Writer, a law firm representing corporate clients, questions the conclusion of Commission Opinion 78-9 that officers of a corporation who lobby on behalf of the corporation would have to register and report if they otherwise qualified as lobbyists under the Regulation of Lobbying Act. The firm refers to "a bona fide officer of a corporation having genuine corporate responsibility and authority...when he or she openly communicates as the corporation with governmental personnel..." in an attempt to influence decision making.
The letter cites federal cases supporting the view that corporations enjoy the equal protection of the laws provision of the Fourteenth Amendment and, through it, the freedom of speech provision of the First Amendment. Further, it is claimed that a bona fide officer of a corporation acting or speaking for the corporation is the corporation and that a corporation is a person under the law.
When an officer of a corporation speaks or acts as the corporation and otherwise would qualify as a lobbyist under the Regulation of Lobbying Act, must he or she register and report under the Act?
Under Federal case law, corporations enjoy the freedom of speech and equal protection of the laws provisions of the First and Fourteenth Amendments of the U.S. Constitution. However, the government may modify freedoms granted under the First Amendment in order to protect the public interest. The hallmark case on lobbying is United States v. Harriss, 347 U.S. 612, which states, at page 625:
Present-day legislative complexities are such that the 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. This is the evil which the Lobbying Act was designed to help prevent.
Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much...
The legislative declaration in the Regulation of Lobbying Act reflects the Harriss opinion: "(T)o preserve and maintain the integrity of the governmental decision-making process in this state, it is necessary that the identity, expenditures, and activities of persons or corporations retained, employed, or designated on behalf of any person, firm, corporation, or association...to influence the passage or defeat of legislation...be publicly and regularly disclosed."
Cases cited in the firm's brief acknowledge the necessity of government limiting the exercise of free speech in certain instances. In the Buckley case, 424 U.S. 1, it is stated at page 3, "(T)he ceilings imposed (on campaign contributions)...serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion." And further on page 3 we find, "The general disclosure provisions, which serve substantial governmental interests in informing the electorate and preventing the corruption of the political process, are not overbroad..." In Cantwell v. Connecticut, 310 U.S. 296 at page 311 (cited in N.A.A.C.P. v. Button, 371 U.S. 415) we find: "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity."
Repeatedly, Federal cases note that First Amendment rights may be regulated for the public good. Clearly, the regulation of free speech under the Lobbying Act falls well within guidelines found in Federal case law.
As to the matter of corporations acting through officers or directors, when authorized to act as the corporation on specific matters, such officers or directors may act as the person of the corporation and be protected under the equal treatment and due process causes of the Fourteenth Amendment and the freedom of speech provision of the First Amendment. However, these provisions do not free the officer or director acting on behalf of the corporation from the registration and reporting provisions of the Lobbying Act. While the Act exempts individuals who lobby on their own behalf, this exemption does not apply to corporations. In the case of a corporation, the officers or directors would be "persons...employed or designated on behalf of...any...corporation...to influence the passage or defeat of any legislation..." (Section 1, Regulation of Lobbying Act).
An officer or director of a corporation, regardless of his authority to act as the corporation, is subject to the registration and reporting requirements of the Regulation of Lobbying Act when attempting to influence the outcome of legislation or other governmental decision making which has the force and effect of law, assuming that such officer or director would otherwise qualify as a lobbyist under the Act. (Sections 1,3,5,8, and 10.) The authority of states to regulate lobbying and to require registration of corporate officers who act as lobbyists on behalf of their corporate employers is not an infringement on constitutional rights.
APPROVED BY COMMISSION: APRIL 25, 1979
CONCURRING: CHAIRMAN MARGARET C. ANDRONACO, VICE CHAIRMAN D. CLINTON DOMINICK, FRANCES FOX, GAIL HELLENBRAND, and S. STANLEY KREUTZER./S/