Lobby Law Development: Just When You (Almost) Had The New Disclosure Rules Figured Out, Here Come The Constitutional Challenges!

Yesterday the National Association of Manufacturers (NAM) filed suit under the First Amendment to enjoin enforcement of a key provision of the Honest Leadership & Open Government Act of 2007. The Act requires associations that engage in lobbying to disclose the names of member organizations that contribute more than $5,000 in a quarterly period to the association’s lobbying activities, if the member actively participates in the planning, supervision, or control of such activities.

The new law applies to any entity that accepts money from other organizations to fund lobbying practices, but compliance will be particularly onerous for large associations. The new requirement has left many scratching their heads about whether to disclose the identities of members whose combined dues and voluntary contributions exceed $5,000, especially where the organization relies upon members to help run its operations, including activities that arguably support lobbying efforts.

NAM’s lawsuit challenges the new provision for failing, among other things, to define the term "actively participates." Organizations bear the responsibility of identifying members for whom disclosure is required, and disagreement between associations and members is a near certainty.

NAM seeks to enjoin the implementation of the new provision against any organization until the courts determine its legality. Lobbying reports are due February 14, 2008, but filers are not required to make the Act’s new disclosures challenged by NAM until the April 21, 2008 reporting deadline. NAM has requested that the district court rule on its motion for a preliminary injunction by April 14. Absent a favorable ruling, the Secretary of the Senate and Clerk of the House are charged with reporting non-compliance to the United States Attorney for the District of Columbia. Violators risk civil and criminal penalties of up to $200,000 and/or five years imprisonment.