The Broward County Commission Should Not Be Challenging the Constitutionality of a Lobbying Provision

Anonymous

Wed, 06/16/2010 - 12:01

County Related

Update: June 18, 2010 (see below) 
 
In a memo dated June 14, 2010 (attached; see below), the Broward County
(FL) county attorney told the <a href="http://www.broward.org/Commission/Pages/default.aspx" target="”_blank”">county
commission</a> that lobbying provisions in the county ethics
commission's <a href="http://www.broward.org/EthicsCommission/Documents/CodeofEthics2010%20-%…; target="”_blank”">proposed
ethics code</a> 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 <a href="http://weblogs.sun-sentinel.com/news/politics/broward/blog/2010/06/brow…; target="”_blank”">an
article in yesterday's Sun-Sentinel</a>, 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 href="http://supreme.justia.com/us/493/411/case.html" target="”_blank”">a case</a>
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 <a href="http://blogs.law.stanford.edu/unitedwestand/files/2010/04/Full-Citizens…; target="”_blank”">Citizens
United decision</a> 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: 
<ul>
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).</ul>
The Sacrifices of Elected Office 
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, <a href="http://weblogs.sun-sentinel.com/news/politics/broward/blog/2010/06/brow…; target="”_blank”">as
a county commissioner who has already changed her mind says</a>, 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, <a href="http://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2009…; target="”_blank”">Brinkman
v. Budish</a>. 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, <a href="http://www.law.cornell.edu/supct/html/98-963.ZS.html">the
decision cited by the county attorney</a> does not say what he says.
Here's what the decision does say about empirical evidence: 
<ul>
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.</ul>
The dangers of lobbying of other government officials by an elected
official, not to further the interests of the elected official's constituency, are also hardly
novel or implausible. This is a problem criticized across the country.
And it has been an ongoing issue with respect to the Broward County
county commission, where commissioners and their spouses have acted as
lobbyists (see, for example, <a href="http://www.law.miami.edu/news.php?article=1204" target="”_blank”">this article
from the Miami Herald</a>). 
 
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 href="http://www.cityethics.org/content/appreciative-look-draft-broward-count…; target="”_blank”">a recent blog post</a>. 
 
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: 
<ul>
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.</ul>
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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The Broward County Commission Should Not Be Challenging the Constitutionality of a Lobbying Provision

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