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With members of Congress embroiled in scandals for obtaining discounted mansions, being flown to Scotland to golf and apparently getting cash for legislative favors, the response of the world’s greatest deliberative body would be to regulate the grassroots. Justice William J. Brennan Jr. called the grassroots “citizen-critic[s] of government” who expose errors of public officials and bring about political and social changes desired by the people. Section 220 of the Senate-passed lobbying reform bill, S. 2349, would require registration and quarterly reporting of grassroots lobbying just like direct lobbying, except worse. The Senate bill would require “paid” efforts to stimulate citizens into public policy action to be registered and disclosed every three months with Congress. Proponents tout the bill as targeted at paid professional and “astroturf” grassroots lobbying (industry-generated lobbying under the guise of citizen action groups). Were that the case, industry groups could still argue that the First Amendment protects anonymous speech, and that rights of political speech, the printing press, association and petitioning the government are not subject to prior restraints of obtaining “permission” from Congress absent some showing of harm. Many incumbents would prefer to silence critics, but legislatures rarely censor so blatantly that courts would rebuff them even under diminished First Amendment standards of review. Proponents of regulating the grassroots don’t disclose that this bill regulates even small associations of real citizen activists petitioning the government. S. 2349 defines “paid efforts” to stimulate grassroots lobbying as communications to 500 or more members of the general public to influence people to take action on policy matters. That would have been an unacceptable threshold even in colonial days of printing leaflets. In these days of mass communications and the Internet, this definition of “paid” is indefensible. S. 2349 amends the Disclosure of Lobbying Activities Act, 2 U.S.C. 1601 et seq. (DLA), which requires disclosure of direct lobbying. Direct lobbying is done by those retained (K Street) and those employed (trade associations, etc.), and consists of lobbying contacts plus lobbying activity. Lobbying “contacts” are communications with legislators, their staff and other federal policymaking officials. Lobbying “activity” is the background work of research and strategy in support of lobbying contacts. The DLA states it won’t interfere with three First Amendment rights (speech, association, petitioning), but even statutory restatement of those rights didn’t protect from the Senate’s planned encroachment. Overbroad definition of lobbying The DLA regulates lobbying on federal legislation, regulations, judicial and cabinet appointments, and Pentagon and White House policy. By redefining lobbying activities to include communications to 500 or more members of the public, S. 2349 turns the definition of lobbying on its head. Books, blogs and broadcasts could now be considered lobbying activity subject to registration with Congress if they influence people to take action on policy issues. Once an employed person has written, phoned or even e-mailed Congress, the White House or officials at federal agencies to take action on policy matters, a speech or publication urging citizen action may make that person a lobbyist and her employer a client to be registered with Congress. Pure volunteer, kitchen-table activists would be exempted for now, but the causes for which they volunteer would need to register. The DLA exempts from registration low-costing direct lobbying, which would be defined as $2,500 paid to retained lobbyists or $10,000 expended by in-house lobbyists per quarter under the new rules. No such low-dollar exemption would apply to grassroots lobbying, so the expenditure of literally one dollar every three months on grassroots lobbying would require disclosure of the effort. Many small, low-budgeted, community-based groups that operate no more than blogs would be treated like K Street lobbyists merely by encouraging citizens to engage in their First Amendment rights to petition the government. The bill places these burdens on small grassroots causes, yet gives large entities an outright exemption for communications to “members, employees, officers or shareholders.” The largest corporations and unions could therefore spend literally hundreds of millions of dollars organizing many millions of their associates, yet still not report. This exemption is easy to exploit, helps K Street and protects Wall Street, but treats Main Street as the “stealthy world” of big-money influence on Washington. The legal community engages in advocacy through speech and publication, and, whether out of constitutional sensitivities or self-interest, should oppose regulating the grassroots by contacting the House/Senate conferees of the lobbying reform bills. Even this opinion piece, by urging citizen action, would be a lobbying activity, and many of us would become “accidental” lobbyists subject to registration with Congress. Mark J. Fitzgibbons is president of corporate/legal affairs at Manassas, Va.’s American Target Advertising Inc., which pioneered political and ideological direct mail in the 1960s. He can be reached at [email protected].

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