Updated 5:15 p.m.
A federal appeals court today in Washington, ruling unanimously in favor of greater transparency in government, upheld the constitutionality of a reform law that requires associations to publicly disclose certain members who are active participants in lobbying.
The National Association of Manufacturers, a regular lobbyist on issues that include global warming and nuclear power, challenged the constitutionality of the Honest Leadership and Open Government Act of 2007 in a suit filed last year in the U.S. District Court for the District of Columbia.
Among other things, lawyers for NAM argued that membership disclosure requirements would discourage some members from participating in public policy initiatives. The suit was dismissed. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today upheld the dismissal. Click here for the opinion.
In the opening lines of the 48-page opinion, written by Judge Merrick Garland, the court points to a Supreme Court case in 1954 that said the public disclosure of individuals who are trying to influence legislation is "vital" national interest.
“Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge,” Garland wrote in today’s opinion, which was joined by Judges Douglas Ginsburg and Karen LeCraft Henderson.
Wiley Rein partner Thomas Kirby, who argued for NAM, declined to comment on the opinion. A Justice Department Civil Division attorney, Nicholas Bagley, argued for the government. The D.C. Circuit heard the case last September.
At issue in the case is a provision that requires an association to identify any member who pays more than $5,000 quarterly to “actively participate” in the planning and supervision of lobbying activities. The name, address and principal place of business must be disclosed.
NAM, which has more than 11,000 corporate members, lost its effort to temporarily halt the law from taking effect and have had to disclose member names while the challenge was pending. In April 2008, U.S. District Judge Colleen Kollar-Kotelly denied NAM's motion to stay pending appeal in the D.C. Circuit.
Garland wrote in the opinion that the amendments to the law do not “prohibit lobbyist from saying anything, It requires only disclosure.” Garland said in the opinion that NAM has not produced any evidence suggesting that public affiliation with NAM has led to a substantial risk of threats.
Legal and factual uncertainty could make civil and criminal enforcement of the law a challenge, the appellate court suggested. Criminal sanctions apply only if the government proves a violation was committed “knowingly and corruptly,” a high standard. “Hence, NAM need not hedge its associational activity for fear that good faith mistakes will result in criminal liability,” the appeals court wrote.
There was no immediate decision about whether NAM is planning to challenge the D.C. Circuit decision, NAM spokesman Hank Cox said. Cox said NAM was disappointed by the ruling.
"We still don't understand why organizations that are exercising their First Amendment rights to provide vital facts and viewpoints to Congress should be subjected to
complicated, vague disclosure requirements that tend to discourage the
sharing of information," Cox said. "Public debate is not served by today's decision. We will give careful consideration to our next step over the next three months.
Tara Malloy, associate legal counsel for the Campaign Legal Center, heralded the D.C. Circuit ruling. "Today’s decision is a huge victory for sunlight on our political process," Malloy said in a statement. The D.C. Circuit, Malloy said, "rightly found that the law was a reasonable measure to ensure 'transparency in government' which “remains a vital national interest in a democracy.”