Hon. Jack G. Fisk, Chairman                  Opinion   No. S-34
House Rules Committee
53rd Legislature                             Re:   Constitutionaltiy  of House Bill
Austin, Texas                                      18. as amended, known as the
                                                   Lobbyist Registration     Act,
                                                   regulating  the registration   of
                                                   lobbyists with the Secretary     of
Dear   Sir:                                        State.

                You have requested    our opinion on the constitutionality  of
House Bill 18. entitled “Lobbyist     kegistration  A+“,   as amended by the
House Rules Committee.        Briefly stated the bill provides for the regis-
tration and filing of financial reports by certain persons, defined in Sec-
tion 3 of the bill, in connection with lobbying activities.

              We begin this consideration   with the basic premise   that
lobbying is within the regulatory  powers of the Legislature.   Rumely v.
U. S. 197 F.2d 166 (C.C.A.   Dist. of Columbia  1952) affm.       * 0-t
73Tct.   543.

               Section   3 of House   Bill    18 reads   as follows:

               “Sec. 3. The following persons            shall register’
       with the Secretary of State as provided           herein:

               “(a) Every person except elected officials who,
       for compensation    or valuable consideration  of any kind,
       or who is compensated     from state funds, undertakes    to
       promote or oppose the passage of bills or resolutions,
       or Executive approval    thereof, through personal   solicita-
       tion of members    of the Legislature  or the Governor    by
       private interview.

                “(b) Every person who, for compzrsation     or val-
       uable consideration    of any kind, appears before a legis:
       lative committee    for the purpose of supporting or oppOs*
       ‘ing the passage  of any bill or resolution.

                “(c) Every person who employs or retains another
       whose duties are in whole or in part the performance  of
       the services  set out in (a) or (b) of this section.’
                                                                                 .,   I   ‘




Hon. Jack G. Fisk,     Page   2 (S-34)




                In 1946 Congress     enacted a similar    regulatory   enactment
on lobbying entitled “The Regulation of Lobbying Act”.. co?iified in 2
U.S.C.A.    261-270.   This Act was declared     unconstitutional    in National
Association    of Manufacturers     of United States v. McGrath,      103 F.S.
nO(D-     t   fC1      by 19.52)          .   4 U S 804 upon other grounds.
This dz&yon      &E:ze       beei ttci   with ap&al      in Rumely v. U.S.,
supra. and in the same federal district court in U.S. v. hlarris et al,
(Dist. of Columbia     1953) Criminal    No. 1212-49, January 30 1953. hi
the National Association      of Manufacturers    of United States :ase,    supra.
the associa’tion brought an action to enjoin the Attorney General from
prosecuting    the association   for violation of the Regulation of Lobbying
Act (Act of August 2, 1946, Sacs. 302-311. 60 Stat. 839. 2 U.S.C,A.            261-
270). alleging the Act was uaconstitutional.        The Court, members       of a
Three- Judge Court of the District       of Columbia,   held the Act unconstitu-,
tional as being in violation of the “due process       clause’ of the Fourteenth
Amendment.       The Court said on page 512:

                 -The vital provision       of the pertinent portions of
       the statute, Sec. 307. makes its requirements              applicable
       to any person who, by himself or through any agent or
       employee,     or other persons,       in any manner whatsoever,
       directly or indirectly.      solicits.    collects,   or receives
       money to be used principally           to aid, or whose principal
       purpose is to aid, in the passage           or defeat of any legis-
        lation by the Congress,      or to influence. directly or in-
       directly, the passage or defeat of any legislation             by the
       Congress     of the United States.        It is a well established
       .primciple tkt    a criminal    statute must define the crime
       with sufficient praclsmn        and formulate       an ascertaltibfe
       standard of guilt, m order that any person may be able
       to determine whether any action, or farlure to act. 1s
       prohibited.     A criminal    statute which does not comply
       with thzs prmciple      is repugnant to the due process clause
       and 19, therefore,     invalid, ’This 1s a fundamental          princi-
        ple in our constitutional     aystemo since without it, it would
       be possible to punish a portion for some action or failure
       to act not defined in the criminal           law and which that per-
        son had no way of knowing was forbidden.’

‘And on page 514:

               *Applying the foregoing    doctrine to the instant
       case. the conelusion  ie inescatible    that Sections 303
       to 307 are invalid.  The clause,
- . __




  Hon.   Jack G. Fisk,   page 3 (S-34)




         is meant by influencing the passage         or defeat of legis-
         latlon mdirectly?       It may be commumcatron       wrth Com-
         mrttees or Members         of the Congress;   it may be, to cause
         other persons to communitiate with Committees            or Mem-
         bers of the Congress;       it may be to influence pub@      opin-
         ion by literature,    speeches,    advertisements,   or other
         means in respect to matters that might eventually be af-
         fected by legislation;     it may be to influence others to
         help formulate     public opinion.    It may cover any one of
         a multitude of undefined activities.        No one cab foretell
         how far the meaning of this phrase may be carried.              No
         one can determine      in advance what activities     are compre-
         hended within its scope.”

                 Section 307 of. the federal    act is the prototype of House
  Bill 18’s Section 3. Section 307 was held repugnant to the “due process
  clause” of the Fourteenth       Amendment because it was indirectly”       meant.
  In lieu of the last quoted words, Section 3(a) states “undertakes        to pro-
  mote or oppose the passage of bills . * .“, and, Section 3(b) says “for
  the purpose of supporting       or opposing the passage   of any bill . . .*.
  Contrary   to the language of Section 307, House Bill 18’s Section 3 does
  limit the meaning to be given its language.        Section 3(a) applies only to
  the promoting    or opposing of legislative    action or executive approval
  through personal    solicitation   of members    of the Legislature   or Cover-   1’
  nor by private interview.       Section 3(b) limited the meaning to appear-
  ances before legrslakve       committees.

                  We are of the opinion that the proposed       House   Bill   18,
  as amended,    is constitutional.

                The’.committee   has deleted Section 16 of House Bill 18,
 as amended by Committee       Amendment    # 1. Section 14”s reference to
 the now extinct Section 16 “except as provided in Section 16” should
 also be deleted from i:he Act.
Hon. Jack G. Fisk,     page 4 (S-34)




                                  SUMMARY


                 It is our opinion that House hill   18. known as ‘the
      Lobbyist     Registration   Act, as amended,   is constitutional.

                                            Yours    very truly,

APPROVED:                               JOH?‘I BEN SFiEP&RD               -
                                          Attorney General
W. V. Geppert
Taxation Division                       ,(j&!?!!?$~
Milton Richardson
Reviewer                                   William    W. Guild
                                                Assistant
John Atchison
Re+iewer

John Ben Shepperd
Attorney General
