Apr 14, 2008 -- CQ Politics: NAM Will Appeal Court Ruling on Lobbying Law
By: Bart Jansen

The National Association of Manufacturers plans to appeal a federal court decision upholding a new lobbying law that will force the business group to disclose its members.

The trade association also will seek an emergency stay of the April 11 decision.

NAM sued Feb. 6 in an attempt to maintain the confidentiality of its 11,000 member companies, arguing that the law was unconstitutionally vague.

But U.S. District Court Judge Colleen Kollar-Kotelly, in a 57-page ruling, said the law was "narrowly tailored to serve compelling government interests and is neither vague on its face nor as applied to the NAM."

Quentin Riegel, the group's vice president for litigation, said NAM would ask U.S. District Court Judge Colleen Kollar-Kotelly "in the next day or so" for an emergency stay of the decision. The case is urgent because the law (PL 110-81) requires NAM to name its members in quarterly reports due April 21.

If the judge denies that request, both that action and the group's full challenge would then move to the U.S. Court of Appeals for the District of Columbia. Without a stay, even an expedited appeal could take six months for a decision.

"We're disappointed with it," Riegel said of the District Court decision. "There were a number of problems with the statute that we think were not well-justified in terms of her opinion."

The judge applied the toughest standard in reviewing the law's constitutionality, called "strict scrutiny." While NAM disagreed with her conclusions, watchdog groups that supported the law praised the decision.

"It's the highest threshold to look at a piece of legislation to see if it will survive," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Government, which filed a brief in the case. "It's hard to believe this whole piece of legislation falls when there's already been lobbying disclosure for years."

The law, however, allows umbrella groups such as NAM to avoid filing more detailed reports by listing all members that merely participate in lobbying on their Web site. No disclosure is required if the client "is listed on the client's publicly accessibly Internet Web site as being a member or contributor to the client, unless the organization in whole or in major part plans, supervises, or controls such lobbying activities," the law states.

"There is a more streamlined way for them to proceed over the next couple of days," said Tara Malloy, a lawyer with the Campaign Legal Center, a group that filed a brief in the case opposed to NAM. "They could simply post it on their Web site and they wouldn't have to go through a more formal registration provision."

Riegel said NAM has not yet decided what it will do if the stay is denied.

The lobbying law requires the manufacturers association and other umbrella groups to disclose every member that contributes at least $5,000 to lobbying efforts during a quarter and "actively participates in the planning, supervision or control of such lobbying activities."

NAM, which fields about 35 lobbyists, challenged the law as too vague, saying it fails to define how much active participation is required to meet the disclosure threshold.

"The challenged provision subjects core First Amendment speech, petitioning and association to burdensome and intrusive requirements expressed in vague and sweeping terms that carry the possibility of substantial criminal and civil penalties," argued NAM's attorney, Thomas W. Kirby.

Failing to report the information carries penalties up to $200,000 and five years in prison.

Government lawyers insisted that knowing who is lobbying the government is crucial for lawmakers to assess those appeals. Jeffrey A. Taylor, U.S. attorney for the District of Columbia, said the law closed a loophole that allowed groups to avoid disclosure.

Senate Secretary Nancy Erickson and House Clerk Lorraine C. Miller said the disclosure "sheds light on the organized interests that expend significant funds in trying to influence the legislative process and other government decision-making."