Rules for Thee; Not for Me

 

 

Some proponents of creating unprecedented regulation of communications between citizens attempt to justify the proposed unconstitutional legislation in the name of disclosing expenditures on “influencing” policy makers. They say this is to benefit the general public.

 

Grassroots legislative proposals that would require registration of grassroots communications to the general public include reporting exemptions for communications to “members, employees, officers, or shareholders.”[i] This would create an imbalance in First Amendment rights favoring corporations, labor unions, and large, wealthy membership organizations, such as AARP.

 

Such exemptions would create a favored status in basic American rights for those organizations that either receive payment from membership dues, or that provide remuneration through salaries, benefits and dividends.

 

Few, if any, among the poor and the homeless own stock, and the unemployed certainly are not employees or officers of corporations. The grassroots legislation adds new burdens on those who speak for, and communicate with, citizens about issues affecting the already disenfranchised. Such communications are certainly less motivated by economic self-interests, and thus are obviously less “profitable” as it already is. The exemptions, therefore, should be likened to the poll taxes under Jim Crow laws, making the exercise of rights of citizens via “interactive” policy communications and the right of association more available to -- and plentiful for -- those who either can afford to pay dues or who receive compensation. 

 

The legislation disfavors and burdens grassroots causes that rely on purely voluntary association. Grassroots causes that communicate with and among citizens, advocate on behalf of citizens associating voluntarily, and rely principally on citizens voluntarily pooling together their resources would be the subject of such legislation and its burdensome reporting requirements, yet the legislation exempts communications by entities based purely on monetarily vested interests. 

 

That smacks at the very heart and soul of the First Amendment, which was especially intended to protect the rights to voluntarily associate, to speak on matters of public policy and to communicate with elected officials about policy matters that affect citizens themselves.

 

Besides creating inequities in the free exercise of First Amendment rights in favor of those with vested interests, such exemptions prove the false premises on which proponents of the grassroots legislation rely to violate the First Amendment rights of others. Some proponents assert that communications to citizens is “influence” on policy makers. If so, then the proposed exemptions from disclosure for certain entities would allow those entities to exert exceptional amounts of additional influence in Washington without reporting and disclosing.

 

No one can deny that corporations, labor unions and large membership organizations already exert a disproportionate amount of influence in Washington. Collectively, those entities would be allowed to spend literally hundreds of millions of dollars mobilizing untold millions of citizens who have monetary and vested interests in the political agendas of these entities, yet not report those expenditures. Therefore, the proposed exemptions contradict the very purposes of “disclosure” claimed by the proponents, and prove that proponents have no interest in disclosure for the public benefit.

 

 

Examples are illustrative of the disparate impact of the legislation:

 

A political action committee we’ll call “Fortune PAC” has a membership of 400 large corporations, many of which are in the Fortune 500. Fortune PAC pulls in campaign contributions from officers and management employees of its members, and disburses them to candidates who the PAC deems to be pro-business. Fortune PAC has no lobbyists, engages in no lobbying itself, but has a staff of 12 well-paid employees. It has a large database that includes voting records of Members of Congress, and templates its members may use to organize the shareholders, officers and employees of each of the respective member corporations. Fortune PAC regularly notifies its members about important legislation, and what action is needed. The respective members collectively may spend hundreds of millions of dollars mobilizing, again collectively, millions of shareholders, officers or employees on various pro-business legislative proposals, federal regulations, judicial appointments, etc. Neither Fortune PAC nor its members would need to report any of these communications or expenditures.

 

Citizens Against the Death Penalty (CADP), a 501(c)(4) nonprofit advocacy organization, has a paid staff of three. Its mission is based in the religious belief that the government may not execute people. Sally, whose salary is $40,000, spends 20 percent of her time on direct lobbying activities and reports as a lobbyist. Bob spends his time communicating to the general public about state and federal death penalty legislation, and seeking contributions. CADP is not a membership organization, and receives 100 percent of its funding from voluntary donations from the public, with an average contribution of $25. CADP’s budget ran in the red for 2006, and already may need to close its doors. Under the grassroots legislation, Bob would now need to spend extra time and CADP’s few and already strained resources tracking and reporting quarterly his communications to the general public. Bob hears from a friend of a fundraiser in Topeka, Kansas who specializes in donor acquisition mailings, and Bob thinks this will help put CADP in the black. The fundraiser himself agrees religiously that the death penalty is immoral, and would work at a reduced fee on this issue. He is nonpolitical, makes no political contributions, has no lawyer and certainly doesn’t lobby. CADP retains the fundraiser to do four national fundraising mailings of 200,000 letters apiece, one per quarter. These letters inform citizens about death penalty legislation, and urge readers to not only send in a contribution, but to sign a petition. Just the postage for these mailings exceeds the threshold of a “grassroots lobbying firm,” so the fundraiser must register and report quarterly the same as a K Street lobbyist. The fundraiser was not aware of the reporting requirement, and so he is in violation of the law. Once he receives notice that he must report to Congress, he is shocked and cancels his contract with CADP.

 

Such proposed exemptions evidence the intent of the grassroots legislation to diminish the First Amendment rights of grassroots causes and their citizen-supporters, while protecting the First Amendment rights of wealthy and powerful entities such as corporations and labor unions. Objectively, there can be no good “intent” behind such legislation, only mischief or worse since it is expressly targeted at First Amendment rights, not some harm that may be regulated.

 

The legislation even violates the expressly stated purposes of the Lobbying Disclosure Act to be amended, and specifically its rules of construction found at 2 USC 1607(a).[ii] 

 

Indeed, attempts to regulate interactive grassroots communications, which are rights held by all Americans, and the reasons given by some for those purposes, appear to be nothing more than an attempt to convince the public to accede to parting with their most important and cherished rights. The standard definition of fraud is intentionally misrepresenting material facts to convince someone to surrender their rights or something of value. Unlike the core political speech that is the express target of the grassroots legislation, fraud is not protected speech.

 

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