Regulating Grassroots Communications Would Be Unconstitutional

 by Mark Fitzgibbons  

| View comments |  Print This Post

Attempts to amend the definition of “lobbying activities” to include communications to the general public are not only unconstitutional, but are inconsistent with the purposes of disclosure under the Lobbying Disclosure Act.

The United States House of Representatives is about to consider legislation amending the Lobbying Disclosure Act of 1995 (LDA) with provisions that would require registration of causes and individuals who communicate with the general public about policy matters. The grassroots provisions in the Senate lobbying reform legislation, Section 220 of S. 1, were stripped by the Bennett Amendment before S. 1 was passed by that chamber. Nancy Pelosi introduced legislation in 2006 almost identical to Section 220.
 
Washington insiders such as Public Citizen, OMB Watch and only a handful of special-interest-funded organizations are still pushing to regulate the grassroots under false pretenses. Proponents of the grassroots legislation have resorted to distorting facts and the scope of the legislation to disguise its unconstitutional reach, and some have attempted to smear critics of this unconstitutional legislation to distract attention from the merits.
 
Grassroots communications about policy involve multiple rights protected by the First Amendment. These include speech, the press (publication), association, petitioning the government and even, in many cases, the free exercise of religion. These rights are not only inviolable in and of themselves, but are the quintessential guardians of a free people under our representative form of government in which “all power is originally vested in, and consequently derived from, the people.”¹ They are a means by which citizens by themselves or through their voluntary associations may not only express personal opinion on public questions, but also allow for the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.
 
Grassroots communications are private citizen-to-citizen interaction on matters of public policy, and therefore involve clearly a quantity of rights superior even to those protecting the news media.
 
It is well recognized that “the constitutional protection of these rights does not turn upon the popularity or even the social utility of the ideas and beliefs [being] offered.”²   Indeed, government-mandated disclosure of the identity of speakers communicating with the general public on matters of public policy has been held to violate the First Amendment because such forced disclosure may subject speakers to reprisal, and that fear of reprisal would tend to chill perfectly peaceful discussions of public matters of importance.³
 
The burdens of tracking and reporting discourage and may outweigh the interests and the ability of certain speakers in communicating, thus giving advantage to the well-heeled in the marketplace of ideas. Potential civil and criminal penalties for failure to disclose are also enough to silence many speakers.
 
It is important to distinguish the disclosure of actual lobbying directed at Congress and other policy makers from disclosure of communications to the general public. The LDA expressly targets disclosure of contacts between paid lobbyists acting on behalf of clients and policy making officials.
 
Improper influences on the decision-making process may be numerous including (1) false representations by lobbyists about the scope of their paid representation before policy decision-makers, (2) bribery or other improper influences of value by lobbyists in exchange for favorable policy for the clients of the lobbyists, (3) extortion or other improper demands by policy makers in exchange for policy in favor of the clients of lobbyists, and (4) other improper influences that are incidental only to clandestine or private but direct contacts between lobbyists and policy making officials.
 
It can be safely said that generic direct lobbying in and of itself does not involve improper influence on policy making, but clandestine or private contacts provide the opportunity for improper influence. Disclosure does not expressly target or punish improper influences, since other laws punishing corruption and turpitude of or by policy makers do that. Disclosure, however, reduces the opportunity for improper influence that may be incidental to clandestine or private contacts between policy makers and paid lobbyists acting on behalf of clients.
 
Lobbying activities, “[a]s a matter of English . . . readily lends itself to the construction . . . namely, ‘lobbying in its commonly accepted sense,’ that is, ‘representations made directly to the Congress, its members, or its committees.’”⁴ Disclosure of lobbying activities by its very definition therefore may not include disclosure of communications to the general public since those are not directed at policy makers themselves.
 
Not that First Amendment rights gain needed or added protection by statutory recitation, but even the rules of construction of the LDA, found at 2 U.S.C. 1607(a), state that “nothing in this chapter shall be construed to prohibit or interfere with (1) the right to petition the Government for the redress of grievances; (2) the right to express a personal opinion; or (3) the right of association.”
 
Registration and reporting is, of course, interference since it constitutes a prior restraint on speech and publication, and redirects resources of time and money into tracking and reporting rather than fulfilling the core purposes of the grassroots cause. Subsequent civil and potential criminal penalties for registration and reporting failures is also a post hoc violation of the free exercise of First Amendment rights, and thus act to prohibit those rights. Therefore, attempts to amend the definition of “lobbying activities” to include communications to the general public are not only unconstitutional, but are inconsistent with the purposes of disclosure under the LDA.
 
Communications to the general public may be “private” insofar as they are promulgated by United States Mail, email or other direct citizen-to-citizen media, or they may be made via forms of more publicly accessible mass media such as newspapers, television, radio or blogs. In any event, they are directed at the citizenry, and as a matter of first principles are intended to inform, educate and even persuade citizens.
 
These communications are therefore distinguishable from lobbying in this most important regard: they are not clandestine communications to policy makers, and therefore have none of the potentially harmful influence on the policy making process that may be incidental to contacts between policy makers and paid lobbyists representing clients. Such communications are made to many citizens, and therefore need no government-mandated disclosure.
 
The reporting trigger under the grassroots legislation is communications to 500 or more members of the general public. Most grassroots communications vastly exceed 500, thus there is nothing clandestine or secretive about them, although they remain “private” among citizens and their voluntary associates, and therefore not subject to government-mandated disclosure.
 
Grassroots communications, of course, often have the benefit of providing information, expertise and viewpoints to citizens that may not otherwise be available from other sources, including the news media, which is a more generalized source of information, may often lack expertise in particular areas of policy and is driven by profit and other motives. Grassroots communications to the general public provide information that citizens may use, and upon which they may exercise their discretion and their rights.
 
News reports that the grassroots legislation is targeted at so-called “Astroturf” are a perfect example of news organizations failing to either understand or accurately report the true scope of the legislation. Grassroots organizations with expertise in areas of policy often provide superior information to citizens, and certainly provide information that is not otherwise reported by news media organizations, whose attentions may be focused on other matters driven by profits (the focus on Anna Nicole Smith is a recent example) rather than minutiae of policy and legislation that may have greater importance.
 
In no way do these communications to the public provide the opportunity for improper influence on policy makers that are incidental to clandestine contacts between lobbyists and policy makers. Indeed, grassroots communications are an important source of information to the general public about good and bad policy particularly to adherents of certain positions and beliefs, and about policy makers and the Washington insiders who may be exerting bad or improper influence on policy makers.
 
Not only are such communications themselves protected by the First Amendment, they are the means by which citizens may protect other rights, privileges and immunities guaranteed by the Constitution.

Endnotes

1. James Madison, Speech Introducing Proposed Constitutional Amendments, June 8, 1789.

2. New York Times v. Sullivan, 376 U.S. 254, 271 (1964).

3. See Talley v. California, 362 U.S. 60, 65 (1960); McIntyre v. Ohio, 514 U.S. 334, 341 (1995).

4. U.S. v. Rumely, 345 U.S. 41, 47 (1953).

Congress & the Legislatures, Constitutional Issues, Civil Liberty & Rights

Read more articles by Mark Fitzgibbons