8th Circuit says unpaid lobbyist must register

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After years of political activism in Jefferson City, Ron Calzone is now considered a lobbyist. He’s not happy about it.

A split panel of the 8th U.S. Circuit Court of Appeals ruled on Nov. 28 that the Missouri Ethics Commission can’t be barred from requiring Calzone to register as a lobbyist, even though he isn’t paid for his efforts to influence legislation.

The court said that particular First Amendment issue has never been decided in the federal courts, but that existing caselaw indicated the state’s interest in maintaining the transparency of the lobbying process “transcends whether that person is being paid.”

“Though the lobbyists may not be receiving money, unpaid lobbyists could still offer things of value to legislators, creating a sufficiently important governmental interest in avoiding the fact or appearance of public corruption,” Judge Bobby E. Shepherd wrote. “Furthermore, the government and the public have a sufficiently important interest in knowing who is pressuring and attempting to influence legislators, and the ability to pressure and influence legislators is not limited solely to paid lobbyists.” Judge Steven M. Colloton concurred.

But Judge David R. Stras said in a dissent that pressuring and influencing legislators “is just another way of describing core political speech.” Stras argued that the majority’s opinion could be read to apply to volunteer members of religious or civic organizations who go to the state Capitol for their organization’s “lobby day.”

“The law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of its purpose,” Stras wrote.

“We think Judge Stras hit the nail on the head with his dissent,” David Roland of the Freedom Center of Missouri, an attorney for Calzone, said in an interview. “He clearly got what the other two judges missed.”

The Institute for Free Speech in Alexandria, Virginia, also represented Calzone. Roland said the legal team is weighing a request for the full 8th Circuit to rehear the case. Depending on the outcome, he said, it could present a “clear, clean issue” for the U.S. Supreme Court.

“This decision empowers faceless, unaccountable bureaucrats to discourage or prevent citizens like me from fulfilling our crucial civic duty,” Calzone said in a news release.

The Missouri Attorney General’s Office, which defended the registration requirement, didn’t respond to a request for comment.

Liz Ziegler, executive director of the Missouri Ethics Commission, said in an interview that Missouri’s law doesn’t specifically address “grassroots” lobbying. But she pointed to instances in which complaints against non-professional lobbyists have been dismissed, including one in June against an employee of the Missouri Rural Crisis Center who had helped to organize a lobbying day.

Ziegler also noted that one of the two complaints against Calzone was dismissed because he had testified at legislative hearings on his own behalf, rather than his organization, Missouri First. Whether someone qualifies as a lobbyist, Ziegler said, “becomes a question of degree.”

Calzone serves as the director, sole officer, registered agent and one of three board members of Missouri First, a nonprofit organization that pushes for policies “with an emphasis on individual liberty, free market capitalism, constitutionally limited government, and other principles that are consistent with the concept of an American constitutional republic,” according to its website. Though he is a frequent presence at legislative hearings, Calzone is not paid for his activities.

In 2014 and 2016, the Missouri Ethics Commission received two complaints that Calzone had failed to register as a lobbyist. Calzone filed a federal suit seeking to enjoin the ethics commission from applying the state’s registration requirement to him. U.S. District Judge Nanette K. Laughrey ruled in favor of the state, and the 8th Circuit’s majority agreed.

Judge Shepherd wrote that Missouri’s lobbying requirements are “minimal, imposing a very slight burden.” Lobbyists must pay a $10 fee and must file reports with the commission only for the months in which they actually lobby. Shepherd added that Calzone “would have an even easier time producing the lobbying reports than most” because he doesn’t make any expenditures that would have to be reported.

The majority declined to consider specifically if Calzone’s lack of expenditures should be taken into account. Shepherd said it was an “interesting academic question” but held that Calzone had waived that argument on appeal by focusing only on his unpaid status.

Stras, however, called that a “crabbed reading” of Calzone’s pleadings. “Just because Calzone’s lack of compensation is the lede does not mean that we get to bury the rest of the story,” he wrote.

Stras added that Missouri’s registration requirements are not minimal because failure to comply can bring as much as four years in prison and a $10,000 fine.

“Missouri cannot possibly have a greater interest in receiving blank reports than Calzone has in avoiding unnecessary paperwork, especially because meeting Missouri’s technical filing rules is a legal requirement for exercising his First Amendment rights and the penalties for noncompliance are steep,” Stras wrote.

The case is Calzone v. Summers et al., 17-2654.