X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The National Association of Manufacturers isn’t shy about its policy positions. The trade group blasts out regular e-mails calling for free trade, a boost in domestic energy production, and reduced taxes on business But stay away from its membership list. Last week, NAM filed a lawsuit challenging new lobbying and ethics reform rules that would require it to disclose the group’s membership, raising some rare First Amendment issues in the process. At a press conference announcing the suit last week, NAM President John Engler said the new rules have “a very profound chilling effect on our members” and violate the First Amendment rights to freedom of association and to petition the government. Members of Congress said the provision was meant to expose backers of what they described as “stealth lobbying coalitions” — those mustering grass-roots support for policy initiatives that are in reality backed by businesses and special interests that don’t want their involvement or financial contributions made public. It was part of a movement to make lobbying more transparent to the public in the wake of corruption scandals such as the Jack Abramoff scandal. Meredith McGehee, policy director of the Campaign Legal Center, a nonpartisan group that monitors money in politics, says that according to the law, members must only be disclosed if they “actively participate in the planning, supervision, or control” of lobbying activities. She says it’s a limited definition that will pass constitutional muster. “This is a question of secrecy versus sunshine, in terms of letting the people have an idea when significant financial resources are being spent to influence policy in Washington,” McGehee says, adding that the center’s lawyers are reviewing the case and that the center is likely to weigh in. NAM filed the suit, National Association of Manufacturers v. Taylor, in the U.S. District Court for the District of Columbia, against the District’s U.S. attorney, Jeffrey Taylor; Secretary of the Senate Nancy Erickson; and Clerk of the House of Representatives Lorraine Miller. NAM is requesting a preliminary injunction so it doesn’t have to disclose a membership list on April 21, the deadline under the new law. NAM’s attorneys say this is the first challenge to the Lobbying Disclosure Act since it was passed in 1995. ON THE LIST The new provision requires associations to disclose the name, address, and principal place of business of member companies contributing more than $5,000 per quarter toward lobbying activities and meeting the participation-in-lobbying test. NAM’s attorneys, Jan Baran and Thomas Kirby of Wiley Rein and NAM general counsel Jan Amundson, argue that Congress can’t force private associations to disclose their members, and NAM has a policy of not doing so. NAM says its constituency — manufacturing companies — is clear, and offers some examples on its Web site of companies with employees in leadership positions. For instance, members of the group’s executive committee openly list affiliations with Dow Chemical Co., DuPont, and Sony Electronics Inc., among others. The new rules are too broad and too vague about what involvement in lobbying activity is enough to trigger disclosure, NAM says, and the law carries harsh criminal penalties for noncompliance. NAM also says the provision doesn’t even effectively force stealth backers of lobbying to disclose their involvement, because individual people who join organizations aren’t subject to disclosure, only corporations. NAM, together with the U.S. Chamber of Commerce and the American Society of Association Executives, sent a letter to the secretary of the Senate late last year, requesting guidance on how the provision would be applied. The Senate issued guidelines, NAM’s Amundson says, but they weren’t specific enough to settle the question to NAM’s satisfaction. And Amundson says the organization had to move quickly because the law went into effect Jan. 1, the disclosure deadline was looming, and NAM needed to give the court enough time to act on its request for a preliminary injunction. In December, NAM officials decided to go ahead with the lawsuit. Although NAM briefed other associations, including the Chamber, Engler says NAM filed on its own because “it’s a little easier for a lawyer to have a single client.” Asked whether the Chamber would join the suit, spokesman John Reid said in an e-mail that the group “is still examining the new rules.” He added, “As for the NAM lawsuit, we had heard it was in the works, and our counsel is interested in reading the NAM arguments.” Other associations have voiced concerns. Jeffrey Altman, a partner at McKenna Long & Aldridge, says some groups don’t mind disclosing, but he has clients who are “not planning lobbying activities that they otherwise would plan. They’re not raising money from supporters and donors that they otherwise would raise.” NAM says that if it reveals its membership list, members could be targeted for retribution by protesters, boycotted, picketed, and even sued if NAM takes an unpopular lobbying stance. That threat could inhibit member participation, NAM says. But some members of Congress and lobbying watchdogs say the public has a right to know more about who is lobbying. Stephen Krupin, deputy press secretary to Senate Majority Leader Harry Reid (D-Nev.), who sponsored the bill in the Senate, said in an e-mail responding to questions about the suit that the provision “mandates appropriate public disclosure” in a way “fully respectful of all petitioners’ First Amendment rights.” FREE EXPRESSION? First Amendment experts say the case could push an undeveloped area of First Amendment law into the spotlight. The Supreme Court has affirmed that corporations have at least limited First Amendment rights, they say. Experts also cited the Court’s ruling in NAACP v. Alabama in 1958, which said the NAACP didn’t have to turn lists of members over to the state. Still, the members in that case were individuals, and disclosure would likely have put them in physical jeopardy — compelling reasons against disclosure. “I don’t know that there is any freedom-of-association case law .�.�. other than disclosing the identity of individuals,” says Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia. Having looked at NAM’s filings, O’Neil calls the case “novel,” and says it deals with “a relatively unfamiliar, infrequently litigated issue.” Ronald Collins of the First Amendment Center for Responsive Politics says that in NAACP v. Alabama, the state couldn’t show a compelling interest for requiring the information, and the association had a strong First Amendment case for keeping it private. This case is a little different, he says, and even though petitioning the government is a protected First Amendment right, “any time you have a situation where there’s real potential for corruption of the legislative process, certainly the government can act.” The government has a right to regulate lobbying, and other disclosure requirements have stood. For instance, lobbyists must disclose how much they are paid and the issue on which they lobby. Still, because associations with individual members rather than corporate members don’t have to disclose membership lists under the provision, that disparity could prove NAM’s strongest argument, Collins says. “Why is the interest so much greater in one case than in the other?” he asks. That’s the kind of question that only gets answered in court.
Carrie Levine can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.