Hysteria v. Reality

The good news is that a lot of people are speaking out against S.1’s provisions, which clamp down on free speech from the grassroots.

The bad news is that many people are inaccurately reporting the provisions of the legislation. I saw this on the Arms and the Law and it was linked by Wizbang! and Wizbang! Politics.

Let me be clear, we should oppose this infringement on free speech, but we’d better oppose it for what it says rather than what it doesn’t.

A lot of people are up in arms about the new lobbying reform bill. The bill contains a controversial provision in Section 220 that has several people up in arms.

Tony Perkins over at the Family Research Council writes:

In the aftermath of the Abramoff scandal, we firmly support Congress’ desire to tackle lobbying reform. However, any new legislation shouldn’t forfeit the First Amendment rights of citizens to “petition their government” on issues of importance. The provisions of S. 1 would do just that. Under language written by Sens. Lieberman (D-CT) and Levin (D-MI), grassroots lobbying, which has long been seen as separate and distinct from “lobbying activity,” would now be subject to government regulation. Organizations like FRC and Focus on the Family that expend over a certain amount of money to encourage their constituents to contact their elected officials on matter of public concern would have to adhere to onerous reporting requirements, which include notifying Congress 45 days prior to engaging in the specific grassroots activity; failure to comply could result in thousands of dollars in fines and even criminal penalties. America was founded on the idea that elected officials should be accountable to and accessible by its constituents. It’s a right protected by the First Amendment and encouraged by groups like FRC which informs its friends through ads, e-mails, alerts, and editorials. This bill infringes on the constitutionally protected privilege of citizens to “petition their government for a redress of grievances,” a right essential to our Republic. Tomorrow I will join Dr. James Dobson on Focus on the Family’s daily radio show to discuss the threat S. 1 poses to the grassroots efforts to champion the values we hold dear.

Over at Stop the ACLU, blogger Arr Matey worries what impact the prevision will have on that notable blog:

Does that mean that STACLU or CourtZero, by virtue of “paying” for internet servers and blogads and such, will now have to file quarterly reports upon pain of a $100,000 fine per failure to file (as long as post gets more than 500 hits)?

Bryan Fischer at the Idaho Values Alliance is concerned whether the bill “will burden organizations such as the Idaho Values Alliance that alert Americans to important legislative issues with “miles of new red tape,” and could result in $100,000 fines for failure to comply with new, onerous bureaucratic restrictions. All this for encouraging as few as 500 constituents to contact legislators on a specific issue.”

Having a heard a bit about it and inspired by the Stop the ACLU post, I decided a dig a little and read into the text. The good news: Stop the ACLU is safe, Idaho Values Alliances is safe (for now). The bad news: Family Research Council and many other organizations may fall under this bill.

A more detailed analysis follows:

Let’s take a look at the state of the legislation:

(a) Definitions- Section 3 of the Act (2 U.S.C. 1602) is amended–

(1) in paragraph (7), by adding at the end of the following: `Lobbying activities include paid efforts to stimulate grassroots lobbying, but do not include grassroots lobbying.’; and

(2) by adding at the end of the following:

`(17) GRASSROOTS LOBBYING- The term `grassroots lobbying’ means the voluntary efforts of members of the general public to communicate their own views on an issue to Federal officials or to encourage other members of the general public to do the same.

`(18) PAID EFFORTS TO STIMULATE GRASSROOTS LOBBYING-

`(A) IN GENERAL- The term `paid efforts to stimulate grassroots lobbying’ means any paid attempt in support of lobbying contacts on behalf of a client to influence the general public or segments thereof to contact one or more covered legislative or executive branch officials (or Congress as a whole) to urge such officials (or Congress) to take specific action with respect to a matter described in section 3(8)(A), except that such term does not include any communications by an entity directed to its members, employees, officers, or shareholders.

Of course, looking at Section 1602 (the section under Amendment):

(2) Client

The term “client” means any person or entity that employs or retains another person for financial or other compensation to conduct lobbying activities on behalf of that person or entity. A person or entity whose employees act as lobbyists on its own behalf is both a client and an employer of such employees. In the case of a coalition or association that employs or retains other persons to conduct lobbying activities, the client is the coalition or association and not its individual members.

So, this means that on Adam’s Blog, Adam Graham could be considered the client who has hired Adam Graham to serve as his lobbyist to pursuade people as a grassroots lobbyist. But when we get to reporting, Section 19 defines who must report as “Grassroots Lobbying Firms”:

`(19) GRASSROOTS LOBBYING FIRM- The term `grassroots lobbying firm’ means a person or entity that–

`(A) is retained by 1 or more clients to engage in paid efforts to stimulate grassroots lobbying on behalf of such clients; and

`(B) receives income of, or spends or agrees to spend, an aggregate of $25,000 or more for such efforts in any quarterly period.’.

The “and” is key. Stop the ACLU’s bloggers are not paid and I’m not paid. Bryan Fischer is paid, but I’d be willing to wager quite a bit less than $25,000 a quarter for his efforts at National Grassroots Lobbying (given that much of Idaho Values Alliance’s work focuses on state issues and merely providing information on the state of the culture.)

So the fact that Stop the ACLU and Idaho Values Alliance don’t yet expend that much in “grassroots lobbying efforts” for the Federal government means the bill will have little effect on them initially. Those who are covered under the bill will be required to notify the secretary of the Senate and the clear of the House 45 days after being hired by a client (not 45 days before as Mr. Perkins asserted) and to file onerous quarterly lobbyist reporting forms.

Of course, the filing of an annoying form is not the main issue here, it is the precedent the bill sets. The failure to follow the letter of the law can trigger fines of up to $100,000. If an individual can be fined $100,000 under the right circumstances for simply saying, “Call your Congressman and urge them to support Bill X.” than we have failed our promise as a country as we’ve begun to regulate freedom of speech.

It is possible for people to even stumble into an obscure violation of the law. Due to misunderstandings of the new law, some people will avoid talking back with blogs, etc. for fear that they too will fall under the province of this law.

The fears are not entirely far fetched. The bill does not index the $25,000 per quarter spending requirement, apparently concluding that $25,000 in 2007 is about the same as $25,000 in 2017. Inflation comes into play so that many organizations which are not required to report, will. Some big bloggers may have to. It’s time to stand up and for free, I’ll tell you to call your Senators and urge them to vote to remove this ill-considered section from the bill.

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