Florida’s Constitutional Lobbying Bans Remain Effective for the Moment: Current Status of Constitutional Lobbying Restrictions

In 2018 Florida voters overwhelming approved two new constitutional restrictions designed to curtail the ability of public officers to engage in lobbying activities both while in office and for six years after leaving their public position. In 2023 and 2024 there have been a barrage of legal determinations regarding these new constitutional requirements contained in Article II, s. 8(f), of the Florida Constitution, leaving public servants to wonder where are we now?

In rulings issued on August 9, 2023, a federal judge struck down the In-Office portions of the lobbying restrictions contained in Article II, s. 8(f)(2) of the Florida Constitution, via the issuance of a permanent injunction in Garcia v. Stillman, Case No. 22-CV-24156, 20235095540 (S.D. Fla. August 9, 2023), finding that the restriction was an unconstitutional abridgement of free speech. However, Judge Bloom did not block the enforcement of the six-year Post-Office Holding Lobbying Restrictions portion of the constitutional amendment contained in Art. II, s. 8(f)(3), of the Florida Constitution, which prohibit “public officers” (including all state lawmakers and elected officials, City Councilmembers, County Commissioners, School Board members, and others) from lobbying for compensation “on issues of policy, appropriations, or procurement for a period of six years” after leaving their public office or position. The Post-Office Holding Lobbying Restrictions further provide in Art. II, s. 8(f)(3)a.-c., the manner in which the post-office restrictions would apply to different types of public offices—detail which was not present in the In-Office Lobbying Restrictions. In her ruling Judge Bloom noted that the “Post-Office Restrictions are narrowly tailored based on the public official’s office” indicating that the 6-year Post-Office Holding Lobbying Restrictions may prevail in future constitutional challenges.

In October 2023 the Commission applied this ruling as the basis of advisory opinion CEO 23-6 issued to a Brevard County Commissioner finding that the member, who is a non-attorney employee of a law firm, could engage in lobbying on behalf of municipal clients while serving as a county commissioner.
During this same period the Commission appealed the ruling to the 11th U.S. Circuit Court of Appeals. In addition, the Office of Solicitor General filed a motion requesting a stay of the ruling pending the resolution of the underlying appeal.

On November 30, 2023, a three-judge panel from the 11th U.S. Circuit Court of Appeals granted the Office of Solicitor General’s motion finding that the In-Office Lobbying Restrictions could remain enforceable during the period when the appeal is proceeding through the judicial process. This means that as of November 30, and until such time that a ruling on the appeal before the 11th Circuit is issued, the constitutional In-Office Lobbying restrictions are effective and enforceable by the Florida Commission on Ethics. Further, the constitutional six-year Post-Office-Holding Lobbying restrictions remain in effect regardless of the outcome of the appeal. Thus, all current and former public officers should be cognizant of, and refrain from engaging in, any activities that constitute “lobbying” in contravention of the constitutional In-Office or Post-Officeholding Lobbying bans.

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