The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5328

July 7, 1978

LOBBYING:

No requirement of incorporation to engage in lobbying activity.

Exemption from definition of lobbyist.

Inasmuch as the Independent Caucus of Macomb County is not employed by any person, firm, association or corporation, public or private, to promote, advocate or oppose any matter pending before either house of the legislature, it is not required to comply with the provisions of the Campaign Financing Act or the Lobbying Act.

The Honorable Dennis M. Dutko

State Representative--35th District

State Capitol

Lansing, Michigan 48901

You have forwarded to me material sent to you by an unincorporated association named The Independent Caucus of Macomb County. In this material the spokesperson for the caucus indicates that the caucus will be communicating with legislators in the future concerning political issues and will monitor the voting record of legislators. Your questions have asked whether the caucus may engage in these activities without complying with the provisions of the Campaign Financing Act or of the lobby regulation acts.

I have reviewed the material which you have provided and note that The Independent Caucus does not sponsor or endorse political candidates. As a result, the Campaign Financing Act, 1976 PA 388; MCLA 169.201 et seq; MSA 4.1703(1) et seq, is inapplicable, because the caucus does not make contributions or make expenditure to influence the nomination or defeat of a candidate or the passage or defeat of a ballot question.

The statute regulating lobbyists is 1947 PA 214; MCLA 4.401 et seq; MSA 2.601 et seq (1) and that act does not require a group to incorporate in order to engage in lobbying activity.

Section 1 of 1947 PA 214, supra, defines legislative agents as follows:

'. . . a person who is employed by a person, firm, association, or corporation; or by any board, department, or agency of the state of Michigan, or any political subdivision thereof, to engage in promoting, advocating, or opposing any matter pending before either house of the legislature or any committee thereof, or who is employed expressly for the purpose of promoting, advocating, or opposing any matter which might legally come before either house of the legislature or any committee thereof.'

Section 3 of the act indicates which people are not deemed to be legislative agents under the terms of the act and are therefore not required to comply with the act:

'Any person who shall confine his activities in promoting, advocating or opposing any matter pending before either house of the legislature or any committee thereof, to written communications or to formal appearances before any legislative committee or committees to which such matter has been duly referred, and who in writing clearly identifies himself to the committee together with each and every person, firm, association, corporation, or other interest represented by him, shall not be deemed to be a legislative agent within the meaning of this act; neither shall such term include any person whose contact with the legislature is limited to furnishing information at the request of any legislator or legislative committee regarding any matter pending before either house of the legislature or any committee thereof.'

Based upon the information which you have provided, it must be concluded that The Independent Caucus of Macomb County is not employed by any person, firm, association or corporation, public or private, to promote, advocate or oppose any matter pending before either house of the legislature so as to constitute a lobbyist under 1947 PA 214, supra. 1947 PA 214, supra, Sec. 1. Moreover, when the Caucus communicates with legislators, its activities are clearly excepted from lobbying under 1947 PA 214, supra, Sec. 3. Monitoring voting records of legislators does not constitute lobbying under 1947 PA 214, supra. Thus, based upon the information presented, The Independent Caucus of Macomb County is not in violation of 1947 PA 214, supra.

The matter you have brought to my attention indicates the difficulty in enforcing the current lobbying statute and the need for revision of the statute regulating lobbyists.

On the one hand the term 'legislative agent', meaning 'lobbyist', is defined in 1947 PA 214, Sec. 1, supra, to be a person engaged 'in promoting, advocating or opposing any matter pending before either house of the legislature or any committee thereof'; while, on the other hand, 1947 PA 214, Sec. 3, exempts from this definition '[a]ny person who shall confine his activities in promoting, advocating or opposing any matter pending before either house of the legislature or committee thereof, to written communications or to formal appearances before any legislative committee or committees to which such matter has been referred.' Since every member of the legislature serves on a committee, a written communication to any member of the legislature can be viewed as part of the exemption.

I have previously brought the need for reform to the attention of the legislature and I am enclosing herein a copy of a report prepared by me some years ago pointing out this need.

Frank J. Kelley

Attorney General

(1) 1947 PA 214, supra, was to have been repealed by 1975 PA 227, Sec. 191. However, 1975 PA 227 was declared unconstitutional by the Michigan Supreme Court in Advisory Opinion on Constitutionality of 1965 PA 227 Question 1), 396 Mich 123; 240 NW2d 193 (1976). 1976 OAG No 5019 (April 14, 1976), held that, because the Supreme Court had declared 1975 PA 227 to be unconstitutional, the statutes which Sec. 191 of that act purported to repeal maintained an uninterrupted existence.