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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

THE NOVEMBER TEAM, INC., et al.,

Plaintiffs,

-against-

NEW YORK STATE JOINT COMMISSIONON PUBLIC ETHICS, et al.,

Defendants.

::

::::::::::

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 LLP35 West Wacker DriveChicago, IL 60601Telephone: (312) 558-5600Fax: (312) [email protected]

Thomas Patrick Lane

Seth E. SpitzerWinston & Strawn LLP200 Park Avenue New York, New York 10166-4193Telephone: (212) 294-6700Facsimile: (212) [email protected]@winston.com

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

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TABLE OF CONTENTS

Table of Contents ............................................................................................................................ ii Introduction ..................................................................................................................................... 1

Statement of Facts ........................................................................................................................... 3

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

2. The Joint Commission on Public Ethics ............................................................................. 5

3. Regulation of Grassroots Lobbying under the Act ............................................................. 5

4. The Advisory Opinion ........................................................................................................ 6

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

Argument ........................................................................................................................................ 7

1. Plaintiffs have misinterpreted the Lobbying Act and the Advisory Opinion ..................... 7

2. Plaintiffs are not likely to succeed on the merits ................................................................ 9

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

B. Disclosure requirements do not limit speech; thus they need only besubstantially related to sufficiently important interests ................................................ 11

C. Courts have consistently recognized that disclosure requirementsfurther vital government interests ................................................................................. 12

D. The public’ s interest in money’ s influence on politics via grassroots lobbyingis no less compelling and thus the Advisory Opinion is not overbroad........................ 14

E. The Advisory Opinion’ s disclosure requirements are substantially relatedto these important interests ........................................................................................... 18

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

A. The disclosure requirements are not unduly burdensome ............................................. 19

B. The Advisory Opinion does not impede Plaintiffs’ associational rights ...................... 21 C. Grassroots lobbyists are not entitled to anonymity ....................................................... 22

D. The Advisory Opinion does not unreasonably discriminate against paid speech ......... 25

E. The Advisory Opinion does not burden the press, nor is there a special constitutionalright for public relations consultants to lobby journalists ............................................. 25

4. The Advisory Opinion is not unconstitutionally vague .................................................... 26

5. Plaintiffs will not suffer any irreparable harm .................................................................. 28

6. The balance of hardships weighs against grant of an injunction ...................................... 30

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


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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’ tComm’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


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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’ tComm’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


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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§ 1–a (“Lobbying Act”) ......................................................................................................3, 10

§ 1–c ..............................................................................................................................4, 10, 25

§ 1–d....................................................................................................................................5, 28

§ 1–h................................................................................................................................4, 5, 19

§ 1–o......................................................................................................................................4, 5

§ 1–u..........................................................................................................................................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 35-

year 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 requirements—like those imposed by the Lobbying Act—are 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.” § 1–c(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., § 1–h(b)(3) (requiring a description of the

subject matter and legislative bill numbers associated with lobbying activities); § 1–h(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,” § 1–h(b)(5)(i), and,

except for expenses under seventy-five dollars, list those expenses “as to amount, to whom paid,

and for what purpose,” § 1–h(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

1 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 activityand (2) whether a consultant who attends a meeting between a client and a public official isengaged in lobbying activity. Advisory Opinion at 1–2. 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 8–10. 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,

366–67 (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 Act—the 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 influencethem, and to discover the particular constituency advocating a particular position on legislation. It thus permits legislators toevaluate whether the interest of a particular constituency is

consistent with the interests of other constituencies.Second, regulation of lobbying serves the needs of theelectorate. “The voting public should be able to evaluate the performance of their elected officials in terms of representation ofthe electors’ interest in contradistinction to those interestsrepresented by lobbyists.”

Third, the state has a strong interest in promoting opennessin the system by which its laws are created. . . . “[D]isillusionmentwith the political process today stems from lack of knowledge ofits details, lack of any attempt to force the disclosure of the identityof 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 494–95

(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 public’s interest in money’s 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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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 25–27.

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 respect—as a matter of constitutional law—than 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 stronger—not weaker—when 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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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 67–68. 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 12–13. 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 $100—much lower than the $5,000 threshold of which Plaintiffs

complain—on 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 625–26 (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 handbill—and 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 7–8, 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 39–40, 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 502–503; 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, 233–34 (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 349–50. 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, 13–14 (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 By: /s/ Thomas Patrick Lane

May 16, 2016 Thomas Patrick LaneSeth E. Spitzer


8/17/2019 32mol.opp


WINSTON & STRAWN LLP200 Park Avenue New York, NY 10166Tel. (212) 294-6700Fax (212) 294-4700

[email protected]@winston.com

Dan K. Webb ( pro hac vice)WINSTON & STRAWN LLP35 West Wacker DriveChicago, Illinois 60601Tel.: (312) 558-5600Fax: (312) [email protected]

Attorneys for Defendant New York State Joint Commission on Public Ethics


32mol.opp

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