Case Information
*1 March13. 1973
Honorable Charles F., Herring, Chairman
Senator Jurisprudence Committee
Senate of the State of Texas
Austin, Texas
Opinion B-18 Re: Constitutionality of House Dear Senator Herring: Bill 2
Your letter of February 22, 1973 requested our opinion as to the constitutionality of H.B.2, called the Lobby Control Act, particularly with respect to the rights of petition and free speech.
Basically, X.D.2 provides in Sections 3 through 5 for reg- istration of those engaged in efforts to influence legislation administrative action; activities reports by those re- quired to register, and for a State Ethics Commission to inves- tigate violations of the act, render advisory opisions, and to advise other State officess of violation.
Although the Legislature undoubtedly has the right to so provide for the registration those engaged in efforts to di- rectly influence legislative executive action, and to require such registrants to furnish relevant information, the classifica- tions of persons covered and of the information sought must be reasonable, so as not to improperly infringe upon Fzrst Amend- ment rights. and must not be so vague as to violate the concept of due process. The path to be taken, and much of the ground to be avoided, was shown by the Supreme Court of the United 347 U.S. 812, 98 L.Ed. 989, States in United States v.-Harriss; ttie Pedexd of Lobby- 74 S.Ct. 800 i@ulation The legislation pprwed in Harris8 was oonstrued by the Court to cover those who solioit,nt, other things value to directly influence legislation, or who or receive money or engage agents to do so. In our opinion, the regulatory scheme of H.B.2, requiring also of those who a end money registration or other things of value to directly influence legis at ve or -;pr administrative action, is equally pennissable. In selecting mon- etary parameters for such regulations, the Legislature is in- vested with brosd discretion so long as the selection is rea- sonable.
Honorable Charles F. Herring, Page 2 (H-18)
We further are of the view that the Legislature may reasonably classify the persons to be covered in terms of amounts of money or other things of value solicited, ool- lected, received or spent by themselves or by their paid or reimbursed agents to directly influence legislative or executive action. We do not believe, however, that it is constitutionally permissible to attempt regulation of grass roots lobbying activities or campaigns of public persuasion which do not in themselves amount to direct governmental contacts. Awakening public concern about an issue is gener- ically different from personally attempting to directly af- fect governmental action.
Applying the above discussed general principles to the legislation at hand, we conclude that Ii.B.2 is oonstitutional in many of its aspects, but not all.
Persons Covered
In the context of this Bill and its purpose, the forced of those who make expenditures "to solicit other registration persons by an advertising aampaign to ooamanicate directly with members of the legislative or executive branch to in- fluence legislation or administrative action" goes too far, we think, and amounts to an improper burden on free speech. We do not believe the Courts would find a compelling state interest in the regulation of such activities. Cf. U.S. v. Bsrrims, supra; U.S. v. Rumely, 345 U.S. 41, 97 L.Ed.73 ti43 (19'53)r Eastern Railroad Conference v. Noerr Motor Prei ht, 365 U.S. 121 5 L Ed Zd 464 81 S Cf 523 (1961) flimk. Button, 371 6.S. il5; 9 L.Ed: 2d 4;5,'83 S.Ct. 32;
NAACP v. Patty 159 F.Supp. 503 (E.D. Va., 19581, NMCT, 360 vaaatd on ocher groun&s, sub nom, Harrison V.
U.S. 167, 3 L.Ed. 2d 1152, 79 S.Ct.2025 (1959) .
We cannot say that excmppting from registration require- ments those who expend less than $150.00 per quarter, any other reasonable figure, to influence legislation is unconsti- tutionally discriminatory, because the purpose of the Bill is to identify substantial interests which directly seek to influ- ence legislative administrative action. In the political world, there is a readily ascertained correlation between the value interests to be protected snd the amounts of swney ordinarily 8pubt ia attempting to protact them. Such legislative dimtinotioas follow a pattern 8et by the Federal Election Campaign Act, 2 U.S.C. SS431, 432, et seq., and the Texas Campaign Enpenditur8 Law, Article 14.04, Texa8 Election Cod..
? .
Ronorable Charles P. Herring, Page 3 (H-18)
There are other coverage problems. We believe the exemp- tion of legielative and executive officers 8nd employees from the class of salaried persons required to register, without exempting those attached to the judicial branch, places a bur- den upon the judiciary which amounts to an encroachment upon the constitutional prerogatives of that branch, and cannot be sustained. Article 2, 91, Texas Constitution: State Board of Insurance v. Bett8, 308 S.W. 2d 846 (Tex. 1958).
Cartain other exemption8 allowed by Section 4 make dis- oriminations based upon the identity of the actor rather than upon the character of the act. Certain news people, .lawyers and cleric8 are not required to register, though others en- gaged in 888entially identical actioitie8 must. Such cla8- sifioations appear unreasonable in the context of.the Bill's purpo8e, and that reason , 8eem to violate the Equal Pro- tection Clau8e of the Fourteenth Amendm8nt to the Federal Constitution, Reed v. Reed, 404 U.S. 71, 30 L.Rd.?d 225, 92 S.Ct. 251 (1971)s Cf. AttOln8y Generai Opinion R-15 (1973). Vagueness
Vagueness in a statute is oftsm a fatal vice, and while the courts have &xaet&nea..tolerated lea8 praoise language in lobby regulatory legi8lation than they might otherwise do (Cf. U.S. v. Harri88, supra), there are still limits which must be observed. Texas Liquor Control Board v. Attic Club, 457 S.W. 2d 41 (Tex.-I910).
InClUded in the definition Of n P8r8On* 88t out in Section 2 the Bill, in addition to individual8, Corporations, aeso- oiations, firms, partnership8 , committaes, clubs, other organizations, is the further designation, "Or group of persons”. The designation is not limited to those persons voluntarily acting in concert, otherwise intentionally lending their presence to an identifiable combination, and it is difficult to determine whom the Bill intend8 to subject to it13 provision8 by that designation.
Scme the disclosures required by the %ctivity Report" that registrants must periodically file appear overly broad and perhaps impomible of performance. The identifioation of "other regi8trant8 ” reoeiving benefits from the registrant, for in8t8ne8, 18 not tid in any way to expenditures or effort6 intended to directly influmce legislative or administrative action. Th8 requimmnt that measuree.privately supported b8 revealed, as we&l 88 those supported through direct govern- mental oontaat, is too broad. Nor can.8n unrelatd regis- *4 Honorable Charler, P. fluxing, Page 4 (Ii-18)
trant be made criminally re8ponsible itiee of otherrr! And, certainly the for reporting the activ- regietrant cannot rea- _- _ 8onaBly be t8gulred to report expenditure8 by others (even it8 employees) unlese they wue made on its behalf and with its express implied oonsent, or which it ratif:ad.
PeIlalti88
The p8nalty prwisio~ of the Bill require attention. Insofar ss per8oM* ar8 legal entitie8, w8 be&me the Leg- islature say comand that they be convicted of crimes com- mitted in that capacity, as8uming the proper procedural machinery i8 made available. Cf. Ralph WilIiams Gulfgate Chrmler Plymouth Inc. v. State, 466 8 W 26 639 (Tex. Civ. App., IIouston-14th 19/l, writ ref., n.r.e.1 $*&orate Criminal Lia-
24 S.W. L.J. 93 (1970Jt Corporate Criminal L.abllity , 47 T.L.R. 60 (1968)7 Attorney General Gpinfom k-969) and V-491 (1948). In Attorney General. Opinion M-348 (1969) it was concluded that though aorporatione might be convicted of crimes, partierships and associations could not be 80 convicted. That opinion overlooJced the "entity. character of partner8hips in Texas today [See Texa8 Uniform Partnershiu Act, Art. 6132b. V.T.C.S.. and 8uah ca8es as U.S. V. A i $ Tkoking Co.,-358 U;S. i21, 3 L.Bd.2d 165, 758 S.Ct. 203 (1958)) Our reexamination lead8 to 8 diff8rent We be&v8 partnership8 can be mad8 liable for wnclu8ion. oriminal conduct. But the Bill does not presently provide the necessary pro- CedtUal d8ViCe8. Cf. Article 698c, Section8 8-13, and Article 6986, 88CtiOn8 7-12, V.T.P.C. Moreover, limiting the nwn- etary penalty for filing false information to $l,OOO.OO for individual violator8, and authorizing a fine of $lO,OOO.OO against,corporate offenders, but providing no penalty for guilty non-corporate entities is, we believe, violative of the Equal Protection Clause of the Fourteenth Amendment of the Conlrtitution the United States.
Ethics Comnission
Lastly, the Bill'8 provi8ions setting up a State Ethic8 Ccemission are all practical purposes identical with those di8ous8ed in AttOXiI8y Gen8ral Opinion B-15 WnCerning H.B. 1, tha athi Bill, and we refer you there for our commentary on tho8e pasiages.
Xonor8bl8 Charles P. Herring, Page 5 (H-U))
SUMMARY The Legislature may require registra- tion by those who 8pend money or other things of value to directly influence legislative or adminirtrative aotion (and by the agent8 thereof) and may reaclonsbly adopt regiatra- tion Wquirements ba8cd on amount8 80 spsnt.
The forced regirrtration of tbo8e who merely make exp8nditure8 to SOliCit others adVerti8ing o8mpaign8, etc., to aommioate 3 reotly with member8 of the 8xecutive leg- i8lative brenohes impsnhiesibly burden8 the right of fre8'8p8Wh im the centut sd the propoeed legislation.
The omission judicial personnel from those governmental offioers and employee8 ex~pt8d tram registration r8quir8ment8 when otiw officially is impermirsibl8. Arbitrsry discriminations among persons 8itU8tad and engaged in 888entially 8itilUly identical.activitie8 are constitutionally prohibitcrd.
Vagu8 definition8 and reporting require- ments should b8 Wrr8cted to avoid overbreadth. Criminal penalties must not be imposed on an arbitrarily 8eleotive basis and a special procedural baa18 must be establi8hed ta effect the conviction legal entities other than natural pamona.
Very tray Y-8, .
C&nor81 of Texas p. 89
Honorable Charles F. Herring, Page 6 (H-18)
APPROVED:
rl
p. 90