Attorneys for the National Association of Manufacturers (NAM) have filed a brief asserting that those who support the member disclosure law "have put too much emphasis on a half-century-old Supreme Court decision." NAM is challenging a provision of the Honest Leadership and Open Government Act (HLOGA), Section 207, which requires coalitions and associations to reveal members involved in their lobbying.

BNA Money and Politics ($$) reports that "defenders have based their arguments largely on a 1954 Supreme Court ruling, U.S. v. Harriss, which upheld the constitutionality of an earlier disclosure law, the Federal Regulation of Lobbying Act. But the brief filed March 17 on behalf of NAM said the Harriss decision was handed down 'before the current First Amendment standards were formulated,' which limit the government's ability to regulate free political expression."

The NAM brief also argued that Congress's goal in HLOGA was to provide greater transparency for "stealth coalitions"--shadowy groups that usually focus on a single issue and want to obscure who is providing the lobbying clout behind the effort. The agenda of traditional groups like the century-old NAM is already well known, the association indicated. Also, NAM said, the challenged HLOGA provision is a poorly drafted law, which cannot even guarantee it will expose what Congress wanted to shine a light on. The NAM brief suggested, for example, that stealth coalitions can avoid disclosure if they do not have their own lobbyists but instead use lobbyists hired by their members. Even when there is disclosure of members contributing to lobbying efforts, the lobbying issues of interest to these members may not be clear, the NAM brief said. Also, lobbying efforts funded by wealthy individuals, rather than companies, are exempted from the new disclosure requirements, NAM said.

With a vote of 229 to 182, the House passed H.Res. 895 to create a new independent panel, the Office of Congressional Ethics (OCE). The new body will be able to initiate investigations of possible misconduct. Those who opposed creating the panel charged that it would encourage partisan complaints. After a proposal was pulled from the floor twice recently with clear bipartisan doubts, chairman of the ethics task force Representative Michael Capuano (D-MA) made changes to alleviate some concerns. For example, an investigation can only begin when one panel member appointed by the speaker and another by the minority leader agree.

The New York Times reports that "creating a panel of six people of 'exceptional public standing,' the House, for the first time, delegated the authority for regulating behavior in the House to nonlawmakers. Current members of the House, federal employees and anyone who has been a registered lobbyist in the past year would be ineligible."

Overall, the new Office of Congressional Ethics was sought to strengthen the internal ethics review process, and as a response to the voters' view of an unethical Congress. As Majority Leader Steny Hoyer (D-MD) commented; "[During the last election] you know what the people thought about this, the People's House that we love. And that, my friends, is why we're in the majority. Because the people thought changes were necessary in this House. The people asked for change. They asked for accountability."

A measure to create a new Office of Congressional Ethics (OCE), a panel of non-House members that would revise the House ethics process, has been delayed twice in a week. Majority Leader Steny Hoyer (D-MD) has told House Democrats to expect a vote next week, but CQ ($$) suggests that such a plan "might be an overly optimistic goal." Many members oppose turning over House ethics investigations to outsiders. Possibly, if there is no vote on the outside ethics panel next week, it could be held until early April.

Some Democrats support a bipartisan alternative (H Res 1018) instead of the one offered by Representative Michael Capuano (D-MA), Chairman of the Special Task Force on Ethics Enforcement, H Res 895, and another suggestion would expand the current 10 member ethics committee by adding four former House members, two from each party (H Res 1003).

Campaign Legal Center, Democracy 21 and Public Citizen filed an amicus brief in support of the Justice Department to defend a member disclosure requirement in the new lobbying disclosure law. National Association of Manufacturers v. Taylor challenges Section 207 of the Honest Leadership and Open Government Act of 2007 (HLOGA). Under HLOGA, lobbyists and lobbyist employers are required to disclose the names of coalition and association members that contribute more than $5,000 to the lobbying of the organization and "actively participate" in the planning, supervision, or control of the lobbyist's activities.

Their amicus defends the disclosure requirement by citing the 1954 Supreme Court ruling, U.S. v. Harriss that upheld the Federal Regulation of Lobbying Act, maintaining that "it was justified by Congress' interest in gathering information about 'those who for hire attempt to influence legislation or who collect or spend funds for that purpose.' Following this seminal decision, federal and state courts have been almost unanimous in upholding lobbying disclosure statutes based on the state interest in informing the public of the persons and groups that are attempting to sway the legislative process."

Citizens for Responsibility and Ethics in Washington (CREW) also filed a brief supporting the constitutionality of the disclosure requirement.

In The Hill, President and CEO of NAM defends the decision to go to court. "The Honest Leadership and Open Government Act also offers a classic example of legislators aiming at one target — 'stealth lobbying campaigns' — and hitting another. Does anyone really consider the NAM a 'stealth organization'? Everyone knows who we are and which industries we represent."