Coercing ExxonMobil; Constraining CEI: A Harbinger of Grassroots Lobbying Disclosure

The People have put the Democrats in charge of Congress: “Tread on a worm and it will turn.”  Victory rested on displeasure with national trends—war, ethics, Republican abandonment of republican principles—and rests with the team that spotted those trends: takeover architect Rep. Rahm Emanuel and his political division at the DCCC.  So now we look to a Democratic House in anticipation of the first 100 hours of the first 100 days.

Speaker-elect Pelosi has promised to “break the link between the lobbyists and legislation.”  David Espo, "Pelosi Says She Would Drain GOP ‘Swamp’," Washington Post, Oct. 6, 2006.  Given citizens’ rights to petition for redress through legislation, we would think the Pelosi motto should focus on improper links between lobbyists and legislators, not legislation.  Putting the focus where it belongs, on abusive legislators, would show that Congress and the People it cares about have nothing to fear from informed citizens.  But even victory’s architect, by including it on the Emanuel webpage several clicks deep, is considering proposals to disclose grassroots lobbying.

100 hours seems too little time for adequate thought on the nuance of a policy question.  But we at CCP believe 100 hours is enough time to point up that grassroots lobbying disclosure is fundamentally different from disclosure in all other areas.  As we have said here, grassroots lobbying disclosure gets disclosure precisely backwards.  Because the activity does not touch officeholders directly, disclosing it does not shed “sunlight” on governmental operations. Rather, disclosing it “sunburns” citizens interested in policy by forcing them to inform the federal government when they will disagree with the federal government and how.  We said that, unlike most lobbying reforms, grassroots lobbying proposals:

[d]o nothing to sever the link between lobbyist cash and lawmakers’ pecuniary interests, or to strengthen the relative voice of citizens.  Grassroots lobbying—encouraging or stimulating the general public to contact lawmakers about issues of general concern—is citizen-to-citizen communication that fosters citizen-to-lawmaker communications, in furtherance of Congress’ objective in seeking lobbying reform.


Efforts to limit grassroots lobbying … or compel lobbyists to register with the government to assist groups in contacting fellow citizens, strips … consultants of constitutionally guaranteed anonymity, and would deprive organizations championing unpopular causes of skilled representation.  This anonymity, long recognized and protected by the Supreme Court, fosters political association, guards against unwarranted invasions of privacy, and protects groups … from calumny, obloquy, and possible retribution by public officials.     

We said that if lawmakers knew who was backing unpopular causes, those unpopular causes would have a tough time retaining consultants who make their livings on Capitol Hill.  This seemed intuitively obvious to us.  But we had no idea how right we were.

Recently Sens. Snowe and Rockefeller urged ExxonMobil to end its support of “climate change denial front groups” like the Competitive Enterprise Institute.  "Nobles and Knaves," Washington Times, Nov. 11, 2006.  They also “ask[ed]” that ExxonMobil “acknowledge the dangers and realities of climate change [and] the role of humans in causing or exacerbating it,” stating that findings to the contrary are “pseudo science.”  As asked by Investor’s Business Daily , “If [Sens. Snowe and Rockefeller] are so sure of their facts, why are they trying to shut off debate?  Who decides who is legitimate?”  The Washington Times calls this “bullying at its worst—lawmakers don’t like what a private organization [like CEI] believes, so they try to ensure that those organizations can’t get private funding.”

Some may say Sen. Snowe is engaging in the same activity the Christian Civic League of Maine (CCL) used against her, and sought to vindicate in federal court.  CCL ran radio ads asking citizens to “[c]all Sen. Snowe [and] urge [her] to support the Marriage Protection Amendment when it comes to a vote in early June.”  But this conflates two very different forms of influence.  CCL sought to persuade Sen. Snowe, its legislative agent, to implement CCL’s policy preferences.  If Snowe fails too often to heed its words, CCL may choose no longer to associate with Snowe, and may use a PAC to argue against her reelection.  Whatever one may think of its argument or methods, CCL is engaged in persuasion.  Sen. Snowe remains free to act, argue, and garner support without threat of force.  But Snowe’s words to ExxonMobil are made under color of law and threat of governmental reprisal.  They are coercive, not persuasive.  This subtle difference is all the difference in the world; a difference we cannot lose sight of in the first 100 hours of a new Congress.

The Center for Competitive Politics is now the Institute for Free Speech.