What constitutional concerns did the Idaho Attorney General flag for an initiative that would have lowered Idaho campaign-contribution caps, banned contributions from state contractors, criminalized lobbyist gifts above $50, and imposed a one-year post-employment lobbying ban on former public officials?

Subject

Certificate of Review under Idaho Code § 34-1809 of a proposed initiative submitted by a former state legislator that would have made eight changes to the Idaho Sunshine Law, the Bribery and Corrupt Practices Act, and the Ethics in Government Act, including new definitions for "person doing public business," lower campaign-contribution limits, expanded reporting requirements, a contractor-contribution ban, increased fines and felony liability for some violations, criminal restrictions on lobbyist gifts, and a one-year revolving-door restriction on former public officials.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The U.S. Supreme Court has continued to develop campaign-finance First Amendment doctrine after this opinion was written. Treat this page as historical context describing the 2016 advisory review, not as a current statement of constitutional or Idaho law.

Plain-English summary

The proposed initiative had eight numbered sections. The AG's review walked through them and grouped the issues by First Amendment risk.

Sections 1, 4, and 6 (definitions and electronic filing). The AG had no objections to the new definitions of "person doing public business," "principal of a person doing public business," "gift," and "lobbyist," or to the requirement that Sunshine Law reports be submitted electronically.

Section 2 (lower contribution limits and contractor ban). The reduction of legislative-candidate caps from $1,000 to $500 and statewide caps from $5,000 to $2,000 was characterized as "in a gray area." The U.S. Supreme Court has never directly answered how low contribution limits may go before they violate the First Amendment. Lower-court decisions split: the Sixth Circuit upheld $300 city-wide and $100 ward limits in Frank v. City of Akron, 290 F.3d 813 (6th Cir. 2002); a federal district court in Colorado struck down $500 statewide and $100 legislative limits in Citizens for Responsible Government v. Buckley, 60 F.Supp.2d 1066 (D. Colo. 1999); a federal district court in Florida upheld $500 candidate caps in Florida Right to Life v. Mortham. The AG concluded the $500/$2,000 limits were "probably constitutional, but ... in a gray zone."

The complete ban on contributions by people doing public business presented a separate issue. The D.C. Circuit upheld a federal ban on contractor contributions in Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 895 (2016), and the Ninth Circuit upheld a similar Hawaii ban in Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015). Those cases would support the basic structure, but Idaho's eight-category definition of "principals" (officers, 5%-or-more owners, employees with discretionary spending authority, lobbyists, lobbyist employees, spouses or children of any of the above, and PACs they controlled) was broad enough that some categories would likely face successful as-applied First Amendment challenges. The AG's example: an adult child of someone whose mother or father lobbies ten hours a week for an unrelated client would technically fall within the ban, and as applied to that child the ban would probably fall.

Section 3 (employer/occupation reporting). Requiring reports of an occupation and employer for any contributor giving $50 or more was probably constitutional, citing Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2012), and Frank v. City of Akron, 290 F.3d at 818-819, though no recent reported decision had passed on the specific $50 threshold for employer reporting.

Section 5 (increased penalties). Increased fines (individual maximum of $2,500, others $10,000; willful-violation maximums of $5,000 and $20,000; new felony for knowing violations involving $25,000 or more in unreported activity), plus "treble damages" tied to the unreported amount, raised both First Amendment and Eighth Amendment (excessive-fines) concerns. Some level of increased fines was clearly permissible (citing the Combat Veterans precedent upholding fines of several thousand dollars for tardy election-sensitive reports). But applying the maximum fine, or treble damages, to a tardy report involving a $50 contribution would likely be unconstitutionally excessive as applied. The AG concluded the section should withstand a facial challenge while leaving as-applied challenges available.

Section 7 (criminal lobbyist-gift restriction). Prohibiting lobbyists from giving more than $50 in aggregate gifts to a single legislator or legislative employee in a calendar year, and prohibiting acceptance of those gifts, was likely constitutional. The opinion noted the absence of case law forbidding such gift caps, and the existence of Massachusetts-court enforcement of similar restrictions in Scaccia v. State Ethics Comm'n, 727 N.E.2d 824 (Mass. 2000).

Section 8 (revolving-door restriction). Adding a new Idaho Code § 74-407 to make it a felony for any state public official to receive compensation for lobbying within a year after leaving office was within an established and generally constitutional category, sometimes called "revolving door" laws. Brinkman v. Budish, 692 F.Supp.2d 855 (S.D. Ohio 2010) (post-Citizens United), upheld Ohio's one-year restriction; Ortiz v. Taxation & Revenue Dep't, Motor Vehicle Div., 954 P.2d 109 (N.M. Ct. App. 1998), upheld New Mexico's. The AG flagged Shaulis v. Pennsylvania State Ethics Com'n, 833 A.2d 123 (Pa. 2003), as a counterexample where Pennsylvania's revolving-door statute was invalidated as it applied to attorneys' practice of law. Even if a similar carve-out were needed for Idaho attorneys, they would still be constrained by Idaho Rule of Professional Conduct 1.11.

Form recommendations. The initiative was in proper legislative format showing strikethroughs and underlines, with one exception: it was unnecessary to underline the proposed new Idaho Code § 74-407 because that section did not yet exist. The capitalization conventions were inconsistent with the Legislative Services Office style but would not affect the legal substance.

Common questions

Q: What is the Idaho Sunshine Law?

The campaign-finance and lobbying-disclosure scheme in Title 67, chapter 66 of the Idaho Code. It governs candidate and political-committee reporting, contribution limits, and lobbyist registration.

Q: Do the contribution limits described here still apply?

This 2016 review described an initiative that had not yet been enacted. The applicable contribution limits in Idaho today are whatever Idaho Code § 67-6610A says today. Verify the current statute.

Q: Did the U.S. Supreme Court ever resolve the "how low can contribution limits go" question after this opinion?

The opinion noted the question was left open by Buckley v. Valeo. Subsequent doctrinal developments have continued to focus on the corruption interest as the only legitimate basis for contribution limits, but a definitive lowest-allowed-limit threshold remains unsettled.

Q: Are state-contractor contribution bans common?

Yes. The federal ban (52 U.S.C. § 30119) was upheld in Wagner v. FEC. Hawaii, Connecticut, New Jersey, Illinois, and other states have enacted similar bans. The AG's analysis acknowledged the federal precedent but flagged that Idaho's broad eight-category definition of "principals" might over-reach in some applications.

Q: What is a "revolving door" statute?

A law that bars former public officials from lobbying or working for entities they regulated for a defined "cooling-off" period after leaving public service. The goal is to prevent officials from cashing in on their inside knowledge and influence. One-year periods are common and have been broadly upheld.

Background and statutory framework

Idaho Code § 34-1809 sets the Certificate of Review framework. The Idaho Sunshine Law sits at Idaho Code §§ 67-6601 to 67-6630. The Bribery and Corrupt Practices Act is in Idaho Code §§ 18-1351 to 18-1362. The Ethics in Government Act is in Idaho Code title 74.

The opinion's First Amendment analysis was anchored on Buckley v. Valeo, 424 U.S. 1 (1976) (contributions can be limited to prevent corruption, but limits cannot be set so low as to choke off political speech), and Citizens United v. FEC, 558 U.S. 310 (2010) (First Amendment protects political speech of corporations as well as individuals, and the only legitimate basis for restricting campaign finance is preventing actual or apparent corruption).

The contractor-contribution analysis tracks Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), and Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015). The increased-penalties analysis tracks Combat Veterans, 795 F.3d 151. The reporting threshold analysis tracks Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2012).

Citations

Idaho Code:
- § 18-1351; § 18-1356
- § 34-1809
- § 67-6002; § 67-6610A; § 67-6612; § 67-6623; § 67-6625
- Proposed § 74-407

Federal Cases:
- Citizens United v. FEC, 558 U.S. 310 (2010)
- Buckley v. Valeo, 424 U.S. 1 (1976)
- Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 895 (2016)
- Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015)
- Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2012)
- Minn. State Ethical Practices Bd. v. Nat'l Rifle Ass'n of Am., 761 F.2d 509 (8th Cir. 1985)
- Combat Veterans for Cong. Political Action Comm. v. FEC, 983 F.Supp.2d 1 (D.D.C. 2013), aff'd 795 F.3d 151 (D.C. Cir. 2015)
- Frank v. City of Akron, 290 F.3d 813 (6th Cir. 2002)
- Encourage v. Dilger, 2010 WL 3620238 (E.D. Ky. 2010)
- Citizens for Responsible Gov't State PAC v. Buckley, 60 F.Supp.2d 1066 (D. Colo. 1999)
- Florida Right to Life, Inc. v. Mortham, 1998 WL 1735137 (M.D. Fla. 1998)
- Brinkman v. Budish, 692 F.Supp.2d 855 (S.D. Ohio 2010)

State Cases:
- Scaccia v. State Ethics Comm'n, 727 N.E.2d 824 (Mass. 2000)
- Ortiz v. Taxation & Revenue Dep't, Motor Vehicle Div., 954 P.2d 109 (N.M. Ct. App. 1998)
- Shaulis v. Pennsylvania State Ethics Com'n, 833 A.2d 123 (Pa. 2003)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C03142016.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

March 14, 2016

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
RE:

Certificate of Review
Proposed Initiative Amending the Idaho Sunshine Law to Limit Camoaian
Contributions by Persons Doing Public Business, to Amend Statutes Related
to Bribery, and to Add a New Statute for Post-Employment Restrictions on
Public Officials

Dear Secretary of State Denney:
An initiative petition was filed with your office on February 16, 2016. Pursuant to
Idaho Code § 34-1809, this office has reviewed the petition and prepared the following
advisory comments. Given the strict statutory timeframe within which this office must
review the petition, our review can only isolate areas of concern and cannot provide indepth analysis of each issue that may present problems. Further, under the review statute,
the Attorney General's recommendations are "advisory only." The petitioners are free to
"accept them in whole or in part." The opinions expressed in this review are only those that
may affect the legality of the initiative. This office offers no opinion with regard to the policy
issues raised by the proposed initiative, nor the potential revenue impact to the state
budget.
BALLOT TITLE

Following the filing of the proposed initiative, this office will prepare short and long
ballot titles. The ballot titles should impartially and succinctly state the purpose of the
measure without being argumentative and without creating prejudice for or against the
measure. While our office prepares titles for the initiative, petitioners may submit proposed
titles for consideration. Any proposed titles should be consistent with the standard set forth
above.

P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 21 O

Secretary of State Denney
March 14, 2016
Page 2 of 7

MATTER OF FORM

The Proposed Initiative was submitted by a former member of the Idaho Legislature.
Unsurprisingly, it is in proper legislative format for showing amendments to statute by
striking out deleted words and underlining added words, with the exception of Section 8. It
is not necessary to underline Section S's newly proposed Idaho Code section because it is
not amending an existing section of the Idaho Code. The Proposed Initiative's capitalization
conventions may differ from those used by Legislative Services Office, but in the end that is
of little consequence.
SUMMARY OF INITIATIVE AND MATTERS OF SUBSTANTIVE IMPORT

The Proposed Initiative does the following:
Section 1 amends Idaho Code § 67-6002, the definitional section of the Sunshine
Law, to add two new definitions - "Person doing public business" and "Principal of a
person doing public business" - that contain specific reference to a statutory
definition of "Contractor" in the Department of Administration's statutes for
procurement or purchasing.
Section 2 amends Idaho Code § 67-661 OA of the Sunshine Law to reduce the cap
on campaign contributions to a candidate for State Legislature from $1,000 to $500
and the cap on campaign contributions to a candidate for statewide office from
$5,000 to $2,000 and to prohibit persons doing public business from contributing to
candidates or political committees.
Section 3 amends Idaho Code § 67-6612 of the Sunshine Law to require that
Sunshine Law reports filed by political treasurers for candidates and political
committees must list the full name and address of the employer and the occupation
of each person who contributed more than $50 to the candidate or political treasurer.
Section 4 amends Idaho Code § 67-6623 of the Sunshine Law to require Sunshine
Law reports to be submitted in electronic, machine-readable form, to require the
Secretary of State to provide necessary software for such filings upon request, and
to require the Secretary of State to post such reports within 24 hours of receipt.
Section 5 amends Idaho Code§ 67-6625 of the Sunshine Law:
(a) to increase the maximum fine for various violations of the Sunshine Law
for individuals from $250 to $2,500 or up to twice the amount of the
contribution or expenditure involved, and for persons other than individuals
from $2,500 to $10,000 or twice the amount of the contribution or expenditure
involved;
(b) to add a new provision for fines for willful or knowing violations of the Sunshine Law for individuals up to a maximum of $5,000 or three times the

Secretary of State Denney
March 14, 2016
Page 3 of 7

amount of the contribution or expenditure involved, and for persons other
than individuals of up to $20,000 or three times the amount of the contribution
or expenditure involved; and
(c) to add a subsection (c) to make knowing or willful violation of certain Sunshine Law requirements regarding receiving, giving or reporting of
contributions or expenditures aggregating $25,000 or more in a calendar year
a felony.
Section 6 amends Idaho Code § 18-1351, the definitional section of the Bribery and
Corrupt Practices Act, to add definitions of "Gift" and "Lobbyist."
Section 7 amends Idaho Code § 18-1356 of the Bribery and Corrupt Practices Act to
prohibit any lobbyist from giving to and any legislator or employee of the Legislature
soliciting, accepting or agreeing to accept from any one lobbyist any gifts
aggregating more than $50 in value in a calendar year and makes other changes.
Section 8 enacts a new Idaho Code § 74-407 to be added to the Ethics in
Government Act that makes it a felony for any public official of the state to receive
compensation for lobbying within a year after leaving office.
This office has no comments on Section 1, which adds two straightforward
definitions to the Sunshine Law; Section 4, which requires electronic Sunshine Law
reporting to the Secretary of State; or to Section 6, which adds two straightforward
definitions to the Bribery and Corrupt Practices Act. This office comments upon the
remaining sections as follows.
Section 2

Section 2 reduces the maximum campaign contribution limit by an individual,
corporation, political committee, or other recognized entity to a legislative candidate or to
the candidate's committee for a primary election and for a general election from $1,000 to
$500. It likewise reduces contribution limits for candidates for statewide office from $5,000
to $2,500. It prohibits all contributions from a person doing public business or the principal
of a person doing public business or who did public business in the preceding two years.
Section 1's amendments defined those doing public business as those with a contract that
could exceed $250,000 in payments to the contractor.
Section 2's limits on campaign contributions are likely to be constitutional, but may
be in a gray area in which recent case law has not addressed the exact contributions limits.
Unlike independent expenditures, which cannot be limited, Citizens United v. Fed. Election
Comm'n, 558 U.S. 310, 130 S. Ct. 876, 175 L.Ed.2d 753 (2010), contributions to a
candidate can be limited in order to prevent the actuality of or appearance of corruption, 558
U.S. at 345-346, citing Buckley v. Valeo, 424 U.S. 1, 23-25, 96 S. Ct. 612, 636-38, 46
L.Ed.2d 659 (1976). The issue left open by Buckley is how low a campaign contribution
limit may go before it is unconstitutionally low. The United States Supreme Court has not

Secretary of State Denney
March 14, 2016
Page 4 of 7

directly addressed that question and one is left to fill in the gaps by analyzing decisions of
the lower courts. This is how several lower courts have drawn the line:
In Foster v. Dilger, 2010 WL 3620238 (E.D.Ky. 2010), the Federal District Court of
Kentucky entered a preliminary injunction against enforcing a statute that limited
contributions to candidates for school board election to $100. In Frank v. City of Akron, 290
F.3d 813, 817 (6th Cir. 2002), cert. denied, 537 U.S. 1160, 123 S. Ct 968, 154 L.Ed.2d 894
(2003), the Sixth Circuit upheld a $300 contribution limit to candidates for citywide office and
$100 to candidates running for city office, but not citywide. In Citizens for Responsible
Gov't State Political Action Comm. v. Buckley, 60 F.Supp.2d 1066, 1086-1087 (D. Colo.
1999), reversed in part on other grounds, 236 F.3d 1174 (10th Cir. 2000), the Federal
District Court of Colorado struck down $500 limits on contributions to candidates for
statewide office and $100 limits on contributions for candidates for state legislature. In
Florida Right to Life, Inc. v. Mortham, 1998 WL 1735137 (M.D.Fla. 1998), the Federal
District Court of Florida upheld $500 limits to candidates (which on its face seemed to apply
to candidates for legislative and statewide office) for the primary election and $500 for the
general election. Given these and other decisions, none of which were reviewed by the
United States Supreme Court, Section 2's limits are probably constitutional, but they are
nevertheless in a gray zone of some uncertainty as inflation erodes the value of limits that
were once held to be constitutional.
Section 2's complete ban on contributions by people doing public business requires
a separate analysis. The District of Columbia Court of Appeals recently upheld against First
Amendment challenges federal law prohibitions against U.S. Government contractors
contributing to candidates for federal office. Wagner v. Fed. Election Comm'n, 793 F.3d 1,
22-26 (D.C. Cir. 2015), cert. denied - U.S. -, 136 S. Ct. 895 (2016). The Ninth Circuit
recently upheld a similar prohibition under Hawai'ian law. Yamada v. Snipes, 786 F.3d
1182, 1205-1207 (9th Cir. 2015). These decisions do not address the eight definitions of
"principals" of persons doing public business found in Section 1, 1 so they do not stand for
the proposition that there is case law upholding the prohibition of each of these categories
of "principal" contributing to a candidate, but they would almost certainly stand for the
1

Section 1's amendment to Idaho Code § 67-6002 defines eight categories of principals of a
person doing public business that persons take corporate or other form other than an individual:
(1) any individual who is a corporate officer or member of the board of directors;
(2) any person who has an ownership interest of five percent or more;
(3) any person with a voting interest of five percent or more;
(4) any individual who is an employee with managerial or discretionary responsibilities with
respect to the receipt of [or] expenditure of State funds;
(5) any lobbyist employed by such corporation, firm, partnership or limited liability company;
(6) any employee or contractor of such lobbyist engaged in lobbying on behalf of or for the
benefit of the same employer;
(7) the spouse or child of an individual described in any of the preceding subparagraphs of
this paragraph; and
(8) a political committee established, maintained or controlled by any person or individual
described in any other subparagraph of this paragraph.
Subsection (4) quoted above may contain an error in form indicated by the bracketed substitution of "or"
for "of."

Secretary of State Denney
March 14, 2016
Page 5 of 7

proposition that the prohibition could be applied to some of these statutorily defined
principals. It may take individual case determinations to decide which of the eight
definitions of "principal or a person doing public business" may be constitutionally prohibited
from donating to a candidate. For example, a court might conclude that the adult son or
daughter of an individual who works ten hours a week in the office of a lobbyist for the
person doing public business, but whose mother or father lobbies exclusively on issues
unrelated to public business during those ten hours a week, while literally falling within the
scope of subsections (6)'s and (7)'s reach, is too far attenuated from the person doing
public business that the First Amendment would prohibit applying this section to that
person.
Section 3

Section 3 requires reporting the occupation of each campaign contributor who gives
$50 or more and the contributor's employer's full name. Family PAC v. McKenna, 685 F.3d
800, 803, 805-811 (9th Cir. 2012), upheld a Washington statute that required "a political
committee to report the name and address of each person contributing more than $25 to the
committee" and "the occupation and employer of each person contributing more than $100
to the committee." Frank, 290 F.3d at 818-819, upheld a $25 reporting requirement for
contributors to municipal campaigns and $50 requirement for reporting contributors'
principal employer. Minn. State Ethical Practices Bd. v. Nat'I Rifle Ass'n of Am., 761 F.2d
509, 512 (8th Cir. 1985), upheld employer reporting requirements for those contributing $50
or more for a legislative race and $100 or more for a statewide race. Thus, Section 3's
reporting requirements are probably constitutional, although there are no recent reported
decisions on whether $50 is too low to trigger an employer reporting obligation.
Section 5

Section 5 increases the maximum penalty for Sunshine Law reporting requirements
tenfold or more and allows "treble damages" as measured by the amount of the unreported
contribution or expenditure. This section implicates the Eighth Amendment (excessive
fines) as well as the First Amendment. In Combat Veterans for Cong. Political Action
Comm. v. Fed. Election Comm'n, 983 F.Supp.2d 1, 8, 18-20 (D.D.C. 2013), aff'd 795 F.3d
151 (D.C. Cir. 2015), the District Court for the District of Columbia affirmed against Eighth
Amendment and First Amendment challenges to administrative penalties of $4,400 for a
tardy election sensitive report with $75,000-$99,999.99 of activity, $3,300 for another tardy
election sensitive report with $50,000-$74,999.99 of activity, and $990 for a third tardy nonelection sensitive report with $25,000-$49,999.99 of activity. "Denial of Combat Veteran's
claims requires no explanation beyond what the district court provided." Combat Veterans
for Cong. Political Action Comm. v. Fed. Election Comm'n, 795 F.3d 151, 159 (D.C. Cir.
2015). Thus, some level of fines or penalties may be constitutionally imposed for failing to
report or untimely reporting of campaign contributions or expenditures.
I did not find case law regarding the facial constitutionality of maximum fines of
$2,500 for individuals' violations, $10,000 for others' violations, $5,000 for individuals'
knowing violations, and $20,000 for others' knowing violations, or "treble damages" for all of

Secretary of State Denney
March 14, 2016
Page 6 of 7

these categories as measured by "the amount of contribution or expenditure involved in
such violation." I suspect that Idaho courts would hold that a fine in these ranges would be
unconstitutional as applied to relatively small unreported contributions or expenditures and
could find "treble damages" also to be unconstitutional as applied or per se. However, the
possibility of a successful as-applied challenge to imposition of the maximum fines for a
relatively minor reporting violation does not make the statute unconstitutional per se; on the
contrary, given the case law cited in the previous paragraph, this section should withstand a
facial constitutional challenge. On the other hand, imposition of the maximum fine for tardy
reporting of a $50 contribution would likely be an excessive fine.
Section 7

This section does not amend the Sunshine Law; it amends the Bribery and
Corruption Chapter of the Criminal Code. It prohibits lobbyists from giving and legislators
and employees of the Legislature from accepting gifts of more than $50 in aggregate value
from any one lobbyist in any one calendar year. Section 6 in turn defines "gifts" to include
"any item, good or service having monetary value including without limitation any loan,
hospitality, discount, forbearance, services, training, transportation, food and beverage, [or]
lodging and meals."
There is abundant case regarding reporting of gifts to public officials, but much less
concerning criminalizing gifts to public officials, perhaps because laws on the former are
more widespread than laws on the latter. In Scaccia v. State Ethics Comm'n, 727 N.E.2d
824 (Mass. 2000), the Supreme Judicial Court of Massachusetts reviewed the imposition of
an administrative fine for a legislator accused, among other things, of accepting and not
reporting gifts from lobbyists exceeding the Massachusetts statute's $100 maximum.
Scaccia affirmed the findings and civil fine under the gift statute, noting that the legislator
involved had invoked his Fifth Amendment right not to testify in the administrative
proceeding. From this I glean that there does not seem to be case law prohibiting a
legislator from accepting gifts from lobbyists above a certain amount; otherwise, the Court
or a party would have found that case law. I could not find any such case law either. I
therefore conclude that it is very likely that Section Ts prohibition on a legislator's or
legislative employee from accepting gifts from a lobbyist exceeding $50 in a calendar year
is constitutional, even if there are criminal sanctions rather than civil.
Section 8

As for the constitutionality of prohibiting former public officials from lobbying for
compensation for a year after leaving office, there is abundant case law that this prohibition
is generally constitutional. Statutes like this proposed new section are often known as
"revolving door" statutes because they seek to prevent public officials from immediately
"cashing in" on their knowledge and influence as a public official by going through the
"revolving door" from regulator to regulated without a "cooling off' period in between.

Secretary of State Denney
March 14, 2016
Page 7 of 7

In Brinkman v. Budish, 692 F.Supp.2d 855, 862-863, 864 (S.D. Ohio 2010), the
Federal District Court for Ohio recognized, in its post-Citizens United analysis, that
preventing corruption or the appearance of corruption served a compelling state interest
and justified Ohio's one-year, anti-revolving door prohibition against lobbying for
compensation after leaving the Ohio Legislature ("Defendants have established compelling
interests justifying O.R.C. § 102.03(A)(4) as applied to compensated lobbying"), although
the Court invalidated a ban on uncompensated lobbying under the First Amendment. In
Ortiz v. Taxation & Revenue Dep't. Motor Vehicle Div., 954 P.2d 109, 111-114 (N .M. Ct.
App. 1998), the New Mexico Court of Appeals upheld New Mexico's revolving door statute
and cited cases from Florida, Louisiana, New York, and Rhode Island that had upheld
similar measures. But see Shaulis v. Pennsylvania State Ethics Com'n, 833 A.2d 123, 130132 (Pa. 2003) (revolving door statute was unconstitutional to the extent that it infringed on
Pennsylvania Supreme Court's authority to regulate practice of law). 2
CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style,
and matters of substantive import. The recommendations set forth above have been
communicated to the Petitioner via a copy of this Certification of Review, deposited in the
U.S. Mail to Holli Woodings, 1148 Santa Maria Dr., Boise, Idaho 83712 .

LAWRENCE G. WASDEN
Attorney General
Analysis by:

Michael S. Gilmore
Deputy Attorney General

2

If the proposed revolving door statute were held not to apply to Idaho attorneys in the practice of
law, the attorneys would still be subject to the Idaho Rules of Professional Conduct, which include Rule
1.11: Special Conflicts of Interest for Former and Current Government Officers and Employees.