Even though Sullivan was not paid extra for communicating with representatives, Texas law nonetheless required him to register as a lobbyist. But two representatives who were ranked poorly in Sullivan’s Fiscal Responsibility Index discovered that Sullivan had failed to register as a lobbyist for two years. These representatives then reported him to the Texas Ethics Commission. The Commission found that Sullivan had violated the lobbying law, and it imposed the maximum penalty of $10,000 against Sullivan.
Sullivan then filed a lawsuit against the Commission for the return of his fine, arguing that the Texas law is unconstitutional under the First Amendment. But a federal district court rejected this challenge, and the Fifth Circuit affirmed on the constitutional question. Now Sullivan is seeking review from the Supreme Court, and Cato has filed an amicus brief urging the Court to grant the petition and hold that Texas’s lobbying registration law violates the First Amendment. The Foundation for Individual Rights and Expression (FIRE) has also joined our brief.
In our brief, we explain why the Texas law is different in kind from any lobbying law that the Supreme Court has previously upheld. The analogous federal lobbying law does not require a registration fee, while Texas requires a payment of $750 prior to communicating with legislative or executive officials. The First Amendment does not allow states to put such a price tag on the freedom to engage in core political speech. Before the ratification of the First Amendment, the British had a long history of using taxation to suppress publications that were critical of the crown. The Texas law similarly serves as a “prior restraint” on speech, which is incompatible with the First Amendment.
Our brief also notes the wide sweep of the law. It applies to nearly all nonprofit employees who spend just five percent of their work time engaged in “lobby activity,” which the law defines broadly. The law thus requires a vast segment of nonprofit employees to register as lobbyists before they can speak on matters of public concern.
Finally, our brief also explains why Texas’s law chills the speech of ordinary citizens. The Supreme Court has held that lobbying regulations are only justified to combat quid pro quo corruption or its appearance. But Texas’s ill-defined and burdensome lobbying rules do not narrowly target professional lobbyists engaged in quid pro quo corruption. Instead, it sweeps up well-meaning Texans who wish to communicate with their representatives on issues that affect them. Because the sweep of the law is unclear, many Texans will err on the side of safety and choose not to speak at all. Such a chilling effect represents a significant First Amendment harm.
The Supreme Court should grant the petition and strike down Texas’s unconstitutional registration law.
