Appeal from the United States District Court for the Northern District of Florida. (No. 93-CV-40277). Maurice Mithcell Paul, Chief Judge.
Before Edmondson and Dubina, Circuit Judges, and Logan,*fn* Senior Circuit Judge.
EDMONDSON, Circuit Judge:
Florida, like every other state in the union,*fn1 has enacted legislation regulating the conduct of those who "lobby" the state's legislative or executive officials. This appeal requires us to determine whether Chap. 93-121, Laws of Florida, is unconstitutional so far as it requires extensive disclosure by lobbyists and their principals and bars lobbyists from receiving fees contingent on their success in affecting legislative or executive outcomes. We hold that Florida's disclosure requirements survive the facial challenge that Appellant brings today. And, we uphold the ban on contingency-fee lobbying despite whatever doubts recent cases may have cast on its constitutionality. About the contingency fee, we deem ourselves to be bound by some old pronouncements of the Supreme Court; and we lack the power to overrule these pronouncements, even if more recent cases suggest that the Supreme Court might someday reach a result contrary to the one we reach today.
Appellant is an organization of professional lobbyists. The lobbyist-members contend the disclosure and contingency-fee provisions of the statute violate their constitutional rights and assert that they fear imminent reprisal.
The legislation challenged here, Chapter 93-121 of the Laws of Florida, amended the provisions of Fla.Stats. §§ 11.045 and 112.3215. Those provisions define "Lobbying," "Lobbyist," and "Principal." As amended, the sections provide that a lobbyist hired by a principal shall disclose all lobbying expenditures, whether made by the lobbyist or by the principal, and the source of funds for all such expenditures. See id. § 11.045(3)(a). In addition, the statute requires disclosure of expenditures by category, and provides a non-exclusive list of categories: "food and beverages, entertainment, research, communication, media advertising, publications, travel, and lodging." Id. Furthermore, the Florida legislature has provided for an administrative procedure, so that persons in doubt about the precise operation of the statute may, in writing, seek clarification of the intended reach of the statutes. Id. § 11.045(4). As noted, the statute also precludes would-be lobbyists from exchanging their services for an award contingent on legislative outcome. See id. § 11.047.
The League does not argue that the statute has been unconstitutionally applied to penalize its members. And, from the record, nothing indicates that any member of the League has requested an advisory opinion as provided for in the statute. The only contentions are that the statute is overbroad and, therefore, facially invalid in its disclosure provisions and that the contingency-fee ban is unconstitutional in the light of recent Supreme Court precedent. After the parties proffered extensive documentary evidence, the district court granted summary judgment in favor of the state.
If the League is correct that the greater number of this statute's applications are unconstitutional, then its members face an unattractive set of options if they are barred from bringing a facial challenge: refrain from engaging in protected First Amendment activity or risk civil sanction for alleged unethical conduct. Therefore, this action is ripe; and the League has standing to bring it, even though it makes no allegation that its members have actually been sanctioned. See generally Abbott Lab. v. Gardner, 387 U.S. 136, 152-53, 87 S. Ct. 1507, 1517-18, 18 L. Ed. 2d 681 (1967) (holding that action was ripe before prosecution occurred where appellants faced choice between complying with possibly void regulation and risking "serious" civil penalties). Thus, we address the constitutional challenge even in the absence of concrete indicators on how it will be applied.
We do not say that the absence of allegations of prosecutions under the Act is irrelevant to our disposition of this case. Because Appellant has failed to allege a specific unconstitutional application, its challenge must be characterized as a facial--as distinct from as-applied--challenge. This characterization requires Appellant to meet a higher burden because, as the Supreme Court has indicated, "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully...." United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987) (holding Bail Reform Act of 1984 not facially invalid).
Some disagreement has appeared lately among members of the Supreme Court on exactly how high the threshold for facial invalidation should be set. As we understand it, some Justices interpret Supreme Court precedent to indicate that a statute is not facially invalid unless there is no set of circumstances in which it would operate constitutionally; others contend the cases require only that a statute would operate unconstitutionally in most cases. Compare Janklow v. Planned Parenthood, U.S., & n. 1, 116 S. Ct. 1582, 1583 & n. 1, 134 L. Ed. 2d 679 (1996) (Mem.) (Stevens, J.) (asserting that statute is facially invalid if unconstitutional in large fraction of cases) with id. at, 116 S. Ct. at 1586 (Scalia, J., dissenting from the denial of certiorari) (statute is facially invalid only if it would never operate constitutionally).*fn2 But, because we conclude (below) that Appellant has failed to show that the Florida lobbying amendments would operate unconstitutionally often enough to satisfy either test, we can safely conclude that this facial challenge fails.
Within the framework of the facial challenge, we measure the Act against the appropriate First Amendment standard. In defining that standard, we turn first to United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), where the Supreme Court upheld the Federal Regulation of Lobbying Act against a First Amendment challenge. The Court construed that Act as addressing only face-to-face, "direct" contact between lobbyists and officials. (As discussed above, the language of the Florida statute ...