Untitled Texas Attorney General Opinion ( 1953 )

Hon. Jack G. Fisk, Chairman Opinion No. S-34
House Rules Committee
53rd Legislature Re: Constitutionaltiy of House Bill
Austin, Texas 18. as amended, known as the
Lobbyist Registration Act,
regulating the registration of
lobbyists with the Secretary of
Dear Sir: State.
You have requested our opinion on the constitutionality of
House Bill 18. entitled “Lobbyist kegistration A+“, as amended by the
House Rules Committee. Briefly stated the bill provides for the regis-
tration and filing of financial reports by certain persons, defined in Sec-
tion 3 of the bill, in connection with lobbying activities.
We begin this consideration with the basic premise that
lobbying is within the regulatory powers of the Legislature. Rumely v.
U. S. 197 F.2d 166 (C.C.A. Dist. of Columbia 1952) affm. * 0-t
73Tct. 543.
Section 3 of House Bill 18 reads as follows:
“Sec. 3. The following persons shall register’
with the Secretary of State as provided herein:
“(a) Every person except elected officials who,
for compensation or valuable consideration of any kind,
or who is compensated from state funds, undertakes to
promote or oppose the passage of bills or resolutions,
or Executive approval thereof, through personal solicita-
tion of members of the Legislature or the Governor by
private interview.
“(b) Every person who, for compzrsation or val-
uable consideration of any kind, appears before a legis:
lative committee for the purpose of supporting or oppOs*
‘ing the passage of any bill or resolution.
“(c) Every person who employs or retains another
whose duties are in whole or in part the performance of
the services set out in (a) or (b) of this section.’
., I ‘
Hon. Jack G. Fisk, Page 2 (S-34)
In 1946 Congress enacted a similar regulatory enactment
on lobbying entitled “The Regulation of Lobbying Act”.. co?iified in 2
U.S.C.A. 261-270. This Act was declared unconstitutional in National
Association of Manufacturers of United States v. McGrath, 103 F.S.
nO(D- t fC1 by 19.52) . 4 U S 804 upon other grounds.
This dz&yon &E:ze beei ttci with ap&al in Rumely v. U.S.,
supra. and in the same federal district court in U.S. v. hlarris et al,
(Dist. of Columbia 1953) Criminal No. 1212-49, January 30 1953. hi
the National Association of Manufacturers of United States :ase, supra.
the associa’tion brought an action to enjoin the Attorney General from
prosecuting the association for violation of the Regulation of Lobbying
Act (Act of August 2, 1946, Sacs. 302-311. 60 Stat. 839. 2 U.S.C,A. 261-
270). alleging the Act was uaconstitutional. The Court, members of a
Three- Judge Court of the District of Columbia, held the Act unconstitu-,
tional as being in violation of the “due process clause’ of the Fourteenth
Amendment. The Court said on page 512:
-The vital provision of the pertinent portions of
the statute, Sec. 307. makes its requirements applicable
to any person who, by himself or through any agent or
employee, or other persons, in any manner whatsoever,
directly or indirectly. solicits. collects, or receives
money to be used principally to aid, or whose principal
purpose is to aid, in the passage or defeat of any legis-
lation by the Congress, or to influence. directly or in-
directly, the passage or defeat of any legislation by the
Congress of the United States. It is a well established
.primciple tkt a criminal statute must define the crime
with sufficient praclsmn and formulate an ascertaltibfe
standard of guilt, m order that any person may be able
to determine whether any action, or farlure to act. 1s
prohibited. A criminal statute which does not comply
with thzs prmciple is repugnant to the due process clause
and 19, therefore, invalid, ’This 1s a fundamental princi-
ple in our constitutional aystemo since without it, it would
be possible to punish a portion for some action or failure
to act not defined in the criminal law and which that per-
son had no way of knowing was forbidden.’
‘And on page 514:
*Applying the foregoing doctrine to the instant
case. the conelusion ie inescatible that Sections 303
to 307 are invalid. The clause,
- . __
Hon. Jack G. Fisk, page 3 (S-34)
is meant by influencing the passage or defeat of legis-
latlon mdirectly? It may be commumcatron wrth Com-
mrttees or Members of the Congress; it may be, to cause
other persons to communitiate with Committees or Mem-
bers of the Congress; it may be to influence pub@ opin-
ion by literature, speeches, advertisements, or other
means in respect to matters that might eventually be af-
fected by legislation; it may be to influence others to
help formulate public opinion. It may cover any one of
a multitude of undefined activities. No one cab foretell
how far the meaning of this phrase may be carried. No
one can determine in advance what activities are compre-
hended within its scope.”
Section 307 of. the federal act is the prototype of House
Bill 18’s Section 3. Section 307 was held repugnant to the “due process
clause” of the Fourteenth Amendment because it was indirectly” meant.
In lieu of the last quoted words, Section 3(a) states “undertakes to pro-
mote or oppose the passage of bills . * .“, and, Section 3(b) says “for
the purpose of supporting or opposing the passage of any bill . . .*.
Contrary to the language of Section 307, House Bill 18’s Section 3 does
limit the meaning to be given its language. Section 3(a) applies only to
the promoting or opposing of legislative action or executive approval
through personal solicitation of members of the Legislature or Cover- 1’
nor by private interview. Section 3(b) limited the meaning to appear-
ances before legrslakve committees.
We are of the opinion that the proposed House Bill 18,
as amended, is constitutional.
The’.committee has deleted Section 16 of House Bill 18,
as amended by Committee Amendment # 1. Section 14”s reference to
the now extinct Section 16 “except as provided in Section 16” should
also be deleted from i:he Act.
Hon. Jack G. Fisk, page 4 (S-34)
SUMMARY
It is our opinion that House hill 18. known as ‘the
Lobbyist Registration Act, as amended, is constitutional.
Yours very truly,
APPROVED: JOH?‘I BEN SFiEP&RD -
Attorney General
W. V. Geppert
Taxation Division ,(j&!?!!?$~
Milton Richardson
Reviewer William W. Guild
Assistant
John Atchison
Re+iewer
John Ben Shepperd
Attorney General