Grassroots Lobbying "Reform" Bill Fails in Senate

The Senate just voted for the Bennett Amendment to strip the ill-conceived Grassroots Lobbying "Reform" provision of the Ethics Reform Bill, 55-43. The vote was pretty much party-line, with some exceptions (Landreiu, Dorgan and Bayh voted for the amendment, for example).

This provision could have had far-reaching implications by potentially forcing grassroots organizations who asked members of the public to call their Congressmen to register as lobbyists. Some articles said it could even have applied to Internet bloggers.

Unless this ill-conceived provision gets put back in by the Conference Committee, it's dead for now.

GrassrootsFreedom.com
I’m on their E-mail list

http://www.grassrootsfreedom.com/gw3/articles-news/articles.php?action=view&CMSArticleID=1253&CMSCategoryID=23
April 23, 2007

The Honorable Marty Meehan
2229 RHOB
Washington, DC 20515

Re: Leak of Grassroots “Lobbying” Language To Insiders,
Withholding It from Public, Raises Concerns of Unlawful/
Unethical ‘Combination’ to Harm Rights of Citizens

Dear Congressman Meehan:

The revised grassroots “lobbying” legislation was provided to insider lobbyists who are proponents of the legislation, but has been withheld from the rest of the public, including the well-known, highly outspoken opponents of regulating grassroots communications. I sent the enclosed April 5 letter to your office objecting to the selective “leak” of revised legislation and its harmful consequences.

Legislative leaks are common practice, of course, despite Speaker Pelosi’s pledge to “break the link between lobbyists and legislation.”[1] This instance, however, differs from most cases in which legislative language is provided to “friendly” lobbyists since this legislation regulating private communications to and among the public, i.e., the “grassroots,” raises serious facial constitutional concerns and runs contrary to many U.S. Supreme Court decisions.[2]

That the legislation is being kept in the dark from the public, yet was disclosed to reformers advocating “sunlight,” exceeds mere hypocrisy. It raises serious ethics concerns about some who profess the need for ethics reform.

The grassroots legislation would violate no fewer than five First Amendment rights of citizens under the guise of lobbying reform. Withholding the revised language from the public and outspoken opponents prevents the full airing of flaws of this contentious legislation, yet has allowed privileged “insiders” to further mislead the public and Members of Congress.[3]

This leak, therefore, differs from most other legislative leaks because it appears to be done with knowing and willful intent to cause verifiable harm to the rights of citizens, i.e., it was done with apparent scienter.

Disclosure of information to a favored few in the area of securities law, for example, may constitute criminal activity. Statements that intentionally misrepresent or omit material facts, inducing others in reliance on such statements to surrender legal rights, may constitute fraud.

The public obviously does not know who leaked the “revised” grassroots language to insider lawyers and lobbyists who, as has been demonstrated, have consistently misrepresented the scope and effects of the grassroots legislation.[4]

What is known is that the revised language has been used by lawyers and lobbyists who represented you in Shays-Meehan v. FEC,[5]and one of the amici that supported you in that matter,[6] to solicit support in Congress and from the public for the legislation. You are a chief congressional proponent and sponsor of the grassroots legislation.

Those insider lobbyists appear to have used that leak to further mischaracterize the revised legislation, as explained in my enclosed April 5 letter to your office.[7] That misinformation could induce the surrender of legal rights held by citizens, and seems rigged to trick Members of Congress into voting for unconstitutional legislation. The proponents would themselves benefit under the legislation, and would further benefit from the loss of rights by others.[8]

Proponents of the grassroots legislation obviously may argue to change the law, but they have employed artifices to do so. They have gone beyond mere legislative advocacy, which is fully protected under the First Amendment, into an area that causes harm to the rights of citizens.

The United States Supreme has already pronounced that regulation of lobbying activities is limited to “’lobbying in its commonly accepted sense,’ that is, ‘representations made directly to the Congress, its members, or its committees.”[9] The grassroots legislation would regulate broadly and vaguely communications to and among the general public that may in some undefined way “stimulate” citizens to engage in voluntary efforts to communicate their own views to Congress.[10]

The legislation is expressly targeted at communications that are not representations made directly to Members of Congress, but instead at private communications that may alert citizens about Congress and other matters, including corruption in official Washington. That does not fit the definition of lobbying activities. It is private, core political speech.

The legislative proposals to date exempt communications to “members, employees, officers or shareholders.” Those with such vested financial interests, as opposed to other “members” of the general public, are certainly more likely to generate letter campaigns to Congress on legislation affecting their “principals” who may otherwise be engaging in lobbying activities directed to Members of Congress.[11]

The legislation would even give some foreign entities and foreign nationals protections and status under the First Amendment superior to many of those American citizens who voluntarily associate with one another, but who are not shareholders or members of some organization.

The proposed legislation would violate the existing lobbying statute itself.[12] The legislative history of the 1995 Disclosure of Lobbying Activities Act shows that Congress expressly acknowledged, while regulating paid lobbyists who engage in direct contacts with Congress, that “[g]rassroots lobbying activities are protected as they are under the Constitution, and we do not infringe upon those activities in any way.”[13]

It is well settled that communications to the general public, which is what the proposed grassroots legislation would regulate, fall within the freedom of speech and of the press.[14] This certainly distinguishes the grassroots legislation from regulation of direct lobbying, which may involve clandestine contacts with Members of Congress, and thus the opportunity for unlawful quid pro quo to influence legislation.[15]

The grassroots legislation would require registration and government-compelled disclosure of the identities of those who communicate privately with and among the general public. The legislation, even by requiring registration and reporting by “agents” who would disclose the identities of the speakers, would violate well-settled law protecting anonymity of speakers.[16] Courts have acknowledged the First Amendment protections of anonymous speech against the power of a subpoena even under well-pled cases involving a verifiable harm such as libel.[17]

Proponents have yet to identify a harm they seek to be regulated. Instead, the legislation clearly and expressly targets speech, press, association and petitioning rights, while also violating the right of the free exercise of religion, which involves freedom of conscience and communication.

Besides violating the First Amendment on its face, your legislation would create a government database of citizens, private associations and religious entities that would enable the abuses of civil rights, free speech and privacy, much like the abuses about which you so bitterly complain in your press releases about The Patriot Act. See footnote 2, herein above.

Given (1) the well-settled constitutional rights that proponents seek to infringe, (2) their material misrepresentations and omission designed to induce a violation of those rights, and (3) the withholding of the revised legislation from the public whose rights would be abridged and those who are trying to protect those rights, I see little difference between the present circumstances and what in securities law is called a “fraud on the market.”[18]

The seriousness of this matter and the “leak” to insiders, therefore, is heightened by the constitutional rights that would be regulated and abridged, and the well-known contentiousness of this issue. Whoever leaked the revised language to favored insiders had a duty to disclose it to the public, whose rights would be harmed by such legislation.

These matters need to be probed formally. Whether or not these actions are the result of a combination acting to violate the rights of others, or whether they violate canons of ethics, they certainly are not “good government.”

Very truly yours,

Mark J. Fitzgibbons
President of Corporate and Legal Affairs

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.