In its October 24, 2013 ‘Ethics Advisory 2013-05’ the Hawaii Ethics Commission asserts the ability to regulate free speech by re-labeling it as “Grassroots Lobbying’. Here is what the ACLU, CATO, CAGW, ACLJ, IFJ, NRA, OMB Watch and many other national organizations of all political stripe have to say about regulation of ‘grassroots lobbying’:
ACLU Letter to the Senate Opposing Expansions of Post-employment Bans and Regulations on Grassroots Lobbying
From ACLU March 7, 2006
Re: Oppose expansions of post-employment bans and regulations on grassroots lobbying
Dear Senator:
On behalf of the ACLU, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we urge you to oppose any lobby reform proposals that create broad expansions to the post-employment bans for former Members of Congress and congressional staff, such as S. 2128, the “Lobbying Transparency and Accountability Act of 2006.” We also urge you to oppose the regulation of grassroots lobbying currently contained in S. 2128. Both provisions have serious consequences for constitutionally protected activity….
…
The Grassroots Lobbying Provision is Constitutionally Suspect Because it Does Not Serve A Compelling Government Interest and is Not Narrowly Tailored to Achieve the Asserted Goal.
The ACLU urges you to reject attempts to regulate grassroots lobbying.
The right to petition the government is “one of the most precious of the liberties safeguarded by the Bill of Rights.”[5] When viewed through this prism, the thrust of the grassroots lobbying regulation is at best misguided, and at worst would seriously undermine the basic freedom that is the cornerstone of our system of government.
It is well settled that lobbying, which embodies the separate and distinct political freedoms of petitioning, speech, and assembly, enjoys the highest constitutional protection.[6] Petitioning the government is “core political speech,” for which First Amendment protection is “at its zenith.”[7]
Constitutional protection of lobbying is not in the least diminished by the fact that it may be performed for others for a fee.[8] Further, “the First Amendment protects [the] right not only to advocate [one’s] cause but also to select what [one] believe[s] to be the most effective means of doing so.”[9] In Meyer, the Court emphasized that legislative restrictions on political advocacy or advocacy of the passage or defeat of legislation are “wholly at odds with the guarantees of the First Amendment.”[10]
Where the government seeks to regulate such First Amendment protected activity, the regulations must survive exacting scrutiny.[11] To satisfy strict scrutiny, the government must establish: (a) a compelling governmental interest sufficient to override the burden on individual rights; (b) a substantial correlation between the regulation and the furtherance of that interest; and (c) that the least drastic means to achieve its goal have been employed.[12]
A compelling governmental interest cannot be established on the basis of conjecture. There must be a factual record to sustain the government’s assertion that burdens on fundamental rights are warranted. Here, there is little if any record to support the contention that grassroots lobbying needs to be regulated. Without this record, the government will be unable to sustain its assertion that grassroots lobbying should be regulated.
The grassroots lobbying provision is troubling for other reasons as well. First, the provision seems to assume that Americans can easily be manipulated by advocacy organizations to take actions that do not reflect their own interests. To the contrary, Americans are highly independent and capable of making their own judgment. Whether or not they were informed of the problem through a grassroots campaign is irrelevant--their action is based on their own belief in the importance of matters before Congress.
Second, it appears that groups such as the ACLU may end up having to report its activities because of the grassroots lobbying provisions. A “grassroots lobbying firm” means a person or entity that is retained by one or more clients to engage in paid efforts to stimulate grassroots lobbying on behalf of such clients and receives income of, or spends or agrees to spend, an aggregate of $25,000 or more for such efforts in any quarterly period. “Client” under existing law includes the organization that employs an in-house staff person or person who lobbies. If, for example, the ACLU hires an individual to stimulate grassroots lobbying on behalf of the ACLU and pays that individual for her efforts in amounts exceeding $25,000, it appears that individual would be considered a grassroots lobbying firm, and would have to register and report as such. The fact that the ACLU employs that individual appears to be irrelevant to this provision. Unless this is the type of activity that the provision is intended to reach, there is no substantial correlation between the regulation and the furtherance of the government’s alleged interest in regulating that activity.
Another example of the broad reach of this provision is an executive director of a state affiliate of an issue-oriented organization. Even if she is paid a nominal amount and seldom or never interacts directly with congressional offices, she could be forced to register as a federal “grassroots lobbying firm” and file the quarterly detailed reports if that organization itself (the “client”) spends more than $25,000 in a quarter encouraging the general public to contact their federal elected representatives. Since a single full-page advertisement in a major newspaper typically costs more than $25,000, a lot of activists could be defined as “grassroots lobbying firms.”[13]
Finally, the grassroots lobbying provision may very well expose strategy to one’s opponents. The provision requires registration with the Secretary of the Senate and the Clerk of the House of Representatives within 45 days after a grassroots lobbying firm is retained in paid efforts to stimulate grassroots lobbying. This is sure to alert opponents to the fact that an organization is about to engage in a grassroots lobbying campaign. By having to report expenditures, opponents are also able to deduce the extent of the campaign.
Because the grassroots lobbying provision is unsupported by any record of corruption, and because the provision is not narrowly tailored to achieve the government’s asserted interest, the provision is questionable constitutionally. If our government is truly one “of the people, for the people, and by the people,” then the people must be able to disseminate information, contact their representatives, and encourage others to do so as well.
Conclusion
The Senate understandably is concerned about the appearance of impropriety as well as unethical conduct. However, the Abramoff scandal has already demonstrated that most of the activity engaged in by Mr. Abramoff is already illegal. Responses to the scandal should not be taken as an opportunity to suppress the people’s voices and their right to voice their opinions to their elected representatives.
Sincerely,
Caroline Fredrickson Marvin J. Johnson, Director Legislative Counsel
- [1] Buckley v. Valeo, 424 U.S. 1, 45 (1976).
- [2] Buckley, supra at 16; see also Riley v. National Federation of the Blind of North Carolina, 487 U.S.781 (1988).
- [3] National Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C. Cir. 1991) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
- [4] See Widmar v. Vincent, 454 U.S. 263 (1983).
- [5] United Mineworkers Union v. Illinois State Bar Association, 389 U.S. 217, 222 (1967).
- [6] Buckley, supra. at 45 (1976).
- [7] Meyer v. Grant, 486 U.S. 414, 425 (1988).
- [8] Riley, supra. at 801 (1988).
- [9] Meyer v. Grant, supra. at 424.
- [10] Id. at 428.
- [11] Buckley, supra. at 64.
- [12] Id. at 68.
- [13] In this scenario, it is not the organization that is defined as a “grassroots lobbying firm,” but the individual staffer.
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ACLU: OPPOSE EFFORTS TO REGULATE GRASSROOTS LOBBYING
Dear Member of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties:
The undersigned organizations urge you to reject efforts to regulate paid attempts to stimulate grassroots lobbying. The Senate wisely rejected such an effort, and we urge you to do likewise. In a representative democracy, citizens not only have the inviolable right but also should be encouraged to contact their elected representatives. Erecting reporting barriers, particularly when coupled with civil and criminal penalties for failure to report, raises the stakes for inadvertent compliance failure and discourages such communication.
Placing any reporting requirements on efforts to communicate with the general public and thereby “stimulate grassroots activity” would seriously undermine the basic premise of our system of government. The rights of the grassroots, who are “citizen-critics of government,” encompass the separate and distinct political freedoms of petitioning, speech, the press (publishing), assembly and even the free exercise of religion. All are highly prized and protected under the First Amendment for all citizens. Indeed, not only would the legislation violate all five individual First Amendment rights stated above, but would harm the very essence and purpose of the First Amendment – the right of the people to express ideas among themselves, and to collectively express their will to their elected representatives.
Imposing any reporting requirements would chill these rights, particularly for smaller and unpopular organizations, but regardless of size, citizen groups are entitled to freely speak to the public on policy concerns. Coupling these reporting requirements with criminal penalties for compliance failure makes it even more likely that organizations of all sizes will forego this activity rather than risk sanctions for noncompliance. Additionally, groups that are disfavored are less likely to wish to be identified in a public report as funding efforts on a specific policy position for fear of reprisal by both the government and citizens in the majority.
Proponents of regulation argue that something needs to be done to regulate so-called “Astroturf” lobbying. We do not necessarily agree that such communications need to be regulated, and we have yet to see an adequate definition of “Astroturf lobbying” that does not infringe on what everyone agrees is entirely legitimate and fully protected activity. Neither the size nor form of an organization nor that of its efforts to inform or motivate citizens make its public communications dangerous in a democracy. The First Amendment protects the right of citizens on their own or collectively through their associations to express their will or discontent to Congress. Required reporting of the members, their agents or even funders behind such efforts eliminates or reduces no real threat, but instead creates a barrier to the free and open expression of ideas that is the hallmark of a democracy.
The burden of proof that some harm is being targeted, rather than core political speech, lies with the proponents of the grassroots legislation. There is no factual record to sustain the assertion that these burdens on fundamental rights are warranted or that paid efforts to stimulate grassroots lobbying needs to be regulated. These efforts wrongly assume that constituents who contact their representatives are not doing so “voluntarily” if someone seeking to stimulate grassroots lobbying has first contacted them. In fact, how the individual learned of the issue that motivated him to contact his representative is irrelevant. The action taken by that individual in making contact is based on the individual’s own belief in the importance of the matter.
A grassroots lobbying provision would not be based upon a record demonstrating illegal or unethical conduct. To the contrary, proposals thus far cover a vast range of legitimate, constitutionally protected activities by individuals and groups that merely seek to inform their fellow citizens and encourage them to make their voices heard on important public issues. Given the impact on fundamental constitutional rights, the House should not use this opportunity to suppress the people’s voices and their right to voice their opinions to their elected representatives. We therefore urge you to reject any efforts to regulate grassroots lobbying.
Sincerely,
- American Association of Christian Schools
- American Center for Law and Justice
- American Civil Liberties Union
- Center for Individual Freedom
- Concerned Women for America
- Council for Citizens Against Government Waste
- Eagle Forum
- Free Speech Coalition, Inc.
- GrassrootsFreedom.com
- Home School Legal Defense Association
- National Religious Broadcasters
- National Rifle Association
- National Right to Life Committee
- National Taxpayers Union
- RenewAmerica
- RightMarch.com
- The American Conservative Union
- Traditional Values Coalition
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