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Lobbyists Beware: Political Contribution Ban a Model for Federal Elections?

November 14, 2011

Last week the United States Court of Appeals for the Fourth Circuit upheld a North Carolina ban on lobbyists making any political contributions in state elections, when the candidate is a legislator or public servant. In Preston v. Leake, No. 10-2294, 11/7/2011, the Court found it did not violate the First Amendment right of freedom of speech or freedom of association to ban lobbyist contributions to political candidates. 

The case was brought on behalf of Sarah Preston, a lobbyist for the ACLU, primarily based on an argument that an absolute ban violated First Amendment protections. The Court found that it was an anti-corruption measure, narrowly tailored to meet a state need and therefore was valid. The Court noted, “The nature of the lobbyist’ [lobbyist’s] role in its finest tradition exists in tension with any idea that a lobbyist can make payments of any kind or in any amount to a public official.” It also pointed out that being a lobbyist was a matter of choice for the plaintiff, a choice that came with a high level of regulatory and ethical requirements.

Interestingly, the Court added that the ban on financial donations does not deprive a lobbyist of a host of other types of expression, including hosting a fund raiser for the candidate, volunteering to put up signs, making speeches, making an independent expenditure, or otherwise demonstrating support for the candidate of choice, as long as the activity didn’t involve a direct financial contribution to the candidate or her committee.

While this North Carolina state ban has no direct effect on federal elections, or other state elections, it is a model that many regulators and commentators have expressed support for. One can expect both state and federal efforts to enact new regulations further limiting a lobbyist’s opportunity to fully participate in the electoral process.