Rockne Miller, also known as Rocky; John LaVanchy; Presidio Environmental, LLC v. Elizabeth L. Ziegler

United States Court of Appeals
For the Eighth Circuit
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No. 23-1902
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Rockne Miller, also known as Rocky; John LaVanchy; Presidio Environmental,
LLC
Plaintiffs - Appellants
v.
Elizabeth L. Ziegler, in her official capacity as Executive Director of the Missouri
Ethics Commission; Helene J. Frischer, in her official capacity as Executive
Director of the Missouri Ethics Commission; Robert Cook, in his official capacity
as Executive Director of the Missouri Ethics Commission
Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 9, 2024
Filed: July 29, 2024
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Before LOKEN, ARNOLD, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Under a recent amendment to the Missouri Constitution, former legislators
and staff face a two-year ban on lobbying. As applied to three plaintiffs, the
restriction violates the First Amendment.

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I.
The first two are Rockne Miller, a former Missouri legislator, and Presidio
Environmental, LLC, the company that tried to hire him as a lobbyist. The other one
is John LaVanchy, a committee-records specialist. Although he currently works for
the General Assembly, he wants to become a lobbyist to “earn better income.” He
recently applied for outside positions “that may require him to register as a lobbyist,”
but he “has not been hired” yet.
Standing in their way was Article III, Section 2(a) of the Missouri
Constitution, which says that
no person serving as a member of or employed by the general assembly
shall act or serve as a paid lobbyist, register as a paid lobbyist, or solicit
prospective employers or clients to represent as a paid lobbyist during
the time of such service until the expiration of two calendar years after
the conclusion of the session of the general assembly in which the
member or employee last served . . . .
Missouri voters enacted it in 2018 through a ballot initiative. See Mo. Const. art. III,
§§ 49–50 (allowing voters to directly amend the Missouri Constitution).
Not long after, the law went from the voters’ hands to the courtroom. Miller,
LaVanchy, and Presidio sued individual members of the Missouri Ethics
Commission, the agency responsible for enforcing the ban. See 42 U.S.C. § 1983;
see also Mo. Rev. Stat. § 105.955; Calzone v. Summers, 942 F.3d 415, 419 (8th Cir.
2019) (en banc). They seek a declaratory judgment that the law unconstitutionally
limits their speech, compensatory and nominal damages, and a permanent injunction
preventing enforcement “against them or any other similarly situated persons or
entities.”

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Once discovery was complete, the parties filed cross-motions for summary
judgment. The district court granted Missouri’s motion, which had the effect of
upholding the lobbying ban, and denied partial summary judgment the other way.
The ban was consistent with the First Amendment, according to the court, because
it was “narrowly tailored to further [a] compelling state interest[].”
II.
In as-applied challenges, “the particular facts” matter. Calzone, 942 F.3d at
420 (citation omitted); see United States v. Salerno, 481 U.S. 739, 745 n.3 (1987).
Two of the plaintiffs, one a former legislator and the other a current staffer, would
have become lobbyists had the ban not been in place. The third would have hired
one of them. Applying de novo review, we must determine whether, as applied to
their individual circumstances, the ban violates the First Amendment. See Calzone,
942 F.3d at 419.
A.
Our first task is to figure out which First Amendment test applies. See Minn.
Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874–75 (8th Cir. 2012)
(en banc). Most employ some form of means-end scrutiny, which focuses on the
sufficiency of the government interest and how close the law gets to satisfying it.
See id. There are two possibilities here.
The less restrictive one is “exacting scrutiny, which requires a substantial
relation between the [law] and a sufficiently important governmental interest.”
Citizens United v. FEC, 558 U.S. 310, 366–67 (2010) (citation omitted). This form
of means-end scrutiny applies to “disclaimer and disclosure requirements,” which
burden speech but do not “prevent” or place a “ceiling” on it. Id. (citation omitted);
see, e.g., Calzone, 942 F.3d at 423 (applying exacting scrutiny to a law that required
an unpaid lobbyist “to reveal his identity and divulge his activities”). It is a tough
standard to meet.

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Even tougher is “strict scrutiny,” which requires “a compelling interest
and . . . narrow[] tailor[ing] to achieve that interest.” Citizens United, 558 U.S. at
340 (citation omitted). “Laws that burden political speech are subject to strict
scrutiny . . . .” Id. (citation omitted). The dividing line between the two standards
is not always clear, see Minn. Citizens Concerned for Life, 692 F.3d at 874–75, but
it generally depends on the extent of the burden. The more “onerous” it is, the
stricter the scrutiny. Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564
U.S. 721, 734–35 (2011).
Missouri’s lobbying ban burdens political speech in two ways. First, it cuts
off the speech of would-be lobbyists like Miller and LaVanchy for two years. The
role of a lobbyist is “to influence” government policy through information and
persuasion, McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995), which
qualifies as “core political speech,” Calzone, 942 F.3d at 425 (quoting McIntyre, 514
U.S. at 347). And so does “petition[ing] the Government for a redress of
grievances,” even on behalf of others. U.S. Const. amend. I; see Calzone, 942 F.3d
at 427 (Grasz, J., concurring) (recognizing it “is unquestionably core political
speech”). As applied to them, it “prevent[ed]” speech. Citizens United, 558 U.S. at
366 (emphasis added) (citation omitted).
Second, the lobbying ban burdened Presidio, which wanted to hire Miller to
advocate for a “minor change” in a state permitting law. It believed that an
“experienced environmental engineer” and former legislator like him had the best
chance to persuade lawmakers. The lobbying ban, however, limited the company’s
options and kept it from “advocat[ing] [its] cause” in the way “[it] believe[d] to be
the most effective.” Meyer v. Grant, 486 U.S. 414, 424 (1988) (emphasis added);
Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 784 (1978) (explaining that corporate
political speech is just as protected under the First Amendment as individual speech).
It was also more onerous than a mere “disclaimer [or] disclosure
requirement[].” Missourians for Fiscal Accountability v. Klahr, 892 F.3d 944, 949
(8th Cir. 2018) (explaining that “the effect of the provision” is what determines

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whether we treat it as “a disclosure requirement, or something more” (quoting
Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir. 2014))).
Regardless of how many regulatory hoops LaVanchy and Miller were willing to
jump through, they both had to remain on the sidelines for two years. Bans like this
one are subject to strict scrutiny.1
B.
The next step is to apply strict scrutiny to what the lobbying ban prevented
these plaintiffs from doing. See Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th
Cir. 2017) (“The caveat that First Amendment issues require a case-by-case analysis
of the fact[s] is especially true with regard to as-applied challenges.” (alteration in
original) (citation omitted)). We must determine whether, given their “individual
circumstances,” United States v. Veasley, 98 F.4th 906, 909 (8th Cir. 2024), the ban
“furthers a compelling interest and is narrowly tailored to achieve that interest.”
Citizens United, 558 U.S. at 340 (citation omitted).
1.
Missouri advances a familiar interest: “regulating . . . quid pro quo corruption
[or] the appearance thereof.” This Latin phrase refers to a specific type of
corruption, the exchange of “dollars for political favors.” FEC v. Nat’l Conservative
Pol. Action Comm., 470 U.S. 480, 497 (1985) (calling it the “hallmark of
corruption”). In the abstract, combatting it is a “permissible objective.”
McCutcheon v. FEC, 572 U.S. 185, 192–93 (2014) (plurality opinion); see Calzone,
942 F.3d at 424 (collecting cases in which the Supreme Court “credited anti-
corruption rationales . . . despite the limitations . . . place[d] on speech”).
1 Missouri insists exacting scrutiny applies because its lobbying ban is
“content neutral.” Neutral or not, “[l]aws that burden political speech are subject to
strict scrutiny.” Citizens United, 558 U.S. at 340 (citation omitted).

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Limiting “access and influence,” on the other hand, is not. Just because
former legislators and legislative employees have better “relationships [with] and
access [to]” current legislators and legislative employees than others does not mean
corruption is taking place. See Citizens United, 558 U.S. at 360; see McCutcheon,
572 U.S. at 191, 208 (“Congress may not . . . restrict the political participation of
some in order to enhance the relative influence of others.”).
Missouri’s position is that, even if it is not out in the open, corruption must be
present behind the scenes. But as it candidly admitted during discovery, it “does not
possess any evidence (testimonial or documentary) of [its] compelling/substantial
interest.” See FEC v. Cruz, 596 U.S. 289, 307 (2022) (explaining that a government
asserting an anti-corruption interest “must do more than simply posit the existence
of the disease sought to be cured” (citation omitted)); McCutcheon, 572 U.S. at 210
(“[W]e have never accepted mere conjecture as adequate to carry a First Amendment
burden.” (citation omitted)). “[R]ecord evidence [and] legislative findings,” in other
words, are in short supply. Cruz, 596 U.S. at 307 (citation omitted).
There are no findings because the lobbying ban became law through a voter-
sponsored ballot initiative. In their place, Missouri relies on an expert report. But
instead of pointing out real-world examples of corruption involving recently
departed legislators or legislative employees, the expert “hypothesize[s]” that
relationships between former colleagues will lead to corruption. Cruz, 596 U.S. at
307. She openly admits, however, that she views corruption differently than “[t]he
Supreme Court led by Chief Justice John Roberts,” which she believes has made
“the problems of quid pro quo corruption and its appearance . . . bigger than ever.”
Look no further than the off-base examples she uses. One involves former
U.S. Representative Billy Tauzin, who (according to Missouri) “suddenly resigned
from [Congress] to work for [a] trade association for drug manufacturers” after
leading “the re-write of a new law on drug pricing.” Turns out, however, that he
simply left Congress at the end of his term. See William M. Welch, Tauzin Switches
Sides from Drug Industry Overseer to Lobbyist, USA Today (Dec. 16, 2004). And

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although Senator Trent Lott resigned early to become a lobbyist, neither Missouri
nor its expert claim he was involved in the exchange of “dollars for political favors.”
Nat’l Conservative Pol. Action Comm., 470 U.S. at 497. Nor is there evidence that
anyone thought so.
Most of the state-level examples also just reflect “access and influence,” not
corruption. The first focuses on a former state representative and lieutenant
governor from Michigan who became a lobbyist eight years after he left the
legislature. The other discusses two former New Mexico drug-enforcement officials
who joined a pro-marijuana advocacy group. In neither case is there an allegation
that anyone exchanged money for favors.
Missouri looks closer to home for its final example, which at least involves
the type of corruption it can regulate. Thirty years ago, Bob Griffin, the Speaker of
the Missouri House of Representatives, pleaded guilty to accepting bribes from a
lobbyist in exchange for a positive recommendation to “members of the construction
industry.” United States v. Griffin, 154 F.3d 762, 763 (8th Cir. 1998). The problem
with this example is that, even though it involves quid pro quo corruption, the
lobbying ban would have done nothing to prevent it. After all, Griffin was a sitting
legislator who had no interest in becoming a lobbyist. And the lobbyist who gave
him the bribe had never worked in the General Assembly herself.
In short, Missouri “is unable to identify a single case of quid pro quo
corruption in this context.” Cruz, 596 U.S. at 307 (emphasis added). Its “cited
sources do not provide any real-world examples” of former legislators or legislative
staff whose transition to lobbying led to corruption. McCutcheon, 572 U.S. at 217.
Even if it has shown that lobbying is a common career choice for former government
officials, more is required. See Russell v. Burris, 146 F.3d 563, 569–70 (8th Cir.
1998) (explaining that we must determine whether “there could be a reasonable

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perception of corruption”). Missouri, after all, cannot have a compelling interest in
solving a problem that it cannot prove exists.2
2.
Even if Missouri had a compelling anti-corruption interest, its chosen means,
a two-year lobbying ban, would still have to be “narrowly tailored to achieve that
interest.” Citizens United, 558 U.S. at 340 (citation omitted). A narrowly tailored
regulation must be the least-restrictive alternative, not too under- or over-inclusive.
See Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir. 2005) (en banc).
Missouri’s ban regulates both too little and too much.
First, it does too little by prohibiting full-time lobbying for two years “but
leav[ing] unfettered other modes of expression that implicate the same interest.”
Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1100 (8th Cir.
2013). Under Missouri’s definition of “legislative lobbyist,” for example, there is
no restriction on “occasional” lobbying, even though it presumably poses a similar
corruption risk. Mo. Rev. Stat. § 105.470(5)(a). Nor does Missouri explain why it
leaves former executive-branch employees like New Mexico’s drug-enforcement
officials free to lobby whomever they want. See Parada v. Anoka County, 54 F.4th
1016, 1021 (8th Cir. 2022) (holding that a local government’s policy was “not
‘specifically and narrowly framed to accomplish’ its interest” because it “miss[ed]”
prominent instances of the same problem (quoting Shaw v. Hunt, 517 U.S. 899, 908
(1996))). If there is something special about the risk posed by former legislators and
legislative-branch employees who go into full-time lobbying, Missouri has not
2 Nor does our en banc decision in Calzone v. Summers save the lobbying ban.
To be sure, we recognized there that states may have a “transparency interest” in
knowing “who is putting up the money” for lobbyists. 942 F.3d at 425 (quoting
United States v. Harriss, 347 U.S. 612, 625 (1954)); see McIntyre, 514 U.S. at 354–
55. But transparency is about disclosure, as Calzone itself recognizes. 942 F.3d at
424–25. It does not allow a state to ban all former legislators and staff from engaging
in political speech. Lobbying, after all, does not become corrupt just because
someone else is paying for it.

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identified it. See McCullen v. Coakley, 573 U.S. 464, 495 (2014) (placing the burden
on the government).
Second, it “sweep[s] too broadly.” Republican Party of Minn., 416 F.3d at
751. Similar laws enacted in other states suggest that Missouri might have been able
to get by with a shorter period. Its own expert highlighted some of the possibilities,
from six months (like North Carolina) to one year (like New Mexico), even though
both states have two-year election cycles like Missouri. See Mo. Const. art. III, § 11
(requiring the election of state senators every four years and representatives every
two years); see also N.M. Const. art. 4, § 4; N.M. Stat. Ann. § 10-16-8(D); N.C.
Gen. Stat. §§ 120C-304(a)–(c), 163-1. Nor is it clear why it lumps legislators and
staffers together, when their level of access and influence might be different. See
Nat’l Conservative Pol. Act. Comm., 470 U.S. at 500–01 (explaining that the
government could not assume that “small” political-action committees posed a
similar risk of corruption as “large-scale” ones).
The lobbying ban is also overly restrictive in one other way. If “access and
influence” lead to corruption, as Missouri claims, then it is a mystery why legislators
and their staff must steer clear of lobbying executive-branch and local-government
officials. See Mo. Const. art. III, § 2(a); Mo. Rev. Stat. § 105.470(1)–(2), (6).
Nothing in the record suggests that a committee-records specialist like LaVanchy
would have any special access or influence beyond the General Assembly itself. See
Ashcroft v. ACLU, 542 U.S. 656, 669 (2004) (“The [g]overnment’s burden . . . is to
show that [a less-restrictive alternative would be] less effective.”); Frisby v. Schultz,
487 U.S. 474, 485 (1988) (explaining that a narrowly tailored statute “targets and
eliminates no more than the exact source of the ‘evil’ it seeks to remedy” (emphasis
added)). The point is that, even if Missouri’s theory of corruption were correct,3 a
3 To the extent Missouri is concerned about legislative employees performing
official acts in exchange for employment after they leave, several laws already
prohibit it. See Mo. Rev. Stat. § 576.010 (criminalizing the bribery of government
employees); id. § 576.020 (forbidding them from accepting benefits in exchange for
official acts). Missouri makes no attempt to explain why these “less restrictive

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ban limited to legislative lobbying would have been a less-restrictive alternative to
the broad measure it enacted.
* * *
Missouri’s two-year lobbying ban is unconstitutional as applied to these three
plaintiffs. Missouri had to show that it has a compelling anti-corruption interest, see
McCutcheon, 572 U.S. at 208–09, and that its lobbying ban is “narrowly tailored to
achieve that interest.” Citizens United, 558 U.S. at 340 (citation omitted). It did
neither. All it offered was an expert report4 with “pretty meager” support on both
points. Cruz, 596 U.S. at 310. Strict scrutiny requires more.
III.
One loose end remains. The plaintiffs purportedly raise facial and overbreadth
challenges, but they do not suggest that most or all applications of Missouri’s
lobbying ban violate the First Amendment. See Veasley, 98 F.4th at 909 (explaining
that a plaintiff must show that there is “no set of circumstances . . . under which [the
challenged law] would be valid” (quoting Salerno, 481 U.S. at 745)); Missourians
for Fiscal Accountability, 892 F.3d at 948 (articulating the test for an overbreadth
challenge). Indeed, plaintiffs’ counsel conceded at oral argument that they only
“challenge . . . the post-employment component” of it, which leaves its application
to current “member[s] . . . or employe[es] [of] the general assembly” unaffected.
Mo. Const. art. III, § 2(a). Besides, there is no reason to address their broader
challenges after they have already prevailed on their narrower ones. See Bd. of Trs.
alternative[s]” are insufficient on their own to rein in potential corruption. United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000).
4 The plaintiffs argue that Missouri’s expert report was inadmissible. See Fed.
R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591–93 (1993).
Even if it was—a question we need not decide—it makes no difference to the
outcome.

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of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 484–85 (1989) (“It is not the usual
judicial practice . . . to proceed to an overbreadth issue unnecessarily . . . .”).
IV.
We accordingly reverse the judgment of the district court and remand for
further proceedings.
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