Federal judge rules that ban on lobbying by elected officials violates free speech

A federal judge on Wednesday put a permanent halt to a lobbying ban approved by voters in 2018, striking down a provision in the state constitutional amendment that bars officeholders from earning money in their private lives as lobbyists.

U.S. District Judge Beth Bloom in Miami sided with Miami-Dade County Commissioner René Garcia and Javier Fernández, the mayor of South Miami, who argued that the amendment language was too broad and poorly defined to comply with federal First Amendment protections on free speech. Bloom had imposed a temporary injunction in February and her ruling on Wednesday makes it permanent.

The amendment was placed on the 2018 ballot by the Florida Constitutional Revision Commission, a citizen-led group that has the power to recommend changes to the Constitution every 20 years.

The sponsor of the amendment, former Senate President Don Gaetz, a Niceville Republican and member of the commission, was quoted as saying that the goal of the amendment was to “nail shut the revolving door” between public office and private lobbying. Voters approved it with 78.9% in favor.

The ruling said Gaetz argued that the purpose of the amendment was to end the practice of officials in public office leaving for lucrative careers lobbying the agencies “they previously headed” or by “serving on the county commission while simultaneously lobbying another local government that has interconnected interests.”

But Bloom concluded that while the advocates of the constitutional amendment attempted to remove any potential “conflict of interest” from officeholders who were receiving income from lobbying firms, she said there had been no “evidence that the problem exists.”

Six-year ban remains in place

Although the judge struck down the lobbying ban for officeholders, she left intact another portion of the law that bans elected and appointed government officials from lobbying the agencies they represented for six years after leaving them.

That provision, which took effect on Jan. 1, led to several state and local elected and appointed officials leaving their posts last year, sometimes before their terms expired, to avoid being snagged by the lobbying ban. Until this year, there was only a two-year ban.

Several elected officials have made a career out of serving in one branch of government part of the time and working as a lobbyist for special interests and clients before county and city commissions, the Legislature and Congress. Lobbying firms also like to hire former elected officials because of the power they wield and relationships they’ve built.

In 2020, the Florida Legislature implemented the constitutional amendment by passing a new law specifying that beginning on Jan. 1, 2023, elected officials could no longer lobby other agencies or governments “on issues of policy, appropriations, and procurement.”

Garcia, a former state senator, is a vice president at New Century Partnership, a consulting firm that he said offers lobbying services. Fernández is a lawyer. Both said the new law prevented them from exercising their right to free speech by lobbying government.

“It’s a huge win, not only for me, but it is a huge win for all of us that are looking to petition our government for those who want to be able to choose who they want to petition their government,’’ Garcia said in an interview.

He said that if the provision had remained in the law, competition for lobbyists would have been restricted and governments would have been denied the ability to obtain the representation they wanted.

Appeal of the ruling is a possibility

The state may appeal the ruling, or the Legislature could come back next year and rewrite the implementing language to avoid violating First Amendment protections.

Kerrie Stillman, executive director of the Florida Commission on Ethics, said Wednesday that they are “reviewing the judge’s order in the case and will be working closely with our legal counsel to determine next steps.”

Bloom ruled that the implementing language approved by the Legislature was “content-based, overbroad restrictions on speech” and violated the First Amendment.

She also noted that that although the state argued that the law was needed to prohibit “quid pro quo” corruption, the state did not prove its case.

“Defendants offer no explanation as to why quid pro quo corruption or its appearance is more likely when a public official lobbies on behalf of another’s interests as opposed to his own,’’ she wrote.

Bloom suggested there were other approaches the state could have used to avoid conflicts of interest.

“Other states have managed to exclude the practice of law from lobbying restrictions without creating a content-based regulation of speech,’’ she wrote.

The judge dismissed other plaintiffs in the case, including former Miami Shores Council Member Crystal Wagar, Palm Beach County Commissioner Mack Bernard and Leon County Commissioner William “Bill” Proctor.

The case was filed against Attorney General Ashley Moody, Chief Financial Officer Jimmy Patronis, and members of the Florida Commission on Ethics.

Representing the plaintiffs were Scott Hiaasen and Kendall Coffey of Coffey Burlington PL, Ben Kuehne and Michael T. Davis of Kuehne Davis Law, P.A., Robert H. Fernandez of the RHF Law Firm LLC, and Ronald L. Book of Ronald L. Book, P.A.

Mary Ellen Klas can be reached at meklas@MiamiHerald.com and @MaryEllenKlas