Senator Dianne Feinstein recently captured public sentiment when she said that there should “be a wall” between registered lobbyists and the pecuniary interests of members of Congress. The problem is not the technical and professional information that lobbyists provide lawmakers, nor is it information on the opinions of the American people that honorable and ethical lobbyists provide lawmakers everyday. It is the relative voice of the average citizen that Sen. Feinstein wants to strengthen. This is why she and Senate Rules Committee Chairman Trent Lott have proposed bringing sunlight to the earmarking process and other measures that would weaken the link between lobbyist cash and lawmaker policy. Senators Lott and Feinstein are not alone in their concern. There are proposals from others to ban gift bans, restrict payments for travel, revoke floor privileges of former lawmakers, slow the “revolving door,” and limit lobbyist donations to charities affiliated with members; each seeks to reduce the direct pecuniary exchange between lawmakers and lobbyists.
In proposals to disclose grassroots lobbying, we are witnessing two canons of political law on an apparent collision course: that government corruption is cured by disclosure; and that the right of individuals to speak and associate freely depends upon their ability to do so anonymously. But the conflict is a false one–a byproduct of fuzzy thinking–because each canon, when properly applied, protects citizens from abusive lawmakers. Disclosure of campaign contributions protects citizens from lawmakers who can confer benefits on large contributors (and pain on opponents) through legislation. Disclosure of true lobbying activities, that is, consultants engaged in face-to-face meetings with lawmakers, protects citizens in a similar manner. Because disclosure is beneficial in these contexts, people presume it is always harmless. This is wrong. The right to speak anonymously with fellow citizens about issues or pending legislation also protects citizens by reducing lawmaker ability to visit retribution on those who oppose his policy preferences.
“Grassroots lobbying” is merely encouragement of average citizens to contact their representatives about issues of public concern. It is not “lobbying” at all, as that phrase is normally used outside the beltway, meaning paid, full-time advocates of special interests meeting in person with members of Congress away from the public eye. What the public wants, as Sen. Feinstein and others have recognized, is to break the direct links between lobbyists and legislators, thus enhancing the voice and influence of ordinary citizens. They do not want restrictions on their own efforts to contact members of Congress, persuade other citizens, or receive information about Congress.
Contact between ordinary citizens and members of Congress, which is what “grassroots lobbying” seeks to bring about, is the antithesis of the “lobbying” at the heart of the Abramoff scandals. It is ordinary citizens expressing themselves. That they are “stimulated” to do so by “grassroots lobbying activities” is irrelevant. These are still individual citizens motivated to express themselves to members of Congress.
Regardless of what lobbying reform is passed, not even the most naïve believe it will mean the end of the inside-the-Beltway lobbyist. Grassroots voices are a critical counterforce to the influence of professional lobbyists. Recently one member of Congress expressed concern that Jack Abramoff’s tribal clients were used to contact Christian Coalition members, “to stir up opposition to a gambling bill.” But it cannot be denied that the individuals who responded to that grassroots effort were ordinary citizens who were, in fact, opposed to a gambling bill. They are precisely the type of people that Congress ought to hear from. Regardless of how they learned about the issue, they had to make the decision that the issue was important to them, and take the time to call Congress. There is little to be gained by knowing who is funding the underlying information campaign that has caused these constituents to contact their members. The constituent’s views are what they are; the link between lobbyist and Congress is broken by the intercession of the citizen herself.
To use the example of HIAA, under the national health plan proposed by the Clinton administration in 1994, private insurance companies were to have a major role in administering the plan. A company donating funds or talent to HIAA’s “Harry and Louise” ad campaign against the plan might sincerely believe that the plan was bad for America, but be prepared to bid to administer the plan had it passed. And if the plan failed to pass, the same company might have wished to avoid possible retaliation from disappointed lawmakers who supported the plan. Such a company might therefore prefer anonymity, to protect it and its lobbyists from retaliation, favoritism, and government pressure. Such protection is what lobbying reform ought to achieve.
Others will have other reasons for anonymity. A prominent Democrat may not want to be identified as having consulted on ads urging citizens to support the nomination of Samuel Alito to the Supreme Court; a prominent Republican consultant may not want to be identified as being on the other side. It is not hard to imagine why the NAACP fought requests to disclose its members in 1950s Alabama, or why the Supreme Court said in response to Alabama’s desire to learn those names that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” And while today’s proposals for grassroots lobbying disclosure do not require organizations to disclose their members, it is easy to imagine the leverage Alabama could have put on the NAACP, and the resulting damper on the civil rights movement, if 1950s Alabama knew about the NAACP what the twenty-first century Congress proposes to learn about grassroots organizations. What could Alabama, or the general public, have done had it known when the NAACP engaged in preparation, planning, research, or background work; when it coordinated activities with like minded organizations; when it planned to engage fellow citizens with advertising; or knew the names of the consultants that would assist them in the effort? As Justice Stevens stated for the Supreme Court in McIntyre v. Ohio Elections Commission, striking down an Ohio law mandating disclosure of grassroots lobbying, anonymous speech “exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation–and their ideas from suppression.” These are not fanciful fears. In what many consider a blatant attempt at intimidation, when the Free Enterprise Fund recently ran ads critical of the performance of Texas County Prosecutor Ronnie Earle, Earle subpoenaed the names of the group’s donors.
Compelled disclosure of grassroots activity will drive many publicly spirited persons out of future debates altogether, and may make seasoned lobbyists reluctant to assist unpopular causes or causes contrary to the current administration–the whole reason Democrats have chafed about the GOP’s “K Street Project.” Compelled disclosure thus deprives organizations of the services of talented consultants who make their livings, in part, on Capitol Hill, and has a chilling effect on donors to issues organizations on both sides of the aisle. Indeed, those most likely to withdraw from the field will tend to be those motivated by ideology. Those motivated by pecuniary gain will have an added incentive to bear the cost of disclosure and carry on. This may be a price worth paying when we are discussing disclosure of direct lobbyist contact with lawmakers, but it is not worth paying to limit citizen contact with lawmakers.
To clean up the Abramoff mess there is no reason to smoke out donors to groups like Progress for America or the Alliance for Justice, or to make consultants fearful to assist such organizations with controversial issues. Donations or consulting for grassroots lobbying does not support direct lobbyist-to-lawmaker contact—-the source of public concern. (Nobody cares if a lobbyist flies on a corporate jet–what they object to is his giving rides to congressmen on a corporate jet!). Grassroots lobbying fosters citizen-to-citizen communication, and later, citizen-to-lawmaker communication. The message consists of information for citizens, and an appeal to those citizens to take part in a public discussion. Some will get involved because they agree with the message and share its concern; others because they disagree; and still others will not get involved at all. With even the most effective grassroots lobbying, however, there is always an intervening decision made by an individual citizen. The aggregate of those individual decisions is itself critically important and valuable information to the lawmaker. With the decision to contact lawmakers, from whatever side of the debate, citizens reduce the relative power of lobbyist-to-lawmaker communication, which is precisely the power shift the public wants to see, and is the shift most needed in an era of unlit, undisclosed earmarking and lobbying scandal.
Anonymous grassroots lobbying is a long and honored tradition, engaged in by many great Americans. Alexander Hamilton, James Madison, and John Jay authored the Federalist Papers anonymously. Most of the opposition to ratification of the Constitution was also published anonymously, by such distinguished Americans as Richard Henry Lee, New York governor George Clinton, and New York Supreme Court Justice Robert Yates. Other famous Americans who have engaged in anonymous “grassroots lobbying” include Thomas Jefferson, Abraham Lincoln, Winfield Scott, and Benjamin Rush.
The problem of lobbying abuses is one of lobbyist influence outside the light of scrutiny. It is not a problem of citizen influence. Grassroots lobbying encourages citizens to get involved, and the involvement of citizens breaks the link between lobbyists and lawmakers. Grassroots lobbying should be encouraged in every way possible, not discouraged, as a way to restore the trust of the American people in Congress.
–Bradley A. Smith, former chairman of the Federal Election Commission, is senior adviser to the Center for Competitive Politics, and professor of law at Capital University Law School in Columbus, Ohio. Stephen M. Hoersting is the executive director of the Center for Competitive Politics and former general counsel to the National Republican Senatorial Committee. The Center for Competitive Politics seeks to educate the public on the benefits of free competition, fairness, and dynamic participation in the political process. Nothing in this editorial should be construed as advocacy for or against any legislation.