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Soliloquy of an Association ExecutiveBy Mark A. Miller, CMP, Edited by Robert C. Harris, CAE I
am
an
Association
Executive! My
members
think
I
have
degrees
in
Sociology,
Public
Relations,
Human
Relations,
Business,
Political
Science,
Marketing,
Graphic
Arts,
Hotel
Management
and
Marriage
and
Family
Counseling.
I
am
expected
to
recognize
the
voices
of
all
of
the
members
over
the
phone,
and
can
recite
from
memory
the
exact
date
of
their
dues
renewal
and
whether
they
have
signed
up
their
spouse
or
a
significant
other
for
the
annual
banquet. On
demand,
I
can
relate
the
voting
histories
of
every
lawmaker
on
every
issue
that
was,
might
have
been,
would
have
been,
could
have
been
or
should
have
been
of
interest
to
my
members.
The
media
calls
me
a
Special
Interest,
but
that
doesn't
make
me
feel
very
special. I
am
able
to
find
higher
paying
jobs
for
every
unemployed
and
underemployed
member
at
a
moment’s
notice.
I
can
make
a
meeting
room
both
warmer
and
colder
at
the
same
time. I
can
predict
the
number
of
people
who
will
attend
banquet
months
before
I
set
foot
in
the
meeting
facility.
I
can
ensure
that
the
menu
I
select
will
be
cooked
to
perfection
and
pleasing
to
every
member’s
personal
preference. I
will
go
out
of
my
way
to
negotiate
a
$59.00
rental
for
a
$45,000
Lincoln
Town
Car
for
a
24-hour
period
--
but
will
readily
accept
a
$400.00
rental
for
an
LCD
projector
and
screen. I
accept
blame
for
poor
mail
delivery,
high
gas
prices,
long
check-in
lines,
poor
airline
service,
wrong
zip
codes,
over-regulation
of
government,
under-regulation
of
government
and
ethnic
conflicts
around
the
globe. I
have
enough
frequent
flyer
points
to
fly
around
the
world,
but
don't
have
enough
time
or
money
to
get
off
the
airplane. I
am
expected
to
smile,
empathize,
sympathize,
console,
be
apolitical,
sing,
dance,
program
the
computer,
fix
the
copier
and
defrost
the
office
refrigerator. I
am
an
Association
Executive
--
I
can
do
all
these
things
and
much
more,
while
still
finding
time
to
respond
to
every
text
message,
e-mail,
phone
call,
fax
and
personal
correspondence
from
my
members.
Common Myths in
Association
Law Myth: Bona Fide lobbying of
a
government
by
a
trade
association
is
a
violation
of
the
Sherman
Antitrust
Act. Fact: Bona Fide lobbying of
a
government
by
your
trade
association
will
never
violate
the
Sherman
Antitrust
Act
if
the
lobbying
activity
stays
within
the
bounds
of
the
Noerr-Pennington
doctrine. The Noerr-Pennnington
Doctrine
is
a
fundamental
cornerstone
of
association
law.
Articulated
more
than
40
years
ago
by
the
U.S.
Supreme
Court
in
two
separate
opinions,
it
protects
associations
from
Sherman
Act
liability
as
they
lobby
governments
for
benefits
to
their
industries
or
profession,
even
to
the
detriment
of
others.
Although
the
First
Amendment
spells
out
the
right
of
the
people
“peaceably
to
assemble,
and
to
petition
for
the
Government
for
a
redress
of
grievances,”
there
is
inherent
tension
between
this
express
right
to
lobby
and
the
antitrust
laws
when
a
group
of
competitors
engages
in
lobbying
efforts
that
would
result
in
the
reduction
of
competition. How
does
the
law
resolve
this
tension?
When
the
purpose
of
the
conspiracy
is
to
lobby
the
government
to
adopt
or
enforce
laws
or
regulations,
the
First
Amendment
Right
to
Petition
the
Government
trumps
the
antitrust
laws.
Eastern
R.R.
Presidents
Conference
v.
Noerr
Motor
Freight,
365
U.S.
127
(1961)
involved
a
claim
by
the
railway
employees’
union
that
the
railroad’s
grassroots
lobbying
campaign
to
turn
the
public
against
the
union,
which
resulted
in
the
Governor’s
veto
of
the
trucker’s
proposed
legislation,
constituted
an
unlawful
conspiracy
to
restrain
trade.
The
Supreme
Court
ultimately
rejected
this
claim,
stating:
“The right of
petition
is
one
of
the
freedoms
protected
by
the
Bill
of
Rights,
and
we
cannot,
of
course,
lightly
impute
to
Congress
an
intent
to
invade
these
freedoms.”
Hence,
joint
lobbying
activity
urging
the
government
to
adopt
or
enforce
laws
or
regulations
will
not
be
found
to
violate
the
Sherman
Antitrust
Act.
United
Mine
Workers
v.
Pennington,
381
U.S.
657
(1965)
extended
the
doctrine
to
jointly
coordinated
lobbying
efforts
by
an
industry
and
its
labor
organization.
In
a
clear
effort
to
drive
small
non-unionized
coal
mines
out
of
business,
the
union
and
the
large
mine
owners
jointly
persuaded
the
Secretary
of
Labor
to
establish
a
high
minimum
wage
for
employees
of
mining
companies
selling
coal
to
the
TVA,
thus
making
it
difficult
for
small
coal
companies
to
compete
for
the
TVA
business.
Even
though
the
effect
was
to
drive
small
coal
mining
companies
out
of
the
industry,
the
Supreme
Court
fully
condoned
the
joint
activity
that
led
to
this
result: “Joint efforts to influence
public
officials
do
not
violate
the
antitrust
laws
even
though
intended
to
eliminate
competition.
Such
conduct
is
not
illegal,
either
standing
alone
or
as
part
of
a
broader
scheme
itself
violative
of
the
Sherman
Act…
The
conduct
of
the
union
and
the
operators
did
not
violate
the
Act,
the
action
taken
to
set
a
minimum
wage
for
government
purchases
of
coal
was
the
act
of
a
public
official
who
is
not
claimed
to
be
a
co-conspirator,
and
the
jury
should
have
been
instructed….to
exclude
any
damages
which
(the
small
coal
companies)
may
have
suffered
as
a
result
of
the
Secretary's
Walsh-Healey
determinations.” The
value
of
the
Noerr-Pennington
doctrine
to
associations
is
twofold. First,
the
doctrine
means
that
an
association
itself
may
engage
in
lobbying
efforts
on
behalf
of
its
members,
even
though
such
efforts
may
be
construed
as
the
collective
efforts
of
the
member
competitors.
Second,
it
means
that
the
association
may
jointly
lobby
with
other
organizations,
even
if
the
effect
of
those
efforts
may
be
found
to
be
anticompetitive.
There
are,
however,
at
least
two
exceptions
to
the
Noerr-Pennington
Doctrine: (a)
The
“Sham”
Exception. In California Motor
Transport
Co.
v.
Trucking
Unlimited,
404
U.S.
508
(1972)
a
state
motor
truck
association
acted
to
oppose
every
application
filed
on
behalf
of
its
members’
competitors
with
a
regulatory
body,
without
regard
to
the
merits
of
the
applications,
simply
to
harass
the
competitors
and
discourage
their
further
applications.
The
U.S.
Supreme
Court
found
this
concerted
effort
to
influence
governmental
action
a
“Sham”
attempt
to
benefit
from
the
Noerr-Pennington
doctrine,
and
refused
to
protect
it.
The
Court
held
that
lobbying
found
to
be
undertaken
not
for
the
legitimate
goal
of
affecting
legislation
or
policy,
but
simply
to
frustrate
or
harass
competitors,
will
not
be
protected.
(b)
Market
Participation
Exception.
The
Noerr-Pennington
doctrine
will
apply
when
the
joint
action
is
targeted
not
at
a
proposed
public
policy
decision,
but
instead
at
a
specific
purchase
decision
by
a
government.
George
R.
Whitten,
Jr.
v.
Paddock
Pool
Builders,
Inc.,
424
F.2d
25
(1st.
Cir.
1970),
involved
a
manufacturer
of
gutterless
swimming
pools
which
in
combination
with
dealers
lobbied
to
get
its
specifications
adopted
by
multiple
local
governments
for
the
purpose
of
eliminating
all
competition.
The
court
found
that the
Noerr-Pennington
Doctrine
defense
“…is intended to
apply
to
some
significant
policy
determination
in
the
application
of
a
statute, not a
technical
decision
about
the
best
kind
of
weld
to
use
in
a
swimming
pool
gutter.”
Accordingly,
the
court
refused
to
allow
the
Noerr-Pennington
antitrust
defense. Conclusion: Since 1967, the
Noerr-Pennington
Doctrine
has
stood
as
a
cornerstone
of
the
trade
association
world.
Association
executives
should
be
aware
of
its
legacy
and
be
committed
to
its
continued
vitality.
When
counting
on
the
Noerr-Pennington
Doctrine
to
protect
an
association’s
joint
actions,
one
should
consult
a
knowledgeable
attorney
to
confirm
the
applicability
of
the
doctrine. Mark Truesdell, Attorney, Beving, Swanson & Forrest, P.C., Des Moines, Iowa |
