Case 1:16-cv-01739-LGS Document 32 Filed 05/16/16 Page 1 of 36

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE NOVEMBER TEAM, INC., et al.,

Plaintiffs,
-againstNEW YORK STATE JOINT COMMISSION
ON PUBLIC ETHICS, et al.,
Defendants.

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ECF Case
No. 1:16-cv-1739 (LGS)

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS

MOTION FOR A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Dan K. Webb (pro hac vice)

Winston & Strawn LLP
35 West Wacker Drive
Chicago, IL 60601
Telephone: (312) 558-5600
Fax: (312) 558-5700
dwebb@winston.com
Thomas Patrick Lane
Seth E. Spitzer
Winston & Strawn LLP
200 Park Avenue
New York, New York 10166-4193
Telephone: (212) 294-6700
Facsimile: (212) 294-4700
tlane@winston.com
sspitzer@winston.com

Case 1:16-cv-01739-LGS Document 32 Filed 05/16/16 Page 2 of 36

TABLE OF CONTENTS
Table of Contents ............................................................................................................................ ii
Introduction ..................................................................................................................................... 1
Statement of Facts ........................................................................................................................... 3
1.
2.
3.
4.

The Lobbying Act ............................................................................................................... 3

The Joint Commission on Public Ethics ............................................................................. 5
Regulation of Grassroots Lobbying under the Act ............................................................. 5
The Advisory Opinion ........................................................................................................ 6

Applicable Law ............................................................................................................................... 7

Argument ........................................................................................................................................ 7
1.
2.

Plaintiffs have misinterpreted the Lobbying Act and the Advisory Opinion ..................... 7
Plaintiffs are not likely to succeed on the merits ................................................................ 9
A.
B.
C.
D.
E.

3.

Plaintiffs kitchen-sink approach to the First Amendment fails ....................................... 19

A.
B.
C.
D.
E.

4.
5.
6.

Facial challenges are disfavored and rarely succeed ...................................................... 9

Disclosure requirements do not limit speech; thus they need only be
substantially related to sufficiently important interests ................................................ 11
Courts have consistently recognized that disclosure requirements
further vital government interests ................................................................................. 12
The public s interest in money s influence on politics via grassroots lobbying
is no less compelling and thus the Advisory Opinion is not overbroad........................ 14
The Advisory Opinion s disclosure requirements are substantially related
to these important interests ........................................................................................... 18
The disclosure requirements are not unduly burdensome............................................. 19
The Advisory Opinion does not impede Plaintiffs associational rights ...................... 21
Grassroots lobbyists are not entitled to anonymity ....................................................... 22
The Advisory Opinion does not unreasonably discriminate against paid speech ......... 25
The Advisory Opinion does not burden the press, nor is there a special constitutional
right for public relations consultants to lobby journalists............................................. 25
The Advisory Opinion is not unconstitutionally vague .................................................... 26
Plaintiffs will not suffer any irreparable harm .................................................................. 28
The balance of hardships weighs against grant of an injunction ...................................... 30

Conclusion .................................................................................................................................... 30

ii

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TABLE OF AUTHORITIES
Cases

Page(s)

Able v. United States,

44 F.3d 128 (2d Cir. 1995).......................................................................................................30
Am. Civil Liberties Union of New Jersey v. New Jersey Election Law Enf t
Comm n,
509 F. Supp. 1123 (D.N.J. 1981) ...........................................................................14, 18, 20, 22
Auto Sunroof of Larchmont, Inc. v. Am. Sunroof Corp.,
639 F. Supp. 1492 (S.D.N.Y. 1986).........................................................................................29
Barris/Fraser Enterprises v. Goodson-Todman Enterprises, Ltd.,
638 F. Supp. 292 (S.D.N.Y. 1986)...........................................................................................28
Bronx Household of Faith v. Bd. of Educ. of City of N.Y.,
331 F.3d 342 (2d Cir. 2003).....................................................................................................28
Buckley v. Valeo,
424 U.S. 1 (1976) ............................................................................................................. passim
Buckley v. Valeo,
519 F.2d 821 (D.C. Cir. 1975) .................................................................................................24
Citizens United v. Fed. Election Comm n,
558 U.S. 310 (2010) .....................................................................................................11, 14, 18
Comm n on Indep. Colleges & Universities v. New York Temp. State Comm n on
Regulation of Lobbying,
534 F. Supp. 489 (N.D.N.Y. 1982) .................................................................................. passim
Fair Political Practices Comm. v. Superior Court,
599 P.2d 46 (Cal. 1979) .....................................................................................................11, 19
Florida League of Prof l Lobbyists, Inc. v. Meggs,
87 F.3d 457 (11th Cir. 1996) ........................................................................................... passim
Gibson v. Florida Legislative Investigation Comm.,
372 U.S. 539 (1963) .................................................................................................................24
Gonzales v. Carhart,
550 U.S. 124 (2007) .................................................................................................................26

iii

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Human Life of Washington Inc. v. Brumsickle,

624 F.3d 990 (9th Cir. 2010) .............................................................................................12, 27
John Doe No. 1 v. Reed,
561 U.S. 186 (2010) .................................................................................................................18
Kimbell v. Hooper,
665 A.2d 44 (Vt. 1995) ......................................................................................................14, 27
Latino Officers Ass n v. Safir,
170 F.3d 167 (2d Cir. 1999).....................................................................................................29
Malki v. Hayes,
2012 WL 32611 (E.D.N.Y. Jan. 5, 2012) ................................................................................28
McIntyre v. Ohio Elections Bd.,
514 U.S. 334 (1995) .................................................................................................................23
Minnesota State Ethical Practices Bd. v. Nat l Rifle Ass n of Am.,
761 F.2d 509 (8th Cir. 1985) .................................................................................12, 15, 17, 21
NAACP v. Button,
371 U.S. 415 (1963) .................................................................................................................24
Nat l Ass n of Manufacturers v. Taylor,
582 F.3d 1 (D.C. Cir. 2009) ............................................................................................. passim
New Jersey State Chamber of Commerce v. New Jersey Election Law Enf t
Comm n,
411 A.2d 168 (N.J. 1980).........................................................................................................20
New York Civil Liberties Union, Inc. v. Acito,
459 F. Supp. 75 (S.D.N.Y. 1978).............................................................................................20
Plaza Health Labs., Inc. v. Perales,
878 F.2d 577 (2d Cir. 1989).................................................................................................7, 30
Rodriguez ex rel. Rodriguez v. DeBuono,
175 F.3d 227 (2d Cir. 1999).....................................................................................................27
Sampson v. Buescher,
625 F.3d 1247 (10th Cir. 2010) .........................................................................................21, 22
SpeechNow.org v. Fed. Election Comm n,
599 F.3d 686 (D.C. Cir. 2010) .................................................................................................11
Tom Doherty Associates, Inc. v. Saban Entm t, Inc.,
60 F.3d 27 (2d Cir. 1995) ..........................................................................................................6
iv

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United States v. Harriss,

347 U.S. 612 (1954) ......................................................................................................... passim
Washington State Grange v. Washington State Republican Party,
552 U.S. 442 (2008) .............................................................................................................9, 10
Young Americans For Freedom, Inc. v. Gorton,
522 P.2d 189 (Wash. 1974)................................................................................................15, 29
Statutes
N.Y. Exec. Law 94 ........................................................................................................................4
N.Y. Legis. Law ch. 32, art. 1-a
1a (Lobbying Act) ......................................................................................................3, 10
1c ..............................................................................................................................4, 10, 25
1d....................................................................................................................................5, 28
1h................................................................................................................................4, 5, 19
1o......................................................................................................................................4, 5
1u..........................................................................................................................................4
Other Authorities
New York State Joint Commission on Public Ethics, Frequently Asked Questions:
Lobbying Activities Consultants Engaging in Grassroots Lobbying (2016) ..........................7
New York State Temporary Commission on Lobbying, Advisory Opinions,
availible at http://www.jcope.ny.gov/advice/lobby.html
Op. No. 36 ..................................................................................................................................5
Op. No. 39 ..............................................................................................................................5, 8
Op. No. 49 ..............................................................................................................................5, 7

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INTRODUCTION
Plaintiffs case rests on a misinterpretation: Advisory Opinion 16-01 does not and will
not require any individual or entity to disclose press communications. And Plaintiffs have not
pointed to a single phrase or sentence in the Advisory Opinion that would mandate such
disclosure. Simply and accurately stated, the Advisory Opinion clarifies that paid contacts with
the press may trigger disclosure if those contacts satisfy the long-standing elements of grassroots
lobbying and more than $5,000 has been expended on that lobbying effort. Those who engage in
such paid lobbying activities must identify themselves, their clients, their compensation and
expenditures, and the subject of their lobbying activities. So there can be no misconception: No
one need disclose the names of press contacts or publications, nor the dates or substance of any
press communications. Period.
Indeed, requiring such disclosure by paid lobbyists is consistent with New York s
Lobbying Act. Courts have consistently upheld such disclosure obligations in the half-century
since the Supreme Court s endorsement of them in United States v. Harriss. And rightly so,
because disclosure is essential to enforcing the legitimate state interest in evaluating the
pressures exerted by moneyed special interests.
Nor are the Lobbying Act s requirements unconstitutionally vague, given the Act s 35year history of regulating grassroots lobbying and its requirement of mens rea. Upset that their
lucrative loophole has been closed, Plaintiffs seek to uproot decades of precedent and practice
with nothing more than an imaginary parade of horribles. The Court should reject their
conjured-up claims and deny their request for a preliminary injunction.
The Advisory Opinion is an unremarkable and natural application of the Lobbying Act
and yet Plaintiffs seek to strike an entire section of the opinion even though their quibble is with

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just a part. The press are members of the public; communications with the press that would
otherwise constitute grassroots lobbying are plainly subject to the Lobbying Act. Every state in
the union regulates lobbying, and most regulate grassroots lobbying. In light of the broad and
long-standing consensus that the national interest favors disclosing the influence of money on
politics, the Advisory Opinion is far from the radical departure that Plaintiffs claim it to be.
Requiring disclosure of such lobbying efforts is consistent with decades of court
precedents. More than fifty years ago, the Supreme Court held that the public disclosure of who
is being hired, who is putting up the money, and how much they are spending to influence
legislation is a vital national interest. Since then, an unbroken line of cases has acknowledged
the public s interest in how money is spent to influence law-making and recognized that
disclosure requirementslike those imposed by the Lobbying Actare a reasonable method for
furthering that interest. Given that Plaintiffs are making an objection repeatedly rejected by the
courts, it is no surprise that their briefing is heavy on dicta and light on holdings.
Although Plaintiffs dress up their objection to disclosure in a variety of constitutional
garbs, none of these disguises work. Plaintiffs have a right to associate and to speak
anonymously, but since they are associating and speaking for substantial amounts of money for
the purpose of influencing government, the Advisory Opinion s modest disclosure obligations
are not unreasonable. It goes without saying then, that since the public interest in disclosure
increases as more money is spent, the Advisory Opinion does not unlawfully discriminate against
paid speech. Finally, Plaintiffs assert a free press claim, but the opinion does not regulate the
press, who remain free to solicit comments from public relations consultants without triggering
disclosure.

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The Advisory Opinion is clear and not unconstitutionally vague. The disclosure
requirements are triggered when (a) spending exceeds a defined monetary threshold ($5000.00)
(b) as part of a communication concerning legislative or executive activity (c) that takes a clear
position on the issue and (d) is an attempt to influence a public official through a call to action.
No paid lobbyist need disclose the names of press contacts, the substance of communications, or
indeed anything other than the information other lobbyists have been disclosing for decades.
New York s Lobbying Act has already prevailed against a vagueness challenge, and across the
country, courts routinely reject such challenges. Concerns about vagueness are further mitigated
by the requirement that, to fall within the ambit of the Lobbying Act, the lobbyists must be
intending to lobby. While Plaintiffs have conjured up hypothetical, borderline cases, the mere
existence of close cases does not justify facial invalidation.
Finally, there is no evidence Plaintiffs will suffer irreparable harm and their self-serving,
vague affidavits do not establish otherwise. And complying with the Lobbying Act s modest
disclosure obligations will not be a great hardship for Plaintiffs, but exempting them from
disclosure creates a wide gap in New York s lobbying regulations.
STATEMENT OF FACTS
1.

The Lobbying Act

In 1981, the New York State Legislature enacted the Lobbying Act (the Act), to

preserve and maintain the integrity of the governmental decision-making process in the state by
requiring disclosure of the identity, expenditures, and activities of people or organizations
involved in influencing state decision-making for money. N.Y. Legis. Law ch. 32, art. 1-a, 1
a. (N.Y. Legis. Law). To create transparency in state politics, the Act established a series of
reporting requirements for persons engaged in lobbying activities. Lobbying activities are
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any attempt to influence governmental decision-making in a variety of forms, including, the

passage or defeat of any legislation by either house of the state legislature or approval or
disapproval of any legislation by the governor. 1c(c). The law incorporate[s] the Harriss
definition of lobbying activities, which includes both buttonhole and grassroots lobbying.
Comm n on Indep. Colls. & Univs. v. New York Temp. State Comm n on Regulation of Lobbying,
534 F. Supp. 489, 496 (N.D.N.Y. 1982) (hereinafter CICU).
Lobbyists must register with the Commission and file regular reports containing
information on their lobbying activities. See, e.g., 1h(b)(3) (requiring a description of the
subject matter and legislative bill numbers associated with lobbying activities); 1h(b)(4)
(requiring the name of the person, organization, or legislative body before which the lobbyist
has lobbied). These reports must also list compensation paid or owed and any expenses
expended, received or incurred by the lobbyist for the purposes of lobbying, 1h(b)(5)(i), and,
except for expenses under seventy-five dollars, list those expenses as to amount, to whom paid,
and for what purpose, 1h(b)(5)(ii).
Penalties may be imposed for violating the Act only if a violation is found to be
knowing[] and willful[] after a hearing at which the party shall be entitled to appear, present
evidence and be heard. 1-o(a). These hearings must be conducted in accordance with New
York State s Administrative Procedure Act and its code of fair procedures for investigating
agencies. 1-u. In assessing any penalty, the Commission must consider as a mitigating factor
that the lobbyist . . . has not previously been required to register and any penalty it imposes
must be proportionate to the lobbyist s compensation. 1-o(c). First-time offenders are given
a grace period: any party receiving a notice of intent to assess a penalty who has not previously
received such a notice shall be granted fifteen days within which to file the statement of
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registration or report without being subject to the fine or penalty. 1-o(c). Any first-time filer
filing late may pay a reduced late fee. 1-h(c)(3).
2.

The Joint Commission on Public Ethics

The Joint Commission on Public Ethics (JCOPE or Commission) is a fourteen-

member bipartisan commission that enforces New York s public ethics laws, including the
Lobbying Act. See N.Y. Exec. Law 94 (establishing JCOPE in 2011). JCOPE oversees
financial disclosures by state officials, regulates the business and political activities of state
employees, and administers the Act. Its members are appointed by a cross-section of state
lawmakers, including members of the executive and legislative branches and both the majority
and minority parties. Id. JCOPE has the power and duty to administer and enforce the
Lobbying Act. N.Y. Legis. Law 1-d(a). It is expressly empowered to conduct hearings and
random audits. 1-d(b)(c). It may also issue advisory opinions. 1-d(f).
3.

Regulation of Grassroots Lobbying under the Act

New York has regulated grassroots lobbying since 1982. In an advisory opinion issued

that year, the predecessor Temporary Commission on Lobbying made clear that lobbying
included not only direct contacts with a public official, but also exhortations to the public to
contact the public official, i.e., a call to action, with regard to specific pending legislation. Op.
No. 36 (82-2) (Advertisements, fliers, pamphlets, and similar documents, as well as messages
broadcast over radio or television, which are distributed or otherwise disseminated to the public,
which is addressed to specific pending legislation, and which urge or exhort the public to contact
legislators or the governor to pass, defeat, delay, approve, or veto such legislation constitutes
lobbying activities. ), available at http://www.jcope.ny.gov/advice/lob/opinio36.htm.

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Consultants qualify as lobbyists only when they participat[e] in both message content
and delivery. Op. No. 39 (97-1), http://www.jcope.ny.gov/advice/lob/opinio39.htm. In that
opinion, the Commission determined that a company [that] handles all of the mail fulfillment
functions, but does not advise, review, edit or write text for the grassroots lobbying message
was not a lobbyist, but it was careful to note that [a] lobbyist cannot be allowed to avoid
registering with the Commission simply by changing how contact with legislators is made. Id.
Applying this standard in 2002, the Temporary Commission opined that merely contact[ing]
other message creators (i.e. [newspaper] editors) to make their own statements and position to
their audience without any suggestion as to what the message should say or direct is not
lobbying. Op. No. 49 (02-4), http://www.jcope.ny.gov/advice/lob/opinio49.htm.
4.

The Advisory Opinion

In a logical outgrowth of the Act and previous advisory opinions, Advisory Opinion 16-

01 affirmed while clarifying the rules applicable to grassroots lobbying.1 D.I. 31-1, Advisory
Opinion at 8 (emphasis in original). Under the Advisory Opinion, a grassroots communication
constitutes lobbying if it: [1] References, suggests, or otherwise implicates an activity covered by
Lobbying Act Section 1-c(c) [2] Takes a clear position on the issue in question; and [3] Is an
attempt to influence a public official through a call to action, i.e., solicits or exhorts the public, or
a segment of the public, to contact (a) public official(s). Advisory Opinion at 2. The Advisory
Opinion also clarified that a consultant s activity on a grassroots campaign can be considered
reportable lobbying if the consultant controlled the delivery and had input into the content of the

The Advisory Opinion also addressed (1) whether a consultant who contacts a public official on
behalf of a client for the purpose of enabling lobbying activity is engaged in lobbying activity
and (2) whether a consultant who attends a meeting between a client and a public official is
engaged in lobbying activity. Advisory Opinion at 12. Plaintiffs do not challenge these
portions of the Advisory Opinion.
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message. Id. (emphasis added). Consultants have input and control if they participat[e] in
the formation of the message and in the actual delivery of the message. Id.
APPLICABLE LAW
A party seeking injunctive relief ordinarily must show: (a) that it will suffer irreparable
harm in the absence of an injunction and (b) either (i) a likelihood of success on the merits or (ii)
sufficiently serious questions going to the merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly in the movant s favor. Tom Doherty Assocs., Inc. v.
Saban Entm t, Inc., 60 F.3d 27, 33 (2d Cir. 1995). [W]here the moving party seeks to stay
governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the
district court should not apply the less rigorous fair-ground-for-litigation standard and should not
grant the injunction unless the moving party establishes, along with irreparable injury, a
likelihood that he will succeed on the merits of his claim. Plaza Health Labs., Inc. v. Perales,
878 F.2d 577, 580 (2d Cir. 1989).
ARGUMENT
1.

Plaintiffs have misinterpreted the Lobbying Act and the Advisory Opinion
Plaintiffs entire case rests on a fallacy: that the Advisory Opinion requires disclosure of

their private communications with the press. See Compl., D.I. I, 1, 45, 48 (asserting that they
will be forced to report their press communications to the Commission[,] reveal every
communication [with reporters,] and disclose confidential sources). This is untrue in every
respect. Consultants are not required to report individual interactions with members of the
media, or identify media outlets with whom they have spoken. D.I. 31-2, New York State Joint
Commission on Public Ethics, Frequently Asked Questions: Lobbying Activities Consultants
Engaging in Grassroots Lobbying, 2 (2016) (hereinafter, FAQ). And [t]he content of
communications does not need to be disclosed. FAQ.
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Indeed, the disclosure obligations imposed by the Lobbying Act are targeted and modest.
[T]he consultant must only disclose the client, how much the client paid, and the specific
government action (e.g., the bill number) that he or she attempted to influence. FAQ (emphasis
added). Far from a dramatic break with past understandings, Pls. Mem., D.I. 12 at 19, these
standards have been applied to grassroots lobbying of the press since at least 2002. See Op. No.
49 (02-4). The Advisory Opinion imposes no additional disclosure obligations.
Once Plaintiffs complaint has been stripped of its scare-mongering, their objection boils
down to this: lobbying isn t really lobbying if you can get the press to take the last step. But
artificially stimulated letter campaign[s] have been regulated for a half-century. And make no
mistake, that is exactly what Plaintiffs do, notwithstanding their euphemism of earned media:
they contact members of the press . . . and seek to persuade them to report or, in the case of
editorial writers, to adopt . . . the positions that [their] client wishes to advance. See, e.g.,
November Team Decl. 5, D.I. 13-5; D.I. 12 at 6. The state s interest in disclosure is no weaker
when a lobbyist has been paid to lobby a newspaper editorial board to publish an editorial than
when the lobbyist is paid to lobby a constituent to write a letter.
It is clear that [a] lobbyist cannot be allowed to avoid registering with the Commission
simply by changing how contact with legislators is made. Op. No. 39 (97-1). And yet
Plaintiffs attempt to circumvent the disclosure rules is bald-faced: One of the main reasons that
we don t lobby is that New York State has a burdensome and intrusive regulatory regime for
person [sic] or entities who lobby, and we do not wish to subject ourselves to that regime. See,
e.g., November Team Decl. 8, D.I. 13-5; D.I. 12 at 810. All the Advisory Opinion does is
make clear that the same disclosure rules that apply to other lobbyists apply to lobbyists like

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Plaintiffs. The constitutionality of these decades-old disclosure rules is settled law and
accordingly Plaintiffs claims must fail.
2.

Plaintiffs are not likely to succeed on the merits

A.

Facial challenges are disfavored and rarely succeed

Plaintiffs facial challenge exemplifies why courts eschew hypothetical controversies:

their harms are speculative and their interpretation of the challenged law is specious. Appellate
courts have cautioned that such challenges raise the risk of premature interpretation of statutes
on the basis of factually barebones records. Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 450 (2008) (quoting Sabri v. United States, 541 U.S. 600, 609
(2004)). They also are based solely on hypothesized, fact-specific worst-case scenarios.
Florida League of Prof l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 461 (11th Cir. 1996) (rejecting a
facial challenge to Florida s lobbying disclosure law). They run contrary to the fundamental
principle that courts should avoid deciding constitutional questions unnecessarily. Washington
State Grange, 552 U.S. at 450. And they threaten to short circuit the democratic process by
preventing laws embodying the will of the people from being implemented in a manner
consistent with the Constitution. Id.
Plaintiffs complaint is not merely factually barebones; it lacks even the bones. All of
Plaintiffs allegations are hypothetical. Merely answering a call from a journalist is clearly not
lobbying. But being paid to write an editorial and see that it gets published clearly is. Plaintiffs
are asking the Court to blur the line between those two scenarios, even though they have
provided no facts and no context about the myriad ways in which public relations consultants
influence media coverage.

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The Supreme Court has instructed courts to be careful not to go beyond the statute s
facial requirements and speculate about hypothetical or imaginary cases, Washington State
Grange, 552 U.S. at 450, yet Plaintiffs rely solely on conjured up hypothetical borderline
situations. United States v. Harriss, 347 U.S. 612, 626 (1954) (refusing to hold the Lobbying
Act facially unconstitutional where [h]ypothetical borderline situations [were] conjured up in
which such persons choose to remain silent because of fear of possible prosecution for failure to
comply with the Act.). Most notably, Plaintiffs raise the specter of enforcement against a
pastor s Sunday sermon condemn[ing] abortion or Pope Francis s call for action on climate
change, D.I. 12 at 38, but even assuming those qualified as lobbying activities, the Lobbying
Act expressly exempts churches from coverage, N.Y. Legis. Law 1-c(F) (The term lobbying
shall not include . . . any attempt by a church . . . to influence passage or defeat of a local law,
ordinance, resolution or regulation . . . .). Plaintiffs feigned ignorance of the Act s plain terms
is at best disingenuous. The Court need not resolve complex, strictly hypothetical constitutional
questions that have arisen solely because Plaintiffs have misunderstood the law.
The State of New York has dependably enforced the Act consistent with the First
Amendment, and a federal court has already acknowledged that the state legislature and the
[state lobbying commission] that enforces the law have evinced an intent to stay within the
constitutional limitations of such a law as outlined in Harriss. CICU, 534 F. Supp. at 497; see
also N.Y. Legis. Law 1-a (declaring that the operation of responsible democratic government
requires that the fullest opportunity be afforded to the people to petition their government for the
redress of grievances and to express freely to appropriate officials their opinions on legislation
and governmental operations.). JCOPE has the expertise to resolve close cases consistent with

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the First Amendment, and if the regulated party disagrees, it may challenge the decision as
applied.
Even if Plaintiffs claims avoided the pitfalls common to facial challenges, their
speculation fails to carry the heavy burden that would justify the harsh remedy of facial
invalidation. A plaintiff can only succeed in a facial challenge by establish[ing] that no set of
circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in
all of its applications. Washington State Grange, 552 U.S. at 449 (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987)). It is no surprise then that [t]he Supreme Court has
consistently upheld organizational and reporting requirements against facial challenges.
SpeechNow.org v. Fed. Election Comm n, 599 F.3d 686, 696 (D.C. Cir. 2010); see also Nat l
Ass n of Mfrs. v. Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009) (noting Supreme Court, recognizing
lesser burdens that disclosure imposes on First Amendment interests, has upheld numerous
statutes requiring disclosures by those endeavoring to influence the political system)
(hereinafter NAM). Since the Advisory Opinion is plainly constitutional in most, if not all, of
its potential applications, Plaintiffs facial challenge is likely to fail.
B.

Disclosure requirements do not limit speech; thus they need only be

substantially related to sufficiently important interests

The Advisory Opinion is substantially related to an important government interest, and

that is all that the law requires. Recognizing that disclosure is a reasonable and minimally
restrictive method for furthering the public s interest in open government, the Supreme Court
and lower courts have declined to apply strict scrutiny in First Amendment challenges to
disclosure laws. Buckley v. Valeo, 424 U.S. 1, 82 (1976). Indeed, lobby disclosure laws are
traditionally subject to less scrutiny than laws that sanction pure speech. CICU, 534 F. Supp.
at 494 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)); Meggs, 87 F.3d at 460.
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Instead, the Supreme Court has subjected these requirements to exacting scrutiny,
which requires a substantial relation between the disclosure requirement and a sufficiently
important governmental interest. Citizens United v. Fed. Election Comm n, 558 U.S. 310,
36667 (2010). This lesser standard of review applies because disclosure requirements like New
York s do not prevent anyone from speaking, id., and because they inhibit speech less than do
contribution and expenditure limits, or than do sanctions on pure speech, SpeechNow.org,
599 F.3d at 696; Fair Political Practices Comm. v. Superior Court, 599 P.2d 46, 53 (Cal. 1979)
(upholding California s lobbying disclosure law). Thus, a government need not employ the
least restrictive means to satisfy its interest in providing the electorate with information; it need
only ensure that its means are substantially related to that interest. Human Life of Washington
Inc. v. Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010) (reversing the district court for applying
strict scrutiny and upholding Washington s political committee disclosure laws). New York s
disclosure requirements easily withstand exacting scrutiny.
C.

Courts have consistently recognized that disclosure requirements further

vital government interests

More than fifty years ago, the Supreme Court held that the public disclosure of who is
being hired, who is putting up the money, and how much they are spending to influence
legislation is a vital national interest. NAM, 582 F.3d at 5 (citing Harriss, 347 U.S. at 625
26). Because nothing has transpired in the last half century to suggest that the national interest
in public disclosure of lobbying information is any less vital than it was when the Supreme Court
first considered the issues, [the Court should] reject [this] challenge. Id.
As other courts have recognized, the Supreme Court s decision in United States v.
Harriss settles this question. See, e.g., Minnesota State Ethical Practices Bd. v. Nat l Rifle Ass n
of Am., 761 F.2d 509, 512 (8th Cir. 1985) (In light of Harriss, we think the State of Minnesota
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has a compelling interest in requiring lobbyists to register their activities.) (hereinafter

MSEPB). Harriss demonstrate[ed] broad approval for lobbying restrictions. Meggs, 87
F.3d at 460. Addressing the constitutionality of the 1946 Federal Regulation of Lobbying Act
the model for New York s Lobbying Actthe Supreme Court did not mince words in rejecting
the lobbyists First Amendment claims: the disclosure law was plainly within the area of
congressional power and [was] designed to safeguard a vital national interest. Harriss, 347
U.S. at 625 (emphasis added). Recognizing this vital national interest, New York, like every
other state in the union, has enacted legislation regulating the conduct of those who lobby the
state s legislative or executive officials. Meggs, 87 F.3d at 458 (observing that all fifty states
regulate lobbying). The degree to which good government requires greater transparency is a
value judgment based on the common sense of the people s representatives, and repeatedly
endorsed by the Supreme Court as sufficient to justify disclosure statutes. NAM, 582 F.3d at 16.
There is broad consensus that lobbying disclosures serve important purposes.
Courts have consistently upheld as compelling a state s informational interest in
disclosing activity related to the influence of government. Indeed, it is plain that the
government has a compelling interest in providing the public and its elected representatives with
information regarding who is being hired, who is putting up the money, and how much they are
spending to influence public officials. NAM, 582 F.3d at 15 (quoting Harriss, 347 U.S. at 625).
The informational interest that [the legislature] and the public have in knowing who is lobbying
is hardly novel . . . and given the Court s decisions in Harriss and Buckley, it cannot be termed
implausible. NAM, 582 F.3d at 15 (citations omitted).
The state s interest in the reporting and disclosure of contributions and expenditures
relative to lobbying activities is threefold:
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First, disclosure serves the needs of elected officials. It

permits legislators to identify the source of funds used to influence
them, and to discover the particular constituency advocating a
particular position on legislation. It thus permits legislators to
evaluate whether the interest of a particular constituency is
consistent with the interests of other constituencies.
Second, regulation of lobbying serves the needs of the
electorate. The voting public should be able to evaluate the
performance of their elected officials in terms of representation of
the electors interest in contradistinction to those interests
represented by lobbyists.
Third, the state has a strong interest in promoting openness
in the system by which its laws are created. . . . [D]isillusionment
with the political process today stems from lack of knowledge of
its details, lack of any attempt to force the disclosure of the identity
of major participants in the political funding process and a lack of
adequate dissemination of such information.
Am. Civil Liberties Union of New Jersey v. New Jersey Election Law Enf t Comm n, 509 F.
Supp. 1123, 1129 (D.N.J. 1981) (citations omitted); see also CICU, 534 F. Supp. at 49495
(discussing the New York s interest in disclosure).
The Advisory Opinion also furthers important First Amendment interests. The First
Amendment protects political speech; and disclosure . . . enables the electorate to make informed
decisions and give proper weight to different speakers and messages. Citizens United, 558 U.S.
at 371. The government s interest is compelling and multifaceted; this is no mere
informational interest. D.I. 12 at 32 (citation omitted).
D.

The publics interest in moneys influence on politics via grassroots lobbying

is no less compelling and thus the Advisory Opinion is not overbroad

This interest is no less compelling in the context of grassroots lobbying. Harriss drew no
distinction between pressures exerted by the lobbyist themselves or through their hirelings or
through an artificially stimulated letter campaign. Harriss, 347 U.S. at 620. In the Court s
view even grassroots lobbying was a direct pressure[] appropriately subject to disclosure. Id.;
Meggs, 87 F.3d at 461 ([E]ven reading the statute narrowly to apply only to direct
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communication, [Harriss] nonetheless defined direct communication to include artificially

stimulated letter campaign[s]. ). Thus, consistent with Harriss, the Lobbying Act applies both
to direct contact with governmental decision-makers, [and to] a campaign to encourage the
public to engage in direct contact. CICU, 534 F. Supp. at 502.
[T]he First Amendment permits required reporting of considerably more than face-toface contact with government officials. Meggs, 87 F.3d at 460. Properly evaluating the
governmental process, and the influence lobbyists bring to bear upon it, implicates indirect as
well as direct communications and activities needed to get the message across. Kimbell v.
Hooper, 665 A.2d 44, 48 (Vt. 1995) (upholding disclosure requirements for grassroots lobbying).
In fact, the government interest in providing the means to evaluate these pressures may in some
ways be stronger when the pressures are indirect, because then they are harder to identify without
the aid of disclosure requirements. Meggs, 87 F.3d at 461; see also Young Americans For
Freedom, Inc. v. Gorton, 522 P.2d 189, 192 (Wash. 1974) (upholding disclosure requirements
for grassroots lobbying). The government interest is certainly no weaker; a constituent lobbied
to write a letter to her legislator is no less worthy of respect than an editor lobbied to publish an
editorial.
Courts have thus upheld the application of lobbying disclosure laws in circumstances not
involving direct contact with legislators. In Minnesota State Ethical Practices Board, the
Eighth Circuit rejected a First Amendment challenge to a lobbying disclosure law, and required a
National Rifle Association employee to register as a lobbyist after he sent letters to NRA
members in Minnesota urging them to contact their state legislators in support of three pieces of
pending legislation. MSEPB, 761 F.2d at 511. Applying Harriss, the court ruled that this
artificially stimulated letter writing campaign implicated the vital national interest in
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disclosure and rejected the challenge. Id. at 512. It did so even though the letters were sent from
an NRA employee to other members of the NRA, reasoning that [w]hen persons engage in an
extensive letter writing campaign for the purpose of influencing specific legislation, the State s
interest is the same whether or not those persons are members of an association. Id. at 513.
Plaintiffs admit that their work is indistinguishable from lobbying. D.I. 13-10, Wilson
Decl. 18 (It is often said that lobbyists work inside the building (a city hall, state capital, or
US Capitol), while public affairs professionals work outside the building (in the media, online,
and on Main Street ), creating understanding and public support for a particular public policy
decision.).
Despite this, Plaintiffs maintain that the public s interest in disclosure does not extend to
public relations consultants who communicate with the press for a fee. See D.I. 12 at 2527.
Because the press determines whether to carry a story, who reports it, what is said, and how it is
presented, they reason, no grassroots lobbying has occurred. Id. at 26. As an initial matter, if
Plaintiffs are not stimulating coverage, one must wonder what their clients are paying for.
Harriss, 347 U.S. at 620. Plaintiffs are at least forthright that public officials are includ[ed]
in their target audience. D.I. 12 at 27. It is true that the press decides what to report, but so too
does a letter-writer decide what to write.
Much like a constituent can be artificially stimulated into writing a letter or calling a
legislator, Harriss, 347 U.S. at 620, so too can a journalist be prompted to adopt a public
relations consultant s position. Just as a constituent might borrow a form letter, a journalist or
editor on a deadline might borrow talking points from a press release, or might contact a source
conveniently made available by a consultant. Just as a constituent might be stimulated by
relentless calls from a phone bank, a journalist might be heavily influenced by a consultant s
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personalized letters and dedicated calls. D.I. 12 at 6. After all, budgets are tight, time is
short, and consultants make taking their client s position quick and cheap; they help make
writing the news easier.
No one disputes that an attempt to start an artificially stimulated letter campaign is
lobbying, but there is no fundamental difference that, in principle, distinguishes such an attempt
from soliciting media coverage. Harriss, 347 U.S. at 620. Plaintiffs suggest that the difference
is that [w]hen a PR consultant brings a government action to a newspaper s attention and
encourages it to report on the matter, the message is tested by the media outlet, filtered, and
subject to outright rejection. D.I. 12 at 27. But one should not assume, without more, that the
media is any more likely to test, filter, and reject a call to action than is a member of the public.
Plaintiffs are asking the court to conclude that a constituent who writes a letter or calls a
legislator is worthy of less respectas a matter of constitutional lawthan an editor implored to
write an editorial. This argument has no basis in law or fact and should be rejected. See
MSEPB, 761 F.2d at 513 (holding that plaintiffs had not shown that they had any greater
constitutional protection with respect to lobbying activity than is enjoyed by other citizens.).
The public s interest in disclosure is strongernot weakerwhen lobbying is focused on
yielding favorable media coverage. By its nature, press coverage reaches a broader audience
than a constituent s letter or phone call, giving special interests, in essence, more bang for their
buck. That broader audience exerts greater pressure on lawmakers, who may misperceive the
coverage to be representative of broader public opinion. Indeed, media coverage amplifies the
voice of special interest groups seeking favored treatment while masquerading as proponents of
the public weal. Harriss, 347 U.S. at 625. Such artificial media coverage is merely a different
mask for moneyed special interests.
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But if in fact Plaintiffs are not attempting to stimulate favorable coverage that will reach
a public official, then they are not covered by the Advisory Opinion. The opinion was intended
to generate transparency in the activities of paid media consultants who are hired to proactively
advance their client s interests through the media. Advisory Opinion at 9. The opinion does
not encompass merely serving as a source: Factual communications with reporters are not
covered and [r]esponding to a reporter s request for information or comment does not
constitute lobbying. FAQ. In sum, the Advisory Opinion is not intended to cover or restrict a
reporter s ability to gather information as part of reporting the news. FAQ.
E.

The Advisory Opinions disclosure requirements are substantially related to

these important interests

As Harriss recognized, disclosure requirements are a targeted, modest tool for

maintain[ing] the integrity of a basic governmental process. Id. Disclosure does not prohibit
lobbyists from exerting pressure, but merely requires a modicum of information from those who
for hire attempt to influence legislation or who collect or spend funds for that purpose, i.e.,
who is being hired, who is putting up the money, and how much. Harriss, 347 U.S. at 625.
And even then, only when large sums of money are spent. See CICU, 534 F. Supp. at 499
(upholding a $1,000 threshold).
The requirement that lobbying activities be reported and disclosed is an essential, in fact
the essential aspect of the regulatory scheme. Am. Civil Liberties Union of New Jersey, 509 F.
Supp. at 1135. Public disclosure also promotes transparency and accountability . . . to an extent
other measures cannot. John Doe No. 1 v. Reed, 561 U.S. 186, 199 (2010). Absent from
Plaintiffs briefing is any suggestion of a less restrictive or more substantially related alternative.
Indeed, disclosure is itself a less restrictive alternative to more comprehensive regulations of
speech. Citizens United, 558 U.S. at 369 (upholding certain campaign finance disclosures).
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3.

Plaintiffs kitchen-sink approach to the First Amendment fails

A.

The disclosure requirements are not unduly burdensome

The Advisory Opinion requires reasonable reporting, recordkeeping, and accounting

practices to aid in the enforcement of the Lobbying Act. These requirements are an essential
means of gathering the data necessary to detect violations of the public ethics laws. Buckley,
424 U.S. at 6768. Even though they are not de minimis, they are an essential means of
enforcing the legitimate state interest in regulating lobbyists. Am. Civil Liberties Union of New
Jersey, 509 F. Supp. at 1133. These disclosures further transparency and neither stop speech nor
require revealing its content.
New York s disclosure requirements are only triggered when a lobbyist receives more
than $5,000 from its clients in a year. See D.I. 12 at 1213. Courts have upheld much lower
thresholds. See, e.g., Fair Political Practices Comm., 599 P.2d at 53 (upholding reporting
requirements triggered whenever $250 was spent in any month on lobbying activities).
The recordkeeping requirements, too, are reasonable. Lobbyists must detail their
compensation and any expenses exceeding $75. See, N.Y. Legis. Law 1-h(5). Plaintiffs
doubtlessly maintain some of this information in their ordinary course of business for accounting
or tax purposes. Requiring a person engaged in a business to describe it and to report its
receipts and expenses may not be viewed in our commercial society as a substantial impediment
to engaging in that business. Fair Political Practices Comm., 599 P.2d at 54.
In cases cited by Plaintiffs, the court upheld general disclosure requirements and only
struck down specific provisions that are not at issue here. Plaintiffs misstate the holding of Fair
Political Practices Comm n v. Super. Ct. of L.A. Cnty, claiming that the court str[uck] down
lobbyists reporting requirements because they constitute[d] an unnecessary curtailment of the
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right to petition. D.I. 12 at 30 (quoting Fair Political Practices Comm., 599 P.2d at 49). The
court in fact upheld the lobbying disclosure law. Fair Political Practices Comm., 599 P.2d at 54
([T]he burden placed on employers of lobbyists to disclose their expenditures for lobbying
purposes, and the action thereby sought to be influenced, does not constitute a substantial
interference with the exercise of petition and speech rights.). Similarly, ACLU of N.J. upheld
New Jersey s lobbying disclosure law, as construed to require disclosure of activities related to
lobbying or to unrelated activities by groups primarily devoted to lobbying. Am. Civil Liberties
Union of New Jersey, 509 F. Supp. at 1130.
In Acito, the court ruled in favor of an as-applied challenge to a statute which
require[ed] disclosure in [a]ll cases in which any amount of money [was] spent to support or
oppose a referendum. New York Civil Liberties Union, Inc. v. Acito, 459 F. Supp. 75, 89
(S.D.N.Y. 1978). The court refused to hold even such a remarkably broad law facially invalid.
And it expressly declined to rule on a narrowing construction that required report[ing] only
those contributions which [were] earmarked for use in promoting the success or defeat of a
question, because the relevant administrative agency had not proposed that construction. Acito,
459 F. Supp. at 85. By contrast, the Lobbying Act s disclosure requirements are exceedingly
narrow and triggered only by expenditures of large sums of money.
Similarly, the lobbying provision struck down in N.J. State Chamber of Commerce was a
disclosure threshold of $100much lower than the $5,000 threshold of which Plaintiffs
complainon the theory that it swept up people spending only small sums of money. New
Jersey State Chamber of Commerce v. New Jersey Election Law Enf t Comm n, 411 A.2d 168,
180 (N.J. 1980). But even as it struck down the disclosure threshold, the court endorsed

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lobbying disclosure laws, left the remainder of the law intact, and gave the administrative agency
90 days to adopt a higher threshold. Id. at 182.
New York s disclosure rules are modest, targeted, and not unduly burdensome.
B.

The Advisory Opinion does not impede Plaintiffs associational rights

Plaintiffs have dressed up their run-of-the-mill challenge to the Advisory Opinion as a

noble quest to defend their right to associate politically. While Plaintiffs no doubt have such a
right, the only relevant question is whether the Advisory Opinion s disclosure obligations
advance a sufficiently important interest in a way that is substantially related to that interest. As
discussed above, it does. Plaintiffs are lobbyists, in a commercial relationship, associating for
money. It is precisely because large amounts of money are changing hands, that the government
and the public have an interest in disclosure. See Harriss, 347 U.S. at 625 (holding that those
who for hire attempt to influence legislation or who collect or spend funds for that purpose may
be required to disclose who is being hired, who is putting up the money, and how much)
(emphasis added).
Regardless of a lobbyist s associational status, states may regulate lobbying activity. In
Minnesota State Ethical Practices Board, the Eighth Circuit rejected a freedom of association
challenge to a lobbying disclosure law where the letter campaign occurred entirely inside the
association. MSEPB, 761 F.2d at 513. The state law did not focus on the group affiliation of a
lobbyist, it focuse[d] on lobbying activity. Id. When persons engage in an extensive letter
writing campaign for the purpose of influencing specific legislation, the State s interest is the
same whether or not those persons are members of an association. Id. at 513. Contrary to
Plaintiffs assertion, JCOPE has not targeted PR consultants and their clients, it has merely
attempted to regulate lobbying activity. D.I. 12 at 31.
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The only case relied on by Plaintiffs that invalidated a disclosure requirement is plainly
distinguishable. That case, Sampson v. Buescher, 625 F.3d 1247, 1249 (10th Cir. 2010), was an
as-applied challenge, which provides little support for Plaintiffs pre-enforcement facial
challenge. The Tenth Circuit held only that the disclosure rule was invalid as applied to a group
that had raised less than $1,000 because the disclosure could not justifiably be imposed on
groups that raise[d] and expend[ed] so little money. Id. The Court expressly limited its
holding to those facts. Id. at 1261 (The case before us is quite unlike ones involving the
expenditure of tens of millions of dollars . . . . We say only that Plaintiffs contributions and
expenditures are well below the line.).
To the extent Plaintiffs suggest that the Court s holding in Sampson was based on the
point that a single natural person is not subject to the disclosure or reporting requirements
imposed on ballot-issue organizations, they have misrepresented the case. Sampson merely
applied exacting scrutiny and held that as applied to a group spending less than $1,000, the
disclosure requirements were unconstitutional. Id. at 1261.
C.

Grassroots lobbyists are not entitled to anonymity

Contrary to Plaintiffs assertions, the Advisory Opinion does not interfere with the
confidentiality of their communications with reporters and editorial writers. D.I. 12 at 33.
Consultants are not required to report individual interactions with members of the media, or
identify media outlets with whom they have spoken. FAQ. Content need not be reported.
It is true that the Act requires lobbyists to disclose who is being hired, who is putting up
the money, and how much, but such modest disclosure obligations are justifiable and have been
repeatedly upheld by the courts. Harriss, 347 U.S. at 625. The requirement that lobbying
activities be disclosed is an essential, in fact the essential aspect of the regulatory scheme. Am.
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Civil Liberties Union of New Jersey, 509 F. Supp. at 1135. Indeed, disclosure of grassroots
lobbying is all the more important precisely because it otherwise occurs outside of public view.
At bottom, Plaintiffs argument would invalidate all lobbying disclosure laws, a result precluded
by Harriss and inconsistent with CICU and numerous lower court decisions. To the extent
Plaintiffs assert the right of their sometimes-anonymous clients to remain anonymous while
spending large sums to influence the political process, that argument has already been rejected.
See Harriss, 347 U.S. at 62526 (recognizing the vital national interest in knowing who is
being hired [to influence legislation], who is putting up the money, and how much).
Plaintiffs argue that their right to anonymous speech is impeded, relying principally on
McIntyre v. Ohio Elections Bd., 514 U.S. 334 (1995). But McIntyre provides no basis for them
to engage in spending on secret grassroots lobbying above the disclosure thresholds. McIntyre
involved compelled disclosure of authorship, which was particularly intrusive since it
reveal[ed] unmistakably the contents of [McIntyre s] thoughts on a controversial issue. Id. at
355. Disclosure of an expenditure and its use, without more, reveals far less information. It
may be information that a person prefers to keep secret, and undoubtedly it often gives away
something about the spender s political views. Nonetheless, even though money may talk, its
speech is less specific, less personal, and less provocative than a handbilland as a result, when
money supports an unpopular viewpoint it is less likely to precipitate retaliation. Id. Moreover,
McIntyre involved an individual expressing her personal political opinions, not paid lobbying.
See id. at 354 (noting that previous disclosure precedents had no reference to the kind of
independent activity pursued by Mrs. McIntyre.).
Plaintiffs mention a fear of retaliation, see, e.g., D.I. 12 at 78, but this fear is
speculative and not a basis for invalidating the Advisory Opinion. Nothing in Plaintiffs
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affidavits substantiates this claim. Plaintiffs have no record evidence of the sort proffered in
NAACP v. Alabama. Buckley, 424 U.S. at 71 (holding that unsubstantiated fear of retaliation
did not invalidate a disclosure obligation). Moreover, the risks claimed by Plaintiffs are no
different from those suffered by any organization that employs or hires lobbyists itself, and little
different from those suffered by any individual who contributes to a candidate or political party.
If that kind of risk rendered [a disclosure law] unconstitutional, it would invalidate most
compelled lobbying disclosures in contravention of Harriss, and most compelled campaign
finance disclosures in contravention of Buckley. NAM, 582 F.3d at 22 (finding claims of
retaliation insufficient where plaintiff relie[d] on clearly articulated fears and a few examples
of harassment unconnected to lobbying disclosures).
Finally, Plaintiffs claim that [c]ourts have consistently struck down disclosure
requirements, but do not cite a single case about lobbying. D.I. 12 at 33. Button struck down a
Virginia law that made it a crime to advise[] another that his legal rights have been infringed
and refer[] him to a particular attorney. NAACP v. Button, 371 U.S. 415, 434 (1963). Gibson
involved efforts by a Florida state committee to force the NAACP to reveal its membership so
that Communist infiltration could be exposed. Gibson v. Florida Legislative Investigation
Comm., 372 U.S. 539, 551 (1963). While the D.C. Circuit struck down a disclosure provision in
Buckley, that provision swept so broadly as to require reporting by groups whose only
connection with the elective process ar[ose] from completely nonpartisan public discussion of
issues of public importance. Buckley v. Valeo, 519 F.2d 821, 870 (D.C. Cir. 1975). Plaintiffs
have no constitutional right to lobby in secret.

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D.

The Advisory Opinion does not unreasonably discriminate against paid

speech

Any burden the Advisory Opinion imposes on paid speech is reasonable and consistent
with the First Amendment. See supra Part 3.A. Indeed, the public interest in disclosure is all the
stronger when the speech is bought and paid for. Far from being irrational, D.I. 12 at 34,
disclosure laws exist precisely because lobbyists are paid large sums of money. See Harriss, 347
U.S. at 625 (holding that those who for hire attempt to influence legislation or who collect or
spend funds for that purpose must disclose who is being hired, who is putting up the money,
and how much) (emphasis added). Indeed, disclosure is required only when large sums of
money are involved. Plaintiffs argument proves too much, as it would require invalidation of all
disclosure laws, which are as a matter of course triggered by a certain amount of money being
raised or spent. Any burden placed on paid speech is reasonable and proportionate.
E.

The Advisory Opinion does not burden the press, nor is there a special
constitutional right for public relations consultants to lobby journalists

Plaintiffs free press claim is based on a misinterpretation of the Act. See supra at __.
The Advisory Opinion will not result in compelled disclosure of media communications or
investigations into press sources and communications. D.I. 12 at 35. The press are not
burdened by the Advisory Opinion; indeed, they are expressly exempted from the Act. N.Y.
Legis. Law 1-c(B) (The term lobbying shall not include . . . [n]ewspapers and other
periodicals and radio and television stations . . . [in] the publication or broadcast of news items,
editorials or other comments, or paid advertisements.). Nor are they burdened indirectly:
lobbyists are not required to disclose individual interactions with the media, identify the
journalists with whom they speak, or reveal the content of their communications with the media.
FAQ. And responding to a reporter s request for information or comment is not lobbying
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activity under the Act. FAQ. Rather, consultants engage in lobbying activity by soliciting a
journalist to support a position on a specific government action favorable to a client for a fee.
Plaintiffs have no special constitutional right to lobby the press. Journalists are members
of the public with access to a large audience. Plaintiffs are again asking the Court to conclude
that constituents have fewer constitutional rights than journalists. That is simply not the case.
4.

The Advisory Opinion is not unconstitutionally vague

The Advisory Opinion is sufficiently clear and not unconstitutionally vague. Under the

Advisory Opinion, a grassroots communication constitutes lobbying if it: [1] References,

suggests, or otherwise implicates an activity covered by Lobbying Act Section 1-c(c) [2] Takes a
clear position on the issue in question; and [3] Is an attempt to influence a public official through
a call to action, i.e., solicits or exhorts the public, or a segment of the public, to contact (a) public
official(s). Advisory Opinion at 2. Furthermore, funds must be spent at a defined threshold to
trigger disclosure. Finally, the Advisory Opinion requires intent to lobby, and [t]he [Supreme]
Court has made clear that scienter requirements alleviate vagueness concerns. Gonzales v.
Carhart, 550 U.S. 124, 149 (2007) (upholding a criminal statute against a vagueness challenge,
in part, because of the statute s intent requirement). Indeed, in their comments to JCOPE,
Plaintiffs themselves admitted that the call to action requirement in this context provides
greater clarity to those who seek to comply with the registration requirements of the Lobbying
Act. D.I. 13-3 at 3.
The Lobbying Act has already been upheld against a vagueness challenge. In CICU the
court held that the Act was not vague as interpreted to encompass direct contact with
governmental decision-makers, or a campaign to encourage the public to engage in direct
contact, CICU, 534 F. Supp. at 502, and the Advisory Opinion does no more than that. Indeed,
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the court rejected an argument similar to one advanced by Plaintiffs, see D.I. 12 at 3940, i.e.,
that an advisory opinion was vague in stating that responses to government officials requests
for information are not lobbying unless the respondent s submission goes beyond the requested
information, and presents the information in an attempt to influence legislation or agency rule on
behalf of a client. Id. The court concede[d] that a person or entity responding to such a
request on behalf of another would have to do some weighing as to whether their response would
be considered lobbying, but concluded that that was true of all types of disclosure laws and
that a law need not be so elaborate as to cover every conceivable set of circumstances that may
arise under it. Id. at 502503; see also Kimbell, 665 A.2d at 44 ([A] statute need not detail
every circumstance that would amount to a violation.) (citing CICU, 534 F. Supp. at 502).
The Advisory Opinion is not unconstitutionally vague merely because Plaintiffs can
imagine borderline cases. [S]peculation about possible vagueness in hypothetical situations not
before the Court will not support a facial attack on a statute when it is surely valid in the vast
majority of its intended applications. Human Life, 624 F.3d at 1021 (quoting Hill v. Colorado,
530 U.S. 703, 733 (2000)). Indeed, the belief that the mere fact that close cases can be
envisioned renders a statute vague is a basic mistake. NAM, 582 F.3d at 23 (quoting United
States v. Williams, 553 U.S. 285, 305 (2008)) (noting further that while the [lobbying] statute
may not be a paragon of clarity, it is not so vague as to violate the Constitution, even applying
the heightened standard applicable to regulation of speech). [P]erfect clarity and precise
guidance have never been required even of regulations that restrict expressive activity. NAM,
582 F.3d at 23 (quoting Williams, 553 U.S. at 304).
Even when borderline cases arise, there are avenues for obtaining guidance. JCOPE
routinely issues advisory opinions upon request, which it then makes available to the public,
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N.Y. Legis. Law 1-d(f), (http://www.jcope.ny.gov/advice/) (listing advisory opinions).

Nevertheless, Plaintiffs failed to seek clarification before they rushed to the courthouse.
5.

Plaintiffs will not suffer any irreparable harm

Plaintiffs have not established that they will suffer any irreparable harm because they

have not shown a threat of specific future harm. Irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction, but Plaintiffs have neglected to
establish it. Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 23334 (2d Cir. 1999)
(citation and internal quotation marks omitted). Contrary to Plaintiffs assertions, the Second
Circuit has not consistently presumed irreparable harm in cases involving allegations of the
abridgement of First Amendment rights. Bronx Household of Faith v. Bd. of Educ. of City of
N.Y., 331 F.3d 342, 349 (2d Cir. 2003). [W]here a plaintiff alleges injury from a rule or
regulation that [does not directly limit speech and] may only potentially affect speech, the
plaintiff must establish a causal link between the injunction sought and the alleged injury, i.e.,
an actual chilling effect. Bronx Household of Faith, 331 F.3d at 34950. Plaintiffs have
submitted no evidence establishing that their clients would be deterred from expressive activity
or otherwise chilled. The Act has been in force for over thirty years and yet Plaintiffs cannot
proffer concrete evidence of a chilling effect.
Nowhere in their many self-serving affidavits do Plaintiffs state and substantiate their
claims that their clients would refrain from protected speech. First, none of Plaintiffs affidavits
are from clients. Second, the closest these second-hand affidavits come to claiming a chilling
effect is the bland and factless assertion that not every client wishes its interests, goals and
associations to be publicly identified and discussed for many legitimate reasons . . . some
philosophical, some political, some strategic, and some tactical. See, e.g., D.I. 13-8, Heller
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Decl. 7. [M]otions for preliminary injunctions are frequently denied if the affidavits [in
support of the motion] are too vague or conclusory to demonstrate a clear right to relief. Malki
v. Hayes, 2012 WL 32611, at *7 (E.D.N.Y. Jan. 5, 2012) (quoting 11A Wright & Miller, Fed.
Practice & Proc., Civil 3d 2949 (2004)). Because Plaintiffs affidavits do not evidence or even
claim that clients would refrain from speech, they are too vague to establish irreparable harm.
Barris/Fraser Enters. v. Goodson-Todman Enters., Ltd., 638 F. Supp. 292, 294 (S.D.N.Y. 1986)
(finding no irreparable injury where plaintiff s affidavits were vague). And these self-serving
statement[s] are too speculative. See e.g., Auto Sunroof of Larchmont, Inc. v. Am. Sunroof
Corp., 639 F. Supp. 1492, 1494 (S.D.N.Y. 1986) (rejecting an assertion of irreparable harm
because [i]nstead of presenting concrete data . . . plaintiff offer[ed] only the self-serving
statement of its President that its business will collapse.).
Such [a]llegations of a subjective chill [of First Amendment rights] are not an adequate
substitute for a claim of specific present objective harm or a threat of specific future harm.
Latino Officers Ass n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999) (alteration in original) (quoting
Laird v. Latum, 408 U.S. 1, 1314 (1972)). In Safir, the Second Circuit held that there was no
irreparable harm from a policy requiring police officers to notify the NYPD about public
addresses on police matters and to disclose a summary after-the-fact. Id. at 171. While the
Second Circuit acknowledge[d] that, as a theoretical matter, this [policy] may make some
officers more reluctant to speak than they would be if they did not have to bring their speech to
the Department s attention, this kind of conjectural chill is not sufficient to establish real and
imminent irreparable harm. Id. Plaintiffs complained-of harms are just as conjectural and
accordingly not irreparable harm.

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6.

The balance of hardships weighs against grant of an injunction

The balance of hardships weighs against grant of an injunction. An injunction would

deprive legislators and the public of information about money s influence on politics. Ensuring
the public s access to that information is a vital national interest. Harriss, 347 U.S. at 625. As
long as an injunction was in force, there would be a loophole for indirect lobbying . . . re the
sponsorship of the lobbying and its financial magnitude. Young Americans For Freedom, 522
P.2d at 192. All the while, legislators and the public would be forced to make decisions about
public measures without all relevant information. The hardship to Plaintiffs would not be great.
As discussed above, the disclosure requirements are modest and not unduly burdensome. See
supra Part 3.A. The other hardships asserted by Plaintiffs are conjectural.
Because Plaintiffs seek[] to stay governmental action taken in the public interest
pursuant to a statutory or regulatory scheme, they cannot obtain a preliminary injunction by
showing hardship. Plaza Health, 878 F.2d at 580. This exception reflects the idea that
governmental policies implemented through legislation or regulations developed through
presumptively reasoned democratic processes are entitled to a higher degree of deference and
should not be enjoined lightly. Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995). Because
the Advisory Opinion was issued by JCOPE as authorized by statute and after public notice and
comment, it merits deference under Plaza Health and Able.
CONCLUSION
Because Plaintiffs have failed to show that they are likely to win on the merits and will
suffer irreparable harm absent an injunction, Plaintiffs motion should be denied.

Dated: New York, New York

May 16, 2016

By:

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/s/ Thomas Patrick Lane

Thomas Patrick Lane
Seth E. Spitzer

Case 1:16-cv-01739-LGS Document 32 Filed 05/16/16 Page 36 of 36

WINSTON & STRAWN LLP

200 Park Avenue
New York, NY 10166
Tel. (212) 294-6700
Fax (212) 294-4700
tlane@winston.com
sspitzer@winston.com
Dan K. Webb (pro hac vice)
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601
Tel.: (312) 558-5600
Fax: (312) 558-5700
dwebb@winston.com
Attorneys for Defendant New York State
Joint Commission on Public Ethics

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