Anonymity and Its Dubious Relevance to the Constitutionality of Lobbying Disclosure Legislation
Forthcoming in Lobbying Symposium issue, Stanford Law & Policy Review (2008)
In 1995, Congress adopted a significant reform of federal lobbying disclosure legislation, the Lobbying Disclosure Act to replace the 1946 Federal Regulation of Lobbying Act. It has amended the LDA twice since, first in 1998 and most recently in 2007 (the latter as a result of the lobbying scandals most commonly associated with Jack Abramoff.) The Supreme Court has dealt with the constitutionality of lobbying disclosure only once—in 1954, tersely rejecting First Amendment objections, but otherwise giving little guidance with regard to the constitutionality of mandatory lobbying disclosure. As a consequence, commentators focusing on repeated attempts by Congress to enact effective lobbying disclosure law have analyzed the constitutionality of proposed and enacted legislation on the assumption that the relevant case law is the Court’s jurisprudence dealing with the First Amendment in the campaign contribution disclosure context and in other areas where the Court has found a protected interest in anonymity for the speaker. After reviewing that caselaw, this article attempts to demonstrate that the constitutional interest in anonymity should not be considered a restraint on Congress’s ability to adopt lobbying disclosure legislation, though other burdens imposed by such legislation, e.g., the economic cost to comply with the law, may raise First Amendment issues. The underlying premise is that lobbying communications between members of the public (and their representatives) and federal legislators and administrators occur in a context quite different from the public sphere of speech where the Court has adopted various protections for anonymity in order to insure a full-bodied debate on issues of public policy. The article then applies its analysis to various provisions of the Honest Leadership and Open Government Act of 2007, exploring the constitutionality of the most significant amendments to the LDA.