LOBBYISTS ‑- INITIATIVE NO. 276 ‑- REGULATION OF

AGLO 1973 No. 11 - Jan 17 1973

Attorney General Slade Gorton

LOBBYISTS ‑- INITIATIVE NO. 276 ‑- REGULATION OF

During the pendency of the temporary injunction entered by the Thurston County Superior Court in Fritz, et al. v. Gorton, et al.,

(1) Any lobbyist may elect to continue operating under the provisions of Initiative No. 276 during the period covered by the court's present order, in which case he will not be required to register or otherwise conduct himself as called for in Referendum Bill No. 24; or

(2) Any such lobbyist may, instead, comply with the registration and reporting requirements of the referendum bill to the extent that they also cover his particular lobbying activities, in which case he will be excused from compliance with the initiative during the period covered by the court's order.

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January 17, 1973

Honorable Robert L. Charette
Majority Floor Leader
House of Representatives
Legislative Building
Olympia, Washington 98504 Cite as: AGLO 1973 No. 11

Dear Sir:

By recent letter you have asked for our opinion on two questions regarding the regulation of lobbyists under the respective provisions of Initiative No. 276 and Referendum Bill No. 24 (chapter 82, Laws of 1972, Ex. Sess.). These questions have arisen because of a temporary injunction which was entered on January 12, 1973, by the Thurston County Superior Court in Fritz, et al. v. Gorton, et al., and may be paraphrased as follows:

(1) During the period covered by this temporary injunction what requirements exist for the registration of, and reporting by, persons engaged in such lobbying activities before the current session of the legislature as are within the purview of one or both of the foregoing two measures?

(2) If Initiative No. 276 is declared to be unconstitutional by the Thurston County Superior Court, and this decision is appealed and later reversed, will such lobbyists' reports as are required by this measure then be due for the period extending between the date of the superior court's judgment and the supreme court's reversal thereof?

We respond to these questions in the manner set forth in our analysis.

ANALYSIS

As you know, both Initiative No. 276 and Referendum Bill No. 24 (encompassing chapter 82, Laws of 1972, Ex. Sess.) were approved by the voters at the November 7, [[Orig. Op. Page 2]] 1972 general election, and both contain comprehensive provisions regulating the activities of lobbyists. Section 50 of the initiative, however, contained an express repeal of the referendum bill ‑ and hence, since January 1, 1973, when the initiative took effect in accordance with § 49 thereof, this measure has been the only one in operation.

Shortly after the initiative became effective, its constitutionality was challenged on a number of grounds in the Thurston County Superior Court in a class action brought on behalf of all persons employed and compensated for the purpose of lobbying before the state legislative (defined by § 2 (16) of the initiative as ". . . attempting to influence the passage or defeat of any legislation . . .") by one such lobbyist ‑ Mr. William J. Fritz. Following a preliminary hearing on January 12, 1973, the court announced that it would set the case for trial as soon after January 22, 1973, as practicable, and then entered the following written order:

"ORDERED:

"1. That this action may be maintained as a class action under Civil Rule 23 (b) 1 and (2), conditionally.

"2. That Defendants Slade Gorton, Attorney General of the State of Washington, Smith Troy, Prosecuting Attorney of Thurston County, and the people of the State of Washington, are each and all enjoined from bringing any civil action under Int. 276 to enforce the provisions thereof against any person qualifying as a lobbyist or lobbyist employer as those terms are defined in Initiative Measure No. 276, pending entry of a judgment finally determining this action, provided that such lobbyist or lobbyist employer make such filings and reports required by Referendum Bill No. 24."

Question (1):

Your first question inquires as to the registration and reporting requirements for lobbyists during the period covered by this order. Before responding directly, let us note, briefly, the respective requirements of the two measures involved as they bear upon this subject.

[[Orig. Op. Page 3]]

Initiative No. 276:

The requirements of this measure with respect to lobbying may be summarized as follows:

Section: Contents

2 (16) Defines "lobby" and "lobbying" as ". . . attempting to influence the passage or defeat of any legislation by the legislature of the State of Washington, or the adoption or rejection of any rule, standard, rate or other legislative enactment of any state agency under the state Administrative Procedure Acts, chap. 34.04 R.C.W. and chap. 28B.19 R.C.W. [[chapter 34.04 RCW and chapter 28B.19 RCW]]"

2 (17) Defines "lobbyist" as including ". . . any person who shall lobby either in his own or another's behalf."

15 Requires lobbyists to register with the "Public Disclosure Commission" created by § 35 and details registration requirements.

16 Exempts from registration and reporting ‑

(a) Persons lobbying in public sessions or hearings only.

(b) News media activities.

(d) Governor and lieutenant governor.

(e) Except as provided in §19,

(1) Legislators

(2) Employees of legislature

(3) State employees, gubernatorial appointees and state elective officials.

17 Requires periodic reports by registered lobbyists of their lobbying expenditures ‑ requires itemization ‑ on whose behalf, for whose benefit, and for what purpose.

[[Orig. Op. Page 4]]

18 Requires annual reports by employers of lobbyists (first report due for 1973 in January, 1974, per court order).

19 Regulates lobbying by state agencies and employees ‑ restricts use of state funds ‑ requires quarterly reports of all lobbying activities of each agency.

20 Regulates "grass roots" lobbying ‑ requires registration and reporting by persons expending more than designated amounts to present programs to the public so as to influence legislation.

21 Requires lobbyists and their employers to report their employment of legislators, members of state boards, etc., or full-time state employees.

22 Prohibits employment of unregistered persons for lobbying purposes.

23 Lists record keeping and conduct requirements for lobbyists.

35 Establishes public disclosure commission.

39 Lists civil remedies and sanctions ‑

(a) Void election

(b) Revoke registration of lobbyist

(d) $10 per day for delinquent reports

(e) Penalty equal to amount not reported

(f) Injunctions

40 Enforcement by ‑

(a) Attorney General

(b) Prosecuting Attorney

44 Makes required reports public records.

[[Orig. Op. Page 5]]

Referendum Bill No. 24:

This bill originated during the 1972 legislative session as an amendment to an earlier "lobbyists' registration" act passed some five years earlier ‑ chapter 131, Laws of 1967, Ex. Sess. It was enacted as Chapter 82, Laws of 1972, Ex. Sess., and referred to the people as a referendum bill under Amendment VII to the state Constitution. The requirements of this measure may be summarized as follows:

!tp1,1Section Contents

1 (4) Defines "lobby" and "lobbying" as . . . attempting to influence, through direct contact with any legislator or legislators, the passage or defeat of any legislation by the legislature;"

1 (5) Defines "lobbyist" as ". . . any person, including any public employee, who shall lobby either on his own or another's behalf;"

2 Requires lobbyists to register with the state code reviser and details registration requirements ‑ requires the code reviser to publish weekly lists of registered lobbyists on each Friday the legislature is in session.

3 Exempts from registration and reporting ‑

(a) Uncompensated lobbyists under certain circumstances.

(b) The drafting of legislative measures and the interpretation of pending or proposed legislation for clients.

(d) News media reporting.

(e) Written or oral responses to inquiries from legislators.

4 Prohibits certain contingent fee contracts employing lobbyists.

5 Provides for enforcement by legislative ethics boards and attorney general ‑ provides for civil remedies and penalties including damage suits by individuals.

[[Orig. Op. Page 6]]

Requires reports by registered lobbyists to be filed with the code reviser within sixty days after expiration of registration detailing their lobbying expenditures ‑ requires itemization of any contributions to legislators ‑ requires code reviser to publish reports.

8 Special registration requirement for lobbying by state employees.

9 Provides for preservation of registrations and reports.

10 Lists record keeping and conduct requirements for lobbyists.

With these summaries of the two measures involved in the superior court's above‑quoted order in mind, we now turn to the first question you have submitted; i.e., what registration and reporting requirements pertain during the time period covered by this order.

The first point to be examined is the scope of this order ‑ in terms of the persons to whom it applies. As earlier noted, the subject lawsuit was brought as a class action on behalf of all persons employed and compensated for the purpose of lobbying (as defined in § 2 (16) of the initiative) before the state legislature. Inasmuch as paragraph one of the court order affirmed the action as a class action under Civil Rule 23 (b) (1) and (2), it follows, in our judgment, that the order covers all such persons ‑ including not only all privately employed lobbyists but public officers and employees engaged in lobbying as well.

Secondly, it is critical to note and understand that the superior court'spresent order does not purport to hold Initiative No. 276 unconstitutional. Rather, it merely grants all lobbyists a temporary respite from compliance with the requirements of the initiative where they have registered, etc., under Referendum Bill No. 24 instead ‑to the extent that the terms of this referendum bill, if actually now in effect, would require them to do so.

Of course, if the initiative is ultimately declared to be unconstitutional in its entirety, this will have the effect of resurrecting the referendum bill as an effective statute ‑ since any such declaration would include an invalidation of § 50 of the initiative which repealed the referendum bill. However for the present, as we view it, the court has simply incorporated the terms of the referendum [[Orig. Op. Page 7]] bill as a part of its order and conditioned its temporary release of lobbyists from the requirements of the initiative upon their taking such action as would be required of them under the referendum if it was now in effect. In simplest terms, the court has made a lobbyist's compliance with the referendum a defense to any action which might be brought against him for noncompliance with the initiative during the period covered by the order.

On the other hand, there is nothing contained in the superior court's present order to prevent a lobbyist from continuing to register and operate under the initiative instead ‑ if he would prefer to do so; and if he does, then there will be no need for him to have also registered, etc., under the referendum because, having complied with the initiative, this lobbyist will have no need to establish the defense which compliance with the referendum currently imparts.

Thus, our direct answer to your first question is as follows:

Of course, the choice in each case will be that of the individual lobbyist and his employer ‑ including state agencies and their personnel who are engaged in lobbying. For the record, however, we may conclude this portion of our opinion by indicating that the attorney general's office and its employees have determined to continue operating under the initiative, and particularly, § 19 thereof, supra, during this period of time.

Question (2):

Your second question, repeated for ease of reference, is as follows:

"(2) If Initiative No. 276 is declared to be unconstitutional by the Thurston County Superior Court, and [[Orig. Op. Page 8]] this decision is appealed and later reversed, will such lobbyists' reports are required by this measure then be due for the period extending between the date of the superior court's judgment and the supreme court's reversal thereof?"

Unfortunately, this question cannot be fully answered at the present time. Much will depend upon the terms of the posited final superior court judgment, upon whether or not its effect is stayed during the pendency of an appeal, and upon the terms of the supreme court's decision and order of reversal, if such should occur.

Under these circumstances, we would simply advise all lobbyists and their employers to maintain continuing liaison with their own attorneys during the period of any such appeal as you have contemplated, and to abide by the advice received from their attorneys in this manner. We would, however, think it at least wise, during this period, for all concerned to compile and maintain such records of their lobbying activities as will enable them to meet the requirementsof either of these two measures ‑ the initiative and the referendum bill ‑ depending upon which of the two stands and which falls as a result of the supreme court's final decision.

We trust the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

Philip H. Austin
Deputy Attorney General