Judiciary committee members speak out against grassroots lobbying disclosure

Last week we reported the defeat of Rep. Meehan’s grassroots lobbying amendment in the House Judiciary Committee.  The transcript (.pdf) of that meeting is now available.  But there’s no need to dig through 134 pages of transcript to find the best quotes opposing grassroots lobbying disclosure, because we’ve done it for you.

Below are statements from Committee Chairman John Conyers (D-MI), Rep. Artur Davis (D-AL), Rep. Lamar Smith (R-TX), and Rep. Daniel Lungren (R-CA).

Rep. Lamar Smith (transcript p. 70-72):

I oppose this amendment. Let me say at the outset that I recognize that there are in fact honest differences of opinion in regard to this amendment. But to me, and in my judgment, the amendment probably does violate the First Amendment, and I believe that that view is shared by the American people, the U.S. Senate, and the Supreme Court.

The provisions that regulate grassroots communications might in fact define typical Americans as lobbyists. Under these provisions, any member of the general public who expresses their views on the issues of the day via a grassroots communication could be defined as "lobbying Congress."

As the American Civil Liberties Union has stated in opposing provisions regulating grassroots communications, "petitioning the government is core political speech for which First Amendment protection is at its zenith." The monetary thresholds in the amendment are irrelevant. It makes no sense to allow groups to pay for advertising space in small newspapers, but regulate them when they communicate through large newspapers like the New York Times and the Los Angeles Times, which can be very expensive.

Some say that disclosure requirements are not really regulations, but they regulations, and the provisions can impose criminal penalties, including many years in prison, if someone makes one mistake in filing or filling out the required forms. Fundamentally, grassroots communications are not lobbying at all, and therefore have no place in this legislation. In fact, the Supreme Court has said exactly that.

In Rumely v. United States, the Supreme Court interpreted a congressional resolution regarding lobbying as not including paid efforts to influence the general public because the court said interpreting the resolution in that manner would cause "serious constitutional doubt" about the legislation’s validity.

The Supreme Court reaffirmed these views in United States v. Harris when it interpreted regulations to only apply to direct contact with Congress. The court upheld the regulations by construing them "to refer only to lobbying in its commonly accepted sense to direct communication with members of Congress on pending or proposed federal legislation."

What some want to regulate and deter are activities that actually strengthen robust communications between citizens and members of Congress, such as phone calls and constituent letters. These provisions will actually increase the influence of special interest lobbyists who meet personally with members of Congress, and weaken the influence of typical citizens back at home.

Mr. Chairman, I do oppose the amendment, and I yield back the balance of my time.

Committee Chairman, Rep. John Conyers (trans. p. 72-73):

Let me point out why I oppose this amendment as well. I have been influenced by the communications from the American Civil Liberties Union, and even the National Rifle Association, National Right to Life. And herein is the problem. Citizens have a constitutional right to contact their elected representatives on any issue. Regulation, particularly when accompanied by penalties for failure to completely comply with all the regulations, can chill free speech no less than an outright censorship ban can.

The Senate refrained from attempting to regulate what appears to be grassroots lobbying, but it is really corporate lobbying. They didn’t include it because of First Amendment concerns. For those same reasons, some articulated by the gentleman from Texas, I would ask my colleagues for a "no" vote on the Meehan amendment.

Rep. Daniel Lungren (trans. p. 73-77):

Mr. Chairman, interestingly enough, the beginnings of our republic if this particular provision of law had been in effect, might well have been altered. This might be called the "flush out the authors of the Federalist Papers amendment." Alexander Hamilton, Madison and Jay, all three, wrote under aliases. Had they had to expend funds, which I assume they did, to have this printed and sent out, somehow under the reasoning of the gentleman from Massachusetts, that would have been an attempt to corrupt the process.

I would congratulate the gentleman on one thing. He has brought us all together. We have the American Civil Liberties Union and the National Right to Life together in opposing this amendment. It is an important issue for us here. It is a pain in the neck sometimes to receive all these letters from the folks from the grassroots. I will admit that. Sometimes you have to spend time going through it and you have to have staff members doing it. But that is the price of our liberty and that is the price of this society we have.

The First Amendment protects expressive, associational rights, and the proposal before us presents a new obstacle before what is clearly a constitutionally protected activity. A compelling governmental interest necessary to justify such regulation is completely absent here. In Buckley v. Valeo, relating to the prevention of corruption or even the perception of corruption, that basis is absent here.

What is the corruption of having people trying to encourage folks to express their opinions to us here in Congress? Is it because of the numbers involved, and $100,000 makes it unconstitutional?

Mr. Meehan: Will the gentleman yield?

No, I will not yield at this point, because we are concerned here with the attempt to regulate actions which are directed at the general public, rather than actions behind closed doors outside the purview of public scrutiny.

Although section 1 of the amendment indicates it is directed at lobbyists, it has nothing to do with what is currently considered to constitute lobbying under law. If the amendment were merely directed at lobbying it would not be necessary to do as the gentleman does, change the definition of such activity to include engaging "in paid communication campaigns to influence the general public to lobby Congress." In fact, there is even a new subsection added which is aimed at "paid communication campaigns to influence the general public to lobby Congress."

Let me just suggest that activities aimed at increasing the involvement of the general public, no matter who it is-left, right, in between, people we agree with, people we disagree with-that doesn’t pose a threat to the ethical integrity of this institution. With all due respect to the gentleman from Massachusetts, remember lobbying is nothing but the process of representative democracy. The United States Supreme Court, citing from the other case of the United States v. Rumely, put it well when they stated, "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," said the court. "It is a good, a healthy essence of the democratic process."

Why would we want to interfere with that, stigmatize that, cause all of the necessary bureaucratic trappings here? Right now, it is tough enough in the political arena for somebody who is not already connected to get involved in politics. You have to hire an attorney. You have to hire an accountant to make sure you don’t run afoul of the law. We now are not going to just do it to people running for office. We are going to do it for people out there who want to encourage other people to talk to us.

That is as indirect an implication of lobbying as viewed under the Constitution by the Supreme Court, as I have found. Certainly, each and every one of us ought to have enough confidence in the democratic process to trust that those who have elected us can make the decision individually as to whether they want to respond to the request to give us information.

So I would just hope that we understand how important this issue is. This is really an important issue. With all due respect to the gentleman from Massachusetts, who I know believes that we ought to have more disclosure, this goes beyond that. This in a very real way would chill the most essential activity we have in our political process, which is encouraging people at the local level to contact us. We certainly do that. We certainly encourage people to contact us through various ways of our MRA. What is wrong with other individuals doing that?

So I would hope that we would not adopt this amendment.

Rep. Artur Davis (trans. p. 79-80):

Let me reluctantly speak in opposition to the amendment and join the chair in opposition to it for two reasons. I agree with Mr. Nadler from New York that this amendment is a substantial improvement over the Senate version. I think it still has two defects.

The first one is this. Imposing a reporting requirement does create a burden. My concern is that the individuals, or the entities rather, who will most likely clear that burden, are the well-heeled, those on the corporate side, as opposed to those who may be more on the public interest side. I think it is likely to be a practical consequence of this requirement.

Second of all, I think Mr. Lungren actually put his finger on a very important point. The traditional congressional concern with closed-door lobbying is that no one knows exactly what the communication is about. No one knows exactly what is happening behind closed doors. No one knows what implicit quid pro quo may be discussed, so we want to put more transparency around it.

If we are talking about a public communication, which is what I understand this amendment addresses, you can’t get more transparency than that. People know what the arguments are. They know the core of the arguments. By definition, I think we have less of an interest in regulating it or fleshing it out.

So for those two reasons, while I certainly admire all the enormous work Mr. Meehan has done in his career, and will miss him in the Congress because of his good work on this issue, I would join the chairman in opposing the amendment.

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