Calzone v. Hagan et al
ORDER entered by Judge Nanette Laughrey. Plaintiff's Motion for Permanent Injunction, [Doc. 2 ], is denied. (Farrington, Elizabeth)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
RONALD JOHN CALZONE,
NANCY HAGAN, et. al
Plaintiff, Mr. Calzone contends that Missouri cannot require him to register as a lobbyist
pursuant to Mo. Rev. Stat. § 105.470, et seq. because he is not paid to be a lobbyist and
Missouri’s definition of lobbyist is unconstitutionally vague. He makes both a facial challenge to
the statute and an applied challenge and thus contends that any application of Missouri’s lobbying
statute to him is a violation of his First Amendment rights.1 [Docs. 1, 2]. In his pending Motion
for a Permanent Injunction, he seeks to permanently enjoin the Defendants from enforcing or
threatening to enforce Mo. Rev. Stat. § 105.470(5)(c) and its attendant obligations against him. For
the following reasons, the Court denies Mr. Calzone’s motion.
A. Procedural Background
Mr. Calzone suggests in his supplemental briefing, [Doc. 33] that he is merely asking that
Missouri’s lobbying statute should not be applied to him unless he is paid to be a lobbyist. In that same
briefing, however, his counsel stated: “Rather, as regards his as-applied claim, Mr. Calzone simply asks
that the Ethics Commission be required to determine that an individual was paid before it brands that
person as an unregistered lobbyist.” Id. at 7. As this quote shows, his counsel implicitly distinguishes
between his applied challenge and his facial challenge. The Court has found no suggestion in his
pleadings or elsewhere that he has abandoned his facial vagueness challenge and concludes that he seeks
more than merely stopping the way the Commission has applied the statute to an uncompensated lobbyist.
Under Missouri law, all lobbyists must register and make reports as required. Mo. Rev.
Stat. § 105.473. A lobbyist is defined for purposes of Missouri law as:
[A]ny natural person who acts for the purpose of attempting to
influence the taking, passage, amendment, delay or defeat of any
official action on any bill, resolution, amendment, nomination,
appointment, report or any other action or any other matter
pending or proposed in a legislative committee in either house of
the general assembly, or in any matter which may be the subject of
action by the general assembly and in connection with such
activity who also:
(c) Is designated to act as a lobbyist by any person, business entity,
governmental entity, religious organization, nonprofit corporation,
association or other entity.”
Mo. Rev. Stat. § 105.470.
Based on these statutes, the Missouri Ethics Commission received two complaints against
Calzone, one in 2014 and another in 2016, asserting he violated the statute because he was
designated as a lobbyist for Missouri First but had not registered, paid a lobbying fee, or made
regular reports to the state as required. Missouri First is a not-for-profit corporation that was
incorporated by Mr. Calzone. Its mission is to “. . . assert and defend the appropriate sovereignty
of Missourians.” Mr. Calzone is Missouri First’s registered agent and a director. He is the only
officer of Missouri First. [Doc. 17-1, p. 13 of 239:10–22].
The 2014 complaint against Calzone was filed by Missouri Society of Governmental
Consultants. [Doc. 1-2, Exhibit B]. On September 3, 2015, the Ethics Commission held a
hearing on the complaint.
Mr. Calzone did not testify at that hearing, invoking his Fifth
Amendment rights. After considering the evidence submitted in that proceeding, the Missouri
Ethics Commission found probable cause to believe that Mr. Calzone violated the lobbying
statute because he:
….attempted to influence official action on matters pending before
the Missouri Legislature in 2013 and 2014, and while doing so
acted on behalf of Missouri First, Inc. and its members, as a
regular pattern of conduct and consistent with a Charter purpose of
Missouri First, Inc., and that Respondent Calzone knowingly did
not register as a lobbyist.
[Doc. 1-2, p. 33 of 52]. The Commission specifically found that:
Since 2013, Respondent Calzone has been designated by the action
of Missouri First, Inc., and its constituent members for the purpose
of attempting to influence official action on the bills, resolutions,
amendments, and other matters, when Respondent Calzone, acting
consistent with the purpose of Missouri First, Inc., and its member,
met with legislators and legislators’ staff to support or oppose
matters pending before the Missouri Legislature, testified in
opposition or support of matters pending before the Missouri
Legislature, submitted witness forms as requested by individuals
who provided those forms to Respondent Calzone through
Missouri First, Inc., and by appearing as a witness before
committees of the Missouri Legislature for the purpose of
representing the interests of Missouri First, Inc., and its members.
Id. at 27–28 of 52.
Calzone appealed the decision of the Missouri Ethics Commission and the Administrative
Hearing Commission ordered discovery. Calzone then sought a writ of prohibition from the Cole
County Circuit Court, which Judge Beetem granted on procedural grounds, finding Missouri law
does not allow corporations to file complaints with the Ethics Commission. [Doc. 2-1, p. 6];
Calzone v. Admin. Hearing Comm’n, Case No. 16ACCC00155 (Mo. 19th Cir. Sept. 23, 2016)
(“Because the complaint . . . was not filed by a natural person . . . all actions taken on the
complaint are and were void”). The Ethics Commission appealed that decision to the Missouri
Court of Appeals on October 31, 2016, where it remains pending and is set for oral argument
July 6, 2017. WD80176.
Another complaint against Calzone was filed before the Missouri Ethics Commission on
October 12, 2016. This complaint was substantively identical to the 2014 complaint but was
unquestionably filed by a natural person, Michael C. Reed. [Doc. 1-2, Exhibit A].
On October 21, 2016, Calzone filed suit in this Court seeking a temporary restraining
order to prevent the enforcement of Mo. Rev. Stat. § 105.470 against him. The Court initially
abstained because of the October 12, 2016 proceeding pending before the Missouri Ethics
Commission. However, the 2016 complaint was later dismissed by the Commission and this
Court found it had no further basis for abstention. The case was then set for a TRO hearing at
which neither Calzone nor anyone else testified. No documents were submitted to the Court
other than Calzone’s verified complaint and the transcript of the hearing before the Missouri
Ethics Commission. The Court denied Calzone’s Motion for a Temporary Restraining Order
after finding he was unlikely to succeed on the merits of his claim. [Doc. 20].
On April 25, 2017, the Court held a hearing to consider Calzone’s Motion for a
permanent injunction, which this order now addresses. [Doc. 29].
B. Factual Background
The evidence before the Court shows that Mr. Calzone is the incorporator and director of
Missouri First Inc. [Doc. 1-2, p. 36 of 52]. Mr. Calzone is the only officer of Missouri First. He
is the registered agent of Missouri First and he is one of three members of the Board of Directors
of Missouri First. [Doc. 17-1, p. 13 of 239:10–22]. The Charter of Missouri First States:
Missouri First will give priority to educating and mobilizing the
public to meet our objectives. Media advertising, public oratory,
informational seminars, legislative lobbying, and citizen
involvement may be used to teach or to influence public policy. . . .
Missouri First will campaign for legislative and ballot issues . . .
[Doc. 1-2, p. 26 or 52] (emphasis added).
Missouri First’s website seeks members to join it to further the agenda of Missouri First:
By joining Missouri First, you place your name and influence on
the right side of the issues affecting Missourians. The old saying
“there is strength in numbers” holds true, especially when lobbying
Missouri House and senate members. . . . All we ask is that you
agree with the principles outlined in our Charter and fill out the
form below. . . .We ask this form to be completed that we may
better keep you informed on Missouri issues, and to bolster our
[your] clout when fighting the war for sovereignty.
[Doc. 17-1, pp. 14 of 239:13 – 25; 15 of 239:1–7] (emphasis in original).
Missouri First’s website also permits Missourians to fill out “witness forms” to give an
opinion about proposed or pending legislation. Missouri First, Inc., states that it will present all
witness forms to the appropriate committee of the Missouri General Assembly.
Mr. Calzone regularly comes to meet with individual legislators, legislative staff, and
other legislative groups, to talk about specific legislation and potential legislation, and what
should be passed or blocked. Id. at 18 of 239:21–25; 19 of 239:1–3. He would typically identify
himself as “Ron Calzone, Director of Missouri First, or Ron Calzone, a director of Missouri
First.” Id. at 88 of 239:13–18. On a witness form in the Missouri Senate:
Mr. Calzone identifie[d] himself as appearing on behalf -- not of
himself but appearing on behalf of Missouri First, Inc. When he
signed that and said I'm appearing on behalf of Missouri First, Inc.,
he was the only officer for Missouri First, Inc. He was the
president and he was the secretary.
Id. at 19 of 239:4–11.
Mr. Calzone is aware that people in Jefferson City have complained that he should be
registered under Missouri law as a lobbyist because of his extensive lobbying activities in the
Missouri Capitol. Mr. Calzone admits he clearly lobbies but contends he is not a “legislative
lobbyist” under Missouri law. He also says “[t]hat his hat was—he felt his hat was to represent
the faceless mask of citizens who did not have a lobbyist.” Id. at 96 of 239:18–24. There is no
evidence in the record that anyone other than Calzone has spoken to legislators to further the
lobbying commitment of Missouri First, Inc.
After the Court issued its ruling on Calzone’s Motion for a temporary restraining order,
the Parties submitted a list of stipulated facts. [Doc. 28]. The Parties jointly stipulated as to the
authenticity and admissibility of “bank records regarding the sole account, checking or
otherwise, of Missouri First, Inc.” [Docs. 28; 28-1]. The Parties also stipulated to the following:
1. Plaintiff regularly speaks to legislators in an effort to persuade
members of the General Assembly regarding legislation.
2. No natural or artificial person pays Plaintiff in exchange for
sharing his views on policy with members of the General
3. Plaintiff does not make expenditures for the benefit of one or
more public officials or one or more employees of the legislative
branch of state government in connection with such activity.
4. Plaintiff is the president and a member of the board of directors
of a Missouri nonprofit corporation, Missouri First, Inc.
5. When speaking to legislators, whether in testimony before the
General Assembly or in inperson meetings, Plaintiff regularly
notes that he is a director of Missouri First, Inc.
6. The board of directors of Missouri First, Inc. has never taken
official action to name Plaintiff as the legislative lobbyist for
Missouri First, Inc.
7. For the past five years, Missouri First, Inc. has made no
expenditures, nor received any income.
8. In response to a complaint filed by the Missouri Society of
Governmental Consultants against Plaintiff on September 11,
2015, the Missouri Ethics Commission found probable cause that
Plaintiff was a “legislative lobbyist” subject to the registration and
reporting requirements imposed by § 105.473, RSMo.
9. The Missouri Ethics Commission is required by law to
investigate any properly filed complaint submitted to its office. §
10. During the September 3, 2015 hearing before the Missouri
Ethics Commission, Mr. Calzone introduced a motion to dismiss,
which was rejected by the chair as improper after counsel for the
Ethics Commission argued that the Commission was not
authorized to grant motions to dismiss.
11. While the Missouri Ethics Commission dismissed a second
complaint against Plaintiff on the grounds that “there was no
evidence that [Plaintiff] provided witness forms regarding that bill
on behalf of Missouri First to committee members or other
members of the general assembly,” that dismissal does not
immunize Plaintiff from future complaints.
12. Because the Missouri Ethics Commission retains its records
publicly on the Internet in perpetuity, registration as a legislative
lobbyist forever labels that person as a “lobbyist.”
13. The general registration and reporting requirements for
legislative lobbyists are found at § 105.473, RSMo.
14. Missouri law requires “[a]ll information required to be filed”
with the Commission to be kept available for public inspection and
copying for five years after the information is filed. RSMo, §
15. Lobbyists must file standardized registration forms under
penalty of perjury within five days after beginning any activities as
16. Registration forms must include the lobbyist’s name and
business address, the name and address of all persons such lobbyist
employs for lobbying purposes, and the name and address of each
lobbyist principal by whom such lobbyist is employed or in whose
interest such lobbyist appears or works.
17. Registration costs ten dollars per year.
18. If any information changes, a lobbyist must file an updating
statement under oath within one week of any addition, deletion, or
change in the lobbyist’s employment or representation.
19. In addition, the employer of a lobbyist may also notify the
commission that a legislative lobbyist is no longer authorized to
lobby for the principal and should be removed.
20. Lobbyists must also file, under penalty of perjury, monthly
reports with the Ethics Commission.
21. These reports must list expenditures made by the lobbyist for
the purpose of lobbying, including, inter alia, printing and
publication expenses and travel expenses.
22. Twice a year, each legislative lobbyist must, report all
proposed legislation or action that the lobbyist supported or
23. The Ethics Commission has provided a form for lobbyist
reporting, which is provided at:
24. The Ethics Commission has not promulgated any regulations as
to how a legislative lobbyist must describe the proposed legislation
or actions that the lobbyist supported or opposed.
25. The Ethics Commission posts the contents of monthly lobbyist
disclosure reports on the Internet.
26. Failure to file is punishable by a fine of up to $10,000.
27. The late fees for filing a monthly lobbyist disclosure report are
ten dollars for every day such report is late.
28. A person who violates, in any way, a provision of the lobbyist
registration regime shall be punished as follows: (1) for the first
offense, a class B misdemeanor, (2) for any subsequent offense, a
class E felony.
29. A class B misdemeanor may be punished by up to six months
30. A class E felony may be punished by up to four years in prison.
[Doc. 28]. The Parties’ submitted these stipulations to the Court prior to the April 25, 2017
Calzone requests a permanent injunction prohibiting “Defendants, their officers,
employees, or agents, and those acting on their behalf or in concert with them from enforcing or
threatening to enforce the disclosure requirements of Missouri Revised Statutes section
105.470(5)(c) against those who act without being compensated.” [Doc. 2, p. 2]. An injunction is
an extraordinary equitable remedy, and the movant bears the burden of establishing its
propriety. See Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The Eighth Circuit has
identified four factors which must be considered in evaluating the propriety of a permanent
injunction: (1) the party seeking the injunction faces irreparable harm, (2) actual success on the
merits, (3) the harm to the movant outweighs any possible harm to others, and (4) the injunction
serves the public interest. Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th
Cir.1981). To obtain a permanent injunction the movant must demonstrate actual success on the
merits, rather than simply showing a propensity for success. Bank One v. Guttau, 190 F.3d 844,
847 (8th Cir. 1999).
As the Court previously explained, [Doc. 20], the State of Missouri is not preventing Mr.
Calzone from participating in his own First Amendment activities so long as he is speaking as
himself and not on behalf of a third party. See Transcript of 2/3/2017 Oral Argument at 10
(statement of Mr. Weisel). However, if instead Calzone is speaking for Missouri First, such as
presenting Missouri First witness statements to legislators or lobbying on behalf of Missouri
First, he is in jeopardy of Missouri’s lobbying law being enforced against him. Mr. Calzone
contends that this risk of enforcement causes him irreparable harm because it is a violation of the
First Amendment to subject unpaid lobbyists to Missouri’s lobbying statutes. This contention
forms the basis of Mr. Calzone’s applied challenge.
He also contends that even if the First Amendment permits unpaid lobbyists to be subject
to Mo. Rev. Stat. § 105.4 70(5)(c), the term “designated” in that statute is vague and therefore is
facially unconstitutional. This contention forms the basis of Calzone’s facial challenge.
A. Applied Challenge
Calzone’s applied challenge is based on the First Amendment. Therefore, the Court must
first determine what standard of review is appropriate.
1. Standard of Review
Calzone argues that because his claim is based on the First Amendment, strict scrutiny is
the correct standard of review. Transcript of 4/25/2017 Hearing at 3–4 (statement of Mr.
Morgan). If a statute is subject to strict scrutiny, it can be enforced if it is “narrowly tailored” to
achieve a “compelling government interest.” See Republican Party v. White, 416 F.3d 738, 749
(8th Cir. 2005).2
Calzone cites to Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n, 761 F.2d 509, 511
(8th Cir. 1985), in which the Eighth Circuit examined Minnesota lobbyist and political fund
registration requirements and held “[s]tate laws which inhibit the exercise of first amendment
rights are unconstitutional unless they serve a ‘compelling’ state interest,” which signals strict
scrutiny. More recently, however, the U.S. Supreme Court noted: “Disclaimer and disclosure
requirements may burden the ability to speak, but they ‘impose no ceiling on campaign-related
activities,’ or ‘prevent anyone from speaking.’” Citizens United v. Fed. Election Comm'n, 558
U.S. 310, 315 (2010) (citations omitted). The Supreme Court explained that because “disclosure
is a less restrictive alternative to more comprehensive regulations of speech,” statutes requiring
disclosure are subjected to “‘exacting scrutiny,’ which requires a ‘substantial relation’ between
the disclosure requirement and a ‘sufficiently important’ governmental interest.” Citizens United,
558 at 366–69 (citations omitted).
Courts since have applied exacting scrutiny, rather than strict scrutiny, to disclosure laws.
See Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 548–49 (4th Cir. 2012) (applying
exacting scrutiny to federal provisions imposing disclosure and organizational requirements);
National Organization for Marriage v. McKee, 649 F.3d 34, 55–56 (1st Cir. 2011) (applying
exacting scrutiny review to Maine’s law defining Political Action Committees); Nat'l Org. for
Marriage v. Daluz, 654 F.3d 115, 118 (1st Cir. 2011) (applying exacting scrutiny review to
Calzone contends Defendant conceded that strict scrutiny is the proper standard of review.
Transcript of 4/25/2017 Hearing at 24 (statement of Mr. Morgan). It is not clear to the Court that
Defendant made such a concession, but even if the Commission stipulated to the level of scrutiny, the
issue is purely legal and the Court must apply the correct standard regardless of the argument of the
Parties. See Craig v. Boren, 429 U.S. 190, 197 (1976) (applying intermediate scrutiny despite the parties
arguing for strict scrutiny and rational basis, respectively).
Rhode Island’s independent expenditure reporting requirements); Human Life of Washington Inc.
v. Brumsickle, 624 F.3d 990, 1003–05 (9th Cir. 2010) (applying exacting scrutiny to
Washington’s law defining PACs); SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010)
(en banc) (applying exacting scrutiny to federal laws imposing disclosure and organizational
requirements); Indep. Inst. v. Gessler, 71 F. Supp. 3d 1194, 1198 (D. Colo. 2014), aff'd sub nom.
Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016).
Citing Citizens United, the Eighth Circuit noted:
Generally, laws that burden political speech are subject to strict
scrutiny, which requires the government to prove that the
restriction furthers a compelling interest and is narrowly tailored to
achieve that interest. But this is not true when the law at issue is a
disclosure law, in which case it is subject to ‘exacting scrutiny,’
which requires a substantial relation between the disclosure
requirement and a sufficiently important governmental interest.
Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874–75 (8th Cir. 2012)
(internal citations omitted).
Based on this precedent, the Court finds that exacting scrutiny is the correct standard of
review for Calzone’s First Amendment claim.
2. “Sufficiently Important” State Interest
Calzone relies primarily on United States v. Harriss, 347 U.S. 612 (1954) for his
contention that the First Amendment protects unpaid lobbyists from being subjected to lobbying
registration and disclosure requirements. Harriss concerned a First Amendment challenge to the
Federal Regulation of Lobbying Act because of its disclosure and reporting requirements. The
Supreme Court found the government had a vital interest in requiring disclosure of those who are
paid to influence legislators and legislative staff, as a means of determining “who is being hired,
who is putting up the money, and how much.” Id. at 625. The Supreme Court limited the statute
“to those persons . . . who solicit, collect, or receive contributions of money or other thing of
value” to be used for lobbying purposes—and it required registration only “if the principal
purpose of either the persons or the contributions is to aid” in lobbying activities. Id. at 619.
Calzone argues that by limiting the Act in that way, the Supreme Court effectively held that the
government only had an interest in regulating compensated lobbyist.
The Court disagrees. First, the Supreme Court limited the federal statute to persons
compensated for their advocacy, as a matter of statutory construction not because of any
constitutional concern. “The Government urges a much broader construction—namely, that
under § 305 a person must report his expenditures to influence legislation even though he does
not solicit, collect, or receive contributions as provided in § 307. Such a construction, we believe,
would do violence to the title and language of § 307 as well as its legislative history.” Harriss,
347 U.S. at 619–20. Second, the actual constitutional issue in Harriss was whether a person’s
advocacy had to be directed to members of Congress or could just be directed to “propagandize
the general public.” Id. at 620. If the latter, the statute would cover any person giving a speech
that sought to indirectly influence legislation, even though that speech was not given to a
member of Congress. To avoid this potential constitutional problem the Supreme Court gave the
word lobbying, which is the title of the Act, its ordinary meaning—communicating with
members of Congress. Finally, while the Supreme Court found that there was a governmental
interest in requiring paid lobbyists to register, it never found nor implied that the government
only had an interest in regulating paid lobbyists. That issue has never been addressed by the
Supreme Court or any other court, to the best of this Court’s knowledge. Therefore, a reasonable
reading of Harris does not imply, much less direct, that the First Amendment prohibits states
from requiring unpaid lobbyists to register and report political expenditures.
because Mr. Calzone argues that no such governmental interest exists, the Court must
independently determine whether the state has an important governmental interest in regulating
At the April 25, 2017 hearing, Defendant identified the state’s interest in its lobbying
Lobbyist registration provides the public with transparency as to
who is making efforts to influence the legislature. Without such
disclosures, the democratic government structure would not exist,
and the opportunity for fraud, corruption, secrecy expand. The
intent to influence legislation remains, regardless of compensation,
and the public [has an] interest in knowing who is influencing the
legislature and how that is happening.
Transcript of 4/25/2017 Hearing at 16 (statement of Ms. Harrison).
The Court finds that Missouri’s interest in transparency is a sufficiently important
governmental interest to justify this statute. Knowing who is operating in the political arena is a
valid governmental interest regardless of whether someone volunteers on behalf of a third party
or is paid by the third party.3
Calzone asserts that the Ethics Commission must “do more than simply posit the existence of a
disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural.”
[Doc. 33, p. 5] (citing United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 475 (1995)). Because
the Court finds the proper standard is exacting scrutiny, not strict scrutiny, Calzone’s argument that
Defendant must produce “some sort of evidence that the governmental interest is actually implicated”
does not apply. Transcript of 4/25/2017 Hearing at 5 (statement of Mr. Morgan). Compare
SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 696 (D.C. Cir. 2010) (noting that to survive
exacting scrutiny, “the government may point to any ‘sufficiently important’ governmental interest”)
(emphasis added) with Republican Party v. White, 416 F.3d 738, 749 (8th Cir. 2005) (“The strict scrutiny
test requires the state to show that the law that burdens the protected right advances a compelling state
interest . . .”) (emphasis added). Further, transparency in government is a matter of such self-evident
importance in a democracy, that no statistical or other substantive evidence is required. Further, it has
been found to be a compelling state interest by both the Eighth Circuit, see Minnesota State Ethical
Practices Bd. v. Nat'l Rifle Ass'n of Am., 761 F.2d 509 (8th Cir. 1985), and the U.S. Supreme Court. See,
e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (“In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among candidates for office is essential,
for the identities of those who are elected will inevitably shape the course that we follow as a nation.”);
Buckley v. Valeo, 424 U.S. 1, 67 (1976) (discussing governmental interest in “alert[ing] the voter to the
interests to which a candidate is most likely to be responsive and thus facilitat[ing] predictions of future
performance in office”).
This finding is supported by Eighth Circuit precedent. In Minnesota State Ethical
Practices Bd. v. Nat'l Rifle Ass'n of Am., 761 F.2d 509 (8th Cir. 1985), the National Rifle
Association challenged the Minnesota Ethics in Government Act’s requirement to register their
lobbying and political funding activities. The Minnesota Act required persons defined as
lobbyists to file registration forms and make regular reports of their lobbying activities. Id. at
511. 4 The Eighth Circuit acknowledged that “compelled disclosure” may infringe on First
Amendment rights, but found the state’s interest in, inter alia, “deterring corruption [and]
avoiding the appearance of corruption” were “sufficiently important to outweigh the possibility
of infringement.” Id. at 512 (citations omitted). The Eighth Circuit found this interest compelling
under strict scrutiny. Id.
The NRA attempted to distinguish Harriss and Buckley because the lobbying activity
involved “members of a voluntary association.” Id. The Eighth Circuit did not find the
distinction constitutionally relevant: “The Act does not focus on the group affiliation of a
lobbyist, it focuses on lobbying activity. When persons engage in an extensive letterwriting
campaign for the purpose of influencing specific legislation, the State’s interest is the same
whether or not those persons are members of an association.” Id. at 513.
Just as the State’s interest is the same regardless of association, Missouri’s interest in
transparency is the same whether or not lobbyists are compensated. The State has a sufficiently
important interest in allowing the public to know who is seeking to influence legislators on
behalf of someone else and who might be making expenditures to governmental officials for the
benefit of a third party. Transparency is part of the foundation of a democracy, particularly when
it comes to how governmental officials are being influenced and by whom.
The Minnesota Act only applied to those “engaged for pay or consideration.” Thus, the Eighth
Circuit did not reach the issue of whether unpaid lobbyists can be subject to the same disclosure
3. Substantial Relation
Having found Missouri has a sufficiently important government interest in applying the
statute to uncompensated lobbyists, the Court turns to whether there is “a ‘relevant correlation’
or ‘substantial relation’ between the governmental interest and the information required to be
disclosed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 744 (2008) (citations omitted).
Under the statute, any person “designated to act as a lobbyist by any person, business
entity, governmental entity, religious organization, nonprofit corporation, association or other
entity;” Mo. Rev. Stat. § 105.470.5(c), is required to:
[F]ile standardized registration forms, verified by a written
declaration that it is made under the penalties of perjury, along
with a filing fee of ten dollars, with the commission. The forms
shall include the lobbyist’s name and business address, the name
and address of all persons such lobbyist employs for lobbying
purposes, the name and address of each lobbyist principal by
whom such lobbyist is employed or in whose interest such lobbyist
appears or works. The commission shall maintain files on all
lobbyists’ filings, which shall be open to the public.
Id. at 105.473.1. Defendant articulated the following regarding the relation between the
requirement and the government’s interest in transparency:
[T]he list is designed to make sure that a person acts on lobbying
on behalf of x and not y . . . Further, . . . when you go to testify
before the legislature, you identify yourself and your organization
so it’s out there in the public sphere anyway. Those aren’t private
records. So the list is . . . [a] more easily accessible . . . vehicle to
find out who is lobbying on behalf of what, what organization.
Transcript of 4/25/2017 Hearing at 23 (statement of Ms. Harrison).5
Calzone contends the burdens imposed on him do not bear a relation to Missouri’s proffered interest, in
part because the federal government does not regulate unpaid lobbyists. [Doc. 33, p. 6]. However,
exacting review does not suggest that all governmental entities must use the same or similar method for
achieving the important goal of transparency. Calzone cites no case law that would support such a novel
In Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012),
the Eighth Circuit gave us guidance for how to determine whether there is a substantial relation
between a lobbyist disclosure requirement and a substantial governmental interest. In that case,
the Eighth Circuit found Minnesota’s independent expenditure law was not substantially related
to the government’s interest under exacting scrutiny because “its ongoing reporting requirement .
. . is untethered from continued speech [and] does not match any sufficiently important
disclosure interest.” Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 876
(8th Cir. 2012). The Eighth Circuit explained: “Minnesota can accomplish any disclosure-related
interests—providing the electorate and shareholders information concerning the source of
corporate political speech, deterring corruption, and detecting violations of campaign finance
laws—‘[t]hrough less problematic measures,’ as requiring reporting whenever money is spent, as
the law already requires of individuals.” Id. at 876–77 (citations omitted).
Conversely, in this case the ongoing reporting requirement is absolutely tethered to
continuing speech. The lobbyist must file standard registration forms “not later than January fifth
of each year or five days after beginning any activities as a lobbyist.” Mo. Rev. Stat. § 105.473.1.
That is the initial and annual disclosure. Calzone points to the monthly reports, specifically the
reports examined by the Commission: “14 monthly reports, 12 filed under penalty of perjury.”
Transcript of 4/25/2017 Hearing at 8 (statement of Mr. Morgan). Those reports are required only
for “any period of time in which a lobbyist continues to act as a . . . legislative lobbyist.” Mo.
Rev. Stat. § 105.473.3(1). Thus, both annual and monthly reports are required only if the lobbyist
continues to lobby on behalf of a third party. The Eighth Circuit suggested an appropriately
tailored requirement in Swanson: “requiring reporting whenever money is spent.” Swanson, 692
F.3d at 877. Similarly, Missouri requires reporting only when continuing to lobby.
Further, “the strength of the governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.” Id. at 876 (quoting Davis v. FEC, 554 U.S. 724, 744
(2008)). The burden on Calzone’s First Amendment rights is not great. In the September 2015
hearing, the Ethics Commission heard the testimony of Randy Scherr. [Doc. 17-1, p. 32]. Mr.
Scherr worked as a lobbyist since the late 1970s and serves on the board of the Missouri Society
of Governmental Consultants. As part of his testimony, Mr. Scherr detailed the process for
registering as a lobbyist in Missouri:
[R]egistration is required at the beginning of the year. The annual
requirement now takes, oh, I’d say a minute or two. You go on and
you simply renew – enter your credit card number, pay your $10 -- or $11 I think. It maybe takes two minutes, three minutes to
register . . .
Id. at 34 of 239:24–25; 35 of 239:1–4; 26 of 239:1–5. Further, Calzone acting for Missouri First
has control over whether to trigger those requirements: he need only make reports when he
continues to lobby on behalf of Missouri First. The Commission has made clear that no
registration or reporting is necessary when Calzone speaks only as a citizen. Transcript of
2/3/2017 Oral Argument at 10 (statement of Mr. Weisel).
Finally, the information Missouri requires is directly correlated to the harms it seeks to
avoid. The disclosures include the “lobbyist’s name and business address, the name and address
of all persons such lobbyist employs for lobbying purposes, the name and address of each
lobbyist principal by whom such lobbyist is employed or in whose interest such lobbyist
appears.” Mo. Rev. Stat. § 105.473. Knowing the names and addresses of lobbyists is the least
intrusive means of accomplishing the government’s interest in “transparency as to who is making
efforts to influence the legislature”. Transcript of 4/25/2017 Hearing at 16 (statement of Ms.
Therefore, the Court finds there is a substantial relation between the governmental
interest and the information required to be disclosed. As such, the Court holds Missouri’s statute
does not violate the First Amendment as applied to Calzone.
B. Facial Challenge
Calzone also challenges the constitutionality of the Missouri lobbyist statute on the
grounds of vagueness. This is a facial challenge, which means that it can only succeed if on its
face the Missouri lobbyist statute “. . . fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits.” Reprod. Health Servs. of
Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1143 (8th Cir. 2005)
(citing Hill v. Colorado, 530 U.S. 703, 732 (2000)).
Missouri defines a “legislative lobbyist” as:
[A]ny natural person who acts for the purpose of attempting to
influence the taking, passage, amendment, delay or defeat of any
official action on any bill, resolution, amendment, nomination,
appointment, report or any other action or any other matter
pending or proposed in a legislative committee in either house of
the general assembly, or in any matter which may be the subject of
action by the general assembly and in connection with such
activity” who also:
(c) Is designated to act as a lobbyist by any person, business
entity, governmental entity, religious organization, nonprofit
corporation, association or other entity.”
Mo. Rev. Stat. § 105.470 (emphasis added).
Calzone contends that what is prohibited by the statute is not clearly defined. [Doc. 2, p.
13] (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Calzone contends that the
word “designate” is vague because of the evidence the Commission considered in finding he was
designated as a lobbyist for Missouri First, specifically “that he had sort of done it himself.”
Transcript of 4/25/2017 Hearing at 10 (statement of Mr. Morgan).
The Ethics Commission found that “[s]ince 2013, Respondent Calzone has been
designated by the action of Missouri First, Inc., and its constituent members for the purpose of
attempting to influence official action on the bills, resolutions, amendments, and other matters.”
[Doc. 1-2, Exhibit D].
In making that finding, the Commission concluded that when he
submitted witness statements to the legislature that had been solicited by Missouri First, Calzone
was speaking for Missouri First and not for himself. It considered substantial circumstantial
evidence to reach its conclusions.6 [Doc. 20, pp. 11–12].
This Court previously found that a federal court is not the forum to review the
Commission’s findings, including the self-designation finding. The Court also found the word
“designate” can be defined readily:
The term ‘designate’ is defined by Webster's Third New
International Dictionary as ‘to make known directly as if by sign;
to distinguish as to class; Specify, stipulate; to declare to be; to
name esp. to a post or function.’” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 612 (1986). ‘Designate may apply to
choosing or detailing a person or group for a certain post by a
person or group having power or right to choose.’ Id.
[Doc. 1-2, Exhibit D, p. 7]. The Court found this is the common understanding of the word
“designate”, and thus the word does “provide people of ordinary intelligence a reasonable
The Commission relied on, inter alia, the following pertinent facts from the record: (1) Calzone
incorporated Missouri First and serves as its director, registered agent, president, secretary, and as one of
its three members of its board of directors; (2) Mr. Calzone regularly comes to meet with individual
legislators, legislative staff, and other legislative groups, to talk about specific legislation and potential
legislation, and what should be passed or blocked. Id. at 18 of 239:21–25; 19 of 239:1–3. He would
typically identify himself as “Ron Calzone, Director of Missouri First, or Ron Calzone, a director of
Missouri First.” Id. at 88 of 239:13–18. On a witness form in the Missouri Senate, “Mr. Calzone
identifie[d] himself as appearing on behalf -- not of himself but appearing on behalf of Missouri First, Inc.
When he signed that and said I'm appearing on behalf of Missouri First, Inc., he was the only officer for
Missouri First, Inc. He was the president and he was the secretary.” Id. at 19 of 239:4–11; (3) Missouri
First’s Charter states that legislative lobbying is used as a purpose and a method of operation. [Doc. 17-1,
p. 14 of 239:1–5, 8–10]; (4) Missouri First encourages new membership by stating: “That old saying,
there is strength in numbers, holds true, especially when lobbying Missouri House and Senate Members.”
Id. at 95 of 239:10–12; and (5) Missouri First recruited new members by promising strong lobbying and
“working hard to represent your values in the issues that touch your life.” Id. at 95 of 239:13–16.
opportunity to understand what conduct it prohibits.” [Doc. 20, p. 11] (citing Reprod. Health
Servs., 428 F.3d at 1143 (8th Cir. 2005)).
Calzone now seems to concede that “[p]erhaps, applying the plain meaning dictionary
definition, the word ‘designate’ is not vague.” [Doc. 33, p. 8] (citing [Doc. 32, p. 6]). Calzone’s
facial challenge now seems to be that the Commission would never have found that Calzone
designated himself as a lobbyist for Missouri First, but for the vagueness of the term designate.
To the extent Calzone is attempting a backdoor challenge to the findings of the
Commission, his vagueness claim is rejected as beyond the Court’s jurisdiction. To the extent
Calzone is relying on the findings of the Commission to show that the term designate can be
misunderstood and is therefore vague, the Court rejects his argument for the following reasons.
To demonstrate that the term designate is unconstitutionally vague, Calzone relies heavily
on the Parties’ stipulation that “The board of directors of Missouri First, Inc. has never taken
official action to name Plaintiff as the legislative lobbyist for Missouri First, Inc.” [Doc. 28, ¶ 6].
Calzone contends that because Missouri First never took official action to designate him, but he
was nevertheless found to have been designated, the plain meaning definition of the word
“designate” “is clearly not the one the government is using.” [Doc. 33, p. 8]. Consequently, the
term is vague.
Defendant clarified that although the board of directors took no formal or official action
to designate Calzone as a legislative lobbyist, “[a]s the Director, incorporator, sole officer,
registered agent, and one of the three board positions at Missouri First, Mr. Calzone has the
ability to determine how and who will be present will be present . . . will present the agenda of
Missouri First to the general assembly.” Transcript of 4/25/2017 Hearing at 13 (statement of Ms.
Calzone argues that, without an official act from the Missouri First board of directors, his
personal actions could not suffice to designate him a lobbyist and any contrary finding renders
the term designate unconstitutionally vague. However, Mr. Calzone was the president, secretary,
and board member for Missouri First and held himself out as such when attempting to influence
legislation. Crucially, Calzone is the registered agent of Missouri First, a fact the Commission
noted several times throughout the hearing. See [Doc. 17, 12:13, 12:22, 91:13].
Under Missouri law, it is well established that a principal may be bound by the actions of
its agent. See, e.g., Shelby v. Slepekis, 687 S.W.2d 231, 234 (Mo. Ct. App. 1985). Because
Calzone is the registered agent of Missouri First, the theory of express agency support’s the
Ethics Commission’s finding that Calzone had the authority to designate himself as a lobbyist for
Missouri First. See Stram v. Miller, 663 S.W.2d 269, 274 (Mo. Ct. App. 1983). He has never
testified to the contrary nor has he presented evidence or case law that shows an agent of
Missouri First could not designate someone as a lobbyist for the organization.7 Under agency
law, that authority extends to designating himself to be the lobbyist.
Because Calzone had the authority to act on behalf of Missouri First as its agent, even
without action from the board of directors, the Commission’s finding is directly in keeping with
the plain meaning definition as used in Mo. Rev. Stat. § 105.470(2)(c). The agent of Missouri
First “choos[e] . . . a person . . . for a certain post,” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 612 (1986), and this application does not “fail to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits.” Reprod. Health
Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1143 (8th
Cir. 2005). Therefore, the Court rejects Calzone’s argument that the use of the term self
Indeed, most decisions to retain a lobbyist are not made by a board of directors. It is agents of the
corporation, such as a CEO or HR Department or Government Relations Department that make such day to day
designation demonstrates that the term “designate” as used in the statute or as found by the
Commission, makes the term vague. Calzone has not demonstrated success on the merits of his
Because Calzone has not demonstrated success on the merits of his claim, facially or as
applied, Calzone’s Motion for a Permanent Injunction, [Doc. 2], is denied.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 26, 2017
Jefferson City, Missouri
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