Online Exclusive: Congress’ Efforts to Silence the Grassroots

I can’t think of a single industry that has had more of a positive impact on U.S. politics in the past 40 years than direct marketing. Direct marketing is a major reason why grassroots citizen participation in politics is at an all-time high by leaps and bounds.

Unfortunately, some in Congress want to use the K Street lobbying and congressional scandals as an excuse to regulate direct marketing, grassroots lobbying at the federal level for the first time in history. Legislation is making its way now through the Senate and the House that would (1) require registration of grassroots lobbying before it takes place, (2) require detailed and burdensome quarterly reports and (3) provide severe civil and even criminal penalties for failure to register and report.

Grassroots lobbying of course involves direct mail and Internet communications to mobilize citizens to support or oppose public policy measures. Unlike the “insiders’ game” of using Washington-based lobbyists and associations with offices on or near Capitol Hill, grassroots lobbying is the populists’ means of involving citizens in the democratic process.

There are many problems that plague Washington. Too much citizen participation in the political process is not one of them. The problems that Congress claims with great fanfare to address through its lobbying reform legislation are supposed to be the behind-the-scene deals and the exchange of money and trips for legislation and earmarks to appropriations bills. But these bills would result in censorship of and other burdens on political speech, and that would merely help protect corruption in Washington.

Among several legislative proposals, S. 2128, the “Lobbying Transparency and Accountability Act” introduced by Sen. John McCain, defines grassroots lobbying as “any attempt to influence the general public, or segments thereof, to engage in lobbying contacts whether or not those contacts were made on behalf of a client.” The bill has been passed out of one Senate committee and is now being amended on the floor of the Senate.

Within 45 days of being hired, “paid” efforts to stimulate grassroots lobbying must register with the Secretary of the Senate and identify the specific issues to be the subject of the grassroots communications. In other words, registration would alert Congress of who their critics are in advance and give members of Congress the opportunity to prepare countermeasures against their grassroots critics.

Other bills have been introduced in the House with similar definitions and registration requirements. H.R. 4575, sponsored by Rep. Chris Shays, and H.R. 2412, sponsored by Rep. Martin Meehan, would do essentially the same by requiring registration of grassroots lobbying efforts, disclosure of issues beforehand, reporting the costs of the grassroots efforts and providing harsh penalties for failure to register.

These bills also would treat grassroots lobbying the same as face-to-face lobbying for reporting the details of expenditures and many other burdensome disclosure requirements. Current law requires semiannual reporting for lobbyists, and these bills would double the reporting requirements by mandating quarterly filings. These new reporting burdens will be costly for all grassroots causes and too expensive for many small, start-up and unpopular causes. These bills would have the reverse effect of removing “corruptive” influences in Washington by decreasing the amount of grassroots communications, and silencing the collective efforts of those whom Elihu Root called “plain people of small means in this country.”

Grassroots lobbying has been excluded from other forms of federal lobbying registration laws up until now. Grassroots communications have nothing to do with the congressional bribery issues and are in fact a deterrent against corruption in Washington. The direct marketing industry has actually been a positive force in politics because grassroots communications do many good things, but they are especially useful in exposing what happens in Washington.

Grassroots lobbying is perhaps the ultimate form of citizen political participation next to voting. Grassroots lobbying involves more First Amendment “rights” than even the hallowed “press.” Direct mail and the Internet are both media of the “press” and merit all of the constitutional protections accorded other print media, such as newspapers, magazines, books and leaflets. But direct mail and the Internet, being interactive, also involve those other important First Amendment rights of petitioning the government and the freedom of association.

The growth of grassroots communications especially over the past 40 years is a direct reflection of the fact that citizens want to receive this news and to participate, even if remotely, in national affairs. Supreme Court Justice Wiley Rutledge wrote in 1944, “[i]t was not by accident or coincidence that the rights to freedom of speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.”

James Madison said that the American version of freedom of the press was not just to prevent licensing of speech and the press as a prior restraint, as in England, but to prevent subsequent punishment of speech as well. He said, “It would seem a mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.”

The lobbying reform bills would increase civil penalties for failure to register from $50,000 to $100,000, with criminal penalties for “knowing” violations. Thus, Congress would criminalize that which is guaranteed by the First Amendment.

Direct marketing innovations through the mail and the Internet have empowered citizen participation in national public affairs like never before. In a relative instant, now, citizens can be alerted about laws being proposed, actions by the White House and other matters of national public policy. Through their grassroots associations, citizens may remotely yet peaceably organize and protest or support government action. Efforts to regulate the grassroots are unconstitutional, but that does not appear enough to stop Members of Congress who wish to silence their critics rather than cure Congress’s own ethics problems.

Direct mail and the Internet have served this country, not perfectly, but quite well by increasing citizen participation in national public policy matters. A congressional panel recently criticized Google and other Internet content providers for their decision to censor their content in communist China. Given that the United States has a First Amendment, efforts to regulate and ultimately censor political speech in the United States that is not registered seems rather hypocritical. Maybe the grassroots community would do well by sending their elected officials copies of that short but powerful document called the Bill of Rights.

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