May 1, 2007

Dear Member of Congress:

For many weeks, the House Democratic leadership has been writing an omnibus "lobbying reform" bill.  This has been occurring outside of the regular committee system, behind closed doors, in a process that is strikingly "non-transparent."  Nevertheless, according to today's Congress Daily, "Democratic leaders have indicated they want to have the bill on the floor as soon as next week."

The National Right to Life Committee (NRLC) does not oppose any provision of the lengthy "lobbying reform" bill (S. 1) that passed the Senate on January 18, because during floor consideration, the Senate voted to remove a provision that would have established regulation of so-called "grassroots lobbying."  However, according to various published reports, certain special-interest groups are still pushing hard for inclusion of a "grassroots lobbying" provision in the House bill.  If such a provision is not included in the leadership's base bill, various sources indicate that it is likely to be offered as an amendment by Congressman Marty Meehan, at the behest of the same special-interest groups.

Although the final language of this proposal is not yet available to us, the anticipated provision/amendment has been described in considerable detail by some of the special-interest groups that are promoting it.  We will refer to it here as the "Meehan proposal" for convenience.  There may be continued modification of the language on some fine points, but those modifications will not affect what we say here.

NRLC is strongly opposed to the Meehan proposal, and any vote that occurs on such a proposal will be included in the NRLC scorecard of key roll calls for the 110th Congress.  If such a proposal nevertheless becomes embedded in the broader "lobbying reform" bill, NRLC expects to oppose the broader bill as well.

NRLC's opposition to regulation of "grassroots lobbying" is shared by many other organizations, as was conveyed in a letter signed by 18 groups issued some weeks ago.

The current legislative situation was described in an article in CQ Today (April 23), which reported, "Democratic House aides say they hope to finish the lobbying bill by the end of May.  There are three areas of disagreement in drafting the legislation [the first being:]  Regulating grass-roots lobbying.  Democrats have been pushing to require disclosure from grass-roots groups that encourage voters to call Congress about issues . . . Lobbyists and Democratic aides involved in drafting the bill say the grass-roots provision is likely to end up in the House legislation but may not survive a conference with the Senate, which stripped such regulations out of the bill (S. 1) that passed in that chamber Jan. 18. . . . the American Civil Liberties Union  also has expressed opposition."

It appears, then, that Members may be forced to vote on a contentious "grassroots lobbying" proposal, even though the Democratic leadership is fully cognizant that such a provision is unlikely to survive in conference with the Senate, which already voted down a similar proposal on January 18.

It is always possible, of course, that the conference committee will deadlock on the grassroots lobbying issue.  It was one of the issues that locked up the lobbying reform conference in the 109th Congress.  It is also possible that the grassroots lobbying provision will survive conference and thereby jeopardize the conference report in the Senate.  In 1994, the legislation to create the current Lobbying Disclosure Act was defeated in the Senate when proponents failed to muster the votes required for cloture -- a result encouraged by a left-right coalition that objected to the inclusion of language to regulate "grassroots lobbying." [1]

Mr. Meehan himself will be gone before the conference committee completes its work -- indeed, most likely, gone before the conference committee is ever named.  He starts his new job as chancellor of the University of Massachusetts Lowell on July 1.

Perhaps, rather than proposing to regulate activity that seeks merely to persuade citizens to speak out on policy issues, Mr. Meehan might consider whether to attempt "reform" of the current policies exempting public universities from the rules that limit the amounts that can be spent on gifts and travel expenses connected with lobbying members of Congress. [2] [3]

The crafting of the leadership's "lobbying reform" bill has been, and remains, a very "non-transparent" process, in which registered lobbyists for groups like Democracy 21, Public Citizen, the Campaign Legal Center, and other special-interest groups have been intimately involved.  Such groups assert that their legislative schemes are aimed at what they call "fake 'grassroots' lobbying campaigns" or "Astroturf," from which the public must be "protected."  But on closer examination, their legislative proposals are revealed to be nothing more than efforts to hinder public-motivating campaigns by competing interest groups, while enhancing the political assets of the elites that govern and fund these pro-regulation organizations. 

To cite just one example of the deck-stacking character of the exercise:  The proposed "grassroots lobbying" regulations  invariably exempt communications conveyed directly to dues-paying members of an organization.  This is an attempt to create an advantage for organizations with large "captive" memberships, such as labor unions (representatives of which make up a substantial fraction of the board of directors of OMB Watch, one of the groups pushing for sweeping regulation of "grassroots lobbying" campaigns).  It would also create an advantage for organizations that have large numbers of members who join in order to be eligible for insurance or other services, such as the AARP.

NRLC believes that efforts to motivate citizens to express themselves to those who govern are protected by the First Amendment, as exercises of the right to petition and the right to free speech.  Of course, it is necessary for any organization to spend money to communicate with the public, especially if the group represents a viewpoint disfavored by the institutional news media. 

The Meehan proposal and its variants cannot be squared with the past decisions on the First Amendment by the U.S. Supreme Court.  For example, in United States v. Rumely, the Supreme Court narrowly interpreted a congressional resolution so as to authorize a committee to investigate only "direct" lobbying activities, and affirmed a court of appeals ruling that included this statement: "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; it is a good, the healthy essence of the democratic process." [4]

Those who argue that "disclosure" does not constitute a "restriction" are ill-informed or disingenuous.   It is indeed a restriction when citizens who devote themselves to a cause in which they believe are told they risk ruinous fines, or even criminal penalties, if they fail to properly report to the government the details of their efforts to motivate fellow citizens to communicate with their elected representatives.

For these reasons, NRLC will regard any proposal to regulate "grassroots lobbying" as a scorecard issue.  Thank you for your consideration of our concerns on this issue.