Thread: Grass-roots groups qualify as lobbyists under ethics bill

http://washingtontimes.com/national/200 ... -2071r.htm

Grass-roots groups qualify as lobbyists under ethics bill
By S.A. Miller
THE WASHINGTON TIMES
January 18, 2007


The ethics bill before the Senate not only cracks down on lawmakers, but also subjects politically active ministers and neighborhood groups to the same rules as K Street lobbyists.

Under the legislation, grass-roots organizations that attempt to "influence the general public" to contact members of Congress would have to register as lobbyists and file financial reports -- or face a $200,000 fine. The requirements could apply to a preacher who goes on TV or radio and tells listeners to call their congressman in support of a particular issue, such as a constitutional amendment against homosexual "marriage."

But late last night, in the session's first display of the muscle that even a minority party has in the upper chamber, the entire ethics bill was jeopardized when Republicans blocked a procedural vote. Majority Leader Harry Reid, Nevada Democrat, had refused to allow a vote on an amendment to give the president authority to strip spending "earmarks" from bills.

Republicans retaliated by voting in near-lockstep against a parliamentary motion needed to vote on the entire bill. The motion won a 51-46 majority, far short of the two-thirds majority needed. No action is now scheduled on the bill, though negotiations between the two parties continued into the night.

The vote capped a day of squabbling over the ethics bill, in which the Senate's Democratic leaders clashed repeatedly with Republicans on numerous details, starting with the measure to broaden the scope of lobbyist rules. Democratic backers of the measure say it will expose phony grass-roots organizations, sometimes called "astroturf," that front for monied special interests.

"The problem is these organizations have hired guns paid by undisclosed special interest organizations," said Sen. Dianne Feinstein, California Democrat and chairman of the Rules and Administration Committee.

She said the proposal was "bona fide, helpful and overdue."
But issue groups spanning the political spectrum -- from National Right to Life and Focus on the Family to the League of Conservation Voters and the American Civil Liberties Union -- say the expanded definition of lobbyist will imperil citizens' constitutional rights to free speech and to petition the government.

"This bill goes way too far," said Caroline Fredrickson, director of the ACLU's Washington legislative office. "This gets at the citizen groups who are really the ones making their voices heard about our democracy."
An identical proposal has been introduced in the House.

The first Senate squabble stemmed from an amendment by Sen. Robert F. Bennett, Utah Republican, that would delete the provision on grass-roots lobbying.

"This should be struck from the bill," Mr. Bennett said. "I was taught in civics in high school that [contacting Congress members] was what we were supposed to do."

The grass-roots provision would exempt unions and other organizations that attempt to influence only their members, shareholders and employees. It also would apply only to groups that collect or spend more than $25,000 in three months.

"I gather some groups are upset," said Sen. Joe Lieberman, Connecticut independent who supports the bill. "But it is really aimed at attempts to influence Congress by these astroturf groups."

Mr. Lieberman said the $25,000 threshold would protect real grass-roots activists, an assertion that drew criticism from Jay Sekulow of the American Center for Law and Justice.

"Some of the big churches spend more than that in a week," said Mr. Sekulow, chief counsel for the conservative constitutional-law group. "We have a constitution that gives us the free exercise of religion, and part of that is being able to address the moral and religious values of the day."

The late procedural block came over a proposal by Sen. Judd Gregg, New Hampshire Republican, to give the president the authority, with the approval of Congress, to eliminate individual spending items in broader-scope legislation.

"The new majority party has been very vocal about ... fiscal responsibility and spending restraint," Mr. Gregg said. "Yet it seems to be dragging its feet when it comes time to put those words into action."

Democrats refused to allow a vote, saying the amendment was not relevant to the ethics bill. After the Republican-backed procedural vote, Majority Whip Richard J. Durbin, Illinois Democrat, said he hoped that "this is going to be just a bump in the road."

Please see information about the Bennett Amendment
http://www.alipac.us/modules.php?name=F ... 378#276378

This is the kind of vote we need on AG bill, amnesty, ect. come on Republicans you can do!!!! show some back bone for us citizens!!

I heard about this this AM on NPR. They also mentioned that Sen. Byrd, head of appropriations committee, was instrumental in this not going forward, and this was due to the line item veto.

I heard the debate in the Senate yesterday. Sen. Bennett was terrific. Interestingly, he read a letter that had been sent to all Senators from the ACLU. As you can imagine, they were all over this section 220, and I think this got a lot of people's attention. Bennett predicted that if 220 was left in the bill, this violated people's Constitutional rights to petition the government and would therefore end up in a lawsuit and eventually go to the Supreme Court.

Sen. Feinstein got up and raised objections to removing this provision - she was the only other Senator who did, at least publicly and on the Senate floor.

It seems Senate bill 1 –the Ethics and lobbying reform bill – is still alive and the Repubs and Dems are trying to work out their procedural disagreements. Amendment 20 (to strike the provision on grass roots lobbying) was discussed yesterday but I don’t believe there has been a vote on it. It has acquired some additional co-sponsors, one of which is Elizabeth Dole!

AMENDMENT NO. 20 (the Bennett amendment) now has 11 co-sponsors:
COSPONSORS(11):

Sen McConnell, Mitch [KY] - 1/10/2007
Sen Kyl, Jon [AZ] - 1/11/2007
Sen Cornyn, John [TX] - 1/11/2007
Sen Inhofe, James M. [OK] - 1/12/2007
Sen Vitter, David [LA] - 1/12/2007
Sen Thune, John [SD] - 1/12/2007
Sen Coburn, Tom [OK] - 1/16/2007
Sen Corker, Bob [TN] - 1/17/2007
Sen Alexander, Lamar [TN] - 1/17/2007
Sen Grassley, Chuck [IA] - 1/17/2007
Sen Dole, Elizabeth [NC] - 1/17/2007

Here is the transcript from Congressional Record, page S647-652, January 17, 2007, on discussion of Amendment 20:

Mr. BENNETT. Madam President, I have an amendment, No. 20, which I have offered and which I believe we will be voting on at some point, if not today then tomorrow. I rise to discuss the amendment and to share with my fellow Senators comments that have been made about the amendment by those groups in the Nation that would be most affected by it.
My amendment is very simple. It is a single sentence. It strikes section 220 of the underlying bill. So the whole focus of this discussion has to be on section 220 and what is it and what does it do and why do I think it should be stricken.
If I can go back to the history of this bill, back to the Senate-passed bill we dealt with in the previous Congress, I can tell you where section 220 came from. It was an attempt to deal with what the press has labeled ``the astroturf groups.'' That is a little bit hard to understand.
What does astroturf have to do with anything here? There are grassroots lobbyists and then there are groups the press has decided are phony groups pretending to be grassroots lobbyists. And it is these phony groups that they have labeled ``astroturf lobbyists'' and they think something ought to be done about it.
Here is the theoretical definition of an astroturf lobbyist: An astroturf lobbyist is someone who gets paid, presumably by a large organization--a labor union, a corporation, a trade association, whatever it might be--to
pretend there is a groundswell of grassroots support or opposition for or to a particular piece of legislation. So this hired gun, if you will, sends out letters, e-mails, faxes--whatever it is--to stir up phony grassroots support for or against the particular piece of legislation.
The idea was that this hired gun, this individual who does this is, in fact, a lobbyist, even though he or she never talks to a Member of Congress, even though he or she may not live in Washington, DC, or even come here, even though he or she has no connection with any Member of Congress or the staff, because he or she is trying to stimulate communications to Congress that have the effect of putting pressure on Congress. He or she is a lobbyist and, therefore, must register, must report who pays him or her, must go through all of the procedures connected with a lobbyist under the Federal Lobbying Disclosure Act.
Put in that narrow context, there may be some justification for section 220.
Now let's step out of that hypothetical context and go to the real world, and we discover that section 220 is pernicious in its effect, which is why it is opposed all across the political spectrum by those who are involved in trying to put pressure on Congress by virtue of communicating with their Members.
On the right-hand side of the slate we have the Eagle Forum, on the left-hand side of the slate, if you will, we have the ACLU, and all across the spectrum we have a number of groups that are saying: Wait a minute, the prohibitions on astroturf lobbyists or grassroots lobbyists, as they are called in the bill, are prohibitions that cut to the heart of the constitutional right of Americans to petition the Government for redress of their grievances.
I have a letter, a copy of which was sent to every Senator, from the ACLU. Knowing what I know about senatorial offices, I think most Senators will not see the letter, so I will quote from it and at the end of my presentation ask unanimous consent that it be printed in the RECORD so that all Senators and their offices can read it.

Here is what the ACLU has to say about this particular provision:

Section 220, entitled ``Disclosure of Paid Efforts to Stimulate Grassroots Lobbying'' imposes onerous reporting requirements that will chill constitutionally protected activity. Advocacy organizations large and small would now find their communications to the general public about policy matters redefined as lobbying and therefore subject to registration and quarterly reporting. Failure to register and report could have severe civil and potentially criminal sanctions.
If I can end the quote there and insert this fact: When we adopted the Vitter amendment on January 12, we raised that fine to $200,000. Someone who gets his neighbors together and says, let's all write our Congressmen on this issue, and then spends some money doing it, under this provision becomes a paid lobbyist, and if he does not report and register would be fined $200,000 for having done that. The ACLU does not overstate the case when they say this would have a chilling effect on constitutionally protected activity.
If I can go back to the ACLU letter and continue quoting:
Section 220 would apply to even small, state grassroots organizations with no lobbying presence in Washington. When faced with burdensome registration and reporting requirements, some of these organizations may well decide that silence is the best option.
I guarantee you that if this small organization has a lawyer, the lawyer will advise them that silence is the best option. The lawyer will say: You are exposing yourself to a $200,000 fine if you don't do this right, and if you don't have the capacity to go through all of the paperwork and be sure you do this right, the best thing to do is simply not try to stimulate anybody to write his Congressman or go visit the local congressional office.
Back to the letter from the ACLU:
It is well settled that lobbying, which embodies the separate and distinct political freedoms of petitioning, speech, and assembly enjoys the highest constitutional protection.
And for every statement they make here, as you will see when you get the letter inserted in the RECORD, the ACLU gives Supreme Court decisions in support of the position, and in many instances they are quoting directly from the Supreme Court opinion and not paraphrasing.
Back to their letter:
Petitioning the government is--
and this is a subquote from the Supreme Court--
core political speech,
the ACLU again--
for which the First Amendment protection is--the Supreme Court--``at its zenith.''
So we are talking about something the Supreme Court has ruled is at the zenith of protected political speech under the first amendment.
Now, back to another Supreme Court position, quoting again from the ACLU:
Constitutional protection of lobbying is not in the least diminished by the fact that it may be performed for others for a fee. Further--from the Supreme Court--``the First Amendment protects the right not only to advocate one's cause, but also to select what one believes to be the most effective means of doing so.'' That is from the Supreme Court decision: The right to not only advocate for the cause, but to select what one believes to be the most effective means of doing so.
A grassroots lobbying group decides in its neighborhood that the most effective means of influencing and speaking up on legislation is to send out letters to its membership, or perhaps it may decide the most effective means would be to buy a mailing list and send out letters to the people on the mailing list. As soon as they spend the money to buy the mailing list, there is a paid lobbyist involved, and if the registration is not correct, there is a $200,000 fine against that group, if we leave this provision in the bill as it is.
The ACLU goes on to make other compelling arguments, but I would like to add a few other comments from other sources to show that this is from across the board.
The National Right To Life Committee--not usually associated with the ACLU in most people's minds as being on the same side of an issue--they say:
Section 220 defines the act of a constituent contacting a Member of Congress as an act of ``lobbying,'' specifically, ``grassroots lobbying.''
And then here is what section 220 has to say, quoting directly from the bill:
Grassroots 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.
Let me stress that, again. This legislation says that grassroots lobbying is defined as members of the general public communicating with their Congressman or encouraging others to do the same.
I thought that is what we were all supposed to do. I was taught in civics class in high school that everyone had the right to do that, without being forced to register and report all of their connections if somebody pays for it. Again, the Supreme Court says, constitutional protection of lobbying is not in the least diminished by the fact that it may be performed for others for a fee. But if you mess up your forms, if you don't file them on time, if somehow they are confusing to you and you have contacted your neighbors or you have purchased a mailing list, whether you are Astroturf or grassroots, you are on the hook for $200,000, as the bill currently stands.
Bradley Smith, who is the former chairman of the FEC, along with Stephen Hoersting, who is Republican Senatorial Committee general counsel, two distinguished lawyers, had this to say on this issue:
``Grassroots lobbying'' is merely encouragement of average citizens to contact their representatives about issues of public concern. It is not ``lobbying'' at all, as that phrase is normally used outside the beltway, meaning paid, full-time advocates of special interests meeting in person with Members of Congress away from the public eye. Contact between ordinary citizens and Members of Congress, which is what grassroots lobbying seeks to bring about, is the antithesis of the lobbying at the heart of the Abramoff scandals. It is ordinary citizens expressing themselves. That they are ``stimulated'' to do so by ``grassroots lobbying activities'' is irrelevant. These are still individual citizens motivated to express themselves to Members of Congress.
The Right To Life letter goes on to say:
Poorly paid, activist employees of such organizations could receive penalties of up to $200,000 per infraction, or even face a threat of criminal prosecution, even if they never set foot in Washington, D.C., or speak to a Member of Congress or congressional staff.
Yes, Senator Bennett, that is all very well and good, but what about these Astroturf lobbyists? We have to get to that terrible evil. The people who say that, quite frankly, probably have never, ever served in a congressional office or held public office. And if they have, they were pretty unconscious while that was going on.
I first came to this town as a congressional staffer over 40 years ago. I served on the House side; I have served on the Senate side. I have been a lobbyist downtown. Yes, I have been one of these paid professionals, and I reported all of the things I was required to report--went through the whole situation. I was in the executive branch as a lobbyist. We didn't call it that. We pretend the executive branch doesn't lobby the legislative branch, so it is called ``congressional liaison'' or ``congressional relations.'' I was the Director of Congressional Relations at the Department of Transportation. I had exquisite timing. I left just before they had title inflation, and if I had been there a little later, I could say I was an Assistant Secretary.
I understand this. People who have been involved in this understand this. When somebody tries to create a truly phony outburst of public opinion, the people in the front office of a congressional staff recognize it in about 3 nanoseconds. The letters come in. They are all identical. You know they are not stimulated by the position of the people at home. You know they were written by some professional who is taking a fee as an Astroturf lobbyist, if you will. You can see through it in an instant. They
all come in, almost always in one of these simulated kinds of campaigns and somebody ruins it. I have seen these postcards, and on one of them is written: Senator, my organization told me to send you this. I hope it is helpful. And you know the person who wrote that doesn't know what is on it.
Sometimes they come in and they say: I don't know anything about this issue, but I am being asked to send you this postcard. I trust your judgment, Senator, and I hope you do the right thing.
There were times when these phony Astroturf kinds of campaigns were so overwhelming in volume that in the office where I was working, we didn't read any of it. You identified it immediately, you put them in a separate mail sack, and you threw them away. I tell people when they come to me and say, What is the best way to influence a Member of Congress, it is to stay away from these people because we are smart enough to see through it.
In order to protect the Congress from these kinds of Astroturf campaigns, do we have to put a potential $200,000 fine on someone who uses his church list to send out a letter and urge people who receive the letter to write their Congressman on a particular issue? Do we have to expose every group, right and left, that does its best to stimulate some kind of interest in an issue to this sort of penalty? What about the Internet? What happens if someone goes on the Internet and urges everybody who sees his blog to write Congress and then makes the mistake of hiring somebody and paying him to write that notice on the blog? Has that not created a lobbyist for hire? Somebody finds out the man who created the message on the blog got paid and files a complaint. I don't know what the lawyers would do with it, whether he would end up paying the $200,000, but I do know what he would run up in legal fees to protect himself against that kind of situation.
This is simply something that has been created by virtue of a perception of the way grassroots works, a perception that is wrong. This should be stricken from the bill. This should not go forward. I speak not from my own experience, not from how I feel after 40 years of contact with this place in one way or another, but I speak for a vast number of groups who are involved in this on the far right, on the far left, on every stage of the political spectrum in between, including those who are strongly for this bill and including those who say we need more transparency, we need to do something about earmarks, we need to do something about the more traditional definition of lobbyists having undue access. People who say we are for the bill, we are for all of these wonderful things, but if you do this, put this in the bill, you are on very shaky constitutional ground.
I have no doubt that if section 220 survives in the bill and ends up in the law, it will be struck down as unconstitutional. But in order to have it struck down, someone will have to file a lawsuit. Someone will have to fund hundreds of thousands and probably millions of dollars to take it through a district court and a circuit court and up to the Supreme Court, although maybe not. I would think any district judge would take one look at this and strike it down. But life being what it is, you can never tell about that. The Supreme Court has spoken often and repeatedly on this issue. The Supreme Court position is very clear. Let's hear them and save the money for the group that would have to take this to the Supreme Court to try to get it reversed. Let's reverse it in the Senate so it does not ever see the light of day. I urge all of my colleagues to support my amendment that would strike section 220 and reaffirm that the zenith of the Bill of Rights is free speech, the right to petition your Government for redress of your grievances, and the right to peacefully assemble, all of which is involved in grassroots lobbying and none of which should be criminalized as a result of the legislation that we are considering today.
Madam President, I ask unanimous consent to include these letters in the RECORD.
There being no objection, the material was ordered to be printed in the Record, as follows:
AMERICAN CIVIL LIBERTIES UNION,
Washington, DC, January 17, 2007.
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 support Bennett Amendment S.A. 20 to S. 1, the ``Legislative Transparency and Accountability Act of 2007'' when it comes to the floor for a vote. This amendment would strike Section 220 of the underlying bill.
Section 220, entitled ``Disclosure of Paid Efforts to Stimulate Grassroots Lobbying'' imposes onerous reporting requirements that will chill constitutionally protected activity. Advocacy organizations large and small would now find their communications to the general public about policy matters redefined as lobbying and therefore subject to registration and quarterly reporting. Failure to register and report could have severe civil and potentially criminal sanctions. Section 220 would apply to even small, state grassroots organizations with no lobbying presence in Washington. When faced with burdensome registration and reporting requirements, some of these organizations may well decide that silence is the best option.
The right to petition the government is ``one of the most precious of the liberties safeguarded by the Bill of Rights.'' 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. Petitioning the government is ``core political speech,'' for which First Amendment protection is ``at its zenith.''
Constitutional protection of lobbying is not in the least diminished by the fact that it may be performed for others for a fee. 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.'' 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.''
Where the government seeks to regulate such First Amendment protected activity, the regulations must survive exacting scrutiny. 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.
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 Americans can be easily 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 an issue through a grassroots campaign is irrelevant--their action in contacting their representative is based on their own belief in the importance of matters before Congress.
Second, it appears groups such as the ACLU may end up having to report their 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 could be considered a grassroots lobbying firm, and have to register and report as such. The fact 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.
Groups such as the ACLU could also be affected because of the definitions of ``paid efforts to stimulate grassroots lobbying'' employed in Section 220. For example, the ACLU maintains a list of activists who have signed up to be notified about pending issues in Congress. Not all of those activists are ``dues paying'' members who would be exempt from consideration for ``paid efforts to stimulate grassroots lobbying.'' Additionally, since there are 500 or more such individuals, sending out an action alert to ACLU activists could be deemed ``paid'' communication and subject to registration and quarterly reporting.
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 constitutionally suspect. Requiring groups or individuals to report First Amendment activity to the government is antithetical to the values enshrined in our Constitution. 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.
Sincerely,
Caroline Fredrickson,
Director, Washington Legislative Office.
Marvin Johnson,
Legislative Counsel.
NATIONAL RIGHT TO LIFE
COMMITTEE, INC.,
Washington, DC, January 16, 2007.
Re Support Bennett Amendment No. 20 to avoid radical effects of Section 220 of S. 1 (substitute amendment)
DEAR SENATOR: The National Right to Life Committee (NRLC) urges you to support the Bennett Amendment (No. 20), which would strike Section 220 from the pending substitute amendment to S. 1. Because of the chilling effect that Section 220 could have on grassroots activism, NRLC may include any roll call on the Bennett Amendment in our scorecard of key votes for the 110th Congress.
While supporters of Section 220 say that it would only require ``disclosure'' of certain big-dollar lobbying campaigns, the actual language of Section 220 would place unprecedented burdens on issue-oriented citizen groups from coast to coast that seek to motivate the public on matters of federal policy. Any local activist who runs afoul of the new requirements could be subjected to crushing civil penalties, raised from $50,000 to $200,000 per infraction by adoption of the Vitter Amendment No. 10 on January 12, and even to intimidation by threat of the new criminal penalty of up to 10 years in prison created by Section 223 of the substitute bill. The net effect would be to chill activities that are essential to the healthy functioning of a representative system of government.
The reach of Section 220 would be far more expansive and drastic than has been acknowledged by any of the sponsors or advocacy-group backers of the provision. Some of the sweeping effects are clearly intended (if not acknowledged) by the provision's backers, but others may be the result of poor draftsmanship or poor understanding of the way Section 220 would alter the structure of the existing Lobbying Disclosure Act (2 U.S.C. Chapter 26).
CONSTITUTIONAL PRINCIPLE
Before discussing the specific regulatory burdens that would be imposed by Section 220, it is necessary to describe the pernicious premise that is at the heart of the proposal: Section 220 defines the act of a constituent contacting a member of Congress as an act of ``lobbying,'' specifically ``grassroots lobbying.'' In our view, petitioning elected representatives is at the very heart of representative democracy, is granted the highest degree of protection by the First Amendment, and ought to be encouraged rather than restricted and regulated. Yet Section 220 would enact into law a mind-set that encouraging citizens to contact their federal representatives is a type of influence-peddling, inherently suspect, and the proper subject for scrutiny regarding exactly how citizens were motivated to exercise their constitutional right to petition.
(We refer here to definition 17 in Section 220: ``GRASSROOTS LOBBYING. The term `grassroots 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.'' Note that this definition is so expansive that it covers not only verbal and written communications sent by a constituent to an officeholder, but also such activities as holding placards at public demonstrations, submitting letters for publication in local newspapers, or offering comments on an officeholder's position on a call-in radio program.)
Bradley Smith, former chairman of FEC, and Stephen Hoersting, former Republican Senatorial Committee general counsel, last year explained in detail why ``grassroots lobbying'' should be protected from Congressional scrutiny and regulation (see ``Let the Grassroots `Lobbying' Grow,'' www.nationalreview.com/comment/smith <hoersting <200602210809.asp), They wrote:
`` `Grassroots lobbying' is merely encouragement of average citizens to contact their representatives about issues of public concern. It is not `lobbying' at all, as that phrase is normally used outside the beltway, meaning paid, full-time advocates of special interests meeting in person with members of Congress away from the public eye. ..... Contact between ordinary citizens and members of Congress, which is what `grassroots lobbying' seeks to bring about, is the antithesis of the `lobbying' at the heart of the Abramoff scandals. It is ordinary citizens expressing themselves. That they are `stimulated' to do so by `grassroots lobbying activities' is irrelevant. These are still individual citizens motivated to express themselves to members of Congress.''
We agree. We urge you to support the Bennett Amendment in order to reject the root concept that communications from constituents are a form of ``lobbying,'' or that what motivated a constituent is a proper subject for governmental inquiry--be it a mailing from an advocacy group, or a newspaper editorial, or a franked newsletter, or a conversation at a local gym.
SECTION 220--TWO DISTINCT WEBS OF NEW REGULATION
Beyond the fundamental constitutional objection, it is vital that you understand the actual legal effects of Section 220, which have been grossly understated (and are probably poorly understood) by many of the provision's supporters.
Section 220 would create many legal hazards for grassroots-based, actvist-staffed organizations throughout the country.
Section 220 creates two separate and distinct new webs of regulation. (These have been confused or conflated in some materials circulated by both supporters and opponents of the provision.) First, Section 220 greatly expands the universe of persons who must register and file detailed reports (henceforth, quarterly) as federal ``lobbyists,'' because Section 220 redefines ``lobbying activities'' to include ``paid efforts to stimulate grassroots lobbying.'' This would include many employees of state and local right-to-life organizations who are paid only small amounts and who seldom engage in true lobbying of members of Congress or their staffs. Second, Section 220 creates a new category, the ``grassroots lobbying firm,'' defined so broadly that even a single individual, employed by a state or local advocacy group and paid a nominal amount, could be forced to register as a ``grassroots lobbying firm'' if the organization purchased a single full-page ad in a newspaper on a federal legislative issue.
The primary impact of these regulations would not fall primarily on well-heeled ``K Street'' lobbyists or on professional public relations firms, which supporters of Section 220 claim are their targets. Most professional Washington lobbying firms and their vendors are well-equipped to deal with complex regulations--they can hire extra lawyers, bookkeepers, and support staff, and bill their clients for the additional expenses required to keep track of their centralized ``grassroots lobbying activities.''
The real burdens of Section 220 would fall on the thousands of low-paid employees of thousands of issue-oriented citizen groups across the land, of every ideological stripe, who try to motivate members of the general public to communicate with members of the U.S. Senate and House regarding pending legislation. If Section 220 is enacted, the activist will learn that she must register with the federal government as a ``lobbyist'' and file quarterly reports detailing her efforts to stimulate ``grassroots lobbying,'' of any dollar amount, if (l) she is paid any sort of salary, (2) spends more than 20 percent of her time on such grassroots activities, (3) presents the motivating communications to more than 500 persons who are not paying members of the organization, and (4) has communicated with a congressional office or Executive Branch official more than once during a calendar quarter (for example, by sending an e-mail or making a phone call advising a Senate office of the organization's position on a pending vote).
REGISTRATION/REPORTING BY ``GRASSROOTS LOBBYISTS'' WHO SPEND $1
Some defenders of Section 220 say that these requirements would apply only if the activist is an employee of an organization that spends more than $10,000 in a calendar quarter on such ``grassroots lobbying activity.'' Regrettably, they are mistaken--that may have been the intent, but it is not the language of Section 220. There is indeed a $10,000 minimum (per three-month period) threshold in the bill (which amends the $24,500 semi-annual threshold that applies under the current Lobbying Disclosure Act), but Section 220(b)(1) explicitly removes ``paid efforts to stimulate grassroots lobbying'' from the scope of this exemption. In other words, Section 220 creates an exception to the exemption. This means that under Section 220, even $1 per quarter spent to ``stimulate'' citizens to communicate with their representatives in Congress triggers the registration and reporting requirement, for an individual who meets the other four numbered criteria in our previous paragraph. (Note: The $10,000 minimum discussed here applies to registration as a ``lobbyist,'' and should not be confused with the $25,000 threshold that applies to the ``grassroots lobbying firm,'' the new entity created by Section 220, which is discussed on the final two pages of this letter.)
Some defenders of Section 220 also claim that the registration requirement would apply only to individuals or firms that are already required to register because they engage in extensive direct lobbying with members of Congress or congressional staff. In this, too, they are mistaken: Section 220(a)(1) explicitly adds ``paid efforts to stimulate grassroots lobbying'' to the list of activities that trigger the federal registration and reporting requirement Therefore, if a local issue-activist group has an employee who has spent any money to encourage more than 500 private citizens (not members of the organization) to write letters to their representatives, has spent 20% of his time on such activity, and has made as few as two contacts to congressional or Executive Branch offices urging action on a pending issue, that employee would be trapped by the registration and reporting requirements.
Defenders of Section 220 emphasize that communications to members of an organization (for example, members of a labor union) are exempt. But the First Amendment does not merely guarantee the right to communicate with those who pay dues for the privilege of receiving such communications. Even a small single-issue organization may have a large e-mail alert list (for example), made up of individuals who fall outside of the Section 220 definition of ``membership'' because they do not make contributions, but nevertheless have a strong desire to be kept informed of congressional legislative activities. In addition, the group may at times feel the need to reach out to the general public--for example, by purchasing an ad in a daily newspaper--to urge citizens to speak out on a timely issue.
``GRASSROOTS LOBBYING FIRM'' REGULATION WEB
The second and distinct web of regulation created by Section 220 applies to a new category of regulated entity, the so-called ``grassroots lobbying firm.'' Defenders of Section 220 talk about this provision in ``terms of so-called Astroturf'' operations, as if it applied to professional advertising or public relations firms, but the actual language is far more sweeping. Section 220 defines a ``grassroots lobbying firm'' as ``a person or entity'' [emphasis added] who is paid, by a ``client,'' to stimulate ``grassroots lobbying'' (as defined in Section 220), and who receives, spends, or agrees to spend $25,000 or more in a quarter for such activities. ``Client'' is defined in the existing law to include an organization that employs an in-house staff person who engages in ``lobbying activities,'' a definition that Section 220 would expand to include activities to motivate grassroots contacts to members of Congress.
(It is important to note that this $25,000-per-quarter threshold applies only to the new ``grassroots lobbying firm'' provision of Section 220, and not to the separate requirement that one engaged in ``paid efforts to stimulate grassroots lobbying'' must register and report as a ``lobbyist.'' As we have already explained, the lobbyist registration requirement is not confined by any dollar threshold with respect to ``paid efforts to stimulate grassroots lobbying.''
Thus, under Section 220, the executive director (for example) of a state or local affiliate of National Right to Life, even if she is part-time and paid only a nominal amount, and even if she seldom or never interacts directly with congressional offices, could be forced to register as a federal ``grassroots lobbying firm'' and file detailed reports on a quarterly basis, if she on behalf of the organization (the ``client'') spends more than $25,000/quarter on encouraging the general public to contact their federal elected representatives. Since a single full-page ad in a major metro newspaper typically costs more than $25,000, many part-time citizen activists would find themselves legally defined as ``grassroots lobbying firms.'' Note that in this scenario, it is not the organization that Section 220 defines as a ``grassroots lobbying firm,'' but the individual staff person as described. Also, note that this new regulation of ``grassroots lobbying firm(s)'' is not constrained by the language that limits the existing Lobbying Disclosure Act requirement to register as a ``lobbyist'' to persons who make at least two direct ``lobbying contacts'' and who spend more than 20% of their paid time on lobbying activities during a reporting period. Those limitations apply only to the Act's definition of ``lobbyist,'' and not to the new language of Section 220 defining ``grassroots lobbying firm.''
The ``grassroots lobbying firm'' provision of Section 220 has one additional side effect which has not been understood, or at least has not been acknowledged, by its supporters: The $25,000 threshold is an aggregate figure for a vendor, not a threshold that applies to each issue-oriented client organization. We illustrate the implications by the following scenario: In Anytown, 15 citizen-activist groups, none of which has any paid staff or engages in any direct contacts with members of Congress or congressional staff, all hire the same vendor to mail to various lists of citizens urging them to communicate with their elected representatives on different timely issues. No organization pays more than $2,000 for the use of any list, but the aggregate amount collected by the vendor for mailings to all lists exceeds $25,000 in a three-month period. Under Section 220, this local vendor would be required to register as a ``grassroots lobbying firm'' and to report the details of his mailing activities for all 15 of his ``clients,'' even a group that merely paid $50 for the use of a list.
CONCLUSION
In summary, Section 220 is a poorly drafted provision. If enacted, it will disrupt the constitutionally protected activities of thousands of issue-oriented citizen groups from coast to coast, chill free speech by citizen activists on the issues of the day, and become a textbook example of the Law of Unintended Consequences.
We urge you to prevent these consequences by supporting the Bennett Amendment No. 20, which will strike Section 220 from the substitute to S. 1. Thank you for your consideration of our strong views on this issue.
Sincerely,

DOUGLAS JOHNSON,
NRLC Legislative Director.
SUSAN MUSKETT, J.D.,
Congressional Liaison.
--
January 16, 2007.

Hon. HARRY REID,
Majority Leader, U.S. Senate,
Washington, DC.

Hon. MITCH MCCONNELL,
Minority Leader, U.S. Senate,
Washington, DC.
DEAR MAJORITY LEADER REID AND MINORITY LEADER MCCONNELL: As leaders of advocacy organizations active on a broad variety of issues, we write to express our strong concerns regarding certain proposals that are being advanced that would establish, for the first time, congressional oversight of grassroots activity that is intended to encourage members of the public to communicate with Members of Congress about pending legislative matters--so-called ``grassroots lobbying.''
We take no issue with proposals that may be legitimate responses to allegations of certain unethical actions by Members of Congress, congressional staff and lobbyists. But nothing in those allegations provide any justification whatsoever for the notion that incumbent Members of Congress should seize authority to scrutinize and regulate the constitutionally protected efforts of groups such as ours to alert citizens regarding legislative developments in Congress and to encourage them to communicate their views to their elected representatives. That citizens are ``stimulated'' to contact their representatives by so-called ``grassroots lobbying activities'' is irrelevant. Newspaper editorials, op-eds, grassroots advertisements and e-mail alerts are all ways to influence people to contact their elected representatives on an issue. Just as it would be unconstitutional to monitor the press because of their influence over their readership, the First Amendment also protects the right of the people to ``petition the government for a redress of grievances.'' To monitor motivation as to why a citizen would contact Members on an issue is attacking that First Amendment right.
A prominent example of the type of provisions that we strongly oppose are found in the Legislative Transparency and Accountability Act of 2007 (S.l). We strongly oppose Section 220 of this legislation and any other proposals along these lines.
Section 220 requires ``grassroots lobbying firms'' to report to Congress within 45 days of agreeing to provide services related to grass roots lobbying (including filing of quarterly reports listing disbursements made in connection with such activities).
Section 220 exempts communications of an organization to its members from direct application of these requirements, but the bill ensures that all private contractors and vendors which we retain to help communicate with the general public, in order to encourage these citizens to contact their elected representatives in Congress, would be subject to the burdensome recordkeeping and reporting requirements. Moreover, since these activities must be reported according to when they are arranged (even before communications to the public actually occur), they would in effect require that we provide our opposition on any given issue with detailed information about the scope and location of our planned grassroots efforts.
Reasoned attempts to address the concerns emerging from Congressional scandals should not be used as an excuse for incumbent officer-holders to encroach upon our most basic Constitutional liberties. Therefore, we urge you to strongly oppose any legislative proposals that would establish federal oversight over grassroots lobbying activities. We fully support Amendment 20 to S. 1 filed by Senator Robert Bennett which would strike the section relating to disclosure of paid efforts to stimulate grassroots lobbying.
Respectfully,
Family Research Council
Focus on the Family
Family Protection Lobby
The Family Action Council of Tennessee
American Family Association
Illinois Family Institute
The Family Research Institute of Wisconsin
Free Market Foundation
Christian Civic League of Maine
The Center for Arizona Policy
Corner Institute of Idaho
South Dakota Family Policy Council
Georgia Family Council
The Minnesota Family Council
Mississippi Center for Public Policy
Men's Health Network
Family Leader Network
National Council for Adoption
Institute on Religion and Public Policy
Catholic Family & Human Rights Institute
American Association of Christian Schools
National Rifle Association
Coalition for Marriage and Family
Judicial Action Group
Coalitions for America
American Shareholders Association
Americans for Tax Reform
American Values
Catholic Exchange
Traditional Values Coalition
Tradition, Family, Property, Inc.
Family Resource Network/Teen Pact
Grassfire.org Alliance
Eagle Forum
Concerned Women for America
Christian Coalition of America
Fidelis
Citizens for Community Values
Population Research Institute
Home School Legal Defense Association
Southern Baptist Ethics & Religious Liberty Commission
Advance USA
Americans United for Life
Massachusetts Family Institute
Mr. BENNETT. Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Madam President, I would like to make a very few comments in response to the ranking member's comments, and then I know the Senator from Pennsylvania would like to speak on another matter, so I ask unanimous consent that he be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Thank you very much. I know that Senator Lieberman is going to speak on the specific provisions of section 220 in the base bill, S.1, at a later time. However, I would like to share with this body what I understand to be the facts. If I understand correctly what is attempted in the underlying bill, the goal is to compel disclosure, registration and reporting for those companies, individuals or organizations that say, We have a cause, this is the cause; we want to establish a grassroots lobbying organization. They go and hire organizations to get going and spent more than 25,000 a quarter. They say go ahead and organize a movement, but nobody ever knows who they are or who funds them. This is called astroturf lobbying. Some people refer these groups as ``sham'' or ``front'' organizations. I am not going to say they necessarily are, but they have been referred to as such. They seek to influence legislation through mass media, using campaign and issue ads, letters, phone calls, think-tank public policy papers, and public polls.
The problem is, these organizations are hired guns funded by undisclosed special interest corporations and public policy firms. They conduct grassroots organization lobbying efforts which are often very misleading or in some cases, deceptive. For example, an oil company hires a sham organization to promote the benefits of alternative fuels to big oil, or a cigarette company hires a front group to lobby for smoke-free environment--or whatever the popular cause may be. They go out to organize, make lobby contacts, and conduct other lobby activities on specific issues. Unlike genuine grassroots groups that tend to be money poor but people rich, astroturf campaigns are typically people poor and money rich.
Section 220 of the base bill contains the provisions on disclosure of paid efforts to stimulate grassroots lobbying. I am the first one to say these provisions could be more clearly written. Nonetheless, the section's goal is to close the loophole in current law that allows these groups to engage in lobbying contacts without any public disclosure or reporting whatsoever--like the paid lobbying contacts and efforts of Jack Abramoff and Ralph Reed.
The bill recognizes this increased type of lobbying--paid efforts to stimulate grassroots lobbying--and creates new disclosure and reporting rules for such activities. It makes clear that efforts by an organization to contact its own members as part of a grassroots lobbying campaign are not covered and are unaffected by these provisions unless some outside group paid the organization to do so.
The bill also requires a $50,000 quarterly threshold as a precondition of registration. This means that small and truly local efforts are not covered.
I do not agree with the comments made by the ranking member about this section 220. Non-profits will continue to be able to lobby under current
tax law that requires threshold disclosure and reporting. However, private sector groups and their paid lobbyists are not currently required to disclose, register or report and therefore would be under section 220. So this is the differentiation between the two groups.
The provisions would create a balanced playing field by opposing a sham grassroots lobbying operation while protecting legitimate grassroots lobbying organizations. This in essence is the purpose. If it does survive consideration here, we will take another look at it in conference with respect to narrow definitions, registration and the reporting trigger thresholds. I do believe if somebody goes out and creates one of these groups, pours a lot of money into it and then hires people for grassroots lobbying purposes, then this group should be required to disclose and report so the public knows exactly who the group is and who is financing the group. Is it an undisclosed oil company or is it really a legitimate Citizens for Alternative Fuels to Oil? I think that it is important to determine the credibility and legitimacy of these organizations involved in grassroots lobbying.
I know the ACLU is opposed to it. The ACLU is a group that has been around for a long time. I don't see them being affected by this at all because they would be covered under this other section of the law. I offer these comments in the interests of the purpose of section 220 in this legislation, which I think is bona fide, helpful, and overdue. Thank you, Madam President.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Madam President, I have a question of my distinguished friend from Pennsylvania. It is my understanding he is going to speak next; is that right?
The PRESIDING OFFICER. The Senator is correct.
Mr. SPECTER. Madam President, my request is to speak for about 10 minutes.
Mr. REID. My only question was how long he is going to speak. I will come back after that time. I appreciate the Senator allowing me to ask that question.
Mr. BENNETT. Madam President, may I make a quick response to the Senator from California before we hear from the Senator from Pennsylvania? I will not take more than a minute or two.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. BENNETT. I simply want to make this point with respect to the threshold that causes people to come under the provisions of the bill. There is, indeed, a $10,000 minimum for a 3-month period threshold in the bill, but section 220(b)(1) explicitly removes ``paid efforts to stimulate grassroots lobbying'' from the scope of this exemption. In other words, $1 per quarter spent to stimulate citizens to communicate with their representatives in Congress triggers the registration and reporting requirement for an individual who meets the other four numbered criteria.
I agree with the Senator from California. This is very badly drafted and needs an awful lot of work, which is why I think the best thing to do with it is simply strike it.