January 2015 Comment

Influencing State Legislation
By Claire Silverman
This is an updated, revised version of a 1989 legal comment written by former Legal Counsel James Schneider.
One of the League’s most important functions is lobbying on behalf of municipal interests. Each legislative session, the League develops a legislative agenda. In addition to developing and pursuing our own legislative goals, League staff monitors all proposed legislation, and regularly updates members regarding the legislature’s activities and how proposed legislation will affect municipalities. As part of our lobbying efforts we encourage members to contact their legislators on important issues that will affect their municipal constituents. We are clearly more effective when our members are actively engaged.
With the beginning of a new legislative session, local officials may find themselves wondering whether the statutory provisions that apply to lobbyists, persons who seek to influence state legislation, apply to them and whether there are any limitations on their ability to contact their legislators on matters of concern. This legal comment aims to address those questions.
As a preliminary matter, both the United States and Wisconsin constitutions protect the right of individuals to petition their governments. The U.S. Constitution’s first amendment prohibits congress from making any law “abridging the freedom of speech … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Similarly, the Wisconsin constitution specifies that “[t]he right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.” Wis. Const., Art. 1, Sec. 4. Local officials, like others, are guaranteed the right to petition the government.
Lobbying is recognized as a means of petitioning the government, and, therefore, is protected by the Wisconsin constitution, as well as the first amendment to the U.S. constitution. 67 Op. Att’y Gen. 85 (1978). Even though the right to “lobby” or otherwise attempt to influence state legislation is a fundamental right, that activity may be regulated where a compelling state interest exists. The legislature has declared that in order to preserve and maintain the integrity of the governmental decision-making process, “it is necessary to regulate and publicly disclose the identity, expenditures and activities of persons who hire others or are hired to engage in efforts to influence actions of the legislative and executive branches.” Wis. Stat. sec. 13.61. Thus, the legislature has enacted subchapter III of chapter 13 of the state statutes (secs. 13.61 - 13.75) to regulate lobby activities.
Local officials are generally exempt from the registration, licensing, authorization and reporting requirements of the state lobby law. Specifically, sec. 13.621(3) provides that “an elective state official, local official, tribal official, or employee of the legislature is not subject to s. 13.63, 13.64, 13.65, 13.68, or 13.695 when acting in an official capacity.” (Emphasis added). “Local official” is defined as “any person who holds a local office as defined in s. 5.02 (9) or has been elected to a local office but has not yet taken office, and every person who is employed by a county, city, town, village or school district who is not employed principally to influence legislative or administrative action.” Wis. Stat. sec. 13.62(11m). Section 5.02(9) defines a “local office” as “any elective office other than a state or national office.” A person who is appointed to fill a vacant local office is a local official. Sec. 13.62(11m). A volunteer or other representative of a principal who lobbies on that principal’s behalf and who is either not compensated, or is compensated for no more than actual and reasonable lobby expenses, is not considered a “lobbyist” as that term is defined in sec. 13.62(11).
As a result of the local official exemption, such officials are free to attempt to influence state legislative and administrative action on behalf of their own municipalities without complying with most, if not all, of the provisions of the state lobby law. It should be emphasized, however, that this exemption from the lobby law applies only when a municipal official is acting in an official capacity. Any lobbying which is not in that official capacity would not be covered by that exception.
In some instances, local officials will seek to influence legislation for reasons unrelated to their official capacity. These activities may also be outside of the lobby law’s regulations. Section 13.621(6) provides that nothing in secs. 13.61 to 13.695 may be applied to or interfere with the right of any individual to engage in lobbying “[s]olely on his or her own behalf; or [b]y communicating solely with a legislator who represents the senate or assembly district in which the individual resides, whether or not such communication is made on behalf of the individual or on behalf of another person.” Thus, a local government official who attempts to lobby on his or her own behalf or solely with a legislator representing the senate or assembly district within which he or she resides would not have to register as a lobbyist and report expenditures under the lobby law.
With the exception of some of the largest municipalities, most municipalities do not hire their own lobbyist. The exemptions within sec. 13.621(3) and (6) for local officials acting in an official capacity and for individuals acting on their own behalf and contacting their own legislators will usually provide local officials with sufficient ability to influence legislation without the necessity of registering as lobbyists and complying with the state lobby law. Additionally, the League’s registered lobbyists work hard to promote the interests of cities and villages before the legislature. Nonetheless, with respect to specific issues, local government officials sometimes find it desirable to secure the services of a person to lobby on behalf of the municipality.
When a municipality enters into this sort of activity, local officials should become familiar with the lobby law requirements for registration of both principals and lobbyists and the need to prepare periodic reports on lobby activities. In such cases it is also important to be aware of the prohibited practices under sec. 13.625 which preclude a lobbyist from furnishing anything of value to any officer or employee of the state or to any elected state official or candidate for an elective state office. In addition, that section specifically prohibits any lobbyist from contracting to receive or to receive compensation which is dependent in any manner upon the success or failure of any legislative or administrative action. Wis. Stat. sec. 13.625(1)(b) and (d), Stats.
As a final point, local officials should be aware that legislators have certain limits on their ability to act on pending legislation. Since Legislators are elected to freely exercise their judgment in acting on measures before them in the way which they feel best serves their constituents, the law prohibits things like logrolling and executive favor and makes violations Class I felonies. Section 13.05 prohibits members of the legislature from voting on a measure in consideration of another legislator voting a particular way on any other measure and sec. 13.06 states that no legislator may vote on a matter before him or her in consideration of the governor’s action on any other measure which might be before the governor, or in consideration or upon condition that the governor nominate, appoint or remove any person from any office or position.
In sum, with a new legislative session starting, we want to encourage League members to actively participate in our lobbying efforts and understand that in their official capacity and as volunteers who are compensated for no more than actual and reasonable lobby expenses, they are free to attempt to influence state legislation on behalf of the League or their own city or village without the necessity of registering as lobbyists or complying with the provisions of the state lobby law. They may also act on their own behalf or in communications on any subject with their own legislators. However, the means chosen for attempting to influence legislation should be straightforward, aboveboard and free of any impropriety. Local officials who have questions regarding lobbying of state officials should consult their municipal attorneys, or contact the League office or Government Accountability Board for guidance.
Powers of Municipalities 824A R1
Officers 771