Grassroots Lobbying Disclosure Laws and the First Amendment

4/20/2010

On April 15, the Institute for Justice (IJ) filed a lawsuit on behalf of two volunteer groups challenging part of Washington State's grassroots lobbying disclosure law as a violation of their First Amendment rights to free speech, assembly, and petition. In Many Cultures, One Message v. Clements, the groups claim that having to register as grassroots lobbying organizations is burdensome, and revealing information about their financial supporters could leave donors open to threats from opponents.

The groups challenging the law are Many Cultures, One Message, which opposes the use of eminent domain for redevelopment in southeast Seattle, and Conservative Enthusiasts, a 501(c)(3) nonprofit volunteer organization that promotes small government and opposes taxes. According to IJ, "Each face the dilemma of registering with the government or halting their efforts to urge their fellow Washingtonians into political action."

The defendants in the lawsuit are Jim Clements, chairman of the state's Public Disclosure Commission, and several other members of the commission. The commission enforces disclosure and campaign finance laws.

Grassroots lobbying activities seek to encourage the public to take specific positions on legislative matters or public policies and typically feature forms of communication that request the recipients to contact their lawmakers regarding a specific issue. These communications are directed at the general public or at selected groups on organization mailing lists. Currently, federal law does not require the registration of people or groups that solely engage in grassroots lobbying, nor does it require disclosure of such activities.

The State of Washington is one of 36 states that have some sort of law addressing disclosure of grassroots lobbying. In Washington, the law requires that any person or entity that spends more than $500 in one month or $1,000 in three months making grassroots lobbying expenditures must file with the state's Public Disclosure Commission and disclose his or her/its name, address, business, and occupation. The law also requires disclosure of the names and addresses of anyone or any group such a person or entity is working with, as well as anyone who contributes more than $25 to the group's grassroots lobbying efforts.

Many Cultures, One Message and Conservative Enthusiasts sought an exemption from the law in December 2009. In March 2010, the Public Disclosure Commission ruled that the groups would still have to file disclosure reports as grassroots lobbying organizations if they made expenditures exceeding the amounts specified in the law. The commission’s response letter to IJ stated, "These statutes enable the voters to 'follow the money' in lobbying and campaigns, including grassroots lobbying." The letter asserted that the citizens of Washington State passed the law by initiative in 1972 to "maintain openness and transparency in lobbying and financial efforts to affect legislation."

The groups' lawsuit claims that the state law creates "expensive, complex, and time-consuming administrative requirements that interfere with, and chill Plaintiffs' ability to exercise, their right to engage in political speech and association." In addition, the registration and reporting rules are vague, and prohibit them from "exercising their right to engage in anonymous political speech," according to the suit. They further argue that grassroots lobbying disclosure laws and the cost for violating them may discourage small groups from becoming active in politics and public policy. In Washington State, the maximum penalty is $10,000 per violation.

An IJ press release on the case announced, "Washingtonians from both sides of the political spectrum filed a lawsuit today [April 15] to stop their state from monitoring, collecting and publicly disseminating information about the political activities of private citizens who do nothing more than urge their fellow citizens to take political action."

IJ’s lawsuit cites the recent U.S. Supreme Court decision in Citizens United v. Federal Election Commission as support for the finding that onerous rules can amount to a ban on speech. The Associated Press quoted IJ executive director Bill Maurer as being "encouraged" with the Court's "less regulatory direction regarding campaign finance laws." However, in Citizens United, disclosure laws were upheld as constitutional, and the decision stated that "transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

The lawsuit also reveals the groups' concern with the state gathering personal information and making it available on the Internet, which they charge may leave donors and others vulnerable to harassment. A case that will soon face the U.S. Supreme Court addresses similar issues.

In John Doe No. 1 v. Reed, petition signers challenged the constitutionality of Washington's Public Records Act, which requires state and local governments to make public the identities of those who sign a referendum or initiative petition. Those challenging the law argue that petition signing is political speech subject to First Amendment protections, while Washington Secretary of State Sam Reed asserts that signing a referendum or initiative petition is a legislative act and that petitions to add measures to the ballot are public records. The Ninth Circuit has ruled that disclosure of such signatures serves an important government interest and promotes government accountability.

A Congressional Research Service (CRS) report notes that grassroots lobbying disclosure regulations have been deemed constitutional in the past. A 2008 report points out that the "Supreme Court of the State of Washington in 1974, for example, upheld very detailed lobbying disclosure provisions of State law concerning 'grassroots' lobbying activities in Young Americans for Freedom, Inc. v. Gorton." In that case, the court held, "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."

A further suggestion in the CRS report hypothesizes that a law that only requires disclosure and reporting, only covers paid grassroots lobbying, and does not prohibit any activity, would stand up against court challenges. Such a law would exclude "volunteer organizations, volunteers, and individuals who engage in such activities on their own accord out of the coverage and sweep of the provisions." The law would have to be "drafted in such a manner so as not to be susceptible to an overly broad sweep bringing in groups, organizations and other citizens who do no more than advocate, analyze and discuss public policy issues and/or legislation."

Photo in teaser by Wikipedia user Tradnor, used under a Creative Commons license.