The question presented is whether a senior officer of an organization, which has retained registered lobbyists to represent the organization, must himself register in order to express his and the organization's views to legislators, where the executive receives no additional compensation for such activities?
If the answer is "yes," then what compensation, if any, should be reported?
In New York, a corporation is legally recognized as a person, and as such, federal case law extends the freedom of speech and equal protection of the law provisions of the First and Fourteenth Amendments of the U.S. Constitution to corporations. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886). Since corporations are physically unable to voice their concerns to legislators, the protection afforded to corporations by the Constitution extends to the officers and directors of any corporation when acting in their official capacity. However, the Constitution does not provide a "shield of immunity" where employees acting on behalf of the corporation avoid the registration and reporting requirements mandated by the Lobbying Act. Employees of a corporation, whatever their official title or duties might be, are considered "persons...employed or designated on behalf of...any...corporation...," and as such, must comply with the filing requirements set forth in the Lobbying Act. (Opinion 8, 9).
Although corporations are legally recognized as persons in New York, the exemption from the filing requirements afforded to persons lobbying on their own behalf is not extended to the officers or directors of a corporation, even when such employees are acting on behalf of the corporation. Consequently, officers or directors would be persons employed or designated by the corporation to influence the passage or defeat of any legislation. (Opinion 24). Therefore, the officer or director would be a lobbyist of the corporation and not a person acting on his or her own behalf.
On the basis of the facts presented, the senior official must file a statement of registration with the Commission because he is a person employed by the corporation, and did in fact lobby on its behalf, and his combined reportable expenditures for the calendar year have exceeded the $2,000 threshold. Moreover, the fact that the senior official did not receive any specific salary or fee for his lobbying services does not provide a defense for not complying with the Commission's filing requirements. The senior official should report a reasonable estimate of the proportionate share of his salary attributable to lobbying activities.
Although the Commission has never extended an exemption from the filing requirements of the Lobbying Act to officers or directors of a corporation, the Commission is sensitive to the corporation's inability to personally express its views to legislators. However, the granting of an exemption from the filing requirements to the CEO/president of any corporation when acting on behalf of the corporation would not be consistent with the act.
APPROVED BY COMMISSION: AUGUST 20, 1997
CONCURRING: STEWART C. WAGNER, CHAIR; MILTON MOLLEN, VICE CHAIR; MORRIS H. KLEIN, ALBERT S. CALLAN AND BARTLEY F. LIVOLSI./S/