Kimball v. Hooper

KIMBELL_V_HOOPER.94-180; 164 Vt 80; 665 A.2d 44

[Filed 04-Aug-1995]


  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-180


Stephen W. Kimbell & Robert S.                    Supreme Court
Sherman, d/b/a Kimbell & Sherman,
et al.
                                                  On Appeal from
    v.                                            Washington Superior Court

Donald M. Hooper, Secretary of                    November Term, 1994
State, and Jeffrey L. Amestoy,
Attorney General

Alan W. Cheever, J.

Charles F. Storrow of Kimbell & Storrow, Montpelier, for plaintiffs-appellants

Jeffrey L. Amestoy, Attorney General, and Phillip J. Cykon, Assistant
  Attorney General, Montpelier, for defendants-appellees


PRESENT:  Allen, C.J., Gibson and Morse, JJ. and Peck, J. (Ret.) and
  Jenkins, Supr. J., Specially Assigned




       MORSE, J.    Plaintiffs, professional lobbyists, appeal a declaratory
  judgment of the Washington Superior Court ruling that Vermont's lobbying
  disclosure law is not so vague or overbroad as to violate Articles 13 and
  20 to Chapter I of the Vermont Constitution or the First Amendment to the
  United States Constitution.  We affirm.

       Vermont has regulated the lobbying profession since 1939.  See 1939,
  No. 240 (An Act Requiring Legislative Counsel and Agents to Register During
  Session of the General Assembly). The lobbying disclosure law under
  scrutiny today became effective in 1990.  See 1989, No. 160 (Adj. Sess.);
  see also 2 V.S.A. §§ 261-268 (the Act).  In general, the 1990 Act requires
  lobbyists to register with the Secretary of State and to report
  expenditures related to their efforts to influence legislation.  Nothing in
  the Act as enacted or amended prohibits lobbying or attempts to censor
  particular messages or points of view.

 

       Plaintiffs have not been charged with a violation of the Act, nor have
  they expressed their intention to violate its provisions; rather, they
  facially challenge the 1993 amended definitions of the terms "Expenditure"
  and "Lobbying" found in 2 V.S.A. § 261 (5) and (9).(FN1)  These amendments
  require lobbyists to report a broader spectrum of lobbying efforts, such as
  research and other preparatory work and indirect contacts to influence
  legislators.  Because plaintiffs 

 

  facially challenge the Act, we have no factual context in which to
  evaluate its constitutionality. Plaintiffs also challenge the addition of §
  266(3), which, among other things, prohibits lobbyists from contributing to
  political campaigns of members of the General Assembly while the
  legislature is in session.(FN2)
 
                                      I.

       Without doubt, lobbying implicates First Amendment guarantees of
  petition, expression, and assembly, as well as similar rights found in the
  Vermont Constitution.(FN3)  See United States v. Harriss, 347 U.S. 612, 625
  (1954).  The United States Supreme Court, however, has never defined the
  scope of these rights.  See generally Thomas, Easing the Pressure on
  Pressure Groups:  Toward a Constitutional Right to Lobby, 16 Harv. J.L. &
  Pub. Pol'y 149 (1993).

       Plaintiffs make numerous arguments that essentially contend the Act
  sweeps too broadly because, in their view, Harriss  and United States v.
  Rumley, 345 U.S. 41 (1953), provide that
         
 

  a state's legitimate interest in regulating lobbying extends only to
  regulation of direct communications with government officials.  The Act
  requires lobbyists to report expenses for activities that take place
  outside the presence of legislators or that are less directly related to
  influencing legislation person to person contact with a member of the
  General Assembly.  We do not agree, however, that Harriss and Rumley so
  narrowly limit a state's reach.

       In Rumley, 345 U.S.  at 47, the Court construed "lobbying" -- undefined
  in the Federal Regulation of Lobbying Act of 1946 -- to mean
  "representations made directly to the Congress, its members, or its
  committees."  The Court construed the term narrowly to avoid deciding the
  constitutional question presented there, not to define the limits of a
  state's interests in regulating lobbying activities.  See id. at 46-47
  (Court abstained from constitutional adjudication); see also Harriss, 347 U.S.  at 623 (construing similar language narrowly to avoid constitutional
  doubts).

       Provisions that reach "indirect" lobbying activities beyond the
  parameters found in Rumley and Harris are not, as plaintiffs would urge,
  necessarily unconstitutional; in fact, the Court intimated in these cases
  that Congress could require more stringent reporting.  See Harriss, 347 U.S.  at 620 ("If the construction urged by the Government is to become law,
  that is for Congress to accomplish by further legislation."); Rumley, 345 U.S.  at 47 (if Congress wished to extend reach of statute, it would have
  used more explicit language).  Indeed, even the Court's narrowest
  construction of "lobbying" included indirect lobbying efforts:

     We believe this language should be construed to refer only to
     "lobbying in its commonly accepted sense" -- to direct communication with
     members of Congress on pending or proposed federal legislation.  The
     legislative history of the Act makes clear that, at the very least,
     Congress sought disclosure of such direct pressures, exerted by the
     lobbyists themselves or through their hirelings or through an artificially
     stimulated letter campaign.

       Harriss, 347 U.S.  at 620 (emphasis added).  Consequently, plaintiffs'
  argument that the Act goes beyond the narrow construction of direct
  communication given lobbying in Harriss and Rumley brings us only to the
  threshold of analysis.  The question then is whether Vermont's lobbying law
  is not focused enough -- narrowly tailored -- and sweeps within its
  coverage protected

 

  expressive and associational values.

       We begin by noting that lobbying disclosure laws are not subject to
  the same strict scrutiny as laws that impinge on pure speech.  Broadrick v.
  Oklahoma, 413 U.S. 601, 612-13 (1973); Note, The First Amendment
  Overbreadth Doctrine, 83 Harv. L. Rev. 844, 920-21 (1970) (characterizing
  lobbying regulation as "remedial," and "remedial element in disclosure laws
  which generate information of relevance to a democratic public").  Laws
  regulating such political activities in a neutral, noncensorial manner will
  be stricken as overbroad only as a last resort.  Broadrick, 413 U.S.  at
  613.  The Supreme Court stated, in upholding a federal act restricting
  federal employees' partisan political activities, that

     facial overbreadth adjudication is an exception to the traditional
     rules of practice, and its function, a limited one at the outset,
     attenuates as the otherwise unprotected behavior that it forbids the State
     to sanction moves from "pure speech" toward conduct . . . .  [P]articularly
     where conduct and not merely speech is involved, we believe that the
     overbreadth must not only be real, but substantial as well, judged in
     relation to the statute's plainly legitimate sweep.

  Id. at 615.  Thus, claimed flaws must be of a substantial concern in
  the context of the statute as a whole before we will invalidate the
  statute.  Cf. Id. at 616 n.14.  Because this is a facial overbreadth
  challenge to a law that does not regulate any particular message or point
  of view and which does not block access to the political process, we
  believe that the Act is not substantially overbroad.  For the reasons
  discussed below, we conclude, as the Court did in Broadrick, that any
  impingement on the First Amendment may be addressed on a case-specific
  basis.  See id. at 615-16.

       In part, we decide not to strike the Act as overbroad on its face
  because lobbying disclosure laws are supported by several compelling
  interests.  One important governmental interest in requiring disclosure of
  lobbyist information is protecting the integrity of the governmental
  process: 

     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.

  Harriss, 347 U.S.  at 625.  The United States Supreme Court has
  referred to this interest as "vital," id. at 626, and has held similar
  governmental interests sought to be vindicated by disclosure requirements
  to be of sufficient magnitude to counterbalance infringements on First
  Amendment rights.  Cf. Buckley v. Valeo, 424 U.S. 1, 66-67 (1976) (per
  curiam) (interests in aiding voters in evaluating candidates, in deterring
  corruption and appearance of corruption, and in recordkeeping to detect
  violations of contribution limits); see also Montana Automobile Ass'n v.
  Greeley, 632 P.2d 300, 303 (Mont. 1981) (compiling cases where compelling
  interests found to support disclosure requirements).
 
       Plaintiffs accurately describe in their brief why the government has
  an interest in regulating communications with lawmakers.  They acknowledge
  that

     lobbying involves considerably more than direct contacts with
     legislators and executive branch officials . . .  Lobbying often entails .
     . . considerable amounts of research, extensive meetings with clients and
     others, preparation of materials, the formation of "coalitions" with others
     who have similar interests, the inculcation of good will on the part of
     legislators and executive branch officials, participation in talk shows,
     and the sending of letters to newspaper editors. . . . .

         The modern day realities of the legislative and administrative
     processes are such that more often than not it is impractical, if not
     impossible, for any single individual or organization that is not devoted
     almost exclusively to political activity to have any meaningful impact on
     those processes.  Rather, in order to successfully cause state government
     to do something (or not do something, as the case may be), one must first
     have a good command, by way of extensive research, of the technical and
     substantive issues involved in the particular subject under consideration. 
     Given the complexity of many of the subjects to which state government now
     devotes its attention, such as health care reform, this is no small task. 
     However, even a good understanding of the particular subject matter is not
     enough.  In addition one must know the intricacies of the process, know all
     the players in the process (and, to a certain extent, the nature of their
     personalities) and last, but not least, understand the role of and be able
     to advantageously utilize the media and other third parties to influence
     the process.  These are the skills that one must have in order to
     successfully petition state government.

   (Emphasis added.)

 

       If these "background activities," most of which would fall underneath
  our statute's definition of lobbying, are necessary to reasonably
  effectuate the right to petition, then reporting them is no less imperative
  than reporting direct contacts.  Properly evaluating the governmental
  process, and the influence lobbyists bring to bear upon it, implicates
  indirect as well as direct communication and activities needed to get the
  message across.

       Finally, in determining that the Act does not exceed its "plainly
  legitimate sweep" by requiring disclosure of "background activity" costs,
  we consider whether the Act is narrowly tailored to accomplish its purpose. 
  As the United States Supreme Court has said, "Disclosure requirements . . .
  appear to be the least restrictive means of curbing the evils of campaign
  ignorance and corruption."  Buckley, 424 U.S.  at 68.   Similarly, Vermont's
  lobbyist disclosure law is a reasonable means of evaluating the lobbyist's
  influence on the political process. Plaintiffs have not specified any
  particular burden or deterrent effect imposed by the law, other than that
  the restrictions have a "chilling effect" that "will, for whatever reason,
  reduce the likelihood" that a person would petition the government.  
  Plaintiffs, however, do not object to the most chilling aspects of
  disclosure laws because they concede that a compelling public interest
  exists for requiring lobbyists to register and disclose who they represent
  and what they are lobbying for.  Without a factual record of specific
  enforcement measures to prevent anyone from influencing legislators, we
  cannot gauge the extent of the "chilling effect" resulting from the
  reporting of mere financial matters.  See id. at 68-72 (substantial
  interest in disclosure of campaign contribution outweighed generally
  alleged harm; while disclosure may even expose contributors to harassment
  and retaliation, factual showing required to invalidate disclosure
  requirement).  The mere fact that First Amendment rights are implicated
  does not mean those rights are burdened.

       Plaintiffs imagine various scenarios where the legitimate reach of the
  Act may be tenuous, and where expenditures bear little correlation to the
  State's interest in disclosure.  Yet, a law will not be declared
  unconstitutional on its face on the basis that it might be

 

  unconstitutionally enforced under speculative circumstances.  Cf.
  State v. Cantrell, 151 Vt. 130, 133-34, 558 A.2d 639, 641-42 (1989)
  (recognizing, in criminal case, exception to standing rules where statute
  involving First Amendment freedoms is challenged on vagueness grounds). 
  Laws are to be interpreted in a reasonable way to avoid constitutional
  overreaching; imagined situations are not sufficient to undermine the Act's
  constitutionality.  See State v. Whitchurch, 155 Vt. 134, 140, 577 A.2d 690, 693 (1990) (probation conditions will be stricken on facial attack
  only if they cannot be justified by any set of circumstances); see also
  Commission on Independent Colleges and Univ. v. New York Temporary State
  Comm'n on Regulation of Lobbying, 534 F. Supp. 489, 497 (N.D.N.Y. 1982)
  (courts should not strain to find unconstitutional applications, or base
  overbreadth on other than proven overreaching).  Plaintiffs' hypothetical
  situations do not persuade us to invalidate the Act, and we will not
  address them individually.   Cf. Harriss, 347 U.S.  at 626 (even assuming
  disclosure deters petition of government in hypothetical borderline
  situations, such deterrence results from self-censorship and is too remote
  to strike statute).  Plaintiffs' war with the disclosure law must wait
  until they can focus an attack on a specific dispute.

                                     II.

       Vermont's lobbying disclosure law is also sufficiently definite to
  survive a "void-for- vagueness" challenge.  The vagueness doctrine, closely
  related to the overbreadth doctrine, is based on the rationale that persons
  should not be "chilled in their exercise of constitutional rights because
  of their fear of criminal sanctions."  Commission of Independent Colleges
  and Univ., 534 F. Supp.  at 502.   A statute is void for vagueness when it
  "either forbids or requires the doing of an act in terms so vague that
  [persons] of common intelligence must necessarily guess at its meaning and
  differ as to its application."  Zwickler v. Koota, 389 U.S. 241, 249 (1967)
  (citiation omitted); see also Rutherford v. Best, 139 Vt. 56, 60, 421 A.2d 1303, 1306 (1980) (due process requires that person have fair warning of
  what conduct is prohibited).  Even under these standards, however, fears of
  prosecution must be based on reasonable interpretations of

 

  the statute in question, see Commission of Independent Colleges and
  Univ., 534 F. Supp at 502 (court could not find that lobby law was designed
  to reach "any sort of indirect activity which might ultimately impact upon
  the governmental decision-making process") (emphasis in original), and a
  statute need not detail every circumstance that would amount to a
  violation.  Id.  As the Wisconsin Supreme Court has said:

     The lobbyist himself must first decide whether an expenditure made is
     one which comes within the class of those which must be reported, and in a
     sense he may be required to speculate when making his report whether any of
     his expenditures do so.  But that is true of nearly all prohibitory
     legislation. . . .  It is not required that a statute be so elaborate in
     its detailed specifications as to meet every possible state of
     circumstances that may arise under it.

   State v. Hoebel, 41 N.W.2d 865, 867 (Wis. 1950).

       Plaintiffs give two reasons to strike down the law under this test. 
  According to plaintiffs, guidelines issued by the Secretary of State
  acknowledge the inherent vagueness of the act, and the term "research" as
  found in the definition of "Expenditure" is so indefinite as to defy
  reasonable definition.

       The Secretary of State's guidelines, however, are sensible
  interpretations of the law's straightforward requirements.  For example, 2
  V.S.A. § 261(9)(C) defines lobbying as "an attempt to obtain the goodwill
  of a legislator . . . intended ultimately to influence legislative . . .
  action."  While pointing out that "`[g]oodwill lobbying' is difficult to
  define in the abstract," the Secretary's guidelines provide lobbyists with
  sensible criteria for distinguishing between personal friendships and
  lobbying:  "Social contacts constitute `goodwill lobbying' whenever a
  person is paid more than $500 to lobby on behalf of another and the
  lobbyist is compensated for a social contact, is expected to maintain a
  social relationship for the purpose of furthering the employer's interests,
  or is reimbursed for expenses related to a social activity which includes a
  legislator or an administrative official."  (Emphasis added).

       A general regulation such as the lobbying law here may not appear
  vague at all when applied to a specific context.  A lobbyist who taking key
  legislators to an expensive dinner to

 

  talk about a pending bill is a sufficiently concrete situation to pass
  the rigors of definiteness. Paying for the meal, even if the lobbyist did
  not sit with the legislative leaders, is also definite. Of course, because
  plaintiffs brought this case as a facial challenge, we have no specific
  context to test the Act's constitutionality.

       Plaintiffs also quibble with the Act's definition of "Expenditure." 
  Section 261(5) defines "Expenditure" to include "sums expended in
  connection with lobbying including research," and plaintiffs argue that
  "research" -- undefined by the statute -- is too vague a term.  Plaintiffs
  rely solely on Montana Automobile Ass'n, 632 P.2d  at 309 in which the
  Montana Supreme Court found the term "original and derivative research" too
  vague to apprise lobbyists of the extent of their duty to report.  We
  disagree with that conclusion.

       Requiring that every term in a statute be defined would be an
  impossible burden.  "A regulation need not define a given term or detail
  every nuance of its meaning in order to comply with constitutional
  requirements."  Clymer v. Webster, 156 Vt. 614, 636, 596 A.2d 905, 918
  (1991).  The term "research" is sufficiently clear to put a person of
  ordinary intelligence on notice that reporting of research expenditures is
  required; it is commonly understood by students in school, lawyers, and,
  undoubtedly, by lobbyists.  Webster's New International Dictionary 2118
  (2nd ed. 1961) defines research as "Careful or diligent search; a close
  searching; . . . studious inquiry or examination; specifically and usually,
  critical and exhaustive investigation or experimentation having for its aim
  the discovery of new facts and their correct interpretation, the revision
  of accepted conclusions, theories or laws . . .."  See also Brody v.
  Barasch, 155 Vt. 103, 111, 582 A.2d 132, 137 (1990) ("Statutory  language
  that conveys a definite warning as to proscribed conduct when measured by
  common understanding and practices will satisfy due process.").

                                    III.

       Lastly, plaintiffs argue that the ban on soliciting and making
  contributions to individuals' political campaigns is overbroad.  See  2
  V.S.A. § 266(3).  Limitations on campaign

 

  contributions that burden the contributor's freedom of association are
  not forbidden so long as "the State demonstrates a sufficiently important
  interest and employs means closely drawn to avoid unnecessary abridgement
  of associational freedoms." Buckley, 424 U.S.  at 25.
  
       The Federal Election Campaign Act of 1971 under scrutiny in Buckley
  limited political contributions to candidates for federal office.   In
  addition to an overall annual limitation of $25,000 in contributions by
  individual contributors, individuals and groups were limited to
  contributions of $1,000 and political committees to contributions of $5,000
  to any one candidate per election.  Id. at 13 and n.12.  The Court
  justified these limitations in the interest of avoiding actual or perceived
  improper influence stemming from large campaign contributions.  Id. at 26-
  27.

       If anything, the restrictions in § 266(3) are less burdensome than the
  dollar limits upheld in Buckley, and do not compare to the total
  prohibition held unconstitutional in Fair Political Practices Comm'n v.
  Superior Court, 599 P.2d 46, 59, 157 Cal. Rptr. 855, 862 (Cal. 1979), cert.
  denied, 444 U.S. 1049 (1980).  Section 266(3) sets no overall limits.  It
  functions solely as a timing measure, banning contributions to individual
  members only while the General Assembly is in session.  The Act does not
  prohibit contributions to political parties during session, only those to
  individual legislators.  Consequently, the limited prohibition focuses on a
  narrow period during which legislators could be, or could appear to be,
  pressured, coerced, or tempted into voting on the basis of cash
  contributions rather than on consideration of the public weal.  The
  legislature has chosen a narrowly drawn measure to avoid a serious
  appearance of impropriety, and we see no reason to strike that measure
  down.
  
       Affirmed.
                                        FOR THE COURT:



                                        ______________________________
                                        Associate Justice



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                               Footnotes


FN1.  The definitions in issue are:

  (5)   "Expenditure" means a payment, distribution, loan, advance,
  deposit, or gift of money or anything else of value and includes a
  contract, promise or agreement, whether or not legally enforceable, to make
  an expenditure. "Expenditure" includes sums expended in connection with
  lobbying including research, consulting and other lobbying preparation and
  travel, meals and lodging. 

  * * * * 

  (9)   "Lobby" or "lobbying" means: 

       (A) to communicate orally or in writing with any legislator or
  administrative official for the purpose of influencing legislative or
  administrative action; 

       (B)   solicitation of others to influence legislative or
  administrative action; 

       (C)   an attempt to obtain the goodwill of a legislator or
  administrative official by communications or activities with that
  legislator or administrative official intended ultimately to influence
  legislative or administrative action; or 

       (D)   activities sponsored by an employer or lobbyist on behalf of or
  for the benefit of the members of an interest group if a principal purpose
  of the activity is to enable such members to communicate orally with one or
  more legislators or administrative  officials for the purpose of
  influencing legislative or administrative action or to obtain their good
  will. 

  (10)   "Lobbyist" means a person who engages in lobbying for
  compensation of more than $500.00 or expends more than $500.00 lobbying in
  any calendar year.

  2 V.S.A. §§ 261(5) and (9) (emphasis added to indicate 1993 amendments).


FN2.  It shall be prohibited conduct:

       * * *

       (3) when the general assembly is in session, until adjournment sine
  die, for a legislator or administrative official to solicit a political
  campaign contribution as defined in 17 V.S.A. § 2801 from a registered
  lobbyist or registered employer or for a registered lobbyist or registered
  employer to make or promise a political campaign contribution to any member
  of the general assembly or any member's campaign committee.

  2 V.S.A. 266(3).



FN3.  "Congress shall make no law . . . abridging the freedom of
  speech, or of the press; or the right of the people peaceably to assemble,
  and to petition the Government for a redress of grievances."  U.S. Const.
  amend. I.
       "The people have a right to assemble together to consult for their
  common good -- to instruct their representatives -- and to apply to the
  Legislature for redress of grievances, by address, petition or
  remonstrance."  Vt. Const., ch. I, art. 20.
       "The people have a right of freedom of speech, and of writing and
  publishing their sentiments, concerning the transactions of government, and
  therefore, the freedom of the press ought not to be restrained."  Vt.
  Const., ch. I, art. 13.
       Plaintiffs have not argued that the Vermont Constitution means
  anything different than the federal counterpart; consequently, we address
  their First Amendment argument only.