Missouri’s ban on lawmakers and legislative staff working as lobbyists for two years after leaving office is a reasonable limit that does not overly burden free speech rights, a federal judge ruled last week.
First enacted in 2018 as part of a voter-approved initiative called “Clean Missouri,” the law is designed to prevent corruption and the appearance of corruption, U.S. District Judge Doug Harpool wrote in his order in a case filed by former state Rep. Rocky Miller and legislative assistant John LaVanchy.
“A former public official’s acceptance of a lobbying position months or even days after departing government, makes reasonable the belief that those officials may have exchanged political favors for their positions— and salaries —as lobbyists,” Harpool, a former Missouri House member, wrote in the decision delivered Thursday. “The appearance of impropriety is a reasonable and natural conclusion in such a situation.”
Miller, a Republican from Lake Ozark, won four terms in the Missouri House and was re-elected to his final term in 2018 at the same election where voters passed the lobbying ban. About 10 months after he left office in January 2021, he received an offer to work as a paid lobbyist for Presidio, a waste management company with headquarters in his hometown.
LaVanchy is a former office assistant to two lawmakers currently employed as a committee records specialist by the Missouri House.
In their challenge to the law, Miller and LaVanchy argued that the ban violates their First Amendment rights and improperly limits their employment opportunities. The lawsuit was filed against the Missouri Ethics Commission, which is responsible for enforcing the ban.
The ban, attorney Cole Bradbury wrote on behalf of Miller and LaVanchy, has a “chilling effect” on potential employers who would not want to consider Miller or LaVanchy for future employment.
“There may be other opportunities for (Miller and LaVanchy) that are or were available to Miller and LaVanchy that they have missed because of the chilling effect of the ban, and Miller and LaVanchy have been prevented from seeking employment with businesses and nonprofits which might have hired them but for the ban,” Bradbury wrote in the initial court filing.
In an email, Bradbury said he plans to appeal Harpool’s decision.
Miller registered as a lobbyist, working for Presidio and four other clients, on Jan. 7, when the ban on his employment expired.
The ethics commission, in its court filings, argued that both Miller and LaVanchy were free to engage in a wide variety of activities protected by the First Amendment. The ban, attorneys noted, applies to paid work as a lobbyist and does not apply to unpaid lobbying work, testifying before legislative committees, or consulting or writing about issues in front of lawmakers.
“The ban specifically limits its scope to paid lobbying activities, rather than lobbying that a former public official may undertake on a pro bono basis,” Harpool wrote. “This is consistent with the Supreme Court’s finding that a quid pro quo transaction involves the exchange of a political favor for money.”
The government has a compelling interest in maintaining public confidence in the legislature, Harpool wrote.
“A former public official’s acceptance of a lobbying position months or even days after departing government, makes reasonable the belief that those officials may have exchanged political favors for their positions—and salaries—as lobbyists,” Harpool wrote. “The appearance of impropriety is a reasonable and natural conclusion in such a situation.”
The ban on lobbying protects the public from officials who would trade on the knowledge or influence gained in office, Harpool wrote. It is like rules protecting clients from attorneys who speak too freely about their case or trade secrets from disclosure by employees who change jobs.
“Seen in this light, the lobbying ban’s restrictions are but another example of a reasonable, proportional, and narrow limit designed to further a most important state interest: combating quid pro quo corruption and its appearance,” Harpool wrote. “Not every restriction on speech violates the First Amendment.”
At the conclusion of his opinion, Harpool wrote that he is puzzled why Miller took an oath of office in 2019 promising to uphold the constitution knowing that it contained the ban. He noted in the opinion that former Rep. Kevin Corlew, defeated in the 2018 election, resigned before the ban took effect in early December 2018 to avoid the new law.
Public officials know that accepting a taxpayer-supported job also includes accepting restrictions on speech
“This fact further differentiates the instant case from genuine violations of the First Amendment,” Harpool wrote. “Public service requires personal sacrifice.”
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