Cupertino lobbyist rules likely to weather constitutional challenge

SAN JOSE, Calif. (CN) — A federal judge has tossed a lawsuit challenging a Silicon Valley city’s ordinance requiring lobbyists to pay a fee and fill out a disclosure form in order to speak to a city official.

The League of Women Voters of Cupertino-Sunnyvale organization filed a civil rights suit against the city of Cupertino in 2022, claiming the city’s lobbying disclosure ordinance violates the free speech and petition clauses of state and federal law, and is an overbroad, speaker-based and content-based regulation that chills protected First Amendment expression.

Cupertino’s lobbying disclosure ordinance has been law since July 2021. It provides information to city officials and the public about lobbying activity in connection with changes in the law or the award of city contracts, permits or positions, with a goal to “foster public confidence in government officials by making government decision-making more transparent to the public.”

Their complaint contends Cupertino must show the ordinance is “narrowly tailored to further a compelling government interest justifying its burdensome registration and reporting requirements” which they say have chilled members’ ability to exercise their protected rights to assemble, engage in free speech and petition the government.

Cupertino moved to dismiss the claims, arguing the plaintiffs hadn't shown the ordinance is overbroad on its face.

"The ordinance does not apply to most of the conduct (plaintiffs) insist is covered, nor does it regulate in any way who
can speak or what they can say," the city said in its motion.

U.S. District Judge Jeffrey White dismissed the case with leave to amend on Monday, agreeing with the city's argument in his eight-page order. He found the ordinance’s disclosure and reporting requirements on business or organizational lobbyists and expenditure lobbyists do not directly regulate who can speak or what they can say. 

“Although the ordinance creates a burden, this burden does not act as a prohibition. And, further, the disclosure and reporting requirements bear a substantial relationship to a sufficiently important government interest,” White said. 

The judge pointed out that the California Supreme Court has found that such provisions are not “direct limitations on the right to petition for redress of grievances.” He said the ordinance’s restrictions do not substantially interfere with a lobbyist’s ability to “raise his voice,” nor do they create a major obstacle for exercising petition and speech rights.

White said the ordinance also does not restrict how much a lobbyist can lobby or spend, and does not differentiate among or restrict speech according to speaker or content.

“It is well settled that lobbyist registration laws like the ordinance are supported by an important governmental interest in transparency,” he wrote. 

White also ruled it is unlikely that plaintiffs will be able to plead additional facts that alter his analysis but invited them to file an amended complaint no later than June 2.

Attorneys for the parties did not respond to requests for comment before press time Monday. 

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