666 F.Supp.3d 932
W.D. Mo.2023Background
- Missouri voters enacted the "Lobbying Ban" as part of the 2018 Clean Missouri amendment: members/employees of the General Assembly may not act or serve as paid lobbyists, register as paid lobbyists, or solicit paid lobbying work until two calendar years after the end of the session in which they last served.
- Plaintiffs: Rockne “Rocky” Miller (former state representative reelected in Nov. 2018 and thus subject to the Ban), John LaVanchy (longtime legislative assistant and current General Assembly employee), and Presidio Environmental LLC (prospective employer).
- Miller was approached by Presidio in Nov. 2021 to be a paid lobbyist but did not register or accept payment because of the Ban; LaVanchy remains subject to the Ban as a current General Assembly employee.
- Plaintiffs bring facial and as-applied First Amendment (free speech and petition) claims under 42 U.S.C. § 1983, arguing the Ban unlawfully restricts paid advocacy; Defendants are the Missouri Ethics Commission (MEC).
- The Ban exempts unpaid lobbying and a number of specific paid activities (e.g., testifying, responding to information requests); the Ban targets only paid lobbying and lasts two years.
- Court disposition: On cross-motions for summary judgment, the district court granted Defendants’ motion and denied Plaintiffs’, upholding the Lobbying Ban as constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Lobbying Ban burdens First Amendment rights | Miller/LaVanchy/Presidio: Ban burdens protected political speech by prohibiting payment for lobbying and forbidding registration as paid lobbyists | MEC: Ban regulates receipt of payment for speech, not the content of speech; no constitutional right to be paid for speech | Court: Ban restricts payment-for-lobbying (a burden on paid advocacy) but does not prohibit all speech; burden acknowledged and evaluated under heightened scrutiny |
| Level of scrutiny to apply | Plaintiffs: strict scrutiny (ban burdens political speech and targets speakers) | Defendants: exacting or intermediate scrutiny is appropriate (content-neutral, disclosure/ regulation of status) | Court: Treated the restriction as subject to strict/exacting scrutiny and required a compelling/substantial government interest and narrow tailoring; proceeded under heightened review |
| Whether the Ban advances a compelling government interest | Plaintiffs: law targets access/influence, not quid pro quo corruption; thus no compelling interest | MEC: Ban targets quid pro quo corruption and the appearance thereof — a recognized compelling interest | Court: Ban advances the compelling interest of preventing quid pro quo corruption and its appearance and the record (expert examples, voter adoption, past misconduct) supports that aim |
| Whether the Ban is narrowly tailored | Plaintiffs: Ban is overbroad (sweeps all paid lobbying) and underinclusive (exempts other quid-pro-quo–risk conduct) | MEC: Ban is narrowly tailored—limited to paid lobbying, limited class (General Assembly members/employees), two-year term, and statutory exceptions | Court: Ban is narrowly tailored enough—limits only paid lobbying, applies to those with greatest access, has a limited duration and exceptions—thus constitutional |
Key Cases Cited
- Citizens United v. Federal Election Comm'n, 558 U.S. 310 (political speech and expenditures context)
- Meyer v. Grant, 486 U.S. 414 (struck down ban on paying petition circulators as abridging political speech)
- United States v. Nat'l Treasury Emps. Union, 513 U.S. 454 (invalidated a broad honoraria ban on federal employees)
- McCutcheon v. Federal Election Comm'n, 572 U.S. 185 (recognizes compelling interest limited to quid pro quo corruption and its appearance)
- Brinkman v. Budish, 692 F. Supp. 2d 855 (S.D. Ohio 2010) (analysis of state post-employment lobbying bans; distinction between paid and unpaid lobbying)
- Free & Fair Election Fund v. Missouri Ethics Comm'n, 903 F.3d 759 (8th Cir. 2018) (fit between interest and means must be reasonable and proportionate)
- Garcetti v. Ceballos, 547 U.S. 410 (public-employee speech context; some speech restrictions permissible to preserve government function)
- McCullen v. Coakley, 573 U.S. 464 (narrow tailoring and least-restrictive-means requirements for speech restrictions)