint, not by suppressing speech.

And this law does suppress speech which it sees as corrupting, but does so with such a broad brush that it certainly captures innocent speech. The law burdens a massive amount of liberty in an attempt to capture a more specific category of action, and does so without regard to the burden it creates. And yet, today, the Court declares that it “is not even entirely clear to what extent this restriction touches the First Amendment at all.” Yet the extent is great. “O, what men dare do! What men may do! What men daily do, not knowing what they do!” [1]

Speech liberates and emboldens the spirit of humanity. For speech can, like thunder, challenge the old-oak rafters of outdated thoughts, leveling entire buildings. It can sever a nation from its colonial parent, and give rise to an age of enlightenment. It can warm a tepid gathering into a million-person march that challenges segregation as their voices rise in a booming chorus. Speech can move hearts and obliterate towering mountains. And it can be as calm or as casual as a simple conversation in an elevator; a meeting in Senator’s office. It is how we communicate thought, and so to suppress speech is to suppress thought.

Any suppression of speech is suspect for this very reason. And so in the past we have said that the “[f]ear of serious injury alone cannot justify suppression of free speech and assembly.”[2] For fear is corrosive to a free society. After all, this Court feared the threat of Japanese-Americans and sanctioned their imprisonment. The military of Argentina feared dissidents and disappeared their own citizens. And “men feared witches and burnt women.”[3]

We can punish corruption where it exits, and we can shine light into the darker corners of our Government. But we can never suppress speech, and if we do we admit defeat. Banning speech is the coward governor’s last resort in a losing argument, for if you cannot beat them, ban them.

Congress cannot silence lobbyists because of their influence any more than they can regulate The New Deal because its readership is too broad. The Government may use hundreds of legislative tools to elevate the speech of those without influence, it may not silence others to even the playing field. In my opinion, a fearful Congress may not ban people from lobbying the Government for seven years, or for seven months, or for a single day, and I would hold this section of the law void because it is certainly repugnant to the Constitution.

I do vote to uphold sections of this law, including the disclosure requirements and the additional committee funding. Yet, I will not vote to uphold a statute which burdens the ability of people to address their representatives. If Congress feels that lobbyists hold to much influence, then Congress should stop being influenced by lobbyists. Just as the popularity of a law does not equate to validity, even the most admirable goal cannot be achieved by unconstitutional means. The Capitol’s doors can never be closed to discourse — regardless of who is speaking.

There is no avoiding it, the Court upholds a suppression of speech, allowing a timid Government to diminish free thought, because they both fear that lobbyists wield too much power. The Court missteps when it declares that nothing in the ICLR burdens speech, but instead only the “choice of one specific speaker over another.” This law forbids certain people from being paid lobbyists, it is their speech which is necessarily restricted by the law. The Court “decline[s] to adopt a double standard for some citizens . . . and protect their speech to the exclusion of others’.”

But, of course, that is the entire aim of this law. If you previously served in government you may not work as a lobbyist, you may not raise your voice. If you worked in government your speech is treated differently. The Court’s logic fails because the very act of restricting some people from lobbying requires the adoption of a double standard. Such an argument cannot be sustained in the face of First Amendment.

The law purportedly evens the metaphorical playing field through the suppression of speech, an action which may seem innocuous, but one that is entirely invasive. Destructive in nature and diminishing of thought, the suppression of speech is an action which eats at the very core of a free government, and like a cancer destroys society from the inside. Any infringement of this right is a stain on our Constitutional soul, for Congress may make no law abridging the freedom of speech. [4]

Or so I thought.

While I respect the thorough opinion of the Majority greatly, I would void Section 7 as well, and proceed to severability of the remainder, if possible. But as it stands I must dissent. I am thankful I have the ability to do so.

[1]William Shakespeare, Much Ado About Nothing, act IV, sc. 1.

[2] Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J. concurring).

[3] Id.

[4] See U.S. Const. amend I.