Saturday, September 5, 2009

Citizens United v. Federal Election Commission And The Connection To Florida And Florida Lobbyists

The Supreme Court will hear oral argument (again) in Citizens United v. Federal Election Commission (08-205) this coming Wednesday, September 8, 2009.   The schedule for the 80 minute argument can be found here, courtesy of the SCOTUS Blog.  The case was previously discussed on this blog here.  The SCOTUS Wiki page provides all of the briefs, the amicus filings, etc.  Lyle Denniston at the SCOTUS Blog published his argument preview yesterday which can be found here.

Besides the impact any Supreme Court case has on Florida,  and the amicus brief filed in Citizens by a number of states including Florida, there is a petition pending before the Supreme Court challening Florida's lobbying disclosure laws that in large part relies on its hope the Court will strike the challenged portions of the Bipartisan Campaign Reform Act of 2002.  The case, Florida Association of Professional Lobbyists, Inc., et al. v. Division of Legislative Information Services of the Florida Office of Legislative Services, et al. (09-154),  has some history.  The case was filed in the Leon County Circuit Court, but removed to the Northern District of Florida (Case No. 06-00123-CV-4-SPM-WCS).  Northern District Judge Stephen Mickle ruled in favor of the State and the decision was appealed to the Eleventh Circuit [Published at 2006 WL 3826985 (N.D. Fla. Dec. 28, 2006) and a preliminary order published at 431 F. Supp. 2d 1228 (N.D. Fla. 2006)].  On April 23, 2008, the Eleventh Circuit released its first published opinion [published at 525 F.3d 1073 and can be found here] and phrased the issue as follows:
In this case, we are asked to assess the constitutionality of legislation enacted by the Florida Legislature that regulates legislative and executive lobbying in the State of Florida. The Florida Association of Professional Lobbyists, Inc., et al., (“Plaintiffs”) assert that the legislation — Chapter 2005-359, Laws of Florida (“the Act”) — is facially unconstitutional under both the Florida and United States Constitutions.
On appeal, Plaintiffs raise four issues. Three involve questions of state constitutional law: (1) whether the Act violates Florida’s separation of powers doctrine; (2) whether the Act was improperly enacted under the Florida Constitution; and (3) whether the Act infringes upon the Florida Supreme Court’s regulatory authority over the practice of law. The fourth issue involves a question of federal constitutional law: whether the Act is unconstitutionally vague or overbroad.
The Eleventh Circuit certified the three state law issues to the Florida Supreme Court, which issued its decision in favor of the State of Florida on March 19, 2009 [Docket Number SC08-791, published at 7 So. 3d 511 and can be found here].  The Eleventh Circuit affirmed Judge Mickle, also ruling in favor of the State of Florida, with regard to the Federal constitutional issue.  The Eleventh Circuit held:
We conclude that the Act does not violate due process standards about vagueness. For instance, it clearly provides that an expenditure — which is separately defined in sections 11.045(1)(d) and 112.3215(1)(d) — is unlawful only if it is made by a lobbyist or principal and accepted by a government official. Contrary to Plaintiffs’ suggestion, the Act cannot reasonably be read to bar all expenditures for lobbying purposes (for example, a cab fare to the capitol). Instead, it only bars those lobbying expenditures that are accepted by a government official. See Fla. Stat. §§ 11.045(4)(a), 112.3215(6)(a) (stating that “no lobbyist or principal shall make, directly or indirectly, and no member or employee of the legislature” nor any “agency official, member, or employee shall knowingly accept, directly or indirectly, any expenditure” (emphasis added)). In a similar way, we do not regard the term “indirect” as vague: a person of common intelligence would understand that it applies to expenditures or compensation paid through a third party.
Because the First Amendment allows required reporting of considerably more than face-to-face contact with government officials, we decline to invalidate the Act on its face as substantially overbroad. See Meggs, 87 .3d at 461.  Instead, we leave “whatever overbreadth may exist [to] be cured through case-bycase analysis of the fact situations to which [the Act’s] sanctions, assertedly, may not be applied.” Broadrick, 93 S. Ct. at 2918.
After the Florida Supreme Court answered the certified questions (see above), on May 7, 2009 the Eleventh Circuit released its opinion affirming the district court [Published at 566 F.3d 1281 and found here].   The May 7, 2009 Eleventh Circuit opinion led to the lobbyist's petition for certiorari to the United States Supreme Court [The petition is hosted by the Miami Herald].  Page 13 of the petition sums it up: "If the Court overturns Austin and McConnell, in Citizens United, this would undermine the Eleventh Circuit’s decision to uphold both the disclosure requirement applicable to grassroots lobbying and the wholesale prohibition of direct and indirect gifts."

I am sure the lobbyist's will be one of the first to access the audio from the Citizens oral argument, which the Supreme Court has announced will be released "as soon as possible following the conclusion of the oral argument."


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