Ronald John Calzone v. Donald Summers, in his official capacity as Chairman of the Missouri Ethics Commission; Kim Benjamin, in her official capacity as Vice-Chairwoman of the Missouri Ethics Commission; George Ratermann, in his official capacity as Commissioner of the Missouri Ethics Commission; Wayne Henke, in his official capacity as Commissioner of the Missouri Ethics Commission; Sherman Birkes, in his official capacity as Commissioner of the Missouri Ethics Commission; Cheryl Walker, in her official capacity as Commissioner of the Missouri Ethics Commission; Elizabeth Ziegler, in her official capacity as Executive Director of the Missouri Ethics Commission
No. 17-2654
United States Court of Appeals For the Eighth Circuit
Submitted: April 19, 2019 Filed: November 1, 2019
Before SMITH, Chief Judge, LOKEN, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges, En Banc.
Ronald Calzone frequently talks to Missouri legislators about political issues that are important to him. The State says that, because he runs a nonprofit corporation, he may do so only if he goes through the effort and expense of registering as a “legislative lobbyist,” even though no one pays him and his activities do not involve spending money. We hold that this burden, as applied to Calzone, violates the First Amendment.
I.
Calzone is an active figure in Missouri politics. He “regularly speaks to legislators,” sometimes in one-on-one meetings and other times by testifying before Missouri‘s General Assembly. Importantly, however, Calzone only talks and listens when pressing his views with legislators. He does not get paid in connection with his activities, nor does he “make expenditures for the benefit of” public officials.
Calzone often acts through a nonprofit corporation called Missouri First, Inc. The parties agree that this organization is effectively his alter ego: he is its incorporator, sole officer, president, director, and registered agent. According to Missouri First‘s charter, it seeks to “educat[e] and mobiliz[e] the public” about matters of civic importance and support various candidates and initiatives. Like Calzone himself, Missouri First spends and receives no money in pursuit of these goals.
According to Missouri, Calzone‘s ties to Missouri First make him a “legislative lobbyist.”
There are also ongoing obligations. Lobbyists must update the Missouri Ethics Commission within one week of a “change in [their] employment or representation.”
Noncompliance carries severe penalties. In addition to hefty fines, violators face prison time—up to four years for repeat offenders. See
Convinced that these restrictions violate his First Amendment free speech and petition rights, Calzone sought a permanent injunction to prevent members of the Missouri Ethics Commission from “enforcing [the law] against [him].”1 In support of his request for individual injunctive relief, Calzone‘s focus has been on why the
Calzone‘s lawsuit has so far been unsuccessful. The district court denied a permanent injunction and entered final judgment against Calzone. Working from stipulated facts, the court ruled that his as-applied challenge failed because enforcement of the law against him had a “substantial relation” to “sufficiently important” state interests. It also rejected Calzone‘s argument that the law is unconstitutionally vague.
II.
Both of Calzone‘s constitutional claims present purely legal questions that we review de novo. See Llapa-Sinchi v. Mukasey, 520 F.3d 897, 899 (8th Cir. 2008). The ultimate decision of whether to grant or deny a permanent injunction, however, lies within the district court‘s discretion. See Kittle-Aikeley v. Strong, 844 F.3d 727, 735 (8th Cir. 2016) (en banc).
A.
We begin with Calzone‘s claim that Missouri‘s lobbying requirements violate his freedom of speech and right to petition the government. See
The dissenters suggest that there is something different about this case, primarily because Calzone has consistently emphasized his lack of pay over his lack of expenditures. But the test for forfeiture is not how many times a litigant has raised a particular issue or fact, but rather whether it has been raised in a timely manner. See United States v. Olano, 507 U.S. 725, 731 (1993) (describing forfeiture as “the failure to make timely assertion of the right” (emphasis added and citation omitted)); Universal Title Ins. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991) (acknowledging our discretion to consider a “nuance or shift in approach” that a party did not “similarly urge[]” before the district court (citation omitted)). And here it has been. Calzone has raised the no-expenditures point at numerous steps in the litigation—starting with his appearance before the Missouri Ethics Commission; continuing with his complaint, his memorandum in support of a permanent
two reasons why he thinks he‘s special compared to other lobbyists. One is he‘s not buying lunch and giving money to [the] legislators. Two, his organization that has him in the post of president isn‘t paying him to be their president, et cetera. I understood his brief to say that both of these points were salient to his claim.
Oral Arg. at 18:00–19:45 (emphasis added). Missouri had a clear opportunity to raise forfeiture after it became apparent that a threshold disagreement between the members of the original panel was whether Calzone had preserved his no-expenditures point. See Calzone v. Summers, 909 F.3d 940, 946–47 (8th Cir. 2018), reh‘g en banc granted, opinion vacated (Jan. 28, 2019); id. at 951–53 & n.5 (Stras, J., dissenting). Rather than doing so, however, Missouri continued to focus exclusively on the merits of Calzone‘s First Amendment challenge, both in its response to his petition for rehearing en banc and in the face of questioning from the en banc court. See Resp. Br. Appellees Pet. Reh‘g or Reh‘g En Banc at 2, 6–8, 11, 14; Oral Arg. at 31:38–32:11; see also Pl.–Appellant‘s Pet. Reh‘g and Reh‘g En Banc at 2–10 (leading with the argument that the panel majority had ignored aspects of his as-applied challenge). Regardless of whether we characterize Calzone‘s lack of spending as a fact, an issue, or an argument, if it is possible to forfeit or waive forfeiture, Missouri has done so here. See, e.g., Robertson v. U.S. Bank, N.A., 831
After reviewing the record and taking into account the as-applied nature of Calzone‘s challenge, we conclude that the undisputed fact that Calzone spends no money nor gives anything of value to anyone when pursuing his advocacy activities is a detail that we must consider in evaluating his First Amendment challenge.5 Cf. Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 329–33 (2010) (considering
Now that we have concluded that Calzone‘s entire as-applied challenge is before us, the question is straightforward: can Missouri require Calzone to pay a fee and publicly disclose his political activities, even though he neither spends nor receives any money in connection with his advocacy? We conclude that the answer is no.
Everyone agrees on one point: Calzone is engaged in First Amendment activity. See FTC v. Superior Court Trial Lawyers Ass‘n, 493 U.S. 411, 426 (1990) (noting the First Amendment right “to lobby . . . officials to enact favorable legislation“). After all, “interactive communication concerning political change” is at the “core” of the First Amendment, Meyer v. Grant, 486 U.S. 414, 422 (1988), and the right “to petition for a redress of grievances [is] among the most precious of . . . liberties,” United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass‘n, 389 U.S. 217, 222 (1967).
Missouri calls this activity “lobbying.” Regardless of the label, Calzone does not lose his First Amendment rights just because he speaks through an organization that shares his perspective. See, e.g., Superior Court Trial Lawyers Ass‘n, 493 U.S. at 426; United Mine Workers, 389 U.S. at 221–22. To the contrary, both he and Missouri First still have the right to make their views known.
But Missouri also has some power to regulate speech, and the nature of the regulation determines how closely we scrutinize it. See Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874–75 (8th Cir. 2012) (en banc). Here, Missouri‘s lobbying law requires Calzone to reveal his identity and divulge his activities. It is, in other words, a “disclosure law,” so we review it under a legal framework known as “exacting scrutiny.” See id. Missouri‘s burden is to show, at a minimum, that the law has a “substantial relation[ship]” to a “sufficiently
The burdens of the law are straightforward. Most obvious is the time and effort required to fill out paperwork. Cf. Swanson, 692 F.3d at 873–74 (stressing “the time and expense of entering a long-term morass of regulatory red tape“). There is also the filing fee itself, of course. In exchange, Calzone loses his freedom “to remain anonymous” and exposes himself to “retaliation” for his advocacy. McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 342, 357 (1995); cf. NAACP v. Alabama, 357 U.S. 449, 460–62 (1958) (stressing the chilling effects of “compelled disclosure of affiliation with groups engaged in advocacy“). In short, compliance is not free. But neither is noncompliance, which exposes violators to fines and possible jail time.
Missouri‘s asserted justification is “transparency,” even though what it means by that is less than clear. Transparency seems to encompass two ideas. The first is an interest in sharing information about advocacy activities in order to prevent actual or apparent public corruption. The second is a general interest in having the world
The first interest is no doubt “important,” at least in the abstract. See Minn. Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106, 1111 (8th Cir. 2005) (noting a compelling interest in “avoiding even the appearance of corruption“). Indeed, the Supreme Court has long credited anti-corruption rationales in upholding campaign-finance restrictions and disclosure requirements, despite the limitations these kinds of laws place on speech. See, e.g., McCutcheon v. FEC, 572 U.S. 185, 199, 206–07 (2014) (plurality opinion); FEC v. Nat‘l Conservative Political Action Comm., 470 U.S. 480, 496–97 (1985); Buckley v. Valeo, 424 U.S. 1, 26–27 (1976) (per curiam); cf. United States v. Harriss, 347 U.S. 612, 625–26 (1954).
What Missouri has failed to establish, however, is that applying the law to Calzone, who neither spends nor receives money in connection with his advocacy, bears a substantial relationship to its anti-corruption interest. See Swanson, 692 F.3d at 875. The government “may target only a specific type of corruption—‘quid pro quo’ corruption“—and Calzone‘s political activities do not raise the specter of “corruption or its appearance.” McCutcheon, 572 U.S. at 206–07 (plurality opinion) (collecting cases); see also id. at 192. There clearly is no “quid” because Calzone does not spend or receive money, nor offer anything of value to legislators. See id. at 207 (recognizing that the appearance of corruption can arise from “large individual financial contributions to particular candidates” (internal quotation marks and citation omitted)); see also id. at 225. So whatever “quo” he receives must be due to his speech, not corruption.
To be sure, casting a wide net might make it easier for Missouri to catch legislative lobbyists involved in actual corruption. But so would better-tailored and “less problematic measures,” Swanson, 692 F.3d at 877 (citation omitted), including another provision that already covers those who make “total [annual] expenditures of fifty dollars or more . . . for the benefit of one or more public officials,”
Missouri‘s other transparency interest is broader. Missouri claims that legislators need to know who is speaking to determine how much weight to give the speech. Missouri also insists that the public has a right to know who is speaking so that it can hold legislators accountable for their votes and other actions.
These concerns, however, are not “sufficiently important” to justify the burdens placed on Calzone‘s speech. See Swanson, 692 F.3d at 876. As the Supreme Court has recognized, speakers ordinarily have the right to keep their identities private. McIntyre, 514 U.S. at 341–43, 348–49, 353–57. In fact, the right to remain nameless is “an aspect of the freedom of speech protected by the First Amendment” and a component of “a respected tradition of anonymity in the advocacy of political causes.” Id. at 342–43. This principle applies with particular force here because “core political speech” is at issue. Id. at 346–47; see also Superior Court Trial Lawyers Ass‘n, 493 U.S. at 426. So Missouri‘s “simple interest in providing voters with additional relevant information does not justify a state requirement that [Calzone] make statements or disclosures [he] would otherwise omit.” McIntyre, 514 U.S. at 348. Nor does legislative curiosity justify upfront disclosure of information that legislators can presumably find out on their own.
* * *
Given that Calzone‘s political activities do not involve the transfer of money or anything of value, either to him or to anyone else, Missouri‘s interest in transparency does not “reflect the seriousness of the actual burden on [his] First Amendment rights.” Swanson, 692 F.3d at 876 (citation omitted). Accordingly, the application of the law to Calzone violates the First Amendment.
B.
Calzone‘s other claim is that the law is facially invalid because ordinary citizens do not have fair notice of whom it covers. See Hill v. Colorado, 530 U.S. 703, 732–33 (2000). He focuses on the fact that Missouri defines “legislative
Even though the law does not define or otherwise explain what “designated” means, it is not vague. Rather, in the absence of a statutory definition, we apply a word‘s common and ordinary meaning, taking into account the context in which it is used. See DRB No. 24, LLC v. City of Minneapolis, 774 F.3d 1185, 1188 (8th Cir. 2014). In this context, to “designate” means to “name [someone] to a post or function,” Webster‘s Third New International Dictionary 612 (2002), or to “select [someone] for a duty, office, or purpose,” The American Heritage Dictionary of the English Language 491 (5th ed. 2011). So when a group selects someone to speak to a legislator or otherwise influence legislative action, the person selected becomes a “legislative lobbyist.” Although individual cases may present difficult questions, the statute is clear enough that a person “of ordinary intelligence” can “reasonabl[y] . . . understand [it].”7 Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1143 (8th Cir. 2005) (citation omitted); see also Harriss, 347 U.S. at 618 (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal cases could be put where doubts might arise.“).
Of course, the law‘s designation clause has the effect of broadly defining who is a lobbyist. Under the plain terms of the statute, for example, if a gardening club decides to have one of its members write the General Assembly and ask that Missouri select a new state flower, then the letter writer has been “designated . . . by an[] . . . association” to “act[] for the purpose of attempting to influence . . . official [legislative] action.”
We accordingly vacate the judgment and remand for further consideration of Calzone‘s request for a permanent injunction.
GRASZ, Circuit Judge, concurring.
I join the court‘s opinion in full. I write separately to address the question it left open: whether laws mandating disclosure of information as the price of petitioning one‘s government are subject to exacting scrutiny or strict scrutiny under the First Amendment. I believe the correct standard is strict scrutiny. The district court‘s contrary conclusion disregarded circuit precedent8 and rested on an overly broad reading of the Supreme Court‘s opinion in Citizens United v. FEC, 558 U.S. 310 (2010).
I do not believe that Citizens United undermined this circuit‘s precedent of applying strict scrutiny to lobbying disclosure laws. In Citizens United, the Supreme Court applied exacting scrutiny in addressing a challenge to a law mandating disclosure and reporting requirements for electioneering expenditures, not lobbying. Context matters. To read Citizens United as demanding the exacting scrutiny standard for any regulation involving any sort of disclosure and burdening any category of speech, in my view, misses the mark. See Bryan A. Garner, et al., The Law of Judicial Precedent, 88–91 (2016) (discussing how to interpret the scope of a rule in an opinion); see also Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874–75 (8th Cir. 2012) (en banc) (questioning whether states could avoid strict scrutiny of regulatory schemes burdensome to political speech by “simply placing a ‘disclosure’ label” on them because to do so “risks transforming First Amendment jurisprudence into a legislative labeling exercise“).
There are sound reasons for not abandoning our application of strict scrutiny to lobbying disclosure laws. Again, the baseline rule is that “[l]aws that burden political speech are ‘subject to strict scrutiny,‘” Citizens United, 558 U.S. at 340, and petitioning one‘s government is unquestionably core political speech. In the absence of direction from the Supreme Court, there is no reason to extend Citizens United‘s application of exacting scrutiny to a quite different context. The Court in
None of this is to say that laws narrowly tailored to prevent quid pro quo corruption and the appearance thereof could never survive strict scrutiny. But where the government burdens the fundamental right of citizens to petition their government, the law must be narrowly tailored to achieve a compelling governmental interest. Citizens United does not mandate a lower standard.9
COLLOTON, Circuit Judge, with whom LOKEN and BENTON, Circuit Judges, join, dissenting.
The court‘s decision in this case will be remembered more for its procedural irregularities than for anything it says about the First Amendment. “Too often our colleagues on the district court complain that the appellate cases about which they
Judge Shepherd‘s dissenting opinion convincingly demonstrates the shift in Calzone‘s argument on appeal. Section 105.470(5)(c) of the Missouri Revised Statutes, through its definition of “legislative lobbyist,” calls for registration and disclosures by one who “[i]s designated to act as a lobbyist.” Section 105.470(5)(d) encompasses one who “[m]akes total expenditures of fifty dollars or more . . . for the benefit of one or more public officials.” The Missouri Ethics Commission asserted that Calzone is covered by subsection (c). In response, Calzone argued that the First Amendment forbids the State to require registration and disclosures by an unpaid lobbyist.
It was perfectly logical for the district court to understand Calzone‘s argument to mean what it said. His theory, if correct, would have been sufficient to exempt him from both subsection (c) and subsection (d). He would have won this case. And he may well have perceived a tactical advantage in attempting to prevail solely on the basis that he was uncompensated. Of course, Calzone could have raised instead a narrower challenge to subsection (c) that the State must exempt only uncompensated lobbyists who make no expenditures. But whether he did so is a question of law, not logic. Every case involves an array of facts, and it is up to the plaintiff in framing the issue to assert which facts have legal significance.
The court‘s assertion, ante, at 3–4, that the “focus” of Calzone‘s legal argument in the district court involved his lack of expenditures misstates the record. A party with a focus on lack of expenditures does not open his brief in support of injunctive relief as follows: “This case presents a simple question: Does the First Amendment allow the state of Missouri to punish a citizen simply for sharing
What really happened is that Calzone, after pressing his uncompensated-lobbyist argument before the district court and in his opening brief on appeal, changed his legal theory at oral argument in the court of appeals. The three-judge panel rejected this gambit and addressed only the issue that was stated in Calzone‘s appellate brief: “May the government, consistent with the First and Fourteenth Amendments to the United States Constitution, require unpaid individuals to comply with Missouri‘s registration and reporting regime for legislative lobbyists?” Appellant‘s Br. 1 (emphasis added). And rightly so: “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). Yet the en banc majority now takes up Calzone‘s reformulated cause in the first instance.
This is an unwise use of the en banc process. Where there is no disuniformity in this court‘s decisions, en banc rehearing is disfavored and designed only for proceedings that involve a “question of exceptional importance.” Fed. R. App. P. 35(a)(2). Whether the district court and the three-judge panel properly decided only Calzone‘s uncompensated-lobbyist claim is not a question of exceptional importance. It is an isolated issue that turns on an interpretation of Calzone‘s
Beyond that, the en banc majority proceeds to file a broad, categorical decision on a constitutional question of first impression without the thorough development that ordinarily precedes such an action. Unlike the typical en banc rehearing, this proceeding does not present a question of exceptional importance that has been properly vetted in the litigation process, where competing views can be aired, and subtleties and nuances explored. Is it really so clear, for example, that the First Amendment leads to the same conclusion about lobbying disclosures for a member of a gardening club who writes to a legislator, a self-described lobbyist like Calzone who seeks to exploit “strength in numbers” to influence legislators, and a “volunteer” lobbyist for, say, the Sierra Club or the National Rifle Association? Surely an en banc court would benefit from the studied consideration of counsel, a district judge, and a three-judge panel before addressing the merits of a no-expenditures as-applied challenge.
SHEPHERD, Circuit Judge, with whom COLLOTON and KELLY, Circuit Judges, join, dissenting.
Facts are not issues. While this case arises from many historical facts, the single issue before us was selected, framed, and presented by Ronald Calzone long ago: “a pure question of law on the question of whether or not an individual who is uncompensated may be required to register and report as a legislative lobbyist with the Missouri Ethics Commission.” R. Doc. 41, at 4. By Ronald Calzone’s attorney’s own words, this is all Calzone’s case has ever been about. Despite the clear nature of his challenge, the majority now answers a wholly different question, improperly expanding his challenge to include lobbyists who make no expenditures in addition to receiving no compensation. The majority compounds this error by ignoring the record evidence of Calzone’s extensive lobbying efforts and incorrectly casting Calzone as a modern-day folk hero who wants nothing more than to be free to petition his government. Considering the only issue that Calzone raised and thus the only issue we may consider—whether the law is unconstitutional as applied to him, a lobbyist who receives no compensation—I would conclude that
To understand Calzone’s argument, it is first important to understand who Calzone is and what Missouri First does.12 The majority describes Calzone and this case as one that involves the average politically active citizen whose interests have found him unwittingly ensnared in complex and laborious disclosure requirements meant for lobbyists, not people like Calzone. This narrative is not supported by the record. Calzone is not the average Missouri citizen, interested only in talking and listening about political issues that are important to him. Although the majority describes Calzone as wanting to do no more than represent himself and those faceless Missourians without a lobbyist, and asserts that his advocacy efforts are considered lobbying only because Missouri says so, Calzone is precisely who the law considers a lobbyist. The majority even acknowledges that Calzone is not the average citizen, noting that he is “an active figure in Missouri politics.”
And Missouri First is much more than just Calzone’s alter ego; it is clearly a lobbying organization. Indeed, it would be surprising if Calzone did not consider himself a legislative lobbyist working on behalf of a lobbying firm. He is the sole incorporator of Missouri First and responsible for filing the organization’s charter which states that:
Missouri First will give priority to educating and mobilizing the public to meet our objectives. Media advertising, public oratory, informational seminars, legislative lobbying, and citizen involvement may be used to teach or to influence public policy. . . . Missouri First will campaign for legislative and ballot issues, but will not lobby or campaign for a particular political party.
Given this record evidence, Calzone is clearly a typical lobbyist operating on behalf of a lobbying organization, despite his efforts to tether these definitions solely to whether he receives compensation. He is not a bystander inadvertently swept up by the broad reach of the disclosure law; he is exactly the kind of person or party the legislation was intended to cover. With this understanding of Calzone and Missouri First in mind, I turn to the merits of Calzone’s challenge.
II.
A.
The majority’s crucial misstep, in my view, is its unyielding determination to address an issue Calzone never raised: whether the disclosure law can constitutionally apply to Calzone when he makes no expenditures. Calzone did not raise the issue of expenditures before the district court nor did he raise it to this Court until oral argument before the original panel. The pleadings make clear that Calzone, the master of his own complaint, raised only the issue of whether
Time and time again, before both the district court and this Court, Calzone limited his claim to the contention that an uncompensated individual cannot be required to register and report as a lobbyist; nowhere did he include a lack of expenditures as a part of the issue presented. The record is as abundant as it is clear in demonstrating Calzone raised only the issue of whether the law is constitutional as applied to him when he received no compensation.13
Before the district court, Calzone stated his case without raising the issue of expenditures:
- Calzone’s complaint alleged a cause of action under the First and Fourteenth Amendments, stating “[s]pecifically” that the state of Missouri violated his rights by seeking to apply the lobbying statutes to his “uncompensated policy conversations.” R. Doc. 1, at 11.
- Calzone’s complaint alleged that the disclosure statute chilled citizen engagement “when they merely seek to influence legislation in their private, uncompensated, capacities as active citizens.” R. Doc. 1, at 3.
- Calzone’s motion for a preliminary injunction sought an order preventing Missouri from enforcing the lobbying statutes “against any individual that acts without being compensated,” “against those who act without being compensated,” and “against any individual that speaks about questions of
public policy or pending legislation with members of the General Assembly or legislative staff without being compensated for that activity.” R. Doc. 2, at 1-2. - Calzone’s suggestions in support of his motion for a preliminary injunction summarized his entire case as “present[ing] a simple question: Does the First Amendment allow the state of Missouri to punish a citizen simply for sharing political ideas with members of the state legislature, even though no one is paying him to do so?” R. Doc. 2-1, at 1.
- Calzone’s suggestions in support also described “the alleged violation of Missouri’s legislative lobbyist statute [] as an uncompensated citizen speaking to legislators or legislative staff[,]” and summarized his argument in a heading as follows: “By regulating uncompensated citizen activists as legislative lobbyists, and demanding that those individuals register and report to Defendants, the Missouri legislative lobbyist statute is unconstitutional as applied to Plaintiff and those similarly situated.” R. Doc. 2-1, at 6, 9.
- At the hearing on the preliminary injunction, the district court stated: “As I understand that you are - - your claim says that this interpretation of ‘designate’ chills First Amendment rights because he’s not receiving compensation, there’s no legitimate government interest in enforcing the lobbying statute against an uncompensated lobbyist, and it’s a vague statute. Is that correct?” To which Calzone’s attorney responded “That is correct, Your Honor, those are all of our contentions.” R. Doc. 24, at 10 (emphases added).
- At the hearing on the permanent injunction, Calzone’s attorney stated, “As the parties seem to have come to the conclusion, given that we have stipulated on facts that are necessary for the resolution of this proceeding, this is a pure question of law, and it is a pure question of law on the question of whether or not an individual who is uncompensated may be required to register and report as a legislative lobbyist with the Missouri Ethics Commission. For the purposes of my presentation, I would like to first start with our as-applied challenge on the compensation question.” R. Doc. 41, at 4 (emphases added).
- Calzone’s suggestions-in-reply for injunctive relief stated that “Mr. Calzone simply asks that the Ethics Commission be required to determine that an individual was paid before it brands that person as an unregistered lobbyist.
Mr. Calzone would be happy to rebut any future allegation that he is being paid for his activism—as he has, in fact, done here.” R. Doc. 33, at 7. - Calzone’s suggestions-in-reply further tie his challenge to compensation alone when arguing that injunctive relief against enforcement for unpaid lobbyists would not render the Ethics Commission unable to enforce its rules: “To trigger future investigations, complaints would merely have to allege that an accused legislative lobbyist is paid for his work.” R. Doc. 33, at 7.
- Calzone’s conclusion to his suggestions-in-reply also clearly demonstrates that he pursued his case only as it applied to him as an unpaid lobbyist: “Sixty-three years ago, the federal government sought to use a lobbying registration and reporting statute to cover the activities of unpaid individuals. The Supreme Court, applying what we would today recognize as strict scrutiny, rebuffed that effort. This court ought to do the same.” R. Doc. 33, at 9.
And the district court understood Calzone’s challenge to include only a challenge as an uncompensated lobbyist, something with which Calzone never voiced any objection, even on appeal:
- The district court stated in its opinion and order denying the motion for a permanent injunction that “Calzone contends that Missouri cannot require him to register as a lobbyist . . . because he is not paid to be a lobbyist and Missouri’s definition of lobbyist is unconstitutionally vague.” R. Doc. 34, at 1 (emphasis added).
- Discussing Missouri’s argument that Calzone had abandoned his facial challenge, the district court stated the following, explicitly acknowledging that compensation was the only issue that formed the constitutional challenge: “Calzone suggests in his supplemental briefing, [Doc. 33] that he is merely asking that Missouri’s lobbying statute should not be applied to him unless he is paid to be a lobbyist. In that same briefing, however, his counsel stated: ‘Rather, as regards his as-applied claim, Mr. Calzone simply asks that the Ethics Commission be required to determine that an individual was paid before it brands that person as an unregistered lobbyist.’ Id. at 7. As this quote shows, his counsel implicitly distinguishes between his applied challenge and his facial challenge. The Court has found no suggestion in his pleadings or elsewhere that he has abandoned his facial vagueness challenge and concludes that he seeks more than merely stopping the way the
Commission has applied the statute to an uncompensated lobbyist.” R. Doc. 34, at 1 n.1 (emphases added). - The district court also stated that “Calzone requests a permanent injunction prohibiting ‘Defendants . . . from enforcing or threatening to enforce the disclosure requirements . . . against those who act without being compensated.’” R. Doc. 34, at 8 (emphasis added).
- The district court further summarized Calzone’s challenge, stating: “Mr. Calzone contends that this risk of enforcement causes him irreparable harm because it is a violation of the First Amendment to subject unpaid lobbyists to Missouri’s lobbying statutes. This contention forms the basis of Mr. Calzone’s applied challenge.” R. Doc. 34, at 9 (emphasis added).
Further, on appeal, the relevant portions of Calzone’s brief never complained that the district court misconstrued his argument, and they raised only the issue of compensation:
- Calzone’s “Statement of the Issues” raised only one issue—the same legal issue that he presented in the district court: “May the government, consistent with the First and Fourteenth Amendments to the United States Constitution, require unpaid individuals to comply with Missouri’s registration and reporting regime for legislative lobbyists?” Appellant’s Br. 1 (emphasis added).
- Calzone’s “Summary of the Case” likewise described the question presented as whether an individual may be regulated as a lobbyist “even if he acts solely as an unpaid volunteer[.]” Appellant’s Br. i (emphasis added).
- Calzone’s “Summary of the Case” also objected to the district court’s ruling that “Missouri could require unpaid volunteers to carry the same burdens as professional, compensated lobbyists.” Appellant’s Br. i (emphases added).
- Calzone’s heading in the “Argument” section of his brief reads: “The district court erred in failing to apply strict scrutiny to Missouri’s efforts to regulate uncompensated volunteers as lobbyists.” Appellant’s Br. 13 (emphasis added).
Calzone’s failure to include a narrower as-applied challenge in his statement of the issues waived this argument. See United States v. O’Neal, 17 F.3d 239, 243 n.8 (8th Cir. 1994); United States v. Simmons, 964 F.2d 763, 777 (8th Cir. 1992). (“Issues not raised on appeal are waived under Rule 4 of the Federal Rules of Appellate Procedure, which requires the inclusion of a statement of issues in the appellate brief.”). Nevertheless, the majority makes the decision to consider the issue, favoring the version of the case Calzone impermissibly adopted well after the district court ruled and after the case before this Court was fully briefed. It should be of no moment that either Calzone or the majority believes Calzone’s belated expenditures argument makes a better argument on appeal. Even where the record factually supports what might be a better legal argument for reversal, it is not our place to raise it for a litigant who forfeits and waives the argument. See, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2272 (2018) (Gorsuch, J., dissenting). Deciding the case based on an argument that was not properly raised either in the
Casting all of that aside, the majority soldiers on and decides a very different case than the one Calzone actually pursued below and on appeal. But the cases the majority relies on to expand Calzone’s challenge reveal the infirmity of the ground on which the majority stands. One case, United States v. Olano, 507 U.S. 725, 731 (1993), says only that a right must be asserted in a timely manner; it sheds no light on whether Calzone properly raised a no-expenditures challenge in the district court. Another case, Universal Title Insurance Co. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991), while making reference to the consideration of a “nuance or shift in approach[,]” confirms that the dispositive inquiry is “whether the new argument is such as to raise a new issue.” Here, as detailed by the numerous times in the record where Calzone limited his challenge to encompass only an uncompensated lobbyist, he most definitely attempts to raise “a new issue.” And, Petaluma FX Partners, LLC v. Commissioner, 792 F.3d 72 (D.C. Cir. 2015), provides no support for the majority’s contention that Missouri forfeited objection to Calzone’s assertion of this new issue. Simply stated, since Calzone did not identify this narrower issue in his opening brief, there was no opportunity, indeed no reason, for Missouri to address such a new issue in its responsive briefing. Further, after the three-judge panel affirmed the district court’s order, Missouri urged denial of Calzone’s petition for rehearing. Missouri’s argument that the court should adhere to the panel opinion, which concluded that Calzone raised only the uncompensated-lobbyist issue, is not
The majority also sprinkles in other inapposite cases that do nothing to advance its point: the “forfeiture” that the party “forfeited” in Robertson v. U.S. Bank, N.A., 831 F.3d 757, 764 (6th Cir. 2016), was the right to foreclose on a mortgage, with the court acknowledging the forfeiture was based, in part, on the fact that the district court did not address the argument; United States v. Jones, 152 F.3d 680, 684 n.2 (7th Cir. 1998), considers the government’s failure to respond with a forfeiture argument in its response brief after the defendant raised, in his opening brief alleging ineffective assistance of counsel, an issue not brought before the district court; and Tibble v. Edison International, 843 F.3d 1187, 1193 (9th Cir. 2016) (en banc), and Cook v. Rockwell International Corp., 618 F.3d 1127, 1138-39 (10th Cir. 2010) similarly involved issues that had been raised in the opening brief, not for the first time at oral argument. While the majority has indeed found cases that use the phrase “forfeited forfeiture,” they are in no way analogous to Calzone’s case.
B.
Deciding this appeal on the single issue Calzone presented—whether the lobbying disclosure law can constitutionally apply to him as an unpaid lobbyist—I conclude that it can. Calzone’s challenge is subject to exacting scrutiny, which “requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 875 (8th Cir. 2012) (en banc) (internal quotation marks omitted).15
First, Missouri has a sufficiently important governmental interest in having unpaid lobbyists register: Missouri’s stated interest in transparency, namely avoiding the fact or appearance of public corruption and knowing who is attempting to influence legislators, legislation, or public policy.16 The Supreme Court and this
Calzone argues that the reasoning of Harriss and NRA should not apply to his challenge because he is unpaid, and the government does not have a sufficiently important interest with respect to unpaid lobbyists. But I believe the distinction between paid and unpaid lobbyists does not alter the equation so significantly. The Supreme Court in Harriss described the “vital national interest” in disclosure as follows:
Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal.
Although the statute at issue in Harriss governed only paid lobbyists, the interest described by the Court applies just as well to unpaid lobbying activity. In NRA, we held that the activity that warranted lobbyist registration and reporting
I conclude that Missouri’s stated interest in transparency is a sufficiently important governmental interest: avoiding the fact of, or even the appearance of, public corruption and knowing who exactly is trying to influence legislators, legislation, or public policy.
I also conclude that the statutory registration requirements are substantially related to Missouri’s transparency interest. Swanson, 692 F.3d at 876 (“[T]here must be a relevant correlation or substantial relation between the governmental interest and the information required to be disclosed . . . .” (internal citation omitted)). Disclosure laws that have no more than a tenuous relationship to the interest served by disclosure cannot satisfy exacting scrutiny; something more is
The regulation requires lobbyists to register annually; submit forms detailing the names and addresses of all lobbyists, persons employed by lobbyists for lobbying purposes, and each lobbyist principal for whom the lobbyist is employed “or in whose interest such lobbyist appears or works”; pay a $10 filing fee; and file monthly reports.
Any concern with Calzone giving up his anonymity is similarly frail: if Calzone truly wants to be a politically active citizen and remain anonymous, he can. Calzone does not resemble the citizen who distributed anonymous leaflets to persons attending a public meeting at a middle school in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). She sought to place handbills on car windshields in a school parking lot without identifying herself as the author of the literature. Calzone seeks no such anonymity. He appears openly before legislators in an effort to influence their votes. Calzone never even mentions an interest in anonymity in his appellate briefs. If anything, he seeks only to hide his efforts on behalf of Missouri First from other legislators and from the Missouri citizenry. But Calzone is not entitled to be an “anonymous” lobbyist, just because he is unpaid, while other lobbyists who attempt to influence public policy by bringing to bear the pressure of their organizations are required to register.
III.
The state of Missouri, as well as its citizens, have a significant interest in understanding just exactly who is attempting to influence Missouri’s legislation and how. Missouri’s lobbying disclosure law addresses the concerns and imposes a minimal burden on lobbyists, even where, like Calzone, they are unpaid. Despite the majority’s efforts to transform this case into something it is not and has never been, I would address only the case before us—a challenge to the law as applied to unpaid lobbyists—and would affirm the district court’s denial of a permanent injunction. I respectfully dissent.