LegiStorm

Summary:

The disclosure by professional lobbyists and commercial lobbying firms of expenditures or payments for "grassroots" lobbying campaigns continues to be an issue of importance to reformers both inside and outside of Congress. Legislative proposals, such as S. 1, 110th Congress and H.R. 4682, 109th Congress, had originally sought to extend public reporting requirements for some paid activities intended to stimulate "grassroots" lobbying. The lobbying and ethics reform legislation eventually enacted into law in 2007, the "Honest Leadership and Open Government Act of 2007" (P.L. 110-81,121 Stat. 735 [S. 1, 110th Congress]) did not, however, include "grassroots" lobbying disclosure requirements. As to the constitutionality of requiring such disclosures, it should be noted that the activities involved in "lobbying," including the stimulation of "grassroots" lobbying, clearly implicate and involve freedoms protected by the First Amendment, including speech, associational rights, and the right to petition the government. The courts have long found, however, that some burden on these fundamental rights may be tolerated when a law promotes significant governmental interests, when the burdens on such activities are, at the most, indirect (such as in disclosure laws), and when the statute is drawn with enough precision so that a correlation exists between the information required to be disclosed and the achievement of the interests asserted as the law's justification. Under such standards, the courts have upheld against facial First Amendment challenges required disclosures in the areas of lobbying activities and campaign financing to promote the interests of preventing corruption and limiting the undue influences of monied and powerful interests, as well as preventing merely the "appearance" of such influence, in basic governmental and democratic processes. The apparent trend in more recent judicial decisions seems to allow the legislatures some leeway in determining which activities are relevant to the goals of preserving the integrity of, for example, their own legislative process, and so to include also in required disclosures some activities that are more on the periphery and not necessarily themselves directly involved in such process, but are intended to result in direct contacts and to significantly influence a legislator. In both state and federal courts, state provisions that reach "indirect" or "grassroots" lobbying have increasingly been upheld against facial constitutional challenges. Courts have recognized the growth of importance of these efforts in the legislative process, and the increased need for legislators and others to be able to identify and assess pressures on legislators. Under the analysis applied in these cases, it would appear that a federal statute that requires only disclosure and reporting, and does not prohibit activity, and that reaches only those who are compensated to engage in a certain amount of the covered activity, would appear to fit within those types of provisions upheld in past cases when the statute is narrowly drafted to exclude groups, organizations, and citizens who do no more than advocate, analyze, and discuss public policy. Even with the probability of such a crafted statute withstanding a "facial" challenge, the law might still be subject to an "as applied" challenge if a particular group could show a reasonable probability that the disclosures required would result in harassment or reprisals against members.