67 Op. Att'y Gen. 85 (1978)
 
67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Wisconsin Attorney General Opinions

Opinion # OAG 19-78,

17 March 1978.

Administrative Procedure;
Advertising;
Anti-Secrecy;
Constitution;
Constitutionality;
Criminal Law;
Elections;
Legislation;
Legislature;
Licenses And Permits;
Lobbying;
Public Officials;
Public Records;
Subpoena;

Words And Phrases;

In principle, the purposes sought to be
accomplished by Assembly Substitute
Amendment 3 to 1977 Assembly Bill 93,
revising Subschapter III of Chapter 13,
Stats., the state's lobbying law, are
compatible with the rights of Wisconsin
citizens to petition the government and
to be secure against unreasonable
searches and seizures.

Some of the means selected to accomplish
those purposes may, on their face or as
applied violate citizens' first
amendment right of petition.

THE HONORABLE, THE ASSEMBLY, Legislature

You have, by resolution, requested my opinion
with respect to the constitutionality of
Assembly Substitute Amendment 3 to 1977
Assembly Bill 93, especially as it affects
the rights of citizens to petition the
government and to be secure against
unreasonable searches and seizures.

I have concluded that, with certain
exceptions, the legislation under
consideration is compatible with
those constitutional rights.

Substitute Amendment 3 is a comprehensive
plan to intensify the regulation
of lobbying in state government.

It is comprised of various provisions
requiring licensing and disclosure of
defined lobbying activities as well
as a list of prohibited practices.

The substitute amendment also establishes
powers and procedures for enforcement of
the several substantive provisions and
sanctions for their violation.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Lobbying, as much as mass demonstration at
the other extreme of subtlety, is a means of
petitioning the government, and is therefore
protected by the first amendment to the
United States Constitution.[1]

Fritz v. Gorton,
83 Wash.2d 275,
517 P.2d 911, 929, app. dismissed,

417 U.S. 902 (1974);
United States v. Finance Committee
to Reelect the President,
507 F.2d 1194, 1201 (D.C. Cir. 1974).

See
United States v. Harriss,
347 U.S. 612, 625, 627 (1954).

The degree of protection is not diminished
either because lobbying involves vigorous
advocacy rather than abstract discussion,

see

Buckley v. Valeo,
424 U.S. 1, 48, 75 (1976);

NAACP v. Button,
371 U.S. 415, 429, 437 (1963),

or because in some cases the petitioner
pays another to advocate his cause.

Moffett v. Killian, 360 F.Supp. 228, 231 (D.
Conn. 1973), and cases cited.

See Buckley v. Valeo, supra, 16, 75.

Like other expressive activities protected
by the first amendment, lobbying is a
fundamental right, regulation of
which can be justified only by
a compelling state interest.

Advisory Opinion on the
Constitutionality of 1975 PA 227,
396 Mich. 465,
242 N.W.2d 3, 23 (1976).

See
Buckley v. Valeo, supra, 25;
NAACP v. Button, supra, 438. Compare

In re Kading,
70 Wis.2d 508, 527,
235 N.W.2d 409,
238 N.W.2d 63,
239 N.W.2d 297 (1975).

Any justifiable regulation must be
accomplished, moreover, by precisely drawn
means which narrowly achieve the legitimate
end without unnecessarily abridging broader
exercise of the regulated right.

Buckley v. Valeo, supra, 25;

NAACP v. Alabama,
377 U.S. 288, 307, 308 (1964),
and cases cited;
In re Kading, supra, 527.

Neither may these means unnecessarily
abridge protected exercise of other
constitutional rights.

See

State v. Mahaney,
55 Wis.2d 443, 448,
198 N.W.2d 373 (1972);

State v. Zwicker,
41 Wis.2d 497, 507,
164 N.W.2d 512 (1969).

Substitute Amendment 3 is detailed
and lengthy legislation.

Because it directly affects protected rights,
the constitutionality of a number of its
provisions are subject to question.

Discussion of all the provisions of the bill
would not be particularly productive,
however, since there is no serious doubt
about the constitutionality of many of them.

Statutes, of course, are presumed to be
constitutional, and will be declared
constitutionally defective only if
such deficiency is demonstrable
beyond a reasonable doubt.

E.g.
State ex rel. Hammermill Paper Co.
v.
La Plante,
58 Wis.2d 32, 47,
205 N.W.2d 784 (1973),
and cases cited.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Consequently, although I have considered all
the provisions of the substitute amendment
which are relevant to the opinion request,
I will comment specifically only on those
which present substantial questions
concerning their possible infringement
on the first and fourth amendment
rights of Wisconsin citizens.

The right of lobbyists to engage in that
occupation will be considered only to the
extent necessary to examine the effect of
the substitute amendment on the rights of
citizens to petition the government and
to privacy.

I. Section 1 Corrupt Means To Influence
   Legislation; Disclosure of Interest.

The first section of Substitute
Amendment 3 provides:

   "Any person who gives or agrees or
   offers to give any thing of value to any
   person, for the service of such person
   or of any other person in procuring the
   passage or defeat of any measure before
   the legislature or before either house
   or any committee thereof, upon the
   contingency or condition of the passage
   or defeat of the measure, or who
   receives, or agrees to receive anything
   of value for such service, upon any such
   contingency or condition, or who, having
   a pecuniary or other interest, or acting
   as the agent or attorney of any person
   in procuring or attempting to procure
   the passage or defeat of any measure
   before the legislature or before either
   house or any committee thereof, attempts
   in any manner to influence any member of
   the legislature for or against the
   measure, without first making known to
   the member the real and true interest he
   or she has in the measure, either
   personally or as such agent or attorney,
   may be fined not more than $5,000 or
   imprisoned in the county jail not more
   than one year or both."

The emphasized phrase raises related
constitutional questions with
respect to its construction.

Provisions of a penal statute are
unconstitutionally vague if they fail to give
reasonable notice of the prohibited conduct
to persons trying to avoid their penalties.

State v. Mahaney, supra, 448,
and cases cited.

This occurs when the wording of a statute is
so obscure that persons of ordinary
intelligence necessarily must guess at its
meaning and differ about its applicability.

Ibid.

Standards of definitive sufficiency are
particularly strict when, as here, the
statute affects fundamental first
amendment freedoms.

Buckley v. Valeo, supra, 77;
NAACP v. Button, supra, 432.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

It is not clear from reading the section in
question whether it requires disclosure of
interest by all persons having any pecuniary
or other interest in any aspect of a
legislative measure, or whether, in addition
to agents and attorneys, only those with a
pecuniary or other interest in passage or
defeat of the measure per se must make known
their interest prior to attempting to
influence a legislator.

In spite of the fact that the first section
of the substitute amendment simply recreates,
with slight stylistic alterations and a
higher fine, the corrupt influence law which
has been in effect in Wisconsin for a
century, no authoritative judicial
construction has resolved the problem.

The statute, in fact, has been considered in
only one reported case, and then only
cursorily in a note appended to the
opinion after it had been filed.

Chippewa Valley and S. Ry. Co. v.
Chicago, St. P., M. and O. Ry. Co.,
75 Wis. 224, 253,
44 N.W. 17 (1889).

There it was declared without discussion that
the word "person" includes both natural and
artificial entities, i.e., corporations.

Ibid.

Nevertheless, a reasonable construction
may be given the section which will
avoid any ambiguity.

See generally
United States v. Harriss, supra, 618;
State ex rel. Hammermill Paper Co. v.
La Plante, supra, 47.

That ambiguity is caused by the absence of
any specific object of the word "interest"
in the phrase under consideration, and its
consequent failure to inform what the
disclosable pecuniary or other
interest is to be.

Either of the two objects mentioned above may
be supplied, depending on whether the phrase
is interpreted in isolation or in the
complete context of the corrupt
influence statute.

If the phrase is seen as an integral unit
inherently defining one of two classes
of required reporters, since it is
internally unlimited except by
the rule of ejusdem generis[2]

its otherwise unrestricted words would apply
universally to include any pecuniary or
similar interest in a legislative measure.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

If, however, the phrase is observed to be but
part of a statute which otherwise clearly is
concerned with interests in passage or defeat
of legislation, it is not unreasonable to
believe that the concern of this portion
is completely consistent with the overall
concern of the whole statute instead of
the sole exception.

See
2A Sands, Sutherland Statutory Construction,
Section 46.05, Pages 56, 57 (4th ed. 1973).

Although there is equivocal authority to the
contrary, see Sutherland, supra, vol. 2A,
Section 47.02, Page 71, the rule in this
state is that, in construing legislation,
the meaning of a section of a statute must
be derived from the act as a whole.

State ex rel. B'Nai B'Rith Foundation of U.S.
v.
Walworth County Bd. of Adjustment,
59 Wis.2d 296, 308,
208 N.W.2d 113,
64 A.L.R. 3d 1075 (1973), and cases cited.

The propriety of contextual interpretation in
this particular situation also is suggested
by the punctuation of the section, which can
be considered as an aid to interpretation if
the intent of the Legislature is unclear.

See generally Sutherland, supra, vol. 2A,
Section 47.15, Page 98.

The entire statute is but a single sentence.

Perceiving the phrase, "pecuniary or other
interest," in the context of other rules
regulating lobbying reinforces the
restrictive interpretation resulting
from construction of the corrupt influence
statute as a complete entity.

All other sections of Substitute Amendment 3,
with their civil penalties, apply only to
persons with pecuniary interests in passage
or defeat of legislation, either as lobbyists
who are paid to influence or attempt to
influence lawmakers, or as principals
who pay lobbyists to do so.

Surely it was not intended that a section
with more severe criminal penalties be
applicable more broadly to citizens
with personal pecuniary interests
in the substance of legislation.

Lobbying laws, no less than any others,
must be given a logical, sensible
and reasonable construction.

State v. Hoebel,
256 Wis. 549, 552,
41 N.W.2d 865 (1950).

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Although additional arguments may be made in
favor of a construction limiting pecuniary
and other interests to those in passage or
defeat of legislation per se, and reasonable
arguments can be advanced in opposition, no
purpose would be served by further discussion
since, if the section is to be construed
in a way which will preserve its
constitutionality, it must be construed in
the more narrow manner in any event.

A statute which regulates fundamental
constitutional rights is impermissibly broad
if it restricts exercise of those rights any
more than is minimally necessary to achieve
the compelling purpose which justifies
regulation at all.

NAACP v. Alabama, supra, 307, 308,
and cases cited;

In re Kading, supra, 527.

See
Buckley v. Valeo, supra, 25.

The purpose of the corrupt influence law is
not the same as that of the remainder of
Substitute Amendment 3, as stated in the
second section of the amendment.

Its similar but more limited purpose,
rather, as indicated in the introduction to
the ancestral enactment, is "to protect the
people against corrupt and secret influences
in matters of legislation."

Chapter 145, Laws of 1858, Page 200.

There is reason to suppose that this is a
sufficiently compelling purpose to justify
some requirement of disclosure of those
interests prior to lobbying so that
legislators more readily may resist,
discount, or otherwise properly assess them.

See
United States v. Harriss, supra, 625;
Advisory Opinion on the Constitutionality
of 1975 PA 227, supra, 23.

Compare

Buckley v. Valeo, supra, 25-27.

In order to accomplish this purpose,
however, not every interest in a legislative
proposal need be disclosed.

It is sufficient if only "corrupt and secret
influences," those beyond the legitimate
interests of ordinary concerned
citizens, are revealed.

These reasonably include pecuniary and
similar interests in procuring or attempting
to procure passage or defeat of a legislative
measure per se, which provide incentive to
employ bribery and other corrupt methods of
persuasion, see 51 Am. Jur. 2d, Lobbying,
Section 4, Page 995, and the related per se
interests of agents and attorneys, which
might be masked by an affected concern
for the common good.

See
United States v. Harriss, supra, 625;
Fritz v. Gorton, supra, 931.

There is no need to compel, under the
possible penalty of imprisonment, all
citizens who are pecuniarily interested
in the substance of legislation as
businesspersons or even taxpayers to
disclose this personal interest prior
to petitioning their elected representatives
on their own behalf.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Compare
Annot., Lobbying-Regulations,
42 A.L.R. 3d 1046, Section 3,
Page 1051 (1972).

Such interests are neither
unexpected nor improper.

Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc.,
365 U.S. 127, 139 (1961).

The right of the people to inform their
representatives in government of their
desires cannot be made to depend on
whether or not its exercise is
motivated by financial interest.

Ibid.

It is my opinion, therefore, that the corrupt
influence statute should be construed to
require prelobbying disclosure of interest
only by agents and attorneys of others, and
by persons having a pecuniary or similar
interest in passage or defeat of a
legislative measure per se.

Construed in this limited manner the statute
is, with the exception of the definitional
problem noted, neither unconstitutionally
vague nor overly broad, as far as the
ordinary citizens of this state are
concerned.

Additional first and fifth amendment
questions raised by the statute as applied to
agents and attorneys, and those with per se
pecuniary interests, are beyond the scope of
this opinion.

II.  Section 3 Definition of Lobbying.

On several occasions the United States
Supreme Court has expressed serious doubt
about the constitutionality of laws which
affect the efforts of private individuals to
influence public opinion, however remote the
influence of those efforts on the ultimate
legislative process.

Such laws have never been expressly declared
unconstitutional by the Court.
 

But in United States v. Rumely, 345 U.S. 41,
45-47 (1953), a congressional investigative
resolution was upheld by limiting the scope
of the "lobbying activities," into which a
subcommittee was authorized to inquire,
to representations made directly
to members of Congress.

And in United States v. Harriss, supra, 620,
621, the Court, in order to avoid the first
amendment issue which would be raised by
"broader application to organizations
seeking to propagandize the general
public," read out of the federal
lobbying law the word "indirectly."

The court restricted the reach of the statute
to persons and contributions, one of whose
main purposes was to influence passage or
defeat of legislation, when the intended
method of accomplishing this purpose was
through direct communication with
federal legislators.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

An analogous state statute, requiring
registration by anyone engaged in promoting
or opposing in any manner the passage of
legislation on behalf of any race or color,
was struck down by a three-judge federal
court in NAACP v. Patty, 159 F.Supp. 503
(E.D. Va. 1958).

The fault found with this provision was that
it imposed a duty to register "upon anyone
who in concert with others merely speaks or
writes on the subject, even if he has no
contact of any kind with the legislative
body and has neither received nor spent
any money to further his purpose."

Id., 525.

This case was vacated by the Supreme Court in
Harrison v. NAACP, 360 U.S. 167 (1959),
because the registration statute, and others
also declared unconstitutional below, were
susceptible to state court constructions
which would avoid the necessity for federal
adjudication.

The Supreme Court heavily hinted that the
limitations imposed in Rumely and Harriss
would require a different result on the
constitutional question. Id., 177, 178.

Although the Supreme Court's studied
avoidance of this question has left the
applicable constitutional principles less
than clear, the import of its opinions seems
to be that the government may not regulate,
as "lobbying," persuasive activities relating
to legislation which involve no direct
communication with lawmakers.

Conversely, efforts to influence passage or
defeat of legislation by means of direct
communication with lawmakers, whether oral or
written or a solicitation of others directly
to communicate, are subject to some degree of
regulation when the collection or expenditure
of funds for that purpose is involved.

See
United States v. Harriss, supra, 629
(Douglas, J., dissenting).

See also

Advisory Opinion on the
Constitutionality of 1975 PA 227,
supra, 22 n. 44.

The applicability of Substitute Amendment 3
is established by the definition of lobbying
in Section 3. Lobbying is defined as "the
practice of attempting to influence
legislative or administrative action by
direct oral or written communication to any
elective state official, agency official or
legislative official or by paid advertising
through communications media."

The first class of defined lobbying
activities obviously presents no
federal constitutional problem.

The second class of activities, however,
which makes no distinction between media
advertising aimed at simply influencing
public opinion on a legislative measure,
and perhaps lawmakers indirectly as a
result, and advertising which seeks to
solicit others to communicate directly
with lawmakers, is applicable on its
face to apparently impermissibly indirect,
as well as permissibly direct, communication
with policymaking state-officials.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Section 32 of the substitute amendment
exempts from the subchapter's application
lobbyists, officers or employes of government
agencies, and working members of the press
whose lobbying activities are limited, inter
alia, solely to public persuasion through
communications media.

This section reduces, but does not remove,
the constitutional objections to
the proposed law.

Its provisions still are applicable to
indirect communicative activities if a
lobbyist, government officer or employe,
or reporter engages in both direct and
indirect communicative activities.

It is my opinion, therefore, that the
definition of lobbying, insofar as it
includes indirectly communicative paid
advertising through communications media,
is probably unconstitutionally broad.

An additional difficulty could be presented
by the extension of the definition of
lobbying, and therefore lobbying regulations,
to "administrative action," defined in
Section 4 of the substitute amendment
as "the proposal, drafting, development,
consideration, promulgation, amendment,
repeal or rejection by any agency of
any rule promulgated under Chapter 227."

Administrative agencies are public tribunals
which possess, not only this limited power to
legislate, but also the quasi-judicial power
and authority to determine the rights of
particular persons according to law.

See
State ex rel. Thompson v. Nash,
27 Wis.2d 183, 195,
133 N.W.2d 769 (1965);

Sections 227.01(2) and (9),
227.014 and 227.07, Stats.

In some cases the power to make rules and
the power to determine individual rights
may be involved in the same
administrative proceeding.

See
Ashwaubenon v. State Highway Comm.,
17 Wis.2d 120, 127,
115 N.W.2d 498 (1962).

Representation of an affected person in such
a proceeding may require inextricably
intertwined efforts to influence the broad
rule under consideration, as well as
assertive advocacy of the client's legal
rights in order to assist in the proper
interpretation and enforcement of the law.

These activities conceivably could
simultaneously constitute both lobbying,
under the proposed definition, and the
practice of law, as defined by the
Wisconsin Supreme Court in
State ex rel. State Bar v. Keller,
16 Wis.2d 377, 388,
114 N.W.2d 796,
116 N.W.2d 141 (1962),
vacated on other grounds
374 U.S. 102 (1963),
on remand
21 Wis.2d 100,
123 N.W.2d 905 (1963),
cert. denied
377 U.S. 964 (1964).

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

It is beyond the scope of this opinion to
analyze the range of activities that would
constitute both the practice of law and
lobbying before administrative agencies
under the proposed definition.

Some of these questions are presently under
consideration by the Unauthorized Practice
of Law Committee of the Wisconsin State Bar
Association.

The Legislature, as indicated previously, has
authority properly to regulate lobbying.

The practice of law, however, may be
regulated in this state only by the
judiciary, ultimately the State
Supreme Court.

State ex rel. State Bar v. Keller,
supra, 386;
State ex rel. Reynolds v. Dinger,
14 Wis.2d 193, 202, 203,
109 N.W.2d 685 (1961).

The Legislature may aid but not thwart the
courts in the exercise of this state
constitutional power.

State ex rel. Reynolds v. Dinger, supra, 203.

The Legislature may not forbid a practice
of law not forbidden by the courts.

Ibid.

The regulation of lobbying in administrative
proceedings pursuant to Substitute Amendment
Three ultimately includes prohibition of its
practice if the conditions imposed are
not complied with.

Substitute Amendment 3, Section 19,
amending Section 13.63 (3), Stats.

In those cases in which conduct might
constitute both lobbying and the practice
of law, the amendment could be intruding
into an area constitutionally reserved
exclusively to another branch of government.

Compare

In re. Cannon,
206 Wis. 374,
240 N.W. 441 (1932).

III. Section 5 Definition of Lobbyist.

Section 5 of the substitute amendment defines
a lobbyist as "any person who is paid a
salary, fee or retainer by a principal and
whose regular duties include lobbying."

There is some question about the meaning
of the phrase "regular duties."

Generally, words and phrases in Wisconsin
laws are to be construed according
to common and approved usage.

Section 990.01 (1), Stats.

Such usage may be established by the
definition given in a recognized dictionary.

Estate of Nottingham,
46 Wis.2d 580, 588,
175 N.W.2d 640 (1970).

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Webster's Third New International Dictionary,
Page 1913, offers a number of definitions of
the word "regular."

The largest group of meanings has a
chronological connotation, involving,
essentially, repetition of events at
certain temporal intervals.

It was with this meaning that the word
"regular" was used in Senate Substitute
Amendment 1 to 1977 Senate Bill 286.

I pointed out in my opinion on the Senate
bill that the slightly, but critically,
different definition of lobbyist was
unconstitutionally vague because the precise
point in time when lobbying activities become
regular rather than occasional is a matter of
opinion about which there may be considerable
difference among reasonable persons.

"Regular," however, also may mean conducted
or done in conformity with established
or prescribed usages or rules.

Webster's Dictionary, supra.

In this sense the word is somewhat
synonymous with normal or ordinary.

It seems to be in this second sense that
"regular" is used in the Assembly's
definition of lobbyist.

"Regular duties" reasonably appear to be
those which are agreed, expected or
anticipated to be performed, in
execution of an employment contract.

They are those duties which would be
found in a job description.

Although there still may be individual
instances in which it is questionable whether
lobbying is a regular duty of a particular
employe or agent, the existence of borderline
cases does not make a regulatory statute
unconstitutionally vague.

Roth v. United States,
354 U.S. 490, 491, 492 (1957).

In my opinion, the definition of lobbyist in
Substitute Amendment 3, if construed as I
believe it should be, is sufficiently
definite to give reasonable persons
adequate notice of the conduct regulated.

Compare
United States v. Harriss, supra, 622, 623.

See generally
State v. Mahaney, supra, 448 and cases cited.

I would, nevertheless, suggest some
clarification of meaning in the manner I have
outlined so that questions of definition can
be avoided in actual application of the law.

IV. Section 16 Prohibited Practices.

Section 16 of the substitute amendment
prohibits professional lobbyists from
engaging in certain specified practices.

The constitutionality of this list, as it
pertains to such lobbyists, is beyond the
scope of the present opinion.

The section, however, next prohibits
principals, earlier defined as any person
who engages a lobbyist, from engaging
in two of the listed practices.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

First, principals may not furnish lodging,
transportation, food, meals, beverages,
money, or any other thing of pecuniary value
to any officer or employe of the state, or to
any elective state official or candidate for
elective state office, except the Governor
when acting in an official capacity.

Conversely, no candidate for an elective
state office, elective state official, or
other officer or employe of the state may
solicit or accept anything of pecuniary
value from a principal, except campaign
contributions at specified times and, in
the case of legislators, reimbursed
expenses, speaking fees and compensation
for published works.[3]

Generally, there does not appear to be any
recognized constitutional right to furnish
things of pecuniary value to state government
personnel, nor any reciprocal right of state
government personnel to solicit or accept
such things.

However, a problem exists when one spouse is
a state elective official or other officer or
employe and the other spouse is a principal.

The first amendment right to associate
includes the right to associate
with a spouse in marriage.

Griswold v. Connecticut,
381 U.S. 479, 486 (1965).

This reasonably includes the right to share
lodging, food, and myriad other things of
pecuniary value ordinarily given and
received in the marital relationship.

Compare, Ibid.

See also
Meyer v. Nebraska,
262 U.S. 390, 399 (1923).

The prohibited practices section
does not discriminate in its application
between persons who are married and
those who are not.

It prohibits the furnishing of food, clothing
and shelter to a spouse, who also happens to
be associated with state government, as well
as to unrelated state government personnel.

The section thereby regulates
a fundamental right.

The patent purpose of prohibiting the
exchange of pecuniarily valuable things
between those involved in lobbying and those
involved in government is to prevent the
purchase of official favors, and the
appearance of such purchases as well.

Both are compelling state interests
justifying some regulation of
fundamental rights.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Buckley v. Valeo, supra, 26, 27.

The initial problem is that the restrictions
imposed on the marital relationship do not
really accomplish this purpose.

Any appearance of impropriety is given simply
by the intimacy of the marital relationship
itself, which implies the sharing of both
affections and possessions.

More important, since an officer, employe,
shareholder or partner of an association,
corporation or partnership is not personally
a principal, Substitute Amendment 3, Section
8, Page 4, almost anyone bent on evading the
restrictions can do so, by forming an
organization to engage a lobbyist.

No substantial societal interest is served by
restrictions designed to prevent corruption
which still permit unscrupulous persons to
spend unlimited sums of money to obtain
improper influence over government personnel.

Buckley v. Valeo, supra, 45.

These restrictions excessively burden the
protected marital relationship.

It hardly can be suggested seriously that a
spouse is likely to misuse a public position
for those simple niceties and necessities
which are expected to be exchanged in any
marriage.

Nor is there any appearance of misuse, in
excess of whatever appearance inherently is
created by the marital relationship itself,
given by such simple exchanges.

Equally troublesome is the overreach of the
restrictions to any state employed spouse,
even those laboring at the most menial civil
service tasks, who are without any ability
whatever to influence legislative or
administrative decision making in their own
bureaus, much less in the upper levels of
other departments of state government.

These persons present no greater danger of
corruption, in reality, than those outside
the governmental structure, and there is
no reason to impose any restrictions
on their marriages.

Compare,
Advisory Opinion on the Constitutionality
of 1975 PA 227, supra, 20, 21.

It is no answer to these excesses
that they may be evaded.

If protected expression is made impossible
by the threat to the marital relationship
the law exacts too heavy a price.

The prohibition of the practice of furnishing
things of pecuniary value to state personnel
is unconstitutionally overbroad, as applied
to principals, because its unrestrained
sweep unnecessarily burdens first amendment
marital rights without accordingly serving
any substantial state interest.[4]

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

See generally
Buckley v. Valeo, supra, 25, 47, 48;

NAACP v. Alabama, supra, 307, 308;

In re Kading, supra, 527.

The second practice prohibited to principals
is that of making campaign contributions to
candidates for state offices to be filled
at the general election, except between
June 1st and the day of the election.

Contributions may not be made to legislative
candidates even during this five-month time
unless the Legislature is not in session or
has recessed.

This prohibition restricts an aspect of the
contributor's right of political association,
again a fundamental right protected by the
first amendment.
 

Buckley v. Valeo, supra, 24, 25.

Some restriction is justified by the danger
of contributions being made to secure
political favors from current and potential
office holders, and by the appearance of
corruption coming from public awareness of
the opportunity for abuse when an official's
campaign has been financed by a few large
contributions.

Id., 25.

But the restrictions on contributions
in Section 16, like the restrictions on
supporting spouses, go beyond those necessary
to protect the integrity of our system of
representative democracy.

The restrictions, as a practical matter, do
not prevent principals from influencing, or
attempting to influence, candidates with
contributions to their campaigns.

A principal, again, need only form an
organization for the retention of a lobbyist
to remain free to lavish contributions when,
and on whom, he chooses.

And if the principal should find this evasion
too troublesome, he still is free to promise
when, and to whom, he wishes to make a
contribution during the next
permitted period.

A candidate, if he is susceptible to
financial influence, will be as easily
influenced by contributions made within
the permitted period as without.

The restrictions on timing, but not size,
of contributions do not dispel any
appearance of impropriety either.

That appearance is created merely by the
making of a large contribution at a time
proximate to that at which legislative
or administrative action of concern
to the contributor occurs, especially
if the elected official's position is
favorable to the contributor.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Seldom are governmental decisions made
instanter; more likely they are finally
reached only after discussion for months
or years during which many pressures
are applied to the deciders.

Finally, the contribution restrictions
are unconstitutionally excessive.

They not only limit, but totally prohibit,
one aspect of political association with
any candidate in the primary campaign,
which in many cases may be the election,

Compare

United States v. Classic,
313 U.S. 299 (1941),

and may prohibit such association with
legislative candidates in the general
election if the Legislature remains
in session all through the
permitted contribution period.

The same state purposes which prompt such
drastic abridgement of first amendment
freedoms can be achieved, however, perhaps
more effectively, by the less restrictive
and constitutionally permissible means of
ceilings on the amount of contributions
which may be made to a candidate in a
political campaign.

See
Buckley v. Valeo, supra, 26-29.

This unnecessary excess constitutes an
impermissible burden, for reasons
discussed previously, even though
the restrictions may be evaded.

The restrictions on campaign contributions
are overly broad as applied to principals
because they, too, unnecessarily burden
first amendment rights without thereby
serving any substantial state interest.

See generally
Buckley v. Valeo, supra, 25, 47, 48;
NAACP v. Alabama, supra, 307, 308;

In re Kading, supra, 527. V.
Sections 17 and 22 Licensing of Lobbyists.
 

Section 22 of Substitute Amendment 3
prohibits principals from permitting
lobbyists to act on their behalf until
the lobbyists are duly licensed.

Section 17 establishes the procedure
for license application.

It provides further that no application
may be disapproved by the board on
elections and lobbying without
affording the applicant a hearing.

Denial of a license may be reviewed
pursuant to the procedures provided
in Chapter 227, Stats.

Inherent in the latter provisions of Section
17 is the assumption that the board may deny
a lobbying license, thereby stifling, for a
time at least, the ability of a principal
to petition the government in a
constitutionally protected manner.

No criteria are set forth, though, to guide
the board in deciding when to deny a license.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

   A law subjecting the exercise of First
   Amendment freedoms to the prior
   restraint of a license, without narrow,
   objective, and definite standards to
   guide the licensing authority, is
   unconstitutional.

Shuttlesworth v. City of Birmingham,
394 U.S. 147, 150-151 (1969),
and many cases cited.

See also
Mutual Fed. Savings and Loan Assn. v.
Savings and Loan Adv. Comm.,
38 Wis.2d 381, 389,
157 N.W.2d 609 (1968).

Both Sections 17 and 22, since they totally
lack standards for denial of a license to
engage in lobbying, are unconstitutional.

VI. Section 18 Suspension of License For
    Failure Timely To File A Complete
    Expense Statement.
 

Section 18 authorizes the board on elections
and lobbying to suspend the privilege of any
lobbyist to lobby on behalf of a principal
if the principal fails to file a
complete expense statement on time.

Provision is made for mailing notice of
the alleged delinquency and anticipated
termination of privileges to the delinquent
principal and any lobbyist registered to
act on his behalf.

The principal is given a 10 day period of
grace, after which, if he still has not
filed a complete expense statement, no
lobbyist is permitted to act on his behalf.

Lobbying privileges are restored immediately
on filing the delinquent statement.

This section, unlike analogous sections of
the substitute amendment authorizing denial
and revocation of lobbying licenses, does
not provide for a hearing prior to
suspension of lobbying privileges.

The lack of opportunity for a hearing is a
serious defect in the law and raises
constitutional problems.

A right, privilege or license, once granted
by the government, cannot be suspended for
failure to comply with continuing licensing
requirements without affording the licensee
a hearing.

Bell v. Burson,
402 U.S. 535, 539 (1971), and cases cited;

Chicago and Northwestern Transportation v.
Pedersen,
80 Wis.2d 566, 571,
259 N.W.2d 316 (1978).

In some cases, when immediate harm to the
public is threatened and the private
interest infringed is reasonably deemed
to be of less importance, a post
suspension hearing is sufficient.

Goldberg v. Kelly,
397 U.S. 259, 263 n. 10 (1970).

When first amendment rights are infringed,
however, an adversary hearing must be held
prior to suppression of the right to engage
in speech related activities ordinarily
protected by that provision of the
constitution.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Compare Ibid. with
State v. I, A Woman   Part II,
53 Wis.2d 102, 112, 113,
191 N.W.2d 897 (1971), and cases cited.

In my opinion, failure to provide for a
presuspension hearing would violate the
first and fourteenth amendment rights
of both principals and lobbyists.

At a presuspension hearing the licensee is
entitled to at least the minimum procedures
mandated by notions of due process, including
notice of the nature of the complaint against
him and an opportunity to contest the
assertion that he has failed to comply
with the pertinent regulations.

Bell v. Burson, supra, 540-542;
Chicago and Northwestern Transportation v.
Pedersen, supra, 571, 572.

Other provisions of Substitute Amendment 3
make the failure to provide for a
presuspension hearing particularly puzzling.

If a lobbyist or principal actually makes
prohibited expenditures he is subject to
revocation of lobbying privileges for a
maximum of three years.
 

Substitute Amendment 3, Section 30, creating
Section 13.69(7), Stats. Such person is
entitled to a judicial hearing on the issue
of his liability.

Substitute Amendment 3, Section 28, creating
Section 13.685(5), Stats. And the board is
authorized to compromise and settle such
a case if, in the board's opinion, it
constitutes a minor violation caused
by excusable neglect or should not
be prosecuted in the public interest
for other good cause shown.

Ibid.

If a lobbyist or principal merely fails to
report expenditures, which may or may not
have been prohibited, he is subject to an
indefinite suspension of lobbying privileges.

No hearing of any kind is provided for.

The gravity and causes of the violation
appear to be irrelevant where the question is
or may be permanent deprivation of the right
to petition the government by lobbying.

One can think of numerous examples of
excusable neglect, such as failure of
the mails, illness, vacations, etc.
which might be the reason for
a principal's failure to file.

No opportunity is provided, as in the
instance of other violations, for the
Board to consider these matters.

Although I have been asked to give my opinion
only on first and fourth amendment problems
possibly created by this pending legislation,
I feel obliged to point out that an
unexplained distinction may violate the
equal protection provision of the fourteenth
amendment unless there is an explanation of
which I am not now aware.

Compare
State v. Asfoor, 75 Wis.2d 411, 440, 441,
249 N.W.2d 529 (1976);

State ex rel. Kovach v. Schubert,
64 Wis.2d 612, 616-622,
219 N.W.2d 341 (1974);

State v. Johnson,
74 Wis.2d 169, 173, 174,
246 N.W.2d 503 (1976).

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

VII.  Sections 18, 20, 21, 27 And 32
      Disclosure Requirements.

Several sections of Substitute Amendment 3
require principals who spend more than $250
per year for lobbying activities not limited
to public presentations to file reports with
the board on elections and lobbying.
 

The reports are required to contain detailed
information which fits into the following
categories:

1)   identity of the lobbyist,
2)   identity of the principal,
3)   area of attempted influence,
4)   nature and interests of the principal,
5)   expenditures for lobbying activities,
6)   exchanges of things of value with state
   officials and closely related persons or
   organizations.

Compelled disclosure, in itself, can
seriously infringe on the privacy of
association and belief guaranteed by
the first amendment.

Buckley v. Valeo, supra, 64.

The invasion of privacy may be as great
when the information sought concerns the
expenditure of money as when it deals with
beliefs directly, for financial transactions
reveal much about a person's activities,
associations and beliefs. Id., 66.

But there are governmental interests
sufficient to outweigh the possibility
of infringement, especially when the free
functioning of representative institutions
is involved.

Ibid.

Disclosure facilitates the ability of
public officials properly to assess
the pressures put on them.

United States v. Harriss, supra, 625.

Similarly, disclosure provides voters with
information about the sources and magnitude
of financial and persuasional influences on
the government, enabling the electorate to
evaluate the performance of public officials
with respect to the interests, public or
special, to which they are responsive.

Fritz v. Gorton, supra 931.

Compare
Buckley v. Valeo, supra, 66, 67.
 

Exposure to the light of publicity
discourages corrupt influences and
avoids the appearance of corruption.

Buckely v. Valeo, supra, 67.

Finally, recordkeeping, reporting and
disclosure requirements are an essential
means of gathering the data necessary to
detect violations of lobbying laws.

Id., 68.

For these reasons the Legislature is not
constitutionally forbidden to require the
disclosure of lobbying activities, either
by persons hired to influence governmental
action, or by those paying others to act
on their behalf.

United States v. Harriss, supra, 625;
Advisory Opinion on the
Constitutionality of 1975 PA 227, supra, 23;

Fritz v. Gorton, supra, 930.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

See
State v. Decker, 258 Wis. 177, 181,
45 N.W.2d 98 (1950).

See generally Note:
Improving the Legislative Process,
56 Yale L.J. 304, 313-316 (1947).

Those particular activities required to be
disclosed, however, must be restricted to
those which are substantially related to
the significant governmental interests
they are supposed to serve.

Buckley v. Valeo, supra, 64;
NAACP v. Alabama, supra, 463.

See
United States v. Harriss, supra, 626.

Information identifying both lobbyist and
principal obviously is indispensable to
implementation of all these interests.

See
United States v. Harriss, supra, 625;
Fritz v. Gorton, supra, 931.

Knowledge of the area of attempted influence
is necessary to enable public officials to
assess the pressures on them, and to
enable the public to assess the success
of pressures on their officials.

Before an official intelligently can evaluate
what he is being told by a lobbyist, he
must understand why it is being told.

See United States v. Harriss, supra, 625;
Fritz v. Gorton, supra, 931. Before the
public can judge the effect of influence on
its officials, it must be made aware of the
areas where influence has been applied.

See
Fritz v. Gorton, supra, 931.

Disclosure of the nature and interests
of the principal [5] certainly is essential
to official evaluation of lobbyist pressures.

It prevents the voice of the people from
being drowned out by the cries of special
interest groups seeking favored treatment
while masquerading as proponents of the
public good.

United States v. Harriss, supra, 625.

Such disclosure, moreover, directly provides
voters information about the sources of the
influences on their government.

See
Fritz v. Gorton, supra, 931.

And clearly those with corrupt interests will
be discouraged from seeking government
support for them if state officials
and the people they serve are
aware of their purposes.

As Mr. Justice Brandeis advised:

   Publicity is justly commended
   as a remedy for social and
   industrial diseases.

   Sunlight is said to be the best
   of disinfectants; electric light
   the most efficient policeman.

Quoted in Buckley v. Valeo, supra, 67.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

Itemization of expenditures for lobbying
activities enables both state officials and
their constituents to assess the magnitude of
the monetary pressures on their government,
providing a proper perspective of the role
that financial influence plays in official
decision making.

Fritz v. Gorton, supra, 930, 931.

Exposure of individual expenditures also aids
in avoiding corruption and its appearance by
inhibiting spending for improper purposes,
and by demonstrating the propriety of most
expenditures.

Compare In re Kading, supra, 527, 528.

The data provided unquestionably assists in
detecting violations of lobbying laws.

Expenditures for advertising and public
information are, in my opinion, however,
improperly required to be itemized.

As discussed earlier, persuasive efforts
aimed at indirect communication with
lawmakers by influencing public opinion
cannot be subjected to regulation
by the government.

The required itemization of expenditures
for public information directly
violates this immunity.

And since the requirement for itemization of
expenditures for advertising does not
distinguish between advertising which
attempts to influence public opinion and
advertising which seeks to solicit direct
communication with lawmakers, it too
infringes on the exercise of activities
immune from lobbying regulations.

Disclosure of exchanges of things of value
with public officials and those persons or
organizations closely related to public
officials inhibits the flow of secret money
from inappropriate special interest sources
to government officials for inappropriate
purposes.

Fritz v. Gorton, supra, 931.

It also enables the public and their
guardians in government to detect abuses by
other public officials.

With the single exception noted above, the
disclosure requirements of the proposed
legislation meet the first amendment's
standard of substantial relation to a
compelling governmental purpose. In meeting
this stringent standard they surpass the
requirements imposed by the fourth amendment
on forced disclosure.

It is well settled that the fourth
amendment's prohibition of unreasonable
searches and seizures does not forbid an
administrative agency to require the
submission of reports regarding regulated
activity.

SEC v. Kaplan, 397 F.Supp. 564,
568 (E.D. N.Y. 1975),
citing
Davis, Administrative Law Text,
55 (3rd ed. 1972);
Dixon v. Pennsylvania Crime Commission,
347 F. Supp. 138 (M.D. Pa. 1972).

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

See
California Bankers Assn. v. Shultz,
416 U.S. 21, 59-62 (1974), and cases cited.

The fourth amendment demands only that the
disclosure required not be unreasonable.

California Bankers Assn. v. Shultz,
supra, 67, and cases cited.

If the information is sufficiently described
and limited in nature, and is reasonably
relevant to an inquiry which the agency has
authority to make, it can be compelled,
consistent with constitutional protection
against unreasonable searches and seizures.

Ibid.

See
Advisory Opinion on the
Constitutionality of 1975 PA 227, supra, 21.

The information sought by Substitute
Amendment 3 certainly is specific, and, as
discussed above, is limited, not simply to
matters which are reasonably related to an
authorized inquiry, but to information which
is substantially related to an inquiry
serving a compelling state interest.

No questions respecting self-incrimination
under the fifth amendment privilege are
presented since disclosure is demanded of a
broad group, operating in an essentially
noncriminal and regulatory area, rather than
of a highly select group, inherently
suspected of criminal activities, operating
in an area permeated with criminal statutes.

See generally
California v Byers, 402 U.S. 424, 430 (1971),
and cases cited.

Identical, substantially similar or even
more detailed disclosure requirements
have been approved as constitutionally
permissible lobbying regulations in
Harriss, Pages 614, 615, nn. 1, 2;
the Michigan Supreme Court's
Advisory Opinion, Page 22;
and
Fritz, Pages 927, 928, n. 4,
as well as in a few other cases.[6]

No authority has been found, which has not
been overruled on appeal, which declares any
similar provisions, except the itemization of
expenditures for advertising and public
information, to be unconstitutional. In my
opinion, therefore, all but one of the
disclosure requirements of Substitute
Amendment 3 are a constitutionally valid
exercise of the Legislature's power to
regulate lobbying activities.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

VIII.     Section 34 Auditing

Section 34 mandates random audits by the
board on elections and lobbying of the
statements filed by principals, and gives the
board permission to inspect all accounts and
financial records relating to them required
to be kept by principals and lobbyists.

The board is empowered to subpoena persons to
appear before it and to "require the
production of any papers, books or other
records relevant to an investigation."

Records kept by financial institutions need
not be subpoenaed, but may be inspected and
copied at the institution if a circuit court
so orders upon a showing of probable cause
to believe that there has been a violation of
the lobbying laws.

Inspection of records kept in connection with
the expense statements discussed previously
is permitted under the required records
doctrine of

Shapiro v. United States,
335 U.S. 1 (1948).

Accord,

Marchetti v. United States,
390 U.S. 39 (1968).

Records required to be kept by law in order
that there may be suitable information of
transactions which are an appropriate subject
of government regulation, and enforcement of
validly established restrictions, are not
privileged like private papers.

Marchetti v. United States, supra, 55,
quoting
Shapiro v. United States, supra, 33.

They may be inspected without warrant or
other legal process when they are of the kind
customarily kept, there is a public aspect to
them, and they relate to an essentially
non-criminal and regulatory area of inquiry.

Marchetti v. United States, supra, 57.

The records required to be kept by principals
and lobbyists are the kind customarily kept
by those who employ or are employed in any
venture involving persuasive activities.

There is a plain public aspect to records
of attempts to influence the decisions
of state government.

And lobbying is essentially a regulatory area
of inquiry with few criminal provisions.

In the exercise of their investigative
powers, administrative bodies may be
authorized to issue both simple subpoenas,
requiring persons to appear and testify
personally, and subpoenas duces tecum,
requiring persons to produce relevant
documents.

73 C.J.S., Public Administrative Bodies and
Procedure, Section 86, Pages 408, 409.

See also
Davis, Administrative Law Treatise,
Chapter 3, Page 78, et seq. (1970 Supp.).

The power to subpoena, however, must
be exercised within the limits of
the first, fourth and fifth
amendments of the constitution.

United States v. Dionisio,
410 U.S. 1, 11, 12 (1973).

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

The first amendment prevents use of the power
to investigate, enforced by the power of
contempt, oppressively to probe at will and
without relation to existing need.

De Gregory v. Attorney General,
383 U.S. 825, 829 (1966);

Watkins v. United States,
354 U.S. 178, 197-200 (1957).

Intrusion into the realm of protected
political privacy by demanding disclosure
from an unwilling witness may be justified
only when a substantial state purpose is
served by compulsion of information
substantially related to that purpose.

De Gregory v. Attorney General, supra, 829;

Gibson v. Florida Investigating Committee,
372 U.S. 539, 545, 546 (1963);

Watkins v. United States, supra, 199, 200.
 

The interests which justify compulsion of
information and the information which can be
compelled under the first amendment were
discussed in the preceding section.

A subpoena to testify is not the kind of
state intrusion on privacy against which the
fourth amendment offers protection, once the
fifth amendment privilege against
self-incrimination is satisfied.

United States v. Dionisio, supra, 10.

The fourth amendment provides protection
against a subpoena duces tecum only
insofar as it is too sweeping in
its terms to be regarded as reasonable.

Id., 11, and cases cited.

Again, the same sorts of information which
the first amendment permits to be produced
under subpoena are permitted by the
fourth's lesser degree of protection.

The protection of the privilege against
self-incrimination is limited to compulsion
of incriminating live testimony from the
mouth of the subpoenaed witness, and to
production of private books and records
in the witness' possession that
would incriminate him.

United States v. Dionisio, supra, 11.

The privilege does not apply to books and
records in the hands of a third person,

Fisher v. United States,
425 U.S. 391, 397, 398 (1976);

Couch v. United States,
409 U.S. 322, 329 (1973),

or to the records of a partnership,

Bellis v. United States,
417 U.S. 85 (1974),

or corporation.

California Bankers Assn. v. Shultz,
supra, 71;

Hale v. Henkel, 201 U.S. 43 (1906).

Although Section 34 does not by its own terms
incorporate all these constitutional
guarantees, the subpoenas it authorizes,
like those issued by any other board, are
enforced by contempt proceedings before a
court of law.

Section 885.12, Stats.

In such proceedings constitutional objections
to the compulsion of testimony or documents
can be raised and, if raised correctly,
vindicated.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

See,
United States v. Miller,
425 U.S. 435, 444, n. 6 (1976);

State v. Balistrieri,
55 Wis.2d 513, 522-524,
201 N.W.2d 18 (1972);

State ex rel.
St. Mary's Hospital v. Industrial Comm.,
250 Wis. 516, 520,
27 N.W.2d 478 (1947);

Section 885.12, Stats.

Because of this judicial check on the broad
language of the subpoena provision, which
unchecked would be unconstitutional, I am of
the opinion that, in theory at least, the
provision meets constitutional standards for
compulsion of information by subpoena.

I cannot ignore the possibility, though, that
in practice even judicial review of the
board's subpoena power may not be sufficient
to save this provision from being
unconstitutional as applied.

Since contempt proceedings and the papers
which initiate them are public, the public
may inspect, and the press may publish, the
accusations that those associated with
lobbying are hiding records which will reveal
information about their activities that the
state has a right and a reason to know.

See generally
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 495 (1975).

Such accusations alone, even though
erroneous, might in many cases discredit, in
the eyes of citizens and statesmen alike,
lobbyists or principals who resist
unwarranted intrusion into their
protected private affairs.

   The finger of government leveled
   against the lobbyist is ominous.

United States v. Rumely, supra,
57 (Douglas, J., dissenting).

As was pointed out in Watkins v. United
States, supra, 197:

   Abuses of the investigative process
   may imperceptibly lead to abridgement
   of protected freedoms.

Discrediting a lobbyist or principal simply
by instituting unwarranted contempt
proceedings could effectively nullify their
right to petition the government by means of
lobbying, at least until they could vindicate
themselves at a later adversary hearing, and
perhaps not even then.

The whole purpose of the lobbying law, after
all, is to separate the forthright lobbyists
and principals from those who have something
to hide about their persuasive activities.

The subpoena provisions, in these
circumstances, could impose the equivalent
of constitutionally impermissible prior
censorship on lobbying activities.

Compage:
United States v. Rumely, supra, 57
(Douglas, J., dissenting).

See generally,

State v. I, A Woman   Part II,
supra, 112, 113, and cases cited.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

In a somewhat analogous situation the United
States Supreme Court upheld the issuance of
grand jury subpoenas to news reporters in
part because the secrecy of grand jury
proceedings provided protection against
invasion of first amendment rights by
exposure.

Branzburg v. Hayes, 408 U.S. 691, 695 (1972).

No such protective secrecy is provided
for in Substitute Amendment 3.

I am thus unable to say with absolute
certainty that Section 34 as applied to
all situations would be constitutional.

There is some very limited support in the
cases for an argument along the lines
suggested above that the section would be
unconstitutional as applied where a lobbyist
who properly resisted unwarranted intrusion
could show evidence of damage to reputation,
loss of livelihood, and harm to other
property or liberty interests by the
necessity to defend against the
subpoena in contempt proceedings.

In other words, the claim would have to be
that the defense of the right to resist
carried an impossible cost.

On balance, however, I think this
section probably would withstand
constitutional attack.

No comparable safeguards are provided,
regrettably, with respect to accounts
and deposit and loan records at any
financial institution.

Section 34 permits unrestricted inspection of
such records simply on judicial showing of
probable cause to believe that there has
been a violation of the lobbying laws.

There is no requirement, as in the case of a
search warrant, that the would be inspector
demonstrate probable cause to believe that
particular evidence of the violation will be
found in these records, or that the
inspection order specify the places
to be searched and the records
to be inspected or copied.

Since the application for an inspection order
may be made ex parte, the person whose
records are inspected has no opportunity to
challenge the propriety of the inspection
in an adversary proceeding, such as a
contempt proceeding in the case of
compulsion by subpoena.

This deficiency poses no problems under the
fourth amendment, since inspection does not
intrude into an area where the institution's
customer has an interest protected by that
amendment, there being no reasonable
expectation of privacy in records
exposed to bank employes in the
ordinary course of business.

United States v. Miller, supra, 442, 443.

Nor does it pose any problem under the fifth
amendment, since no compulsion is exerted
against the person who may be incriminated
by what the bank's records reveal.

Fisher v. United States, supra, 397;
Couch v. United States, supra, 328.

67 OAG 85 88 91 94 97 100 103 106 109
       86 89 92 95 98 101 104 107 110
       87 90 93 96 99 102 105 108 END

From what has been discussed previously,
however, it is plain that ex parte permission
to inspect records simply on a showing of
probable cause to believe that the customer
has violated lobbying laws violates the
first amendment rights of the customer.

To comport with the protection afforded by
the first amendment it is necessary that
the inspection be limited to information
which is substantially related to a
compelling state interest.

The existence of such an interest arguably is
shown by probable cause to believe that the
lobbying laws which serve a substantial
state interest have been violated.

But this showing alone does not necessarily
demonstrate as well that any or all financial
records will contain information
substantially related to the violation.

As presently written the proposed legislation
would permit the state, through essentially
   "unreviewed executive discretion"

to make a wide ranging inquiry that
unnecessarily touches on intimate areas
of an individual's personal affairs.

See
United States v. Miller, supra, 444 n. 6,
citing
California Bankers Assn. v. Shultz, supra,
77, 78 (Powell, J., concurring).

Without some provision limiting the scope of
the inspection to financial records which
have a substantial relation to violation
of the lobbying laws, this particular
provision of Substitute Amendment 3
is unconstitutionally overbroad.

IX.  Conclusion

In principle, the purposes sought to be
accomplished by Substitute Amendment 3
are compatible with the rights of Wisconsin
citizens to petition the government and to
be secure against unreasonable searches
and seizures.

Some of the means selected to accomplish
those purposes may, on their face or as
applied, violate citizens' first
amendment right of petition.

BCL:TJB


[1]

Presumably, lobbying is protected as well by
the parallel state provision, Wisconsin
Constitution Article I. Section 4.

See generally
Madison Joint School Dist. No. 8 v. WERC,
69 Wis.2d 200, 210,
231 N.W.2d 206 (1975).


[2]

Absent any clear expression of legislative
intent to the contrary, the general phrase
"or other interest" following "pecuniary"
must be construed in accord with the rule
of ejusdem generis to include only
interests in the same general category
as the pecuniary interest enumerated.
 

See generally
La Barge v. State,
74 Wis.2d 327, 332,
246 N.W.2d 794 (1976).

I would point out that the words "anything of
pecuniary value" as used in Section 16 are
nowhere defined in current law or in the
bill. The words "anything of value" appear
and are defined in Chapters 12 and 19 of the
statutes and the words "pecuniary interests"
are defined in Section 13.62 (7), Stats.,
which is unaffected by the bill.

Failure to specifically define this term
could lead to an argument that the law
is unconstitutionally vague and thus
a narrow and carefully drawn
definition should be provided.


[3]

One effect of these proscriptions is to
distinguish between the Governor and
other state officials in certain areas
and legislators and other officers and
employes in other areas.

The propriety of these distinctions under an
equal protection analysis is questionable.


[4]

These arguments appear to apply with
similar vigor to the relationship
between a principal and the children
under the principal's control.

Compare
Pierce v. Society of Sisters,
268 U.S. 510, 534, 535 (1925);

Meyer v. Nebraska, supra, 399.


[5]

For general comment on the right to require
disclosure of the purpose and nature of
activities of organizations

see

Bates v. Little Rock,
361 U.S. 516 (1960);

NAACP v. Alabama, supra.


[6]

Analogous financial disclosure requirements
for candidates for elective office and
public officials have been approved
in numerous cases.

See, e.g.,
Buckley v. Valeo, supra,
In re Kading, supra, and cases cited.

67 OAG 85 88 91 94 97 100 103 106 109
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       87 90 93 96 99 102 105 108 END

 
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