Citizens Don’t Need ‘Protection’ From Lobbying

Posted May 9, 2007 at 6:07pm

Do ordinary citizens need to be protected from groups that may urge them to contact their elected Representatives in Congress about some pending bill?

That’s the underlying premise of a proposal introduced May 1 by Reps. Marty Meehan (D-Mass.) and Christopher Shays (R-Conn.), which the House Judiciary Committee is likely to vote on next week.

The proposal, which will be offered as an amendment to broader “lobbying reform” legislation, would institute an unprecedented system of regulation of efforts to motivate citizens to contact their elected Representatives, or executive branch officials (including the president), about pending legislation.

The target of the Meehan-Shays proposal is sometimes referred to as “grass-roots lobbying.” A similar proposal, voted down in the Senate on Jan. 18, contained this definition: “Grass-roots lobbying means the voluntary efforts of members of the general public to communicate their own views on an issue to Federal officials or to encourage other members of the general public to do the same.” The Meehan-Shays proposal simply refers to “campaigns to influence the general public to lobby Congress.”

But when constituents contact their elected Representatives, it is not really “lobbying.” It is representative democracy in action. Is this now a suspect activity, demanding scrutiny and regulation by government agencies?

The purported “problem” at which the proposed new law is aimed was summarized in a recent report in National Journal: “Advocates [of the proposal] … argue that wealthy individuals, companies, and interest groups … anonymously pour millions of dollars into fake Grass-roots campaigns — called ‘Astroturf’ lobbying — to create the appearance of popular support for their political agendas.”

In the first place, the First Amendment protects the right of even the wealthy and for-profit corporations to attempt to persuade.

Secondly, the proposed law would not apply only to campaigns mounted by for-profit interests. If this proposal is enacted as part of the broader lobbying reform bill, individual activists and groups on any side of an issue such as global warming, abortion or the Iraq War could face devastating fines, and even prison time, merely for spending money on modest efforts to motivate citizens to communicate with lawmakers — unless they register with the government and file quarterly reports detailing such activity. It would cover groups that spend as little as $100,000 in a three-month period on grass-roots campaigns — an amount that could easily be exceeded by a couple of full-page newspaper ads, or in any small campaign aimed at stirring up public awareness in even a handful of districts in anticipation of a vote in Congress.

We represent two organizations that take diametrically opposed positions on nearly all of the legal issues surrounding abortion and assisted suicide. But we agree on this much: Grass-roots citizens do not need any “protection” from those who urge them to contact their elected Representatives.

Moreover, it is actively dangerous to democracy to allow incumbent officeholders to assert regulatory authority over such activity. Once that line is crossed, regardless of the specific scope of the original regulation, it will lead to endless interference by politicians and government agencies with the exercise of core rights protected by the First Amendment — the right to free speech and the right to petition government officials.

Attempts to motivate citizens to adopt and act on a viewpoint on a public policy issue enjoy the highest degree of protection under the First Amendment’s protections of freedom of speech and the freedom to petition government officials. It is the individual citizen who finally decides whether to respond to what she sees and hears and the officeholder who then decides how much weight to give the communication from the citizen. If someone is persuading citizens of a viewpoint with which you disagree, the American way is to attempt to reach the public with effective counterarguments, not to stifle your opponent in a web of regulation.

Do some grass-roots-motivating campaigns contain misleading information? Sure. Hypothetically, perhaps National Right to Life Committee sometimes considers American Civil Liberties Union communications about abortion-related legislation to be incomplete or distorted, and perhaps sometimes the ACLU considers NRLC communications about abortion-related legislation to be incomplete or distorted. But free speech is not a product that can be subjected to “deceptive advertising” regulations without offending the First Amendment.

Groups pushing for regulation of grass-roots lobbying say they would not “restrict” such activity but merely require “disclosure.” Bradley Smith, the former chairman of the Federal Election Commission, recently testified against such regulation, noting, “Clearly, disclosure is regulation, and often the most intrusive regulation.”

Requiring disclosure of the identities of everyone who supports an organization’s public communications will have a chilling effect and reduce the expressions of some points of view — the very result that some of the advocates of such restrictions are clearly seeking. The impact will fall most heavily on groups that are engaged in debate on certain highly controversial issues — issues on which their grass-roots campaigns may offend powerful legislators or other officials, who may use their positions to exact political retribution.

As Stephen Hoersting of the Center for Competitive Politics wrote in National Review in January, “There is no doubt that the danger of retribution by politicians is real. It is not hard to imagine, for example, why one Jim Crow state might have wanted to know the names of all NAACP members in 1950s Alabama, and why the Supreme Court said in response to Alabama’s desire to learn those names that ‘[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.’”

Furthermore, “mere disclosure” reports, as we can testify based on personal experience, require command of legal technicalities and other intricacies that sometimes baffle even full-time Washington professionals. In the United States, you should not have to hire a lawyer before you attempt to motivate your fellow citizens to petition their elected representatives.

The Supreme Court has rejected past Congressional attempts to regulate grass-roots lobbying. For example, in the 1953 case United States v. Rumely, the Supreme Court affirmed a court of appeals ruling that included this statement: “It is said that indirect lobbying by the pressure of public opinion on the Congress is an evil and a danger. That is not an evil; it is a good, the healthy essence of the democratic process.”

By voting down the Meehan-Shays amendment, the House would join the Senate in wisely protecting that healthy essence.

Caroline Fredrickson is director of the Washington legislative office of the American Civil Liberties Union. Douglas Johnson is legislative director of the National Right to Life Committee.