Can the Government Charge Citizens for Speaking with Elected Officials? A Challenge to Texas’ Lobbying Law Might Answer that Question

Michael Quinn Sullivan was the President and CEO of Enpower Texans, a nonprofit organization that encouraged Texas lawmakers to adopt right-leaning policies. In 2014, the Texas Ethics Commission fined Sullivan $10,000 for failing to register as a lobbyist before sending e-mails to Texas legislators promoting Enpower Texans’ policy positions.  In 2020, Enpower Texans was dissolved, but Sullivan’s fight against Texas’ lobbying regime has continued.

Sullivan asserts that as a citizen, he has the First Amendment right to petition the government and the right to associate with others to petition the government. Sullivan’s argument is that the government cannot charge him a fee to exercise those rights.

The headlines are full of disputes over government transparency, from claims regarding the lack of press availability of former President Joe Biden during his administration to the Associated Press’ ongoing lawsuit challenging the Trump administration’s exclusion of it from certain press availabilities. This case gets to a deeper question. What restrictions can the government put on citizens in petitioning the government?

The United States Supreme Court has long held that political speech is the heart of the First Amendment and can only be burdened when the government can meet a strict scrutiny standard by showing that the statute is narrowly tailored to meet a compelling governmental interest and that the statute is the least restrictive means of furthering that compelling interest. That standard has previously disrupted long accepted practices related to political campaigns. The controversial Citizens United case held that a prohibition on independent election expenditures by corporations, unions, and non-profits violated the First Amendment because it could not withstand strict scrutiny. That decision ushered in a sea change in national politics. Ultimately, Sullivan’s case could have just as broad an impact, calling into question all 50 states’ lobbying laws.

Sullivan’s lawsuit challenges Chapter 305 of the Texas Government Code, which requires citizens to register and pay a fee to speak to government officials in the legislative or executive branch about political issues. If an individual fails to register under this chapter of the Code, the Code prescribes punishment by substantial fines and up to one year of jail time. Here, Sullivan was fined $10,000 by the Ethics Commission after an investigation showed he failed to register as a lobbyist and pay the required fee before sending emails to legislators promoting Enpower Texans’ agenda. Sullivan argues that Chapter 305 requires “burdensome disclosures and a fee for just about anybody who has a job and wishes to speak to their representatives” and thus, was used to “stifle [his] political speech, petitioning and free association” as guaranteed by the First Amendment.

Sullivan has had few victories in his ten years of litigation. After the Texas Supreme Court declined to take up his case, he petitioned the Supreme Court to hear the matter. That petition is still pending. Texas Attorney General Ken Paxton agrees with Sullivan that “the First Amendment does not tolerate what happened here” and has filed an amicus brief urging the Supreme Court to take the case.

Why is this Issue Ripe for Review

In Citizens United, the Supreme Court held that “political speech must prevail against laws that would suppress it, whether by design or inadvertence” and thus, “laws that burden political speech are subject to strict scrutiny.” However, prior to Citizens United, in United States v. Harriss, the seminal case on First Amendment challenges to lobbying registration laws, the Supreme Court held that Congress’s interest in “self-protection” generally justifies federal lobbyist registration requirements. Since then, Sullivan submits that governments nationwide have “abused” the Court’s holding in Harriss to “justify draconian speech and petitioning restrictions” on lobbyists and ordinary citizens. As a result, there is a legal “crevasse” that has developed, in that lower courts now disagree on how to read and apply the holdings in Harriss, including the level of scrutiny that is applied to lobbying laws and what government interests are sufficient. Indeed, Sullivan submits that the Supreme “Court’s review is sorely needed” to bring the law on lobbyist registration requirements “into step with modern First Amendment jurisprudence.”

Roberts Court is Open to Challenges to Restrictions on Political Speech

The Roberts Court has generally been friendly to First Amendment challenges. In 2020, SCOTUSblog called Chief Justice Roberts, “Mr. First Amendment.” Under his leadership, in United States v. Stevens, the Court struck down a statute that criminalized the creation or dissemination of images of animal cruelty. In Snyder v. Phelps, the Court ruled that the First Amendment prohibited imposing liability on Westboro Baptist Church’s picketing of soldier’s funerals.

The Roberts Court’s strong emphasis on First Amendment rights has come to the fore in cases involving limitations on political speech. In Federal Election Commission (“FEC”) v. Wisconsin Right to Life, Chief Justice Roberts authored an opinion finding that a statute prohibiting corporations from airing political issue advertisements violated the First Amendment. He also authored the opinion in McCutcheon v. FEC, finding that aggregate limits on individuals’ campaign contributions was unconstitutional. Most famously, the Citizens United case was decided during Roberts’ tenure.

However, Chief Justice Roberts also wrote the majority opinion in Williams-Yulee v. Florida Bar, upholding a Florida law that prohibited judicial candidates from soliciting for campaign funds.  That opinion applied the toughest strict scrutiny standard because it was a content-based restriction on political speech, but the opinion reasoned that the law was a narrowly tailored way of addressing the state’s compelling interests in protecting the integrity of and public confidence in judicial proceedings.

Does Strict Scrutiny Apply to All Restrictions on Political Speech

Sullivan’s Petition shows the judiciary’s struggle to apply the proper level of scrutiny to lobbying statutes, as Harris was decided prior to the implementation of the contemporary levels of scrutiny. Even after Citizens United, lower courts have applied various levels of scrutiny to their review of lobbying statutes. The Fifth Circuit in New Orleans applies intermediate scrutiny; the Eighth Circuit in St. Louis has applied strict scrutiny; and the Texas Court of Appeals applied “exacting scrutiny” in Sullivan’s case. The D.C. Circuit and the Eleventh Circuit in Atlanta have “debated over the appropriate test to apply.” While Sullivan argues he should prevail even if intermediate scrutiny applies, he specifically asks the Court to set forth that strict scrutiny applies to challenges to lobbying statutes.  

Is There a Compelling Government Interest in Lobbying Statutes

There has been disagreement in the lower courts when it comes to determining which government interests are sufficient to justify lobbying registration laws. The Eleventh Circuit upheld a lobbying registration law based on “correlative interests of voters and legislators,” the D.C. Circuit upheld such laws based on the “government’s compelling interest providing the public and its elected representatives with information regarding who is being hired, who is putting up the money and how much they are spending to influence public officials.” Some state supreme courts have held that “information interests” are sufficient to uphold registration statutes. On the other hand, the Eighth Circuit has explicitly held that “informational interest are not sufficient to require lobbyist registration.”

Ultimately, Sullivan argues, unless Harriss is clarified, the states are left to “exploit that confusion to stifle political speech by ordinary constituents in the name of regulating lobbying.”

Why It Matters

Few could dispute that lobbying laws can provide protections to prevent inappropriate favor trading in adopting legislation. But the same can be said of almost all restrictions on access to public officials. Over time, allowing broad regulations of the right to petition the government may well serve to cut off both the public and the press’ access to public officials.

The Roberts Court has largely found that such restrictions violate the Constitution. If Chapter 305 survives judicial review, the opinion’s explanation of how it survives could give us guidance moving forward in future access to public official cases. If Chapter 305 is found unconstitutional, not only will it upend lobbying laws across the country, but it will also further show that restrictions on political speech will not be tolerated by the Supreme Court.

Please contact Justine Tate, Andrew W. Coffman, Mary Ellen Roy and the rest or any member of Phelps’ Media and First Amendment Law team if you have questions or need advice or guidance.