National Ass'n of Manufacturers v. Taylor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided September 8, 2009

No. 08-5085

NATIONAL ASSOCIATION OF MANUFACTURERS,

APPELLANT

v.

JEFFREY ALLEN TAYLOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00208-CKK)

Thomas W. Kirby argued the cause for appellant. With him

on the briefs were Jan Witold Baran, Jan Amundson, and

Quentin Riegel.

Brady C. Williamson was on the brief for amici curiae Iowa

Association of Business and Industry, et al. in support of

appellant.

Nicholas J. Bagley, Attorney, U.S. Department of Justice,

argued the cause for appellee Jeffrey A. Taylor. With him on

the brief were Gregory G. Katsas, Acting Assistant Attorney

General, Jeffrey A. Taylor, U.S. Attorney, Jonathan F. Cohn,

Deputy Assistant Attorney General, and Michael S. Raab,

2

Attorney.

Thomas E. Caballero, Assistant Senate Legal Counsel,

Office of Senate Legal Counsel, argued the cause for appellees

Nancy Erickson, et al. With him on the brief were Morgan J.

Frankel, Senate Legal Counsel, Patricia Mack Bryan, Deputy

Senate Legal Counsel, Grant R. Vinik, Assistant Senate Legal

Counsel, Irvin B. Nathan, General Counsel, U.S. House of

Representatives, Kerry W. Kircher, Deputy General Counsel,

and Christine M. Davenport and Richard A. Kaplan, Assistant

Counsel.

Donald J. Simon, Fred Wertheimer, and J. Gerald Hebert

were on the brief for amici curiae Campaign Legal Center, et al.

in support of appellees.

Before: GINSBURG, HENDERSON, and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: 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.”

United States v. Harriss, 347 U.S. 612, 625-26 (1954). Today,

we consider a constitutional challenge to Congress’ latest effort

to ensure greater transparency, the Honest Leadership and Open

Government Act of 2007. 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 issue, we reject

that challenge.

3

I

A

Congress first enacted comprehensive lobbying regulation

in 1946 with passage of the Federal Regulation of Lobbying Act

(FRLA), Pub. L. No. 79-601, tit. III, 60 Stat. 839 (1946). The

Act required paid lobbyists, defined as persons whose services

were engaged for the purpose of influencing legislation, to

register with the Secretary of the Senate and the Clerk of the

House of Representatives. Id. § 308(a), 60 Stat. at 841. Among

other things, registered lobbyists were required to disclose, on

a quarterly basis, the identity of each person who contributed

$500 or more to fund their lobbying efforts. Id. § 305(a)(1), 60

Stat. at 840. The FRLA remained on the books as the primary

font of federal lobbying regulation for fifty years.

In 1995, concerned that the FRLA had “failed to ensure the

public disclosure of meaningful information about individuals

who attempt to influence the conduct of officials of the Federal

government,” H.R. REP. NO. 104-339, pt. 1, at 5 (1995), the

104th Congress scrapped the Act and started from scratch. By

unanimous vote of both Houses,1 Congress passed the Lobbying

Disclosure Act of 1995 (LDA), Pub. L. No. 104-65, 109 Stat.

691 (codified as amended at 2 U.S.C. §§ 1601 et seq.), which

began with the following recitation of findings setting forth the

need for a more aggressive approach to lobbying regulation:

The Congress finds that --

(1) responsible representative Government requires

public awareness of the efforts of paid lobbyists to

influence the public decisionmaking process in both

1

See 141 CONG. REC. 20195, 34815-20 (1995).

4

the legislative and executive branches of the Federal

Government;

(2) existing lobbying disclosure statutes have been

ineffective because of unclear statutory language, weak

administrative and enforcement provisions, and an

absence of clear guidance as to who is required to

register and what they are required to disclose; and

(3) the effective public disclosure of the identity and

extent of the efforts of paid lobbyists to influence

Federal officials in the conduct of Government actions

will increase public confidence in the integrity of

Government.

2 U.S.C. § 1601.

In concert with these findings, Congress enacted a new

statutory scheme containing broader disclosure obligations, a

more expansive definition of lobbying,2 and a more robust

enforcement scheme. The LDA requires lobbyists (or their

employers) to register with the Secretary of the Senate and Clerk

of the House within 45 days of making or being retained to

2

The LDA defines a “lobbyist” as any individual who (with

exceptions) is “employed or retained by a client” for services that

include making “lobbying contact[s].” 2 U.S.C. § 1602(10). The Act

defines a “lobbying contact” as (with exceptions) a communication to

a covered legislative or executive branch official with regard to “the

formulation, modification, or adoption” of (inter alia) federal

legislation, regulations, or policies. Id. § 1602(8)(A). “Lobbying

activities” is defined as “lobbying contacts and efforts in support of

such contacts, including preparation and planning activities, research

and other background work that is intended, at the time it is

performed, for use in contacts, and coordination with the lobbying

activities of others.” Id. § 1602(7).

5

make lobbying contacts. 2 U.S.C. § 1603(a)(1), (2). Each

registration must contain identifying information regarding the

registrant (i.e., the lobbyist or employer of lobbyists) and each

of its clients. Id. § 1603(b)(1), (2). It must also contain a

statement of “the general issue areas in which the registrant

expects to engage in lobbying activities on behalf of the client”

and specific issues that have already been or are likely to be

addressed in its lobbying activities. Id. § 1603(b)(5). Each

registrant must then submit periodic reports updating those

disclosures and stating the income received from its clients as

well as the expenses the registrant incurred in connection with

lobbying activities conducted on its own behalf. Id. § 1604(b).

Particularly relevant here, the LDA provides that, “[i]n the

case of a coalition or association that employs or retains other

persons to conduct lobbying activities, the client is the coalition

or association and not its individual members.” Id. § 1602(2).

For the first time, however, Congress took steps to partially

pierce the veil of coalitions and associations that lobby Congress

on behalf of their members. LDA § 4 required registrants --

including coalitions and associations -- to disclose not only their

clients, but also:

(3) the name, address, and principal place of business

of any organization, other than the client, that --

(A) contributes more than $10,000 toward the

lobbying activities of the registrant in a

semiannual period . . . ; and

(B) in whole or in major part plans, supervises, or

controls such lobbying activities.

LDA § 4(b)(3), 109 Stat. at 696 (codified at 2 U.S.C.

§ 1603(b)(3) (1995)). According to the House Judiciary

6

Committee Report that recommended passage of the LDA, this

provision was “intended to preclude evasion of the disclosure

requirements of the Act through the creation of ad hoc lobbying

coalitions behind which real parties in interest can hide.” H.R.

REP. NO. 104-339, pt. 1, at 18.

In 2007, after twelve years of experience with the LDA, and

spurred by a series of lobbying-related scandals, see H.R. REP.

NO. 110-161, pt. 1, at 9 (2007), Congress again enacted lobbying

reform. According to the House Judiciary Committee Report,

Congress’ purpose was to close “loopholes in current law.” Id.

This time, it did not repeal its earlier handiwork. Instead,

Congress amended the LDA while keeping much of it intact,

including its statement of legislative findings and most of its

definitions. The result was the Honest Leadership and Open

Government Act of 2007 (HLOGA), Pub. L. No. 110-81, 121

Stat. 735.

Section 207 of HLOGA is the provision at issue on this

appeal. It amends LDA § 4(b)(3), 2 U.S.C. § 1603(b)(3), by

altering both the monetary and level-of-participation thresholds

necessary to trigger disclosure of organizations other than

clients. The participation threshold is our focus here. Instead of

only requiring the disclosure of an organization that “in whole

or in major part” plans, supervises, or controls the lobbying

activities of the registrant, HLOGA requires the disclosure of

any organization that “actively participates” in the planning,

supervision, or control of such lobbying activities.

Amended § 1603(b) now requires that each registration

contain (and that each quarterly report update):

(3) the name, address, and principal place of business

of any organization, other than the client, that --

7

(A) contributes more than $5,000 to the registrant

or the client in the quarterly period to fund the

lobbying activities of the registrant; and

(B) actively participates in the planning,

supervision, or control of such lobbying

activities[.]

2 U.S.C. § 1603(b)(3) (emphasis added). HLOGA also

increased the civil penalties for anyone who “knowingly” fails

to make the disclosures required by this and other sections, and

added criminal penalties for “knowingly and corruptly” failing

to do so. Id. § 1606(a), (b); see infra Part III.C.1. There is,

however, a safe harbor from the disclosures required by

§ 1603(b)(3) for certain organizations that are identified on the

registrant’s website. 2 U.S.C. § 1603(b); see infra Part III.C.2.3

B

The plaintiff in this case, the National Association of

Manufacturers (NAM), is “the nation’s largest industrial trade

association, representing small and large manufacturers in every

industrial sector and in all 50 states.” Appellant’s Br. ii.

Although some of NAM’s more than 11,000 corporate members

3

In addition to the provisions described above, HLOGA amended

the LDA in numerous respects that are not at issue on this appeal. For

example, it added a prohibition against lobbyists making certain gifts

to or providing travel for legislative branch officials, HLOGA § 206,

121 Stat. at 747; it changed the window for disclosing prior executive

or congressional employment from two years to twenty, id. § 208, 121

Stat. at 748; and it directed the Comptroller General to audit

compliance by lobbyists and registrants, id. § 213, 121 Stat. at 750.

HLOGA also amended another provision of the U.S. Code to limit

lobbying by former members of Congress and former congressional

employees. Id. tit. I, 121 Stat. at 736-41.

8

choose to disclose their affiliation with the association, NAM’s

policy is to keep its membership list confidential. Amundson

Decl. ¶¶ 6-8. NAM employs approximately 35 people who

make lobbying contacts with the federal government, id. ¶ 9, and

it therefore must make disclosures under the LDA, 2 U.S.C.

§ 1603(a)(2).

According to NAM, hundreds of its corporate members

make contributions that exceed the monetary threshold of

amended § 1603(b)(3)(A). Amundson Decl. ¶ 7. The plaintiff

explains that member groups like NAM “did not have to concern

themselves” with disclosures under the 1995 version of

§ 1603(b)(3) because, “[a]s long as several members were

involved, no single member would meet the [‘in whole or in

major part’ participation] threshold.” Appellant’s Br. 45. The

amended version of § 1603(b)(3), however, requires disclosure

of any member who “actively participates” in planning,

supervision, or control of lobbying activities, and this will

require disclosure of many NAM members.

On February 6, 2008, NAM filed suit in the United States

District Court for the District of Columbia, challenging the

constitutionality of § 207 of HLOGA. The suit contends that 2

U.S.C. § 1603(b)(3), as amended by HLOGA § 207, violates the

First Amendment both facially and as applied to NAM and

similar membership organizations. NAM maintains that the

section will chill NAM members from participating in public

policy initiatives for fear of the consequences of public

disclosure. It further argues that the disclosure requirements of

amended § 1603(b)(3) are impermissibly vague. In the district

court, NAM sought declaratory relief and an injunction against

enforcement of the section. By agreement of the parties, NAM’s

motion for a preliminary injunction was converted into a motion

for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c), and the court decided the merits of the case on

9

the basis of the parties’ written submissions. See Nat’l Ass’n of

Mfrs. v. Taylor, 549 F. Supp. 2d 33, 37 (D.D.C. 2008).

The district court concluded that amended § 1603(b)(3)

does not violate the First Amendment because the section is

narrowly tailored to serve compelling governmental interests,

and it further found that the section was not unconstitutionally

vague. Accordingly, it denied NAM’s motion and dismissed the

complaint. Id. at 68. NAM now appeals, and we review de

novo the district court’s ruling on the motion for judgment on

the pleadings. See Thompson v. District of Columbia, 428 F.3d

283, 285 (D.C. Cir. 2005). We consider NAM’s First

Amendment challenge in Part II and its vagueness challenge in

Part III.

II

Amended § 1603(b)(3) does not prohibit lobbyists from

saying anything. It requires only disclosure. Nonetheless, NAM

explains that “the disclosures mandated by [amended

§ 1603(b)(3)] will discourage and deter speech, petitioning, and

expressive association.” Appellant’s Br. 26. We agree with

NAM that these are substantial First Amendment interests and

that requiring disclosure can burden them. As the Supreme

Court has noted, “compelled disclosure, in itself, can seriously

infringe on privacy of association and belief guaranteed by the

First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64 (1976)

(citing, inter alia, NAACP v. Alabama ex rel. Patterson, 357 U.S.

449 (1958)).

But we also note that the Court, recognizing the lesser

burdens that disclosure generally imposes on First Amendment

interests, has upheld numerous statutes requiring disclosures by

those endeavoring to influence the political system. For

example, in United States v. Harriss, which we discuss in detail

10

below, the Court upheld lobbying disclosure requirements of the

FRLA on the ground that the statute served a “vital national

interest” in a “manner restricted to its appropriate end.” 347

U.S. at 626. In so doing, the Court emphasized that Congress

had “not sought to prohibit [lobbying] pressures,” but had

“merely provided for a modicum of information.” Id. at 625.

Similarly, in Buckley v. Valeo, the Court rejected a First

Amendment challenge to campaign finance disclosure

requirements of the Federal Election Campaign Act (FECA),

holding that a disclosure requirement was a “reasonable and

minimally restrictive method of furthering First Amendment

values by opening the basic processes of our federal election

system to public view.” 424 U.S. at 82. And in McConnell v.

FEC, the Court upheld the expanded campaign finance

disclosure provisions of the Bipartisan Campaign Reform Act

(BCRA), including a provision requiring the disclosure of

persons who contribute to groups or individuals that spend

money on electioneering communications. 540 U.S. 93, 195-99

(2003).4 The courts of appeals have been similarly deferential

to disclosure statutes.5

4

See also FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262

(1986) (invalidating limits on independent expenditures made by

certain non-profit corporations, but noting that such corporations are

still required to disclose the source of the contributions that pay for

those expenditures); First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 792 n.32 (1978) (noting that “[i]dentification of the source of

[corporate political] advertising may be required as a means of

disclosure, so that the people will be able to evaluate the arguments to

which they are being subjected”).

5

See, e.g., Alaska Right to Life Comm. v. Miles, 441 F.3d 773,

778-93 (9th Cir. 2006) (upholding an Alaska campaign finance

disclosure statute); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87

F.3d 457, 460 (11th Cir. 1996) (rejecting a facial challenge to a

Florida law requiring lobbyists to disclose their expenditures and the

11

The question we face at the outset is the level of scrutiny we

should apply to NAM’s First Amendment challenge. The

parties vigorously debate whether the Supreme Court applies

“strict,” or some lesser-but-still-heightened form of scrutiny to

disclosure statutes. On the one hand, the government notes that

in Buckley, the Court used the term “exacting” rather than

“strict” to describe the scrutiny it applied to the disclosure

requirements of FECA. 424 U.S. at 64-68. On the other hand,

NAM notes that the Supreme Court has, on occasion, used the

terms “exacting” and “strict” interchangeably to describe the

same First Amendment test. See Burson v. Freeman, 504 U.S.

191, 198 (1992); see also McIntyre v. Ohio Elections Comm’n,

514 U.S. 334, 347 (1995). We, too, have described Buckley’s

test as “strict” scrutiny. AFL-CIO v. FEC, 333 F.3d 168, 176

(D.C. Cir. 2003).

In many respects, this debate over the appropriate adjective

is beside the point. Whatever the test is called, the Court has

clearly described what the test is. Just two Terms ago, in Davis

v. FEC, the Court explained that “we have closely scrutinized

disclosure requirements, including requirements governing

independent expenditures made to further individuals’ political

speech.” 128 S. Ct. 2759, 2775 (2008). “To survive this

scrutiny, significant encroachments ‘cannot be justified by a

mere showing of some legitimate governmental interest.’” Id.

(quoting Buckley, 424 U.S. at 64). “Instead,” the Court said,

there must be “a ‘relevant correlation’ or ‘substantial

relation’ between the governmental interest and the

information required to be disclosed,” and the

identities of clients who provide money for those expenditures); Minn.

State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 761 F.2d 509,

512-13 (8th Cir. 1985) (upholding a Minnesota statute requiring

disclosure of lobbyists’ employers).

12

governmental interest “must survive exacting

scrutiny.” That is, the strength of the governmental

interest must reflect the seriousness of the actual

burden on First Amendment rights.

Id. (quoting Buckley, 424 U.S. at 64). This test is consistent

with the scrutiny the Court applied to disclosure requirements in

Buckley and McConnell.6

More important, however, the debate over the appropriate

test to apply is irrelevant because it makes no difference to our

disposition. As we said in Blount v. SEC, “if [a statute] can

withstand strict scrutiny there is no need to decide the issue” of

which test to apply. 61 F.3d 938, 943 (D.C. Cir. 1995). To

6

See McConnell, 540 U.S. at 231 (requiring that compelled

disclosure bear a “sufficient relationship” to an “important

governmental interest”); Buckley, 424 U.S. at 68 (“The disclosure

requirements, as a general matter, directly serve substantial

governmental interests. In determining whether these interests are

sufficient to justify the requirements we must look to the extent of the

burden that they place on individual rights.”); see also Buckley v. Am.

Constitutional Law Found., Inc., 525 U.S. 182, 202 (1999) (“In

[Buckley v. Valeo], we stated that ‘exacting scrutiny’ is necessary

when compelled disclosure of campaign-related payments is at issue[,

but] we nevertheless upheld, as substantially related to important

governmental interests, the . . . disclosure provisions of the Federal

Election Campaign Act.”); AFL-CIO, 333 F.3d at 176 (“When facing

a constitutional challenge to a disclosure requirement, courts . . .

balance the burdens imposed on individuals and associations against

the significance of the government interest in disclosure and consider

the degree to which the government has tailored the disclosure

requirement to serve its interests.”); Block v. Meese, 793 F.2d 1303,

1315 (D.C. Cir. 1986) (concluding that the Supreme Court “has

consistently required the application of a balancing test” for the

validity of compelled disclosure).

13

satisfy strict scrutiny, the government must establish three

elements: (1) “the interests the government proffers in support”

of the statute must be “properly characterized as ‘compelling’”;

(2) the statute must “effectively advance[] those interests”; and

(3) the statute must be “narrowly tailored to advance the

compelling interests asserted.” Id. at 944. In the following

subparts we employ this framework to scrutinize the disclosure

mandate of amended § 1603(b)(3). We conclude, in agreement

with the district court, that the statute satisfies the requirements

of strict scrutiny.

A

1. We begin our examination of the first element of strict

scrutiny -- the requirement that the governmental interest

supporting the statute be “compelling” -- by asking just what

that interest is in this case.

NAM maintains that Congress’ purpose in amending

§ 1603(b)(3) was to require greater disclosure by a very limited

class of entities, not extending to associations like NAM itself.

According to NAM, it is “crystal clear” that amended

§ 1603(b)(3) “was intended to force disclosure of participants in

so-called ‘stealth coalitions,’” Appellant’s Br. 8-9, which NAM

characterizes as “ad-hoc groups that lobby under names that do

not reveal, and may obscure, their membership,” id. at 2.

“That,” NAM insists, “was the only purpose stated for” the

section. Id. At the same time, however, NAM contends that

amended § 1603(b)(3) “does not, in fact, compel greater

disclosures concerning stealth coalitions than were already

required under the LDA. . . . Instead, its substantial new burdens

fall heavily on long-established and well-known membership

organizations like the NAM.” Id. Because this contention --

that the purpose of amended § 1603(b)(3) was to require greater

disclosure by “stealth coalitions” but that it does not do so -- is

14

central to all three elements of NAM’s strict scrutiny argument,

we have some unpacking to do.

The term “stealth coalition” does not appear anywhere in

amended § 1603(b)(3) (or in the original LDA, for that matter).

That fact alone casts doubt on just how clear it is that Congress

amended § 1603(b)(3) solely to force disclosures by such

groups. The only evidence NAM identifies to support that claim

are floor statements by managers of the legislation and other

members who explained that § 207 of HLOGA “closes a

loophole that has allowed so-called ‘stealth coalitions,’ often

with innocuous-sounding names, to operate without identifying

the interests engaged in the lobbying activities.” Appellant’s Br.

9 (quoting 153 CONG. REC. S10709 (daily ed. Aug. 2, 2007)

(statement of Sens. Feinstein, Lieberman, and Reid)).7 At best,

these statements identify a purpose of the section, not its only

purpose.

More important, the Supreme Court has repeatedly

emphasized that courts should “not resort to legislative history

to cloud a statutory text that is clear.” Ratzlaf v. United States,

510 U.S. 135, 147-48 (1994); see Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 119 (2001) (same). In particular, “[f]loor

7

See 153 CONG. REC. S260 (daily ed. Jan. 9, 2007) (statement of

Sen. Lieberman) (explaining that HLOGA would “remove the cloak

obscuring so-called stealth lobbying campaigns which occur when a

group of individuals, companies, unions, or associations ban[d]

together to form a lobbying coalition. These coalitions frequently

have innocent sounding names . . . .[,] [b]ut in fact, they lobby on a

range of issues that could never be identified by the name of the

coalition.”); 153 CONG. REC. H5743 (daily ed. May 24, 2007)

(statement of Rep. Doggett) (stating that a “stealth lobbyist” is a

“lobbyist for an unpopular cause” that “instead of indicating who they

actually represent, . . . claim they represent a ‘coalition’ . . . and avoid

any indication of the true parties in interest”).

15

statements” from members of Congress, even from a bill’s

sponsors, “cannot amend the clear and unambiguous language

of a statute.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,

456-57 (2002). Here, the statutory language is quite clear. In

enacting the LDA, Congress found that “responsible

representative Government requires public awareness of the

efforts of paid lobbyists to influence the public decisionmaking

process in both the legislative and executive branches of the

Federal Government.” 2 U.S.C. § 1601(1). “[P]ublic

confidence in the integrity of Government” will be increased,

Congress declared, by “effective public disclosure of the identity

and extent of the efforts of paid lobbyists to influence Federal

officials in the conduct of Government actions.” Id. § 1601(3).

In short, and not surprisingly, the purpose of the lobbying

disclosure statute is to provide greater public information about

who is lobbying Congress and what they are lobbying about.

Although Congress did not repeat these findings when it

enacted HLOGA, it had no reason to do so. HLOGA merely

amended sections of the LDA, leaving the congressional

findings intact. Moreover, a comparison of the text of amended

§ 1603(b)(3) with that of its predecessor renders Congress’

specific purpose in making that amendment clear: Congress

wanted to ensure disclosure not only of any organization that “in

whole or in major part” plans a registrant’s lobbying activities,

but of any organization that “actively participates” in planning

such activities. To that extent, the legislative history confirms

the statutory text: Congress’ specific purpose in amending

§ 1603(b)(3) was to close a “loophole[] in current law by

requiring more rigorous disclosure of lobbying-related

activities.” H.R. REP. NO. 110-161, pt. 1, at 9. But neither the

new nor the old version of § 1603(b)(3) limited its reach to

“stealth” organizations; to the contrary, each expressly required

disclosure of “any” organization other than the registrant’s client

16

that met the section’s thresholds. 2 U.S.C. § 1603(b)(3)

(emphasis added); see id. § 1603(b)(3) (1995).

Furthermore, even if we were to rely on the cited floor

statements to identify amended § 1603(b)(3)’s purpose, it is not

at all clear that the sobriquet “stealth coalition” fails to

encompass an entity like NAM. As NAM points out, its

membership list is confidential and it prefers not to reveal which

members actively participate in its lobbying efforts, thus

permitting it “to operate without identifying the interests

engaged in [its] lobbying activities.” 153 CONG. REC. S10709.

Although NAM’s name does indicate that it is an association of

“manufacturers,” that term covers a lot of ground. NAM is an

association of more than 11,000 members, “representing small

and large manufacturers in every industrial sector and in all 50

states.” Appellant’s Br. ii. Surely all of their interests are not

the same, and considering the broad range of issues upon which

NAM lobbies, the term “manufacturing” provides relatively

little in the way of identification.

If anything, then, the legislative history that NAM cites

“creates more confusion than clarity about the congressional

intent,” Lamie v. U.S. Trustee, 540 U.S. 526, 539-42 (2004),

which further confirms the wisdom of relying on the legislative

text to determine the purpose of amended § 1603(b)(3). See W.

Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991)

(declaring that “[t]he best evidence of [congressional] purpose

is the statutory text”). As that text makes clear, the purpose of

the challenged provision is to require disclosure of the identity

of “any organization” that meets the statutory thresholds, 2

U.S.C. § 1603(b)(3), in order to serve Congress’ underlying goal

of increasing “public awareness of the efforts of paid lobbyists

to influence the public decisionmaking process,” id. § 1601(1).

17

2. Having identified the governmental interest at issue, we

next ask whether it is sufficient to justify compelled disclosure.

In making such a determination, we do not write on a blank

slate. Not long after Congress first waded into the lobbying

reform arena with the FRLA, the Supreme Court examined the

law’s validity under the First Amendment. In Harriss, a

decision that NAM does not currently seek to overturn, see

Appellant’s Br. 35, the Court upheld the Act. 347 U.S. at 625-

26. The Court premised that result on the same informational

interest upon which the defendants in this case rely:

Present-day legislative complexities are such that

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. . . .

Under these circumstances, we believe that

Congress, at least within the bounds of the Act as we

have construed it, is not constitutionally forbidden to

18

require the disclosure of lobbying activities. To do so

would be to deny Congress in large measure the power

of self-protection.

Id. at 625 (footnote omitted). This goal of providing Congress

with information with which to evaluate the pressures that

lobbyists bring to bear upon it, the Court concluded, is “a vital

national interest.” Id. at 626.

NAM insists that Harriss did not characterize the FRLA’s

broad disclosure rationale as a “vital” interest, but rather only

the more restricted ends that the Act effectuated after the Court

first narrowed its reach in response to a vagueness challenge.

But the Supreme Court’s language on this score is quite clear:

The Act was “designed to safeguard a vital national interest,”

the Court said, and the passage quoted above sets out just what

that interest was. 347 U.S. at 626.

Two decades later, in Buckley, the Court held that

information about efforts to influence the political system is not

only important to government officials (or candidates for office),

but is also important for the public at large. In reviewing a

statute requiring disclosure of campaign contributions and

expenditures, the Court declared “that there are governmental

interests sufficiently important to outweigh the possibility of

infringement” of First Amendment rights, “particularly when the

‘free functioning of our national institutions’ is involved.” 424

U.S. at 66 (internal citation omitted). “The governmental

interests sought to be vindicated by the disclosure” of such

contributions and expenditures, the Court said, “are of this

magnitude.” Id. The Buckley Court described a category of

such interests as follows:

[D]isclosure provides the electorate with information

as to where political campaign money comes from and

19

how it is spent by the candidate in order to aid the

voters in evaluating those who seek federal office. It

allows voters to place each candidate in the political

spectrum more precisely than is often possible . . .

[and] also alert[s] the voter to the interests to which a

candidate is most likely to be responsive . . . .

Id. at 66-67 (internal quotation marks and footnote omitted).8

There is nothing to suggest that the public interest in this

type of information is diminished once the candidate has

attained office and is exposed to the pressures of lobbying.

Indeed, just as disclosure serves the important “informational

interest” of “help[ing] voters to define more of the candidates’

constituencies,” id. at 81, it likewise helps the public to

understand the constituencies behind legislative or regulatory

proposals. Transparency in government, no less than

transparency in choosing our government, remains a vital

national interest in a democracy.

The Supreme Court decided Harriss before it adopted the

current language of levels of scrutiny. But we have no doubt

that the “vital national interest” Harriss identified in 1954 is

also, in contemporary constitutional parlance, a “compelling”

one. How else could it be when the “full realization of the

8

See Buckley, 424 U.S. at 68 n.82 (referring to the “important

informational function” played by disclosure requirements); id. at 81

(describing a disclosure provision as serving an “informational

interest” that “increases the fund of information concerning those who

support the candidates”); see also McConnell, 540 U.S. at 196 (stating

that “providing the electorate with information” was one of “the

important state interests that prompted the Buckley Court to uphold

FECA’s disclosure requirements” and that supported the expanded

disclosure requirements of BCRA).

20

American ideal of government by elected representatives

depends” upon it? Harriss, 347 U.S. at 625. This conclusion is

confirmed by the Buckley Court’s determination that the

“governmental interests sought to be vindicated” by disclosure

requirements are of a magnitude sufficient “to outweigh the

possibility of infringement” of First Amendment rights because

“the ‘free functioning of our national institutions’ is involved.”

Buckley, 424 U.S. at 66 (internal citation omitted). Accordingly,

whatever we call the test we apply, 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. Harriss, 347

U.S. at 625.

3. NAM maintains that the congressional findings set forth

in the LDA are insufficient to support this informational interest

and thus to satisfy strict scrutiny. Rather, there must be “studies,

statistics, or empirical evidence explaining why established

organizations like the NAM should be required to file disclosure

statements.” Appellant’s Reply Br. 13. We disagree.

It is true that in Turner Broadcasting System, Inc. v. FCC,

the Court said that “in the realm of First Amendment

questions[,] . . . Congress must base its conclusions upon

substantial evidence.” 520 U.S. 180, 196 (1997). Even in

Turner Broadcasting, however, the Court cautioned that

“substantiality is to be measured” by a “deferential” standard,

and that “deference must be accorded to [congressional] findings

as to the harm to be avoided and to the remedial measures

adopted for that end, lest we infringe on traditional legislative

authority to make predictive judgments.” Id. at 195-96.

Moreover, as the Court subsequently explained in approving a

state’s political contribution limits, “[t]he quantum of empirical

evidence needed to satisfy heightened judicial scrutiny of

21

legislative judgments will vary up or down with the novelty and

plausibility of the justification raised.” Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377, 391 (2000). The informational

interest that Congress and the public have in knowing who is

lobbying is hardly novel, see Harriss, 347 U.S. at 625-26, and

given the Court’s decisions in Harriss and Buckley, it cannot be

termed implausible. And although limited, the legislative record

here is no less substantial than the record the Court regarded as

sufficient in Nixon, which consisted principally of newspaper

accounts and the affidavit of a Missouri state senator. See 528

U.S. at 391-94.9

Furthermore, while “[i]t is true that in some First

Amendment cases the Supreme Court has demanded an

evidentiary showing in support of a state’s law,” Nat’l Cable &

9

Compare, e.g., 153 CONG. REC. S10709 (statement of HLOGA

Senate managers that § 207 is needed to “close a loophole” allowing

coalitions “to operate without identifying the interests engaged in the

lobbying activities”); Alison Mitchell, Loophole Lets Lobbyists Hide

Clients’ Identity, N.Y. TIMES, July 5, 2002, at A1. Testimony in the

hearings that preceded the LDA also supports the importance of the

disclosures that these statutes compel. See, e.g., The Lobbying

Disclosure Act of 1992: Hearing on S. 2279 Before the Subcomm. on

Oversight of Gov’t Mgmt. of the S. Comm. on Governmental Affairs,

102d Cong. 83 (1992) (statement of Thomas Susman, Chair, American

Bar Association Section of Administrative Law and Regulatory

Practice) (“Corporations or other organizations occasionally hide their

identities behind a coalition established or available for the purpose of

preventing the public from learning of their efforts to influence

congressional action. This plainly circumvents the [FRLA’s] public

disclosure goals.”); id. at 34 (statement of Ann McBride, Senior Vice

President, Common Cause) (“Very often those coalition groups

operate under very lovely-sounding names, without the public or

sometimes even the Congress having a clear understanding of the

groups that are backing them.”).

22

Telecomms. Ass’n v. FCC, 555 F.3d 996, 1000 (D.C. Cir. 2009)

(citing Turner Broadcasting, 520 U.S. at 195), “[i]t is also true

that in other First Amendment cases the Supreme Court has

found ‘various unprovable assumptions’ sufficient to support the

constitutionality of state and federal laws,” id. (quoting Paris

Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973)).10 At bottom,

this is not a case like Turner Broadcasting, where Congress’

justification for a statute rested on “economic” analysis that was

susceptible to empirical evidence. 520 U.S. at 199. What we

have instead is simply a claim that good government requires

greater transparency. That 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. See Harriss, 347 U.S. at 625-26; Buckley, 424 U.S. at

66-67; McConnell, 540 U.S. at 196. “The fact that a

congressional directive reflects unprovable assumptions about

what is good for the people . . . is not a sufficient reason to find

that statute unconstitutional.” Paris Adult Theatre, 413 U.S. at

62. It certainly was not a sufficient reason in Harriss, in which

the Court made no inquiry into whether the legislative record

supported the determination that disclosure of who was

endeavoring to influence Congress was “a vital national

interest.” 347 U.S. at 626.

10

See Paris Adult Theatre, 413 U.S. at 61-62 (“On the basis of

these [unprovable] assumptions, both Congress and state legislatures

have, for example, drastically restricted associational rights by

adopting antitrust laws, and have strictly regulated public expression

by issuers of and dealers in securities[,] . . . commanding what they

must and must not publish and announce.”); Blount, 61 F.3d at 944-45

& n.3 (rejecting the contention that the First Amendment requires the

government “to support its findings with record evidence” where the

governmental interest is “self-evident[]”).

23

4. In sum, we conclude that Congress’ interest in increasing

“public awareness of the efforts of paid lobbyists to influence

the public decisionmaking process,” 2 U.S.C. § 1601(1), is

sufficiently compelling to withstand strict scrutiny.11

B

We next consider whether amended § 1603(b)(3)

“effectively advances” the interest the government proffers in

support of it. Blount, 61 F.3d at 944. On its face, it certainly

appears to. By requiring registrants to disclose the “name,

address, and principal place of business” of any organization

that contributes the monetary threshold and actively participates

in the planning, supervision, or control of the registrant’s

lobbying activities, the section provides the very information --

“who is being hired, who is putting up the money, and how

much” -- that Harriss found to be “a vital national interest.” 347

U.S. at 625-26. As Buckley held with respect to the disclosure

of independent expenditures supporting political candidates,

amended § 1603(b)(3) serves the “informational interest” of

“increas[ing] the fund of information concerning those who

support” legislation. 424 U.S. at 81. And like the FECA

provision upheld in Buckley, the amended section “goes beyond

the general disclosure requirements” of the LDA “to shed the

light of publicity” on lobbying activities that “would not

otherwise be reported” because they do not come under the pre-

11

The defendants argue that, in addition to the informational

interest served by the disclosure requirements of § 1603(b)(3), those

requirements also serve a compelling interest in “deter[ring] actual

corruption and avoid[ing] the appearance of corruption.” U.S.

Attorney’s Br. 27 (quoting Buckley, 424 U.S. at 67); see Legislative

Defendants’ Br. 28. Because we find the informational interest

sufficient to survive strict scrutiny, we have no need to assess the

sufficiency of the anti-corruption interest.

24

amendment thresholds. Id.; see also id. at 76 (noting that the

FECA provision was “responsive to the legitimate fear that

efforts would be made, as they had been in the past, to avoid the

disclosure requirements by routing financial support of

candidates through avenues not explicitly covered by the general

provisions of the Act” (footnote omitted)).

NAM contends that amended § 1603(b)(3) “[d]oes not serve

its intended purpose of forcing so-called ‘stealth coalitions’ to

disclose the interests they represent.” Appellant’s Br. 1. “The

simple fact,” NAM insists, “is that [amended § 1603(b)(3)]

compels no greater disclosure with respect to active participation

or stealth coalitions than was already required by the LDA.”

Appellant’s Br. 36.

Even if the section does compel no greater disclosure of

stealth coalitions, this argument is only a straw man. As we

discussed in Part II.A, Congress’ interest is not limited to

disclosure by such coalitions, but extends to disclosure by all

associations, including associations like NAM. And the

amended section plainly does advance the interest of greater

disclosure by such associations -- else NAM would not be

complaining and would have no standing to do so. Indeed,

NAM concedes that under amended § 1603(b)(3), “groups like

the NAM will provide some more disclosure concerning their

own confidential associational activities.” Appellant’s Br. 18-19

(emphasis added). As NAM explains, this is because the

original section did not require it to disclose the identities of

corporate sponsors of its lobbying activities unless they planned,

supervised, or controlled those activities “in whole or in major

part.” And “[a]s long as several members were involved” --

even substantially -- “no single member would meet the

threshold.” Id. at 45. By substituting the “actively participates”

language, HLOGA § 207 closed the loophole that had

25

previously allowed multi-member associations, including NAM,

to avoid disclosing contributing members altogether.

Hence, whether amended § 1603(b)(3) also elicits more

information from some undefined set of “stealth coalitions” is

beside the point, because it elicits more from those its text

covers and thereby increases public awareness of the identities

of those who lobby the federal government. Even if the section

did not elicit more information from “stealth coalitions” as well,

it would at worst be somewhat underinclusive. And “with

regard to First Amendment underinclusiveness analysis, neither

a perfect nor even the best available fit between means and ends

is required.” Blount, 61 F.3d at 946. “Because the primary

purpose of underinclusiveness analysis is simply to ensure that

the proffered state interest actually underlies the law, a rule is

struck for underinclusiveness only if it cannot fairly be said to

advance any genuinely substantial governmental interest,

because it provides only ineffective or remote support for the

asserted goals, or limited incremental support.” Id. (internal

citations and quotation marks omitted). Here, the proffered state

interest extends to increased disclosure by all associations

lobbying on behalf of unnamed parties. Given the injury that

gives NAM standing to pursue this lawsuit, there is no doubt

that amended § 1603(b)(3) effectively advances that interest.

Nor does NAM’s argument that the section will not compel

greater information from so-called stealth coalitions persuade

us. NAM’s argument is as follows:

Like prior law, [amended § 1603(b)(3)] requires

disclosures only from entities that actually hire

lobbyists. Thus, stealth coalitions can avoid any

reporting by the simple and common expedient of

relying on the lobbyists of one or two members to

make actual lobbying contacts. As under prior law,

26

those members must file reports, but they will not

disclose anything more than prior law already required.

Appellant’s Br. 18. We need not decide whether this

hypothetical in fact envisions a way for coalition members to

avoid disclosure. Notwithstanding NAM’s contention that “this

approach is feasible [and] common,” Appellant’s Reply Br. 21,

it offers no evidence that either is true. As NAM acknowledges,

the individual organizations that actually finance and carry out

the lobbying through their own employees will be subject to

disclosure. Appellant’s Br. 36. And it is not obvious that a

coalition member would agree to serve as the sole public face of

a controversial lobbying campaign just to hide the participation

of fellow members. But even if some would, we see no reason

why Congress cannot enact a scheme that plausibly yields a

significant portion of the information it seeks, with the option of

returning to the drawing board once again if creative and

determined lobbyists succeed in finding and exploiting another

loophole. Cf. FEC v. Nat’l Right to Work Comm., 459 U.S. 197,

209 (1982) (“[C]areful legislative adjustment . . . in a ‘cautious

advance, step by step,’ . . . warrants considerable deference.”

(internal citation omitted)); McConnell, 540 U.S. at 158 (“[W]e

respect Congress’ decision to proceed in incremental steps in the

area of campaign finance regulation.”).

In a way, this hypothetical is itself yet another a straw man.

As amici curiae Campaign Legal Center et al. rightly point out,

“[i]f organizations do not establish a lobbying coalition and

instead lobby individually, there is no lobbying coalition for the

purposes of the LDA.” Amicus Curiae Br. 14-15. And the

statute “is not unconstitutionally underinclusive because it does

27

not require lobbying disclosure from a coalition that does not

engage in lobbying.” Id. at 15.12

In short, NAM perceives amended § 1603(b)(3) as less

effective than it could be (although too effective with respect to

NAM itself). But as we have said, “neither a perfect nor even

the best available fit between means and ends is required” to

satisfy this prong of the strict scrutiny test. Blount, 61 F.3d at

946. It is sufficient that amended § 1603(b)(3) effectively

advances the LDA’s general purpose of increasing “public

awareness of the efforts of paid lobbyists to influence the public

decisionmaking process,” as well as the amended section’s

specific purpose of requiring disclosure of organizations that

“actively participate[] in the planning, supervision, or control”

of a registrant’s lobbying activities.

12

NAM charges that amended § 1603(b)(3) is fatally

underinclusive in two further respects: it does not require an

association to link its list of active participants to the issues on which

the association has lobbied, which are listed separately, see

Appellant’s Reply Br. 18; and it does not require the disclosure of

individuals (as opposed to organizations) who otherwise meet the

section’s thresholds, see id. at 19-20. But “a regulation is not fatally

underinclusive simply because an alternative regulation, which would

restrict [in this case, which would mandate disclosure of] more speech

or the speech of more people, could be more effective.” Blount, 61

F.3d at 946. “The First Amendment does not require the government

to curtail [or to mandate disclosure of] as much speech as may

conceivably serve its goals.” Id. Moreover, as to NAM’s second

point -- and without minimizing in any way the burden that disclosure

imposes on organizations -- Congress could reasonably conclude that

disclosure requirements are even more burdensome on individuals and

hence should not be as expansive. See NAACP, 357 U.S. at 462-63;

see also McIntyre, 514 U.S. at 353-55.

28

C

Finally, we consider whether amended § 1603(b)(3) is

narrowly tailored. Under the strict scrutiny test, “narrowly

tailored” means that “less restrictive alternatives” to the statute

would not “accomplish the government’s goals equally or

almost equally effectively.” Blount, 61 F.3d at 944.

NAM argues that § 207 is “radically untailored” because it

“needlessly burden[s] long-standing groups when its target is the

short-term secrecy of ad-hoc coalitions.” Appellant’s Br. 4.

“This raises an obvious question,” NAM says: “Why burden

groups that have been registered as lobbyists for years in an

effort to force disclosures from short term, ad-hoc entities?” Id.

at 39. In NAM’s view, there is a “less restrictive” alternative

that would take care of the problem of short-term stealth

coalitions: Congress could simply make the “statute applicable

only to groups that have not been registered as lobbyists in the

last two or three years.” Id. at 39.

In this argument, we meet a sibling of the same straw man

we met before. As our prior discussion makes clear, amended

§ 1603(b)(3)’s target is not the secrecy of “stealth coalitions” --

short-term or otherwise -- but rather that of any registrant with

members that contribute the threshold amount and actively

participate in the planning, supervision, or control of the

registrant’s lobbying activities. The section “burden[s] groups

that have been registered as lobbyists for years” because its

object is “to force disclosures” by such groups. Hence, even if

an alternative aimed only at recently registered groups would be

“less restrictive,” it would not “accomplish the government’s

goals equally or almost equally effectively.” Blount, 61 F.3d at

944.

29

But such an alternative would not in fact be “less

restrictive” in the First Amendment sense merely because it

affects fewer entities. Instead, it would introduce the problem

of selectivity, burdening new voices more heavily than

established ones. Arguably, such an “improvement” would be

unlawfully discriminatory. Cf. Davis, 128 S. Ct. at 2774 (“[T]he

unprecedented step of imposing different contribution and

coordinated party expenditure limits on candidates vying for the

same seat is antithetical to the First Amendment.”); Anderson v.

Celebrezze, 460 U.S. 780, 793-94 (1983) (“A burden that falls

unequally on new or small political parties or on independent

candidates impinges, by its very nature, on associational choices

protected by the First Amendment.”). At the very least,

Congress was not required to go down that path.

By choosing a regime based upon disclosure, Congress

already opted for a regime considerably less restrictive than one

based upon the direct regulation of lobbying. In Buckley, the

Court said that “disclosure requirements certainly in most

applications appear to be the least restrictive means of curbing

the evil[]” of ignorance regarding the source and expenditure of

campaign funds. 424 U.S. at 68. Indeed, Buckley described a

disclosure regime as a “reasonable and minimally restrictive

method of furthering First Amendment values.” Id. at 81

(emphasis added). We have no doubt, then, that amended

§ 1603(b)(3) readily passes the “narrow tailoring” element of the

strict scrutiny test.

D

For the reasons discussed above, we conclude that amended

§ 1603(b)(3) meets the demands of strict scrutiny. A fortiori,

the section also satisfies the test the Court specifically applied

to disclosure requirements in Davis, McConnell, and Buckley,

30

whatever it is called. As we have noted, to survive scrutiny

under that test,

there must be “a ‘relevant correlation’ or ‘substantial

relation’ between the governmental interest and the

information required to be disclosed,” and . . . the

strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment

rights.

Davis, 128 S. Ct. at 2775 (quoting Buckley, 424 U.S. at 64); see

supra note 6.

As discussed in Parts II.B and C, there is more than a

“substantial” relation between the governmental interest in

greater transparency and the information that amended

§ 1603(b)(3) requires to be disclosed; in fact, the section’s

disclosure requirements are narrowly tailored and effectively

advance that interest. Moreover, as discussed in Part II.A, the

governmental interest in providing information about “who is

being hired, who is putting up the money, and how much” they

are spending to influence federal decisionmakers, Harriss, 347

U.S. at 625, is not just “some legitimate governmental interest,”

Davis, 128 S. Ct. at 2775 (quoting Buckley, 424 U.S. at 64). It

is a “vital national interest.” Harriss, 347 U.S. at 626.

We do not minimize the significance of NAM’s concern

that some of its members may be deterred from active

participation in its lobbying activities by fear of the collateral

consequences of public disclosure of their roles, an issue we

address in detail in the next subpart. But it is clear that “the

strength of the governmental interest” in providing greater

information about lobbying “reflect[s] the seriousness of the

actual burden” that disclosure puts “on First Amendment

rights.” Davis, 128 S. Ct. at 2775. This conclusion is confirmed

31

by the Supreme Court’s repeated determination that the interest

in public disclosure of information concerning those trying to

influence the political process is sufficiently compelling to

outweigh the burdens that disclosure may impose. See

McConnell, 540 U.S. at 230-31; Buckley, 424 U.S. at 82;

Harriss, 347 U.S. at 626; see also Bellotti, 435 U.S. at 792 n.32.

E

None of this is to say that repercussions from compelled

disclosure can never outweigh the government’s interest in

requiring it of a particular organization. In 1958, the Supreme

Court held that the State of Alabama could not require

disclosure of the local membership list of the National

Association for the Advancement of Colored People (NAACP),

because the organization “made an uncontroverted showing that

on past occasions revelation of the identity of its rank-and-file

members has exposed these members to economic reprisal, loss

of employment, threat of physical coercion, and other

manifestations of public hostility.” NAACP, 357 U.S. at 462.

“Under these circumstances,” the Court said, “we think it

apparent that compelled disclosure of petitioner’s Alabama

membership is likely to affect adversely the ability of petitioner

and its members to pursue their collective effort to foster beliefs

which they admittedly have the right to advocate, in that it may

induce members to withdraw from the Association and dissuade

others from joining it . . . .” Id. at 462-63. Upon the same

showing, the Court struck down a municipal ordinance

compelling disclosure of the membership of an Arkansas branch

of the NAACP. Bates v. City of Little Rock, 361 U.S. 516, 523-

24 (1960).13

13

Similarly, in Brown v. Socialist Workers ’74 Campaign

Committee, the Court held that the compelled disclosure of

contributions to and expenditures by the Socialist Workers Party was

32

In Buckley, the Court reached the opposite conclusion

regarding the compelled disclosure of contributions to

candidates and political parties. The Court first rejected a claim

that such disclosure requirements were facially invalid,

concluding that “certainly in most applications” they survived

exacting scrutiny. 424 U.S. at 68. It then went on to consider

whether the requirements were unconstitutional as applied to

minor parties and independent candidates:

There could well be a case, similar to those before the

Court in NAACP v. Alabama and Bates, where the

threat to the exercise of First Amendment rights is so

serious and the state interest furthered by disclosure so

insubstantial that the Act’s requirements cannot be

constitutionally applied. But no appellant in this case

has tendered record evidence of the sort proffered in

NAACP v. Alabama. Instead, appellants primarily rely

on the clearly articulated fears of individuals, well

experienced in the political process. At best they offer

the testimony of several minor-party officials that one

or two persons refused to make contributions because

of the possibility of disclosure.

Id. at 71-72 (internal citation and footnotes omitted). “On this

record,” the Court said, “the substantial public interest in

disclosure identified by the legislative history of this Act

unconstitutional in light of “substantial evidence” of harassment,

including “proof of specific incidents” of “threatening phone calls and

hate mail, the burning of [party] literature, the destruction of [party]

members’ property, police harassment of a party candidate, . . . the

firing of shots at [a party] office,” and the dismissal of 22 party

members by their employers. 459 U.S. 87, 98-99 (1982).

33

outweighs the harm generally alleged,” even as to minor parties

and independent candidates. Id. at 72.14

To its credit, NAM does not suggest that its more than

11,000 corporate members -- constituting “the nation’s largest

industrial trade association,” Appellant’s Br. ii -- are as

vulnerable to retaliation as were the individuals who joined the

Alabama NAACP in the 1950s. It must at least show, however,

that they are more at risk than the contributors to minor parties

and independent candidates whose challenge the Court rejected

in Buckley. NAM’s sole evidence consists of a declaration from

its General Counsel, which states as follows:

NAM regularly lobbies on a variety of hot-button

issues, including global warming and nuclear power,

that may lead to adverse consequences for members

identified as “actively participa[ting]” in such efforts.

For example, mob violence has been directed at firms

targeted by anti-globalization forces and the more

extreme advocates [sic] of global warming. . . . Firms

that are identified as actively lobbying on issues

relating to on-going litigation, e.g., asbestos, risk

becoming litigation targets. Taking policy positions

that are unpopular with some groups may lead to

boycotts, shareholder suits, demands for political

contributions or support, and other forms of

harassment.

Amundson Decl. ¶ 10 (internal citations omitted).

14

See Buckley, 424 U.S. at 74 (stating that a minor party can

qualify for exemption from general disclosure requirements by

showing “a reasonable probability that the compelled disclosure of

[the] party’s contributors’ names will subject them to threats,

harassment, or reprisals”).

34

As the district court found, however, the five newspaper

articles and one lawsuit cited to support this declaration “in no

way indicate that any member of the NAM (or the NAM itself)

has suffered harm or retaliation as a result of the NAM’s

lobbying activities” or as a result of being linked to NAM. Nat’l

Ass’n of Mfrs., 549 F. Supp. 2d at 61. In fact, there is no

mention of NAM at all in any of the materials cited in the

declaration.15 In addition, “[a]lthough the NAM’s website . . .

already discloses the membership of over 250 organizations in

the NAM, the NAM proffers no evidence of any past incidents

suggesting that public affiliation with the NAM leads to a

substantial risk of ‘threats, harassment, or reprisals from either

Government officials or private parties.’” Id. at 61 (quoting

Buckley, 424 U.S. at 74).

This, then, is a case like Buckley, not NAACP. As in

Buckley, the plaintiff has tendered no “record evidence of the

sort proffered in NAACP v. Alabama.” 424 U.S. at 71. Instead,

it primarily relies on “clearly articulated fears” and a few

examples of harassment unconnected to lobbying disclosures by

NAM or any other entity.16 Moreover, the risks that NAM

15

See Amundson Decl. ¶ 10 (citing IBEW, Local 1547 v. Alaska

Util. Constr. Inc., 976 P.2d 852, 859 (Alaska 1999); David Rising,

Clashes Break Out Ahead of Summit, ASSOCIATED PRESS, June 3,

2007; Peter Geier, ‘Sea Change’ in Asbestos Torts is Here: New

Strategies, New Defendants Seen, NAT’L L.J., Oct. 31, 2005; Robert

Pear, Doctors in Antitrust Fight Boycott Merck Products, N.Y. TIMES,

May 23, 2000; Harry Stoffer, Toyota Joins Detroit 3 in CAFE Fight,

AUTOMOTIVE NEWS, July 30, 2007; Jim Lobe, ExxonMobil Takes

Heat on Global Warming, INTER PRESS SERVICE NEWS AGENCY, July

12, 2005, available at http://www.ipsnews.net/print.asp?

idnews=29469).

16

NAM contends that in Davis, the Supreme Court “applied

‘exacting scrutiny’ to hold a reporting provision facially invalid --

35

claims its members would suffer if their participation in

controversial lobbying were revealed 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 amended § 1603(b)(3) unconstitutional, it would

invalidate most compelled lobbying disclosures in contravention

of Harriss, and most compelled campaign finance disclosures in

contravention of Buckley. Accordingly, we reject both NAM’s

facial and as-applied First Amendment challenges.

III

We next address NAM’s contention that amended

§ 1603(b)(3) is unconstitutionally vague. “Due process requires

that a criminal statute provide adequate notice to a person of

ordinary intelligence that his contemplated conduct is illegal

. . . .” Buckley, 424 U.S. at 77; see Hill v. Colorado, 530 U.S.

703, 732 (2000). “Where First Amendment rights are involved,

an even ‘greater degree of specificity’ is required.” Buckley,

424 U.S. at 77 (quoting Smith v. Goguen, 415 U.S. 566, 573

even though there was no evidence that wealthy, self-funding

candidates faced specific injury -- because ‘compelled disclosure, in

itself, can seriously infringe on privacy of association and belief

guaranteed by the First Amendment.’” Appellant’s Reply Br. 10

(quoting Davis, 128 S. Ct. at 2774-75). But that is a misreading of

Davis. The Court held the reporting provision at issue in that case

facially invalid because its only purpose was to implement asymmetric

contribution limits that unconstitutionally discriminated against self-

funded candidates. Davis, 128 S. Ct. at 2775. Because in disclosure

cases “the strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment rights,” and

because the only governmental interest proffered was the enforcement

of unconstitutional requirements, there was no need for the plaintiffs

to show specific injury. Id. at 2775.

36

(1974)). Nonetheless, “perfect clarity and precise guidance have

never been required even of regulations that restrict expressive

activity.” United States v. Williams, 128 S. Ct. 1830, 1845

(2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781,

794 (1989)) (internal quotation marks omitted). And “the belief

that the mere fact that close cases can be envisioned renders a

statute vague” is a “basic mistake.” Williams, 128 S. Ct. at

1846; see Harriss, 347 U.S. at 618 (“[I]f the general class of

offenses to which the statute is directed is plainly within its

terms, the statute will not be struck down as vague even though

marginal cases could be put where doubts might arise.”); U.S.

Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S.

548, 579 (1973) (same).

Amended § 1603(b)(3) requires disclosure of any

organization that contributes more than $5000 in a quarterly

period to a registrant or its client “to fund the lobbying activities

of the registrant,” and that “actively participates in the planning,

supervision, or control of such lobbying activities.” 2 U.S.C.

§ 1603(b)(3). NAM objects to two statutory terms as

unconstitutionally vague. The first is the phrase “actively

participates,” which replaced the phrase “in whole or in major

part” in the original version of the LDA. The second is the

phrase “lobbying activities,” which has been defined since 1995

as: “lobbying contacts and efforts in support of such contacts,

including preparation and planning activities, research and other

background work that is intended, at the time it is performed, for

use in contacts, and coordination with the lobbying activities of

others.” Id. § 1602(7) (emphasis added). Specifically, NAM

contends that the definition’s use of the word “intended” renders

it impermissibly vague.17

17

The phrase “lobbying contact” is defined separately, 2 U.S.C.

§ 1602(8); see supra note 2, and is not challenged by NAM.

37

We conclude that, although the 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. We discuss the term “actively participates” in Part A

and the LDA’s use of “intended” to define “lobbying activities”

in Part B. In Part C, we note additional considerations that

further mitigate any vagueness concerns.

A

NAM’s contention that it is impermissibly vague to require

the disclosure of organizations that “actively participate” in the

planning, supervision, or control of its lobbying activities is met

at the start with a significant precedential hurdle. In United

States Civil Service Commission v. National Association of

Letter Carriers, the Supreme Court rejected a vagueness

challenge to the Hatch Act, which barred federal employees

from “tak[ing] ‘an active part’” in political management or

political campaigns. 413 U.S. at 568 (quoting 5 U.S.C.

§ 7324(a)(2) (1973)). It is difficult to see why the term “actively

participates” is cripplingly vague in a statute that merely

mandates disclosure, while “taking an active part” was

acceptable in a statute that directly limited speech.

NAM seeks to distinguish Letter Carriers on the ground

that there, the Court rejected the vagueness challenge “only after

first explicitly incorporating into the phrase ‘active part’ a set of

standards that had been developed by the Civil Service

Commission over a period of five decades, largely through the

process of over 3,000 written adjudicatory opinions.”

Appellant’s Br. 45-46. “It was only after linking the statutory

prohibition back to the body of work produced by the Civil

Service Commission,” NAM contends, “that the Supreme Court

found that the ‘active part[icipation]’ language avoided

vagueness concerns.” Id. at 46. Here, by contrast, there is no

38

record of “thousands of decisions and other interpretive

statements defining the contours of ‘active part[icipation]’ . . .

on which the NAM may rely.” Id. at 47-48.

This argument has Letter Carriers exactly backwards. The

thousands of Civil Service Commission decisions referred to

were not the Hatch Act’s saving grace; they were its potentially

fatal flaw. An Act of Congress would “unquestionably be

valid,” the Court said, if “in plain and understandable language

[it] forbade . . . actively participating in fund-raising activities

for a partisan candidate or . . . actively managing the campaign

of a partisan candidate for public office.” Letter Carriers, 413

U.S. at 556. The problem with the Hatch Act was that it did not

just bar federal employees from taking “an active part in

political management or in political campaigns,” but rather went

on to define that statutory phrase as “mean[ing] those acts . . .

which were prohibited . . . before July 19, 1940, by

determinations of the Civil Service Commission.” Id. at 550.

Indeed, the lower court had found this definition impermissibly

vague because that court construed it “as incorporating each of

the several thousand adjudications of the Civil Service

Commission . . . , many of which are said to be undiscoverable,

inconsistent, or incapable of yielding any meaningful rules to

govern present or future conduct.” Id. at 571 (citing 346 F.

Supp. 578, 582-83, 585 (D.D.C. 1972)).

The Supreme Court, however, took “quite a different view

of the statute,” which saved it from invalidation. 413 U.S. at

571. In the Court’s view, Congress intended the statutory phrase

to be defined not by the thousands of administrative decisions,

but by “the rules that had evolved over the years from [those]

repeated adjudications.” Id. at 572. “Those rules,” the Court

said, “were restated by the Commission in 1970 in the form of

regulations specifying the conduct that would be prohibited” by

39

the Hatch Act. Id. at 576. And there was “nothing

impermissibly vague” in those regulations. Id. at 576-77.

Therein lies NAM’s problem. The Hatch Act regulations to

which the Supreme Court referred prohibited federal employees

from, inter alia, “actively participating in a fund-raising activity

of a partisan candidate” and “[t]aking an active part in

managing the political campaign of a partisan candidate for

public office.” Id. at 576-78 n.21 (quoting 5 C.F.R.

§ 733.122(b)(4), (5) (1973)) (emphases added). The Court

expressly rejected the claim that the above-italicized words

rendered the regulations impermissibly vague:

There might be quibbles about the meaning of taking

an ‘active part in managing’ or about ‘actively

participating in . . . fund-raising’ . . . ; but there are

limitations in the English language with respect to

being both specific and manageably brief, and it seems

to us that although the prohibitions may not satisfy

those intent on finding fault at any cost, they are set out

in terms that the ordinary person exercising ordinary

common sense can sufficiently understand and comply

with, without sacrifice to the public interest.

Id. at 577-79. If “actively participating” was not too vague a

term for the Hatch Act regulations, “actively participates”

cannot be too vague a term here.18

18

Letter Carriers noted that the clarity of the Hatch Act and the

regulations was further enhanced by their carving out of certain

conduct as specifically permissible. See, e.g., 413 U.S. at 579 (noting

that the Act and regulations “privilege[] the employee to ‘[e]xpress his

opinion as an individual privately and publicly on political subjects

and candidates’”). The LDA contains similar carve-outs. See 2

U.S.C. § 1602(8)(B) (excepting, from the definition of “lobbying

40

In fact, the amended LDA’s use of “actively participates”

is -- if anything -- narrower and less problematic. Section

1603(b)(3) does not apply to every entity that actively

participates in “lobbying activities” writ large, but only to those

that actively participate in the “planning, supervision, or

control” of lobbying activities. Moreover, NAM need only

identify those entities that actively participate in planning,

supervising, or controlling NAM’s own lobbying. These

limitations give the association “fair notice” of what the statute

requires. Williams, 128 S. Ct. at 1845.

B

As noted, amended § 1603(b)(3) requires disclosure of any

entity that “actively participates in the planning, supervision, or

control of [the] lobbying activities” of a registrant. 2 U.S.C.

§ 1603(b)(3)(B) (emphasis added). The definition of “lobbying

activities” is contained in § 1602(7), a section that was enacted

as part of the LDA in 1995 and that HLOGA did not alter.

Section 1602(7) provides:

The term ‘lobbying activities’ means lobbying contacts

and efforts in support of such contacts, including

preparation and planning activities, research and other

background work that is intended, at the time it is

performed, for use in contacts, and coordination with

the lobbying activities of others.

contact,” nineteen forms of communication, including any

communication “(iii) made in a speech, article [or] publication . . .

made available to the public . . . ; (vii) [made in] testimony given

before a committee . . . of the Congress . . . ; [or] (xiv) filed in the

course of a public proceeding”).

41

Id. § 1602(7) (emphasis added). NAM contends “that intent is

too vague a concept to employ where core First Amendment

rights may be deterred,” Appellant’s Br. 42, and that the LDA’s

use of an intent standard to define the term “lobbying activities”

renders § 1603(b)(3), which includes that term,

unconstitutionally vague.19

1. At the outset, it is important to point out that § 1602(7)’s

definition of the term “lobbying activities” -- including its use

of an intent standard -- applies not only to the provision that

NAM challenges here, § 1603(b)(3), but to every provision of

the LDA that uses the term. Such provisions form the

cornerstone of the statute. See 2 U.S.C. § 1603(b)(5) (requiring

“[e]ach registration” under the Act to contain a statement of “the

general issue areas in which the registrant expects to engage in

lobbying activities on behalf of the client” and “specific issues

that have . . . already been addressed or are likely to be

addressed in lobbying activities”); id. § 1604(a) (requiring each

registrant to file a report “on its lobbying activities during [each

reporting] period”). Hence, if the term is too vague, it brings

down much of the statutory edifice.

But this point is not important only to show how

consequential a vagueness finding would be. Rather, because

the same definition of lobbying activities has been in the statute

since 1995, it also suggests the impressive number of registrants

19

NAM also contends that the “intent standard here is further

clouded because [amended § 1603(b)(3)] does not even make clear

whose intent controls.” Appellant’s Br. 43. We do not find that

question cloudy, and agree with both the district court and the United

States Attorney that “the relevant intent is that of the affiliate who

undertakes the ‘preparation and planning activities, research [or] other

background work’ at issue.” Nat’l Ass’n of Mfrs., 549 F. Supp. 2d at

65.

42

who apparently have been able to overcome the ambiguity that

NAM perceives. No one filed a vagueness (or any other)

challenge to any part of the LDA during the twelve years before

HLOGA amended it in 2007.

NAM discounts the importance of this fact on the ground

that, under the pre-2007 version of § 1603(b)(3), it had no need

to sue because “groups like the NAM did not have to concern

themselves with assessing the underlying intent” of their

members except for “those members that ‘in whole or in major

part plan[ned], supervise[d] or control[led]’ such ‘lobbying

activities.’” Appellant’s Br. 45 (quoting § 1603(b)(3) (1995)).

But this argument misses the mark. The point is not that groups

like NAM did not challenge the term “lobbying activities” as

vague in the context of § 1603(b)(3), but that no registrant --

including NAM -- challenged the term’s use in any provision of

the statute. The fact that no registrant raised a challenge is

hardly dispositive, but it does suggest that the multitude of

lobbyists and organizations that had to comply with the statute

for a dozen years did not find its definition of “lobbying

activities” too difficult to understand.

2. Proceeding to NAM’s contention that intent is legally

too vague a concept to employ in a lobbying disclosure statute,

we are once again met by the Supreme Court’s first case on the

subject, Harriss. As we discussed in Part II, Harriss upheld the

nation’s first lobbying statute, the FRLA, against a First

Amendment challenge. But Harriss also addressed a vagueness

challenge to the same statute, which (as construed by the Court)

required reporting of “all contributions and expenditures having

the purpose of attempting to influence legislation through direct

communication with Congress.” 347 U.S. at 623 (emphasis

added). The Court concluded that the Act was not too vague to

pass constitutional muster. Id. at 623-24.

43

Just two Terms ago, the Court confirmed that an intent

standard is not per se vague, even in a statute regulating speech.

The statute at issue in United States v. Williams criminalized the

pandering of “material or purported material in a manner that

reflects the belief, or that is intended to cause another to believe,

that the material or purported material is, or contains” child

pornography. 128 S. Ct. at 1836-37 (emphasis added) (quoting

18 U.S.C. § 2252A(a)(3)(B)). In rejecting a vagueness

challenge, the Court stated:

The statute requires that the defendant hold, and make

a statement that reflects, the belief that the material is

child pornography; or that he communicate in a manner

intended to cause another so to believe. Those are clear

questions of fact. Whether someone held a belief or

had an intent is a true-or-false determination, not a

subjective judgment such as whether conduct is

“annoying” or “indecent.” . . . To be sure, it may be

difficult in some cases to determine whether these clear

requirements have been met. But courts and juries

every day pass upon knowledge, belief and intent -- the

state of men's minds -- having before them no more

than evidence of their words and conduct, from which,

in ordinary human experience, mental condition may

be inferred.

Id. at 1846 (emphasis added) (internal quotation marks and

citation omitted).20

20

NAM’s argument that the notion of “organizational intent” is

“particularly elusive,” Appellant’s Br. 43, is vulnerable to a similar

response. Just as courts every day pass on the intent of individuals, so

too have courts long applied scienter requirements to corporations.

See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 706

(2005); N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S.

44

NAM seeks to distinguish Williams as a case involving

pornography rather than protected speech, and thus as not posing

the heightened vagueness concerns present in cases involving

the First Amendment. But the Williams Court noted that the

statute at issue there could reach some protected speech, 128 S.

Ct. at 1844, and nothing in its discussion of the void-for-

vagueness doctrine suggests its analysis is inapplicable to

protected speech. To the contrary, the Court began its work by

setting forth the vagueness analysis that applies “in the First

Amendment context.” Id. at 1845. Accordingly, absent special

circumstances not present here, there is no reason to conclude

that the “every day” task of assessing intent is inherently vague

when protected speech is involved.21

481, 494-95 (1909).

21

Notwithstanding the Court’s approval of an intent standard in

Williams, NAM maintains that two earlier cases -- Buckley and FEC

v. Wisconsin Right to Life (WRTL II) -- establish “that intent is too

vague a concept where core First Amendment rights may be deterred.”

Appellant’s Br. 42 (citing Buckley, 424 U.S. at 43-44; WRTL II, 551

U.S. 449, 467-69 (2007)). That description overreads both cases.

Neither Buckley nor WRTL II suggested that intent standards are

generally impermissible in the First Amendment context. Rather,

those cases rejected their use “to distinguish constitutionally protected

political speech from speech that [Congress] may proscribe.” WRTL

II, 551 U.S. at 467. Intent plays no comparable role in the LDA.

Indeed, Buckley itself approved the use of a purpose standard

elsewhere in FECA. See Buckley, 424 U.S. at 23-24 & n.24.

Certainly, Buckley and WRTL II provide no warrant for ignoring the

Court’s holdings in Williams and Harriss -- the latter of which

accepted a purpose standard in the context of lobbying disclosure.

45

C

To the extent that any vagueness concerns still linger, they

are mitigated by two additional characteristics of the amended

LDA: (1) scienter requirements that must be satisfied before

either criminal or civil penalties may be imposed, and (2) a safe

harbor option that permits a registrant to pretermit consideration

of the terms that NAM regards as vague.

1. A “scienter requirement may mitigate a law’s vagueness,

especially with respect to the adequacy of notice to the

complainant that his conduct is proscribed.” Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499

(1982); see Gonzales v. Carhart, 550 U.S. 124, 149 (2007); Hill,

530 U.S. at 732. Intent is itself a form of scienter that can

perform that function. See Village of Hoffman Estates, 455 U.S.

at 502. But under the LDA, criminal sanctions attach only if the

government proves that a violation was committed “knowingly

and corruptly,” 2 U.S.C. § 1606(b) -- a much stronger form of

scienter. In Arthur Andersen LLP v. United States, the Court

held that “[o]nly persons conscious of wrongdoing” can be said

to act “knowingly . . . [and] corruptly.” 544 U.S. 696, 706

(2005) (ellipses in original). Hence, NAM need not hedge its

associational activity for fear that good faith mistakes will result

in criminal liability.22

22

We also note that, as directed by the statute, the Secretary of the

Senate and Clerk of the House have issued “guidance and assistance

on the registration and reporting requirements.” 2 U.S.C.

§ 1605(a)(1). Although that guidance does not have the force of law,

the United States Attorney would be hard pressed to prove a

“knowing” and “corrupt” violation by an organization that has adhered

in good faith to such guidelines.

46

Unlike criminal sanctions, civil penalties may be imposed

under the LDA even if a violation is not both “knowing” and

“corrupt” -- a “knowing” failure to comply with the statute will

do.23 Nonetheless, the Supreme Court has found a “knowing”

requirement sufficient to ameliorate vagueness concerns. See

Hill, 530 U.S. at 732. That term requires at least a knowledge

of the relevant facts, United States v. Barnes, 295 F.3d 1354,

1367 (D.C. Cir. 2002), thereby mitigating NAM’s concern that

it may not be able to learn those facts. In particular, intent is

itself a “clear question[] of fact. Whether someone . . . had an

intent is a true-or-false determination.” Williams, 128 S. Ct. at

1846. Hence, as the district court concluded, “if a registrant, in

good faith, misinterprets the purpose of research or background

work performed by one of its affiliates . . . , the registrant cannot

be found to have knowingly (or ‘knowingly and corruptly’)

failed to disclose that affiliate.” Nat’l Ass’n of Mfrs., 549 F.

Supp. 2d at 66.

2. Finally, Congress balanced its adoption of a more

stringent disclosure standard in amended § 1603(b)(3)(B) by

adding a safe harbor provision as well. That provision states:

No disclosure is required under paragraph (3)(B) if the

organization that would be identified as affiliated with

the client is listed on the client's publicly accessible

Internet website as being a member of or contributor to

the client, unless the organization in whole or in major

23

Section 1606(a) states that civil liability attaches to a knowing

failure to “(1) remedy a defective filing within 60 days after notice of

such a defect by the Secretary . . . or the Clerk . . . ; or (2) comply with

any other provision of this chapter.” 2 U.S.C. § 1606(a). Where

notice is given, of course, the 60-day grace period further diminishes

vagueness concerns.

47

part plans, supervises, or controls such lobbying

activities.

2 U.S.C. § 1603(b). Hence, an active participant in NAM’s

lobbying can avoid being so identified if NAM simply lists it as

a member on NAM’s website -- as long as the member does not

meet the higher participation standard (“in whole or in major

part”) that applied before passage of HLOGA. In addition to

permitting its members to avoid the risk of more direct

association with controversial lobbying campaigns, this safe

harbor allows NAM to avoid the risk of violating those statutory

provisions that it regards as vague.

Of course, reliance on this safe harbor may lead to over-

disclosure, and in some cases disclosing mere association with

an organization may cause substantial harm. See NAACP, 357

U.S. at 462. But the retaliation concerns that NAM has

specifically asserted are based not on its members’ association

with NAM simpliciter, but rather on their association with

NAM’s lobbying on particular issues. NAM has proffered no

evidence that merely being unmasked as one of its members is

hazardous to an organization’s health.24 Hence, the safe harbor

provision provides yet a further opportunity to ameliorate any

vagueness concerns that amended § 1603(b)(3) may engender.

For the foregoing reasons, we conclude that neither the term

“actively participates” nor the term “lobbying activities” renders

amended § 1603(b)(3)(B) impermissibly vague.

24

See Amundson Decl. ¶ 10 (averring that harassment may be

directed at firms identified as “actively participat[ing]” in NAM’s

lobbying on global warming, as “actively lobbying” on issues related

to ongoing asbestos litigation, and as “[t]aking policy positions that

are unpopular”).

48

IV

For more than sixty years, Congress has sought to expose

the lobbying of government officials to public scrutiny.

Acronyms and intricacies aside, the progression from the FRLA

to the LDA to the HLOGA marks the legislature’s attempt to

shine increasing light on the efforts of paid lobbyists to

influence the public decisionmaking process. We find nothing

unconstitutional in the way Congress has gone about that task.

Accordingly, the decision of the district court, rejecting the

appellant’s challenge to the constitutionality of section 207 of

the Honest Leadership and Open Government Act of 2007, is

Affirmed.