Florida Ethics Update: Federal Judge Blocks Part of Ban Prohibiting Public Officers from Lobbying While in Office.
Image from the State Library and Archives of Florida
By Caroline Klancke, Esq., Florida Ethics Institute.
U.S. District Judge Beth Bloom issued a preliminary injunction against part of a Florida lobbying ban, which became effective on December 31, 2022, that prohibits “public officers” from lobbying for pay during their term of office on issues of “policy, appropriations, or procurement” before the federal government, the legislature, any state government body or agency, or any political subdivision of the state.
The judge let stand the other portion of the constitutional anti-lobbying ban, which prohibits public officers from lobbying for a period of six years after leaving public office.
The lobbying prohibitions are contained in a recent constitutional amendment to Art. II, s. 8, of the Florida Constitution, which was overwhelming approved by Florida voters in 2018 and enacted through the passage of laws adopted by the Legislature in 2022. The anti-lobbying amendment applies expansively to all “public officers” which is defined to include not only statewide elected officers and executive branch agency heads but also local officials including county commissioners, city council members, mayors, school board members, school superintendents, and others.
Both portions of the lobbying ban were challenged in a lawsuit brought by county commissioners and a mayor alleging that the anti-lobbying amendment and implementing statutes violated their “core First Amendment rights of free speech, freedom of association, and the right to petition the government for redress of grievances.” Attorneys for the Commission on Ethics arguing in favor of the constitutionality of the anti-lobbying amendment stated that the restrictions serve to “nail shut the ‘revolving door’ between public office and private lobbying,” and to “prevent quid pro quo corruption.” With respect to the portions of the amendment prohibiting lobbying while in office, Commission attorneys argued that “[a]llowing a currently serving public officer to receive compensation for lobbying for the very interests he is tasked with governing invites quid pro quo corruption.”
However, in issuing a preliminary injunction regarding the portion of the ban prohibiting lobbying while in office, the judge reasoned that the in-office restrictions “are unlikely to survive because they are overbroad, underinclusive, and they inexplicably ‘single out’ the three issues of policy, appropriations, and procurement, ‘for differential treatment.’” The judge further opined that as such “content-based restrictions of speech” are presumptively unconstitutional—the challengers were likely to succeed on the merits of their challenge to the in-office lobbying restrictions at trial.
The trial on the matter is set for August. The injunction on the in-office lobbying restriction remains in effect during the pendency of the lawsuit and until further order of the court.