ST. LOUIS (CN) — The Eighth Circuit on Tuesday heard arguments challenging a voter-approved, two-year waiting period between serving in the Missouri state legislature and accepting payment for lobbying services.
Rockne Miller and John LaVanchy filed a federal lawsuit against members of the Missouri Ethics Commission in the Western District of Missouri in December 2021 claiming the law violates their right to free speech. The plaintiffs, represented by Cole Bradbury, are appealing the federal court’s dismissal on summary judgment of their case.
“When the government restricts speech, the government bears the burden to prove the constitutionality of actions,” Bradbury told the three-judge panel. “This record does not carry the government's burden in this case.”
At issue is a statute known as Clean Missouri, which was approved in 2018 by 62% of state voters. It raised the waiting period for legislators and members of the state’s executive branch from being paid for lobbying from six months to at least two years following their service to the General Assembly.
Jason Lewis, of the Missouri Attorney General’s Office, argued that the General Assembly has the right to restrict employment.
“There are ample additional ways for the challengers for LaVanchy and Miller to engage in that speech,” Lewis said during the 30-minute hearing.
“They can respond to questions from legislators, they can testify, they can be a legislative liaison for a state agency and, of course, they can do any more lobbying they want. They just can't get paid for it. This targets the receipt of compensation, not the speech itself.”
Miller, a Republican, represented House District 124 (consisting of Camden and Miller counties) from 2013 to 2021. He claims he was approached by Presidio Environmental while as a private citizen to advocate on its behalf in the state legislature.
According to its website, the Lake Ozark, Missouri-based Presidio Environmental fosters partnerships that enhance local economies with “Reduce, Reuse, Recycle and Upcycle technologies.”
U.S. Circuit Judge David Stras, a Donald Trump appointee, noted that Presidio — a private corporation — was a party to the lawsuit. He questioned whether the ban infringed on the company’s rights by not being able to hire the lobbyist of its choice.
“The record here is crystal clear that Presidio, number one, ultimately did hire another lobbyist,” Lewis said. “It engaged in the speech it wanted to, just perhaps not with the initially desired messenger to do it, but the speech was still there.”
Bradbury attacked the state’s expert witness, noting there were no examples of real-world incidents involving the government’s interest in instituting the waiting period.
“A simple way to say it," Bradbury said, "is her opinions are more editorial than expert.”
Judge Stras questioned Bradbury on why the government’s compelling interest has not been satisfied.
“All governments have an interest in reducing quid pro quo or the appearance thereof,” Bradbury said. “It’s that the state hasn't proven that this law furthers that interest, and that is the standard.”
Lewis rebutted the compelling interest argument, using a bribery scandal involving former Missouri House Speaker Bob Griffin in the late 1990s as an example.
Stras pushed back on that example, noting a vast difference between lobbying and bribery.
“Speech is still permitted,” Lewis said. “One just can’t get paid for it.”
LaVanchy has served as a legislative assistant in the Missouri House of Representatives since 2014. He claims he would like to seek professional advancement in private sector government relations, but the ban prohibits him from such employment for two years.
Bradbury ended his rebuttal by addressing his situation: He told the court that the ethics commission's expert witness conceded that some lower-level legislative employees should not be covered by the lobbying ban.
“Their own expert says the law is too broad, at least as it applies to low level employees,” Bradbury said. “She could not say whether or not that that ban should apply to Mr. LaVanchy because she did not know enough about him.”
U.S. Circuit Judges James B. Loken and Morris S. Arnold, both George H. W. Bush appointees, joined Stras on the panel which took the arguments under advisement. There is no timetable for a ruling.
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