Grassroots Lobbying - Backgrounder


Litigation Backgrounder

Protecting Americans’ Right To Engage In Grassroots Political Activism

The Issue in a Nutshell:

Most people would assume that if the First Amendment protects anything, it protects the ability of Americans to speak to their fellow citizens and encourage them to contact their elected representatives about important political matters.  Indeed, this is the very essence of the constitutional rights to speak, associate, assemble and petition the government.  Unfortunately, some believe that—for purposes of “legislative self-protection”—this integral aspect of self-governance must be regulated by the state.

At least 36 states have laws requiring people who engage in this kind of activity to register with the government.  In Washington, which has one of the most extensive regulations affecting citizen political participation in the nation, if you spend above an artificially low government-imposed cap to urge your fellow citizens to contact government officials, you are forced to register with the government and report your name, address, business, and occupation, the names and addresses of anyone with whom you are working to spread your message, and the names and addresses of each person who contributes as little as $25 to your efforts.

In other words, in Washington, if you speak too much about politics, the government wants to know about it.  Moreover, the government does not merely collect this information—it makes it available to anyone with access to the Internet.  Your name, address, business and occupation are provided to the world because you dared to exercise your fundamental First Amendment rights.

The revelation of your political activities, often concerning some of the most controversial issues of the day, leaves you open to threats, retaliation and harassment by those on the other side of the issue.  Too many Americans decide the risk is too great and the safer thing to do is avoid speaking altogether.  The government’s rules fall hardest on small bands of citizen activists, who cannot afford the high cost of compliance and whose members do not wish to risk the harm that can come from public dissemination of their political beliefs.  This leaves politics to professionals, who can afford the lawyers, time and trouble that this law engenders.

Some Washingtonians believe that the government has no constitutional authority to monitor, collect and disseminate information about the political activities of private citizens.  Two organizations with diverse policy concerns—Many Cultures, One Message as well as Conservative Enthusiasts—each face the dilemma of registering with the government or halting their efforts to urge their fellow Washingtonians into political action.  That is why on April 15, 2010, they joined with the Institute for Justice to file suit against the members of Washington’s Public Disclosure Commission.  Many Cultures, One Message et al. v. Clements seeks to vindicate the fundamental right of all Americans to engage in political activity without governmental interference.

 

Introduction

Washington state government intrudes into the most basic acts of self-governance:  It monitors, collects and publicly disseminates information about the political activities of private citizens who do nothing more than discuss political issues amongst themselves.  Washington’s law stretches lobbyist disclosure laws beyond interactions between citizens and their elected representatives and reaches into (and regulates) communications among citizens who are trying to effectuate political change.  Simply put:  Even if you never talk to an elected official but spend as little as $500 merely to communicate with your neighbors and friends about state policies, you must register with, and provide information to, the government, which then proceeds to disseminate the information on the Internet.  Failure to register can lead to an investigation, significant penalties (including treble damages, the costs of the investigation and the government’s attorney’s fees), and a revocation of the ability to engage in any political activity that might qualify as “grassroots lobbying.”[1]

Washington is one of 36 states across the country that regulates, in some form or another, so-called “grassroots lobbying.”[2]  Some states go so far as to back up these regulations with criminal penalties.  In New York, for example, the criminal penalty for violating the lobbying law is up to $5,000 and four years in jail—the same penalty for those who commit arson or riot; in Alabama, the penalty can rise as high as $30,000 and 20 years in jail—a penalty equivalent to that for kidnapping.

Even where engaging in political activities without registering with the government is not criminalized, financial penalties may be ruinous.  In Washington, for instance, the government may fine a person who engages in what it calls grassroots lobbying up to $10,000 per violation.  Given that numerous violations may occur before an ordinary citizen even realizes his or her activities are regulated, such fines can bankrupt a person for doing nothing more than exercising their fundamental First Amendment rights. 

With popular opposition to many government policies growing, some in government have denounced grassroots citizen action as “astroturf lobbying” in an attempt to delegitimize constituents unhappy with their elected representatives.  These denunciations have come with calls for regulations at both the state and federal level.[3]  This effort is an arrow striking directly at the heart of activities that should receive the highest levels of judicial protection under the U.S. Constitution.  This case, Many Cultures, One Message v. Clements, seeks to ensure that future attempts to monitor Americans’ political interactions are stopped before they spread to even more states and the federal government.

 

Washington’s Law Regulating Citizen Activism 

Washington state has some of the nation’s broadest regulations affecting political activity.  In 1972, voters passed Initiative 276, which requires, among other things, that people who lobby[4] the government register with the state’s campaign finance regulatory agency, the Washington Public Disclosure Commission (PDC).[5]  Most Americans would assume that the term “lobbying” only includes those instances where a person or her agent directly interacts with an elected official to persuade him or her regarding a specific policy or policies.[6]  But Washington law does not just regulate those who have direct contact with government officials in the halls of the legislature.  It regulates ordinary citizens who may never have any interaction with a governmental official at all. 

Washington law regulates what it calls “grassroots lobbyists,” a term used to describe any person who has spent more than $1,000 in the aggregate in any three month period or $500 in any one month “in presenting a program addressed to the public, a substantial portion of which is intended, designed, or calculated primarily to influence legislation.”[7]  “Legislation” is defined in the law to cover “bills, resolutions, motions, amendments, nominations, and other matters pending or proposed in either house of the state legislature, and includes any other matter that may be the subject of action by either house or any committee of the legislature and all bills and resolutions that … are pending approval by the governor.”[8]  Read literally, this means that if any person spends a relatively small amount of money to communicate with other individuals about any public issue, they must register with the PDC, because any issue, topic, or matter may, at some point in the future, be the subject of action by the legislature. 

The burdens Washington places on citizen activists are severe.  Within 30 days of becoming a sponsor of a grassroots lobbying campaign, the sponsor must register with the government.[9]  The registration statement must include the sponsor’s name, address and business and occupation, or, if the sponsor is an organization, the names, addresses and titles of the “controlling persons” of the organization.[10]  The registration statement also must include the names, addresses and businesses or occupation of all persons organizing or managing the “grassroots lobbying” effort, and the names and addresses of each person contributing $25 or more to the effort and the aggregate amount of their contributions.[11]  In addition, a person or group classified as a grassroots lobbying sponsor must reveal the purpose of their efforts, including the specific policy about which they are concerned, and the totals of all expenditures made by the campaign, divided into advertising (segregated by media and sometimes by outlet), contributions, entertainment, office expenses (including rent), salaries and wages, consultants and printing and mailing services.[12] 

Once the government has collected this mass of information, any citizen who still wants to participate in self-government is not done yet; the government also requires the person who has engaged in such activities to file monthly reports of activities and update the information contained in the registration statement.[13] 

Penalties for failing to register as a grassroots lobbyist can be overwhelming.  The PDC may investigate the speaker or refer the matter to the Attorney General’s office for prosecution.[14]  In addition, private citizens may bring actions to enforce the restrictions, as well as local prosecuting attorneys.[15]  Those bringing an enforcement action may subpoena the internal documents of the individual or organization, which, when combined with the private enforcement mechanism, can turn this law into an effective method for political actors to get their hands on their opponents’ most sensitive internal documents.[16]  Penalties may include fines of up to $10,000 per violation, paying the state’s attorney’s fees and costs, and, in some instances, treble damages.[17]  A person who engages in “grassroots lobbying” without filing the necessary paperwork with the government may be forbidden from making expenditures for grassroots lobbying in the future.[18]

 

The Plaintiffs 

Faced with these burdensome, complicated, intrusive and potentially costly laws, far too many organizations and individuals remain silent rather than do what all Americans should be encouraged to do:  engage in political activity.  The burden of filing the government’s paperwork correctly is too high and the penalty for filing it incorrectly is too severe; the safer thing to do is not to speak at all.  Some organizations, however, are fighting back.

Many Cultures, One Message (MCOM) is an unincorporated group dedicated to preserving the diverse and vibrant neighborhoods of Southeast Seattle.  MCOM was initially formed to combat efforts by the city of Seattle to use Washington’s Community Renewal Law (CRL) to declare portions of Southeast Seattle “blighted” and authorize the taking of private homes and businesses through eminent domain for transfer to private entities.  MCOM successfully mobilized public opposition to this plan and the city halted its efforts to use the CRL in 2007.  As a group comprised of neighbors fighting to save their homes and small businesses, grassroots activism is a key component of their efforts to preserve their neighborhood.  MCOM will be active in the coming years fighting for statewide reform of the CRL, supporting efforts to reform eminent domain, and fighting efforts to expand the use of eminent domain in connection with development around light-rail stations.

For private citizens battling to prevent eminent domain abuse, the fight can be difficult, emotional and time-consuming, and the battle against the CRL in Southeast Seattle was no exception.  There is no reason for a neighborhood group like MCOM to expose its supporters and allies to burdensome and intrusive registration requirements.  It is difficult enough to rally private citizens to fight for their property rights; the government should not discourage participation in that fight by saddling local groups with complex filing requirements and publicizing for all to see the names and addresses of their supporters who don’t wish to expose themselves to harassment by their political opponents. 

Redstate Politics d/b/a Conservative Enthusiasts (CE) is a 501(c)(3) organization dedicated to educating the public regarding the benefits of lower taxes, less regulation and smaller government.  In the past, the organization has mainly limited its efforts to holding talks or debates on these issues.  With new proposals to expand government and raise taxes at both the federal and state levels, however, Conservative Enthusiasts intends to start contacting and mobilizing average citizens to resist these efforts.  Organizations like CE have been the target of considerable hostility, ranging from childish epithets to threats of investigation from public officials and their allies who support increased government activities and taxation.  CE believes that unfettered participation in the political process—including reaching out to your neighbors and friends to urge political action—is at the core of a free society and that applying disclosure laws to citizen activists can quickly turn into a government-mandated enemies list for those in power. 

These two groups simply wish to interact with their fellow citizens and urge them to take political action without having their private political actions monitored, collected and publically disseminated by the state as it is now in Washington.

 

A Threat To Fundamental First Amendment Freedoms 

In 2007, the U.S. Senate considered adding a grassroots lobbying registration to existing federal lobbyist disclosure requirements.[19]  The provision was supported by the campaign finance “reformers,” who promoted it as a means to “increase transparency and provide a more accurate record of paid lobbying actions in Congress.”[20]  A number of groups, however, including the American Civil Liberties Union, successfully persuaded Congress that such a measure would be unconstitutional and the Senate dropped the provision from the final bill.  But now, with the rise of the so-called “Tea Party” movement—and its progressive counterpart, the Coffee Party movement—as well as strong grassroots efforts both for and against President Obama’s health care reforms, there is a new push among the political elite and their campaign finance reform allies to regulate grassroots lobbying at the federal level.[21] 

Lobbying disclosure laws regulate a fundamental aspect of American citizenship.  As the U.S. Supreme Court has said: 

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States.  The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.[22] 

This protection extends to laws that indirectly threaten the rights to speak, petition or assemble.  According to the Court, “The First Amendment would … be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law is passed that prohibits free speech, press, petition, or assembly as such.”[23] 

Unfortunately, the Court has not always adhered to these principles.  In 1954, the U.S. Supreme Court, in the case of U.S. v. Harriss, considered the constitutionality of the Federal Lobbying Act, which regulated any efforts regarding the “passage or defeat of any legislation by the Congress” and any efforts to “influence, directly or indirectly, the passage or defeat of any legislation by the Congress.”[24]  The Court concluded that disclosure of lobbyists’ activities was necessary for congressional “self-protection,” that such disclosure was designed to “safeguard a vital national interest,” and that any impact on free speech rights occurred merely because of “self-censorship.”[25]  In deciding the case, however, the Court purported to limit the scope of the statute, stating that Congress’s intent was to achieve disclosure of “direct communication with members of Congress on pending or proposed federal legislation.”[26]  The Court defined “direct communication” to include “direct pressures, exerted by the lobbyists themselves or through their hirelings or through an artificially stimulated letter campaign.”[27] 

Harriss has been the basis for every decision upholding the constitutionality of lobbying disclosure laws, even in the face of judicial recognition that such laws regulate and restrict the exercise of fundamental rights.[28]  More to the point, however, the language regarding “artificially stimulated letter campaign[s]” has been used to uphold almost every grassroots lobbying disclosure law to come before the courts since 1954.[29]

Unfortunately, one of the state courts that followed Harriss with regard to the constitutionality of grassroots lobbying disclosure provisions was the Washington Supreme Court.  In Young Americans for Freedom v. Gorton,[30] the Washington Supreme Court relied on Harriss to uphold Washington’s grassroots lobbying law.  The court upheld this provision because to “strike down this portion of the initiative would leave a loophole for indirect lobbying without allowing or providing the public with information and knowledge re the sponsorship of the lobbying and its financial magnitude.”[31]  The court further stated that “the right of the public to be informed is paramount to any inconvenience that reporting under [the provision] may cause respondent.”[32]  In other words, the government’s interest in monitoring its citizens overrides the “inconvenience” of the First Amendment rights of individual citizens.

 

Are You A Grassroots Lobbyist? 

Another trademark of grassroots lobbying laws is their breadth and vagueness.  The penalties for failing to register with the government in Washington are especially egregious when one considers that much of the Washington law is incomprehensible.  Even after reading the statutes, regulations, government brochures and case law, MCOM and CE and their lawyers were unable to determine whether their planned activities made them grassroots lobbyists or not.  In late November 2009, MCOM and CE submitted a request for a declaratory order to the Washington Public Disclosure Commission.  In this request, the groups described the activities they planned for the coming legislative session and requested a declaration from the Commission regarding whether they had to register as grassroots lobbyists or not.  MCOM and CE hoped for an answer prior to the start of the legislative session on January 9, 2010.

In response, the Commission staff requested detailed answers to numerous questions about these organizations’ activities.  The Commission did not even hold a hearing on the request until January 28, 2010, well after the legislative session began and, ironically, one day after the media reported that the bills with which MCOM had been concerned had died in committee.  At the hearing, the Commission debated the issue and asked additional questions regarding these groups’ activities.  Finally, the Commission ultimately concluded, on February 26, 2010, that these groups were required to register.  If it takes the agency responsible for administering the law more than three months—after reviewing MCOM’s and CE’s request, engaging in additional fact finding, receiving input from “stakeholders,” and conducting a public hearing—to determine whether this law applies, what chance do regular citizens have of guessing correctly whether they should register? 

To take another example, economist and campaign finance expert Jeffrey Milyo of the University of Missouri tested the first paragraph of Massachusetts’ new lobbying law, which covers grassroots lobbying, using automated readability calculators.  As he reports in Mowing Down the Grassroots:  How Grassroots Lobbying Disclosure Laws Suppress Political Participation, released in April 2010 by the Institute for Justice, on a scale of zero (least readable) to 100 (most readable), that paragraph scored 0.9.  A person would need 34 years of formal education to understand the paragraph; a doctorate from MIT or Harvard would not be enough. 

These kinds of poorly drafted, overly broad and incredibly confusing (not to mention unconstitutional) laws put ordinary citizens at risk of legal penalties and ad hoc enforcement for simply exercising their First Amendment rights.

 

The Burdens of Red Tape and Regulation 

Dr. Milyo also found that would-be grassroots lobbyists must navigate through complex and burdensome red tape to properly disclose their activities and financial support.  In previous research, he conducted an experiment in which he asked 255 ordinary citizens to fill out forms required for ballot-issue advocacy.  They correctly completed only about 40 percent of tasks and not a single participant completed the entire form correctly, which means that any of these individuals could have been subject to state fines or worse. 

Dr. Milyo looked specifically at tasks required of ballot-issue groups that are also required of grassroots lobbyists under Washington’s law—including registration, reporting expenditures and reporting different kinds of contributions.  In his experiment, the percentage of people who correctly completed these tasks ranged from just seven to 56 percent.  This suggests that Washington’s red tape is a serious burden for grassroots lobbyists and is likely to expose them to penalties and fines for mistakes.

Moreover, the public likely gains little from these regulations.  Previous research suggests that few people actually seek out information about contributors to campaigns—but many will be deterred from political activity by the public disclosure of their personal information.  IJ Director of Strategic Research Dick Carpenter found that 60 percent of respondents to a public opinion survey of residents with ballot issue disclosure laws would think twice about contributing when their personal information is disclosed and 50 percent would think twice if their employer’s name were disclosed.[33]  There is no reason to think backers of grassroots lobbying campaigns would feel any differently. 

In short, the red tape, regulation and disclosure surrounding ordinary political activities qualifying as “grassroots lobbying” is a real burden on and deterrent to the exercise of fundamental First Amendment rights.

 

Challenging the Law 

Although the U.S. Supreme Court has been cautiously moving towards greater freedom for political speech in the campaign finance regulation context, jurisprudence regarding the regulation of grassroots lobbying remains the same as it did in 1954.  Both Harriss and Young Americans for Freedom were issued decades before the Internet opened comprehensive databases of political activity to anyone with access to a computer.  In 1954 and 1974, the cost of accessing information relating to political activity was relatively high.  Now, the Internet has allowed the government to create government-run databases of political activity that can be accessed with just a few keystrokes.  Twenty-first century technology has made both Harriss and Young Americans for Freedom vestigial organs of a pre-digital age.  This case seeks to firmly establish that both the law and technology have changed since the Court issued its decision in Harriss

A key aspect to this effort will be to demonstrate that, contrary to conventional wisdom, the cost of mandatory disclosure of political activity is high—complex disclosure rules burden political speech and discourage political activity.[34]  Moreover, recent elections have shown that publicly accessible government-run databases of political activity can result in harassment, economic reprisals and even violence perpetrated by opponents on contentious issues.[35]  The U.S. Supreme Court will soon be considering the constitutionality of a Washington state law that publicizes the signatories to an anti-gay-marriage ballot measure, even in the face of such threats of harassment and intimidation.[36]

Under the First Amendment, the courts will only uphold disclosure laws that negatively affect speech if they survive “exacting scrutiny,” that is, the law must bear a substantial relationship to a sufficiently important governmental interest.[37]  Washington’s law does not bear a substantial relationship to any legitimate interest, much less an important one:  It broadly regulates interactions among private citizens and makes the information collected from such citizens available to the entire world to achieve legislative “self-protection.”   But that means that these officials are our rulers, not our representatives.  If government officials need laws to protect them from communications from the people they are supposed to represent, then our government has ceased to be representative at all.

 

Legal Team 

The Institute for Justice’s legal team in Many Cultures, One Message v. Clements is led by Institute for Justice Washington Chapter Executive Director Bill Maurer.  Maurer has led a number of successful free speech efforts both in Washington and across the nation.  Maurer is joined by Jason Adkins, a staff attorney in the Institute’s Minnesota Chapter and Jeanette Petersen, a staff attorney at the Washington Chapter.

 

The Institute for Justice 

The Institute for Justice litigates in support of fundamental individual liberties, including free speech.  IJ’s headquarters and state chapters have challenged or are challenging restrictions on free speech across the nation, including:

 

  •  SpeechNow.org v. FEC, in which IJ successfully challenged political committee requirements that restrict individuals from donating more than $5,000 to citizen groups that want to independently speak out regarding candidates.[38]
  • San Juan County v. No New Gas Tax,[39] in which the Institute for Justice secured a unanimous opinion from the Washington Supreme Court halting efforts by the government to treat on-air radio commentary about an initiative campaign as “in-kind” contributions subject to regulation under state campaign finance laws.
  • Broward Coalition v. Browning,[40] in which IJ succeeded in striking down Florida’s electioneering communication law, which required any organization speaking out about public issues to register and report their activities to the government.
  • Sampson v. Coffman, in which IJ is challenging Colorado’s campaign finance laws in federal court on behalf of six neighbors in Parker North, Colo., sued by their political opponents for speaking out against the annexation of their neighborhood to a nearby town.
  • McComish v. Bennett, in which IJ is challenging Arizona’s so-called “Clean Elections” Act, which punishes candidates who reject the political welfare of public funding by burying them in red tape, giving extra money to their publicly funded opponents and setting stricter limits on how much they may raise.

 

For more information contact:

John Kramer, Vice President for Communications

Institute for Justice
901 N. Glebe Rd., Suite 900
Arlington, VA  22203
(703) 682-9320
jkramer@ij.org



[1] Wash. Rev. Code § 42.17.390(2) & (3); 400(3) & (5).

[2] Part of the problem with laws regulating grassroots lobbying is that they are often so complex, tediously wordy and ambiguous that it is often difficult for anyone—much less a lay citizen—to comprehend what is and is not regulated by the states.  Indeed, the nature of regulation of grassroots lobbying varies from state to state.  Some states explicitly regulate something called “grassroots lobbying.”  Some states regulate “indirect lobbying,” which, if the citizen reads the correct definitional statutes, administrative provisions, case law, and handbooks, they would discover pretty much means “grassroots lobbying.”  Some states regulate any attempt to influence public officials, which would include grassroots lobbying and much more.  Of the states regulating citizen-to-citizen political activity, 22 explicitly define lobbying as direct and indirect communication with public officials, and 14 broadly define lobbying as any attempt to influence public officials.

[3] See Jim Snyder, Town halls underscore grassroots secrecy, critics say, The Hill (Aug. 10, 2009), available at http://thehill.com/business--lobby/town-halls-underscore-secrecy-of-grassroots-critics-say-2009-08-10.html.

[4] The term “lobbyist,” used to describe those making direct attempts to persuade elected officials about the wisdom of a particular law or policy, arises from a (perhaps apocryphal) story regarding President U.S. Grant.  Mrs. Grant was not fond of her husband drinking in the White House, so he would take up his cups at the bar at the Willard Hotel in Washington, D.C.  People who wanted to speak to President Grant about issues in which they were interested would thus often wait for him in the Willard’s lobby.  See Nicolas W. Allard, The Law of Lobbying: Lobbying Is An Honorable Profession: The Right to Petition and the Competition to Be Right, 19 Stan. L. & Pol’y 23, 37 (2008). 

[5] Wash. Rev. Code § 42.17.150.

[6] The U.S. Supreme Court has described “lobbying in its commonly accepted sense” as “representations made directly to the Congress, its members, or its committees” and has noted it does not reach attempts “to saturate the thinking of the community.”  U.S. v. Rumely, 345 U.S. 41, 47 (1953) (quotation marks omitted).

[7] Wash. Rev. Code § 42.17.200(1).  The triggers for reporting were initially $500 in any three month period or $200 in one month period.  However, the legislature has since required the PDC to modify these amounts based on inflation.  Wash. Rev. Code § 42.17.370(11). 

[8] Wash. Rev. Code § 42.17.020(30) (emphasis added).

[9] Wash. Rev. Code § 42.17.200(2).

[10] Wash. Rev. Code § 42.17.200(2)(a).

[11] Wash. Rev. Code § 42.17.200(2)(b) & (c). 

[12] Wash. Rev. Code § 42.17.200(d) & (e).

[13] Wash. Rev. Code § 42.17.200(3).

[14] Wash. Rev. Code § 42.17.395.

[15] Wash. Rev. Code § 42.17.400(4) & (5).

[16] Wash. Rev. Code § 42.17.395 & 400(3).

[17] Wash. Rev. Code § 42.17.390(3) & 400(5).

[18] Wash. Rev. Code § 42.17.390(2).  This penalty appears to be a blatant prior restraint on speech.

[19] S. 1, 110th Cong. § 220 (2007).

[20] Campaign Legal Center, Legal Center Sends Senators Memo on Astroturf Lobbying, http://www.campaignlegalcenter.org/press-2342.html (posted Jan. 10, 2007).  Other organizations supporting the measure were Common Cause, Democracy 21, League of Women Voters, Public Citizen, and OMB Watch. 

[21] Jim Snyder, Town halls underscore grassroots secrecy, critics say, The Hill (Aug. 10, 2009), available at http://thehill.com/business--lobby/town-halls-underscore-secrecy-of-grassroots-critics-say-2009-08-10.html (quoting Public Citizen’s Craig Holman regarding the town hall meetings, “We don’t know who is behind it or who pays for it.  We don’t know how much of it is happening.”). 

[22] U.S. v. Cruikshank, 92 U.S. 542, 552-53 (1875).  See also United Mine Workers v. Illinois St. Bar Ass’n, 389 U.S. 217, 222 (1967) (“We start with the premise that the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights.”). 

[23] United Mine Workers, 389 U.S. at 222.

[24] U.S. v. Harriss, 347 U.S. 612, 615 (1954).

[25] Id. at 626.

[26] Id. at 620.

[27] Id. (emphasis added).  The Court here referenced the Senate’s Report on the Lobbying Act, which stated that it intended to cover “[t]hose who do not visit the Capitol but initiate propaganda from all over the country in the form of letters and telegrams, many of which have been based entirely upon misinformation as to facts.”  Harriss, 347 U.S. at 621 n. 10.  It is remarkable how similar this language is to congressional discussions of the Tea Party protesters and those mobilizing against the President’s efforts to reform America’s health care system today.

[28] See, e.g., Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 6 (D.C. Cir. 2009) (upholding a lobbying law because “nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue”).

[29] See Fla.Ass’n of Prof’l Lobbyists, Inc. v. Div. of Legislative Info, Serv’s, 525 F.3d 1073, 1080 (11th Cir. 2008) (relying on Harriss and holding that Florida’s grassroots lobbying law was constitutional because of the legislature’s compelling interest in “self-protection” from the people it purports to represent);  Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 461 (11th Cir. 1996) (relying on Harriss and noting that “the government interest in providing the means to evaluate these pressures may in some ways be stronger when the pressures are indirect, because then they are harder to identify without the aid of disclosure requirements”); Minn. State Ethical Practice Bd. v. Nat’l Rifle Ass’n, 761 F.2d 509, 513 (8th Cir. 1985) (relying on Harriss and upholding Minnesota’s grassroots lobbying law, which required disclosure of association communications, because “[w]hen persons engage in an extensive letter-writing campaign for the purpose of influencing specific legislation, the State’s interest is the same whether or not those persons are members of an association”); Comm’n on Ind. Colleges & Universities v. N.Y. Temporary State Comm’n on Regulation of Lobbying, 534 F. Supp. 489, 498 (N.D.N.Y. 1982) (applying Harriss’s “self-censorship” rationale); Kimball v. Hooper, 665 A.2d 44, 48 (Vt. 1995) (applying Harriss and concluding that “[p]roperly evaluating the governmental process … implicates indirect as well as direct communication and activities needed to get the message across”); Advisory Opinion on the Constitutionality of 1975 PA 227, 242 N.W.2d 3, 23 (Mich. 1976) (applying Harriss and noting that “[b]oth the electorate and public officials have a right to be informed of those interests represented by lobbyists”).

[30] 522 P.2d 189 (Wash. 1974).

[31] Id. at 192. 

[32] Id.  The court did, however, limit the scope of the statute to require only the contributors to a specific lobbying campaign.

[33] See Dick Carpenter, Disclosure Costs: Unintended Consequences of Campaign Finance Reform (2007), available at http://www.ij.org/1624; Carpenter, Dick M., 2009.  “Mandatory Disclosure for Ballot-Initiative Campaigns,” The Independent Review, 13(4): 567-583.

[34]See Carpenter, supra note 33; Jeffrey Milyo, Campaign Finance Red Tape: Strangling Free Speech & Political Debate (2007), available at www.ij.org/1527.

[35] See Protect Marriage Washington v. Reed, No. 09-5456BHS (W.D. Wash. July 29, 2009) (granting temporary restraining order against disclosure of individuals’ identities who support ban on gay marriage); ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1197 (E.D. Cal., 2009) (documenting the retaliation faced by supporters of California’s recent Proposition 8:  one donor had a window broken; another had a flier distributed around his hometown calling him a bigot; and others received envelopes containing suspicious white powder); John R. Lott, Jr. and Bradley Smith, Donor Disclosure Has Its Downsides: Supporters of California’s Prop. 8 Have Faced a Backlash, Wall St. J., Dec. 26, 2008; Amy Bounds, Gay rights advocates picket Boulder Cineplex, Rocky Mountain News, Nov. 30, 2008 (business picketed and boycotted based on CEO’s personal donation); Associated Press, John Kerry Grills Belgium Ambassador Nominee Over Swift Boat Donation, Feb. 28, 2007 (“A Senate hearing that began with glowing tributes to a St. Louis businessman and his qualifications to become ambassador to Belgium turned bitterly divisive Tuesday after he was criticized for supporting a controversial conservative group.”).

[36] Doe v. Reed, 2010 U.S. LEXIS 536 (U.S., Jan. 15, 2010).

[37] Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, __, 175 L. Ed. 2d 753, 799-800 (2010).

[38] SpeechNow.org v. Fed. Election Comm’n, 2010 U.S. App. LEXIS 6254 (D.C. Cir. Mar. 26, 2010).

[39] San Juan County v. No New Gas Tax, 160 Wn.2d 141, 157 P.3d 831 (2007).

[40] Broward Coalition v. Browning, 2009 U.S. Dist. LEXIS 43925 (N.D. Fla. May 22, 2009).


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