Court to Determine if Contact With Government Equates to Lobbying

Case of citizen activist could have significant First Amendment implications

The Missouri state capitol building / Wikimedia Commons
April 19, 2019

The U.S. Court of Appeals for the 8th Circuit is set to hear a case Friday in which a citizen activist who habitually walks the halls of the state capitol in Missouri to talk to elected lawmakers about political issues was later declared by a state ethics commission to be a lobbyist.

Heightening the drama is the fact that the 8th Circuit has previously heard the case, resulting in a 2-1 ruling that went against the man, Ron Calzone. However, an en banc hearing was later granted, meaning the case will now be heard by all the judges of the 8th Circuit.

For many years, Calzone was also the founder, director, and sole officer in a nonprofit he called Missouri First. His attorney, Dave Roland, says the nonprofit's funds were negligible or zero.

"They don't even have a bank account," Roland told the Washington Free Beacon by phone. Roland is also the director of litigation for the Freedom Center of Missouri, a libertarian nonprofit that works on issues of government transparency.

"But he used [the nonprofit] as a mechanism to help keep people informed about the legislative process, and when he would go to speak to lawmakers, he would occasionally reference himself as the director for Missouri First."

Calzone's opponents used this, along with the fact that he frequently gave testimony before legislative committees on active bills, as evidence when asking he be designated a lobbyist.

"In September 2015, the commission found probable cause that Calzone had violated two state laws and ordered him to register as a lobbyist, file all required reports, cease and desist from attempting to influence legislation until after filing an annual lobbyist registration and other required reports, and pay a $1,000 fine," according to the Kansas City Star.

Roland says if his client loses, there will be a chilling effect on citizen interaction with their government.

"Every year, thousands of Missourians go down to the state capitol to share their own ideas with those in power, and some of those people also affiliate with other groups, and they wear shirts or they wear some article of clothing indicating that they're connected with this other group, and possible even directly saying that they're speaking on behalf of another group, but not paid lobbyists by any stretch of the imagination."

"There's no corruption or the threat of corruption like you might have with a paid lobbyist. And all of those people now are at risk of being forced to register or report in the same way professional lobbyists are required to."

Roland also pointed out that once someone has registered as a lobbyist, failure to file reports could be a felony charge under Missouri law. Because Calzone has never registered, he has only been fined and thus has never been charged with a felony.

"Though the lobbyists may not be receiving money, unpaid lobbyists could still offer things of value to legislators, creating a sufficiently important governmental interest in avoiding the fact or appearance of public corruption," the 8th Circuit ruled originally in November. "Furthermore, the government and the public have a sufficiently important interest in knowing who is pressuring and attempting to influence legislators, and the ability to pressure and influence legislators is not limited solely to paid lobbyists."

Calzone, through his attorneys and their legal filings, has maintained he never offered any things of value to legislators.

Each federal circuit court receives thousands of requests every year for en banc hearings, and very few are granted, which is boosting Roland's hopes for his client. En banc petitions are circulated to all of the judges in the circuit, and must receive a majority vote for a rehearing.

"It sends a distinct message that there's a significant likelihood that the full panel disagreed with the original three-judge panel's outcome," Roland said, noting that he estimates about 75 percent of en banc hearings in the 8th Circuit are eventually overturned from the original ruling.

Calzone is also receiving legal assistance from the Institute for Free Speech, a Washington, D.C.-based think tank that "defends the First Amendment rights to freely speak, assemble, publish, and petition the government," according to its website.

The Missouri attorney general's office is opposing counsel, and did not respond to a request for comment.