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The Broward County Commission Should Not Be Challenging the Constitutionality of a Lobbying Provision
Wednesday, June 16th, 2010
Update: June 18, 2010 (see below)
In a memo dated June 14, 2010 (attached; see below), the Broward County (FL) county attorney told the county commission that lobbying provisions in the county ethics commission's proposed ethics code are unconstitutional and, therefore, should either be removed by a "glitch ordinance," modified by exclusion, or confirmed as unconstitutional by seeking a declaratory judgment from a court.
According to an article in yesterday's Sun-Sentinel, the very next day the county commission voted unanimously to seek a declaratory judgment. Apparently, they didn't want to be the ones to declare provisions they disliked unconstitutional. In the one day they were given, they certainly didn't have the time to deeply consider either the constitutional arguments or the alternative approaches.
Do the County Attorney's Arguments Hold Up?
The provisions prohibit county commissioners from lobbying local governmental entities within Broward County, and they require lobbyists and their principals to register. They also prohibit immediate family members of commissioners from lobbying local governments in the county.
The county attorney starts by stating that lobbying the government is a core first amendment right, citing a case involving a boycott by a group of trial lawyers who felt underpaid and happened to, like most groups, do some lobbying. But these lawyers weren't lobbyists. Wasn't there a more appropriate case?
Because of this first amendment right, the argument continues, any restriction on lobbying is subject to strict judicial scrutiny, meaning that the restriction must be narrowly tailored and the least intrusive means of serving a compelling government interest. The county attorney cites the recent Citizens United decision involving a political film made by a political association. Again, wasn't there a more appropriate case?
The County Attorney's Three Principles
Since there is no case on point, as the county attorney finally admits, he looks at three principles he feels are ruling here:
The first problem with the county attorney's analysis is that he ignores the fact that elected officials give up many rights when they seek and accept public office. They tacitly and expressly (in their oaths of office) agree to a number of official and unofficial limits on their first amendment rights. Public office has many benefits and requires many sacrifices. To ignore this is to ignore one of the bases for ethics laws, not to mention the basis of ethics.
First amendment rights are not absolute for anyone, but for sitting government officials, especially elected officials, they are far from absolute.
In this light, the first principle is ridiculous. Of course it is permissible to regulate the speech of elected officials based on the fact that they are elected officials.
Elected Officials' Right to Lobby Is Commonly Limited
The second problem with the county attorney's analysis, as a county commissioner who has already changed her mind says, is that, in the real world, elected officials' right to lobby is limited across the country. It is even expressly limited by the Florida constitution.
And yet there is a decision cited by the county attorney where a lobbying ban was found unconstitutional, Brinkman v. Budish. But this 2010 district court decision dealt with a ban not on current elected officials, but on former officials. In addition, the sole compelling interest not accepted by the court was leveling the playing field, which I don't believe is a justification here, and the ban was limited to lobbying, that is, it did not restrict other conduct that might give rise to actual or perceived corruption, such as the acceptance of gifts, something the Broward County code does. In short, the one decision that found a lobbying ban unconstitutional does not apply to the Broward County code.
You Don't Have to Prove That Elected Officials Lobbying Equals Corruption
As for the county attorney's second principle, the decision cited by the county attorney does not say what he says. Here's what the decision does say about empirical evidence:
Recusal Is Insufficient
Yes, there are less restrictive means of combating corruption (principle three). There are always less restrictive means. The county attorney recommends recusal whenever a client local government's matter appears before commission. But does it really work like that? Isn't there a problem any time a county official appears before a local government official for any purpose other than representing the county? Isn't there a possible abuse of power, not to mention the appearance of impropriety? Aren't there many ways a county commissioner can use his or her office to affect, or threaten to affect, a local government (and especially its elected officials, who seek county elected officials' political support), directly and indirectly? Doesn't the commissioner have a big advantage over other potential lobbyists, owing to his office?
It Is Inappropriate for the County Commission to Challenge the Lobbying Provision
The county commissioner who, once she had a chance to think about the idea, now opposes seeking a declaratory judgment, saw something else that bothered me, as well. Is the county commission the appropriate party to seek a declaratory judgment, and who will represent it? The county attorney is the attorney for the very body that drafted the code that he now considers unconstitutional, and the county commission has been prevented by the law from in any way removing provisions from the code.
Isn't seeking this declaratory judgment a way of removing provisions from the code? When a regulated party seeks to remove provisions from its regulating ordinance, doesn't this undermine public trust, which is what the ordinance is intended to support? And doesn't the county attorney have a conflict of interest in representing the county commission in this matter? [Update: Apparently, the county attorney will no longer represent the ethics commission in this matter, which means that the EC has to hire its own attorney. But I don't believe that the EC gave the county attorney the permission to represent the county commission in this matter, in the first place.]
The county, of which the county commission is the legislative body, should be the last party to challenge the constitutionality of its own law. If the commissioners themselves have a problem with it, they are free to challenge it on their own dime and with their own attorney.
After all, who is going to defend the constitutionality of the law, other than the county?
This whole thing is extremely problematic. I do not think the county attorney should move ahead with the motion for a declaratory judgment, and I think that the other county commissioners should, like Sue Gunzburger, help the county attorney by publicly changing their minds, even if their commission is no longer in session.
P.S. The county attorney also argues at length in his memo that the ethics commission went beyond its authority by making the ethics code applicable to the county commissioners' immediate families. See my discussion on this in the update to a recent blog post.
Update: June 18, 2010
According to the Hallandale Beach Blog, the Broward County mayor wrote the following to a local activist, cc'ing his fellow commissioners:
Director of Research-Retired, City Ethics
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In a memo dated June 14, 2010 (attached; see below), the Broward County (FL) county attorney told the county commission that lobbying provisions in the county ethics commission's proposed ethics code are unconstitutional and, therefore, should either be removed by a "glitch ordinance," modified by exclusion, or confirmed as unconstitutional by seeking a declaratory judgment from a court.
According to an article in yesterday's Sun-Sentinel, the very next day the county commission voted unanimously to seek a declaratory judgment. Apparently, they didn't want to be the ones to declare provisions they disliked unconstitutional. In the one day they were given, they certainly didn't have the time to deeply consider either the constitutional arguments or the alternative approaches.
Do the County Attorney's Arguments Hold Up?
The provisions prohibit county commissioners from lobbying local governmental entities within Broward County, and they require lobbyists and their principals to register. They also prohibit immediate family members of commissioners from lobbying local governments in the county.
The county attorney starts by stating that lobbying the government is a core first amendment right, citing a case involving a boycott by a group of trial lawyers who felt underpaid and happened to, like most groups, do some lobbying. But these lawyers weren't lobbyists. Wasn't there a more appropriate case?
Because of this first amendment right, the argument continues, any restriction on lobbying is subject to strict judicial scrutiny, meaning that the restriction must be narrowly tailored and the least intrusive means of serving a compelling government interest. The county attorney cites the recent Citizens United decision involving a political film made by a political association. Again, wasn't there a more appropriate case?
The County Attorney's Three Principles
Since there is no case on point, as the county attorney finally admits, he looks at three principles he feels are ruling here:
-
1. It is impermissible to regulate speech (including lobbying) based on
the identity of the speaker.
2. Government may only regulate speech based on empirical evidence that the restrictions are necessary to serve a compelling interest.
3. Less restrictive means of combating corruption or undue influence should be used where possible (these are my words, since the county attorney did not present this in the form of a principle).
The first problem with the county attorney's analysis is that he ignores the fact that elected officials give up many rights when they seek and accept public office. They tacitly and expressly (in their oaths of office) agree to a number of official and unofficial limits on their first amendment rights. Public office has many benefits and requires many sacrifices. To ignore this is to ignore one of the bases for ethics laws, not to mention the basis of ethics.
First amendment rights are not absolute for anyone, but for sitting government officials, especially elected officials, they are far from absolute.
In this light, the first principle is ridiculous. Of course it is permissible to regulate the speech of elected officials based on the fact that they are elected officials.
Elected Officials' Right to Lobby Is Commonly Limited
The second problem with the county attorney's analysis, as a county commissioner who has already changed her mind says, is that, in the real world, elected officials' right to lobby is limited across the country. It is even expressly limited by the Florida constitution.
And yet there is a decision cited by the county attorney where a lobbying ban was found unconstitutional, Brinkman v. Budish. But this 2010 district court decision dealt with a ban not on current elected officials, but on former officials. In addition, the sole compelling interest not accepted by the court was leveling the playing field, which I don't believe is a justification here, and the ban was limited to lobbying, that is, it did not restrict other conduct that might give rise to actual or perceived corruption, such as the acceptance of gifts, something the Broward County code does. In short, the one decision that found a lobbying ban unconstitutional does not apply to the Broward County code.
You Don't Have to Prove That Elected Officials Lobbying Equals Corruption
As for the county attorney's second principle, the decision cited by the county attorney does not say what he says. Here's what the decision does say about empirical evidence:
-
The quantum of empirical evidence needed to satisfy heightened judicial
scrutiny of legislative judgments will vary up or down with the novelty
and plausibility of the justification raised. Buckley
demonstrates that the dangers of large, corrupt contributions and the
suspicion that large contributions are corrupt are neither novel nor
implausible.
Recusal Is Insufficient
Yes, there are less restrictive means of combating corruption (principle three). There are always less restrictive means. The county attorney recommends recusal whenever a client local government's matter appears before commission. But does it really work like that? Isn't there a problem any time a county official appears before a local government official for any purpose other than representing the county? Isn't there a possible abuse of power, not to mention the appearance of impropriety? Aren't there many ways a county commissioner can use his or her office to affect, or threaten to affect, a local government (and especially its elected officials, who seek county elected officials' political support), directly and indirectly? Doesn't the commissioner have a big advantage over other potential lobbyists, owing to his office?
It Is Inappropriate for the County Commission to Challenge the Lobbying Provision
The county commissioner who, once she had a chance to think about the idea, now opposes seeking a declaratory judgment, saw something else that bothered me, as well. Is the county commission the appropriate party to seek a declaratory judgment, and who will represent it? The county attorney is the attorney for the very body that drafted the code that he now considers unconstitutional, and the county commission has been prevented by the law from in any way removing provisions from the code.
Isn't seeking this declaratory judgment a way of removing provisions from the code? When a regulated party seeks to remove provisions from its regulating ordinance, doesn't this undermine public trust, which is what the ordinance is intended to support? And doesn't the county attorney have a conflict of interest in representing the county commission in this matter? [Update: Apparently, the county attorney will no longer represent the ethics commission in this matter, which means that the EC has to hire its own attorney. But I don't believe that the EC gave the county attorney the permission to represent the county commission in this matter, in the first place.]
The county, of which the county commission is the legislative body, should be the last party to challenge the constitutionality of its own law. If the commissioners themselves have a problem with it, they are free to challenge it on their own dime and with their own attorney.
After all, who is going to defend the constitutionality of the law, other than the county?
This whole thing is extremely problematic. I do not think the county attorney should move ahead with the motion for a declaratory judgment, and I think that the other county commissioners should, like Sue Gunzburger, help the county attorney by publicly changing their minds, even if their commission is no longer in session.
P.S. The county attorney also argues at length in his memo that the ethics commission went beyond its authority by making the ethics code applicable to the county commissioners' immediate families. See my discussion on this in the update to a recent blog post.
Update: June 18, 2010
According to the Hallandale Beach Blog, the Broward County mayor wrote the following to a local activist, cc'ing his fellow commissioners:
-
I intend to vote for the original ordinance as presented by the Ethics Commission. ... I voted in favor of the lawsuit (9-0) so the judge could rule that the ordinance is legal. However, after thinking about it more, I doubt that any court could rule on this by the deadline for the vote: August 10. I truly don’t believe anyone was trying to derail the ordinance.
Director of Research-Retired, City Ethics
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