It’s been my pleasure to guest blog this week on the topic of grassroots lobbying regulations. In the four previous posts, I’ve summarized the lessons from Mowing Down the Grassroots: existing lobbying regulations in 36 states are so broad as to cover situations in which individuals or groups communicate to other citizens about public issues (i.e., grassroots lobbying) and such regulations have costs that have gone largely unrecognized.
The traditional rationales for regulating lobbyists – corrupting or buttonholing public officials — do not apply to grassroots lobbying; instead, states have asserted a right to know “who is speaking” for the furtherance of the “integrity of democracy.” I leave for others to debate whether such a purpose is a legitimate reason to burden political speech, association and the right to petition.
The claim that political reforms are critical to preserving the integrity of democracy has been made by reformers of all stripes; whether referring to term limits, public financing, disclosure laws, voter identification, ballot access, etc., proponents frequently assert that their pet issue is crucial to this goal. However, these claims are rarely put to the test, which brings our discussion back to my world of social science research.
The phrase “integrity of democracy” sounds great, but it must mean something concrete to be testable. A common operational definition is the public’s trust and confidence in government; that’s the wording one sees in statements of legislative intent for campaign finance and lobbying laws, and that is the sense in which many political scientists have studied the issue. Since we can measure public trust and confidence in surveys, this permits us to put reformers claims to the test.
So does mandatory disclosure of grassroots lobbying increase public confidence or for the matter do lobbying regulations in general? I don’t know; no one does. It hasn’t been studied. But I can tell you whether campaign finance regulations increase trust and confidence, as that has been put to the test.
My intuition is that laws governing candidate elections are far more salient to the public than mandatory disclosure of grassroots lobbying, so if we fail to find an effect of the former, it probably doesn’t exist for the latter. Conversely, if we find an effect for campaign finance laws, it’s probably safe to assume that is an upper bound for any effect of mandatory disclosure of grassroots lobbying on public confidence.
David Primo, a political scientist at the University of Rochester, and I authored a study in the Election Law Journal (vol 5(1): 2006) which is the only published research that attempts to identify the treatment effect of state campaign finance laws on some measure of public faith in democracy. In that study, we exploit the fact that variation in state campaign finance laws over time and across states provides a natural experiment for us to test whether reforms matter.
One challenge we faced is that there are no existing datasets that systematically gauge public trust in state government over time; instead, we employ measures of “political efficacy” – whether people think democracy works in a general sense – as our outcome variable. We examine 50 years of data from the American National Election Studies, control for relevant covariates and all that other good stuff; bottom-line: the presence of disclosure laws for state candidates has a small positive, albeit marginally significant (p<.10), effect on two of our three measures of political efficacy.
In contrast, public funding of campaigns has a larger and significant (p<.05) negative effect on the same two measures. Contribution limits on corporations, unions and PACs have a significant (p<.05) positive effect on only one of our three measures, while limits on contributions from individuals to state candidates have no significant impact on efficacy.
So there is at best weak evidence consistent with the notion that sunshine is a disinfectant; however, our study only compared the existence of mandatory candidate disclosure of contributors versus no mandatory disclosure. We did not examine the effects of more or less comprehensive disclosure, but assuming diminishing marginal effects of more intensive requirements, this does establish an upper bound for the treatment effect of incrementally more mandatory disclosure on public confidence in democracy: i.e., not much.
The other lesson that emerges from our study is that more restrictive campaign finance regulations do not have much of an effect on public confidence, nor even always a positive effect. However, as noted, one drawback to our study was the absence of a specific measure of the respondents’ trust and confidence in their state government, rather than “government” in general.
For that reason, I have collected data from more than 30 different opinion surveys over the last 20 years, in order to conduct a similar analysis with an arguably less noisy outcome measure. Unfortunately, this new work in progress cannot identify the effect of adding candidate disclosure laws, since all states have had such requirements in place during the last two decades. But the basic findings for campaign finance laws are similar, in that they appear to have very little substantive impact on citizens’ trust and confidence in their state government.
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I appreciate the time and effort of those of you that read these postings and\or contributed to the lively comments; my thanks to the hosts, as well.
BZ says:
Again, thank you for posting these informative summaries about state and local grassroots lobbying restrictions.
Although I’m still digesting yesterday’s Doe v Reed decision, with its seven different opinions, it would seem there is something here for your review.
This is the third major opinion this year to uphold disclosure requirements, including Citizens United, and the D.C. Circuit’s SpeechNow v FEC.
Citizens United justified the government’s attempt to force identification of sponsors and donors, in part, on what you describe as a “right to know,” and what the Supremes call an “informational right.” CU, slip op. at 52-53 (disclaimers “provid[e] the electorate with information,” and “insure that the voters are fully informed” about “the person or group who is speaking, so that the people will be able to evaluate the arguments to which they are being subjected”). SpeechNow said an informational right was not enough; the government needed to show an “anti-corruption” interest to justify the First Amendment burden.
In Doe, the Court didn’t reach the “informational right” argument. Instead it set a new “exacting scrutiny” standard to measure various disclosure schemes. The Court decides if 1) the disclosure scheme serves a government interest strong enough to overcome the burden on First Amendment rights (guarding against fraud would be one; essential administrative requirements is another; just information is not enough to justify heavy burdens); and 2) is the remedy tailored to the strong interest (a disclosure requirement, like a name tag, that wouldn’t prevent fraud won’t support an anti-fraud justification, as in the petition signature gathering case, Buckley v American Constitutional Law Foundation which I mentioned in an earlier post of yours). It’s a balancing test, not an informational right.
It would seem that your research is going to be much needed in the future, since cases may turn on whether you can show either an effect on speech, or the lack of connection between the intention and the actual target. It would seem that good research showing whether there is, or is not, any substantive effect from a “right to know” would be critical to a future challenge to a disclosure law, including those grassroots lobbying disclosures you have commented on.
June 25, 2010, 3:52 pmChris Travers says:
If I can summarize what I think Jeff Milyo’s arguments are, they seem to be that many states define lobbying exceptionally broadly which includes person-to-person discussions with members of the general public about the relative merits of various public policy choices. It seems further that this definition is so broad that Jeff’s book and his blog posts (as well as most of the comments) could be argued to be covered under many states’ lobbying laws. Jeff: Is that a fair assessment?
On the other side, some people here seem to be arguing that corporate astroturfing (which they define as business entities falsely representing themselves as members of the general public) is a large enough problem that we should require registration for such activities.
But in comes the irony. Every one of those who has taken the pro-regulation of grass-roots lobbying position on this forum has used either pseudonyms or partial names, hypocritically hiding behind anonymity while calling for an end to anonymous political speech.
June 25, 2010, 6:48 pmSuperSkeptic says:
I do not think there can be integrity in democracy anyway.
June 25, 2010, 7:06 pmChris Travers says:
This is why we are a representative republic, right?
June 25, 2010, 7:32 pmlgm says:
Thanks for recognizing this. It explains the negative outcome in your study. Republican states with weak disclosure laws also have strong anti-government biases.
At the end of the week, you still have not given any evidence that grassroots lobbying laws inhibit grassroots lobbying. You worry that they might, but you give no example where they have. Your claim that astroturf doesn’t exist undermines any claim to expertise/objectivity you might have made. Your little post about Connecticut was demolished in the comment thread.
June 25, 2010, 7:36 pmSuperSkeptic says:
I have my doubts about the existence of integrity in that, too, Chris. And if our representatives are supposed to add to any ostensible integrity, I fear our structural efforts may even be counter-productive.
June 25, 2010, 7:55 pmxon says:
http://unenumerated.blogspot.com/2008/03/unpredictable-elections.html
June 25, 2010, 8:16 pmChris Travers says:
I don’t have my doubts about the existence of integrity in our system. For example, I think the vast majority of the time, our Supreme Court acts with integrity. I may not always like the result but I wouldn’t usually question the motives.
OTOH, there are plenty of areas where we can look at and say that integrity, if it’s to be found at all, is deeply buried in the manure.
June 25, 2010, 8:27 pmElliot says:
Why should we have trust and confidence in government? I don’t trust it, nor do I have confidence in it. I accept it as a necessity, and try to make it as fair, efficient, and effective as possible, but I’d say a lack of trust and confidence in government is probably a good thing.
Senator Dodd told us today we have to wait until the financial bill is implemented to see what it does. Pelosi told us we won’t know what ObamaCare does until we wait a few years. The government shuts down oil skimmers because of life vests. The ex-governor of Illinois channels Charles Durning in Best Whore House In Texas. Obama wants to borrow billions more so staes don’t have to cut back irresponsible spending. Trust? Confidence? Trust in what? Confidence in what?
One thing that would certainly make me have even less trust and confidence in government is its effort to keep us from freely saying whatever we want to each other.
I’d suggest distrust of government and a lack of confidence are necessary civic virtues.
June 25, 2010, 9:50 pmKen Arromdee says:
Corporations can still speak anonymously if they’re not allowed to pretend to be members of the general public. The complaint is about them misrepresenting what identity they do give, not about requiring them to produce an identity at all.
June 26, 2010, 12:56 amStephen Lathrop says:
My preference is to get commercial corporations out of the public policy and politics business altogether, relying instead on natural persons using their own resources to make the case for the corporate point of view. Alas, there is no prospect that could be considered now.
This proposal is a compromise:
Let commercial corporations say whatever they like. But require that if they do not choose to use their regular commercial identity, they must sign whatever they say, print, or broadcast not with the customary sock puppet names and evasions, but with the simple word, “Anonymous.”
That should do everything necessary to protect the marketplace of ideas, while alerting the public to the likelihood that the speaker is unwilling publicly to support its own utterances.
In deference to tradition and 1st amendment values, reserve the use of pseudonyms for natural persons, who, with natural lives to put on the line, sometimes have more to fear from disclosure of their true identity than do commercial corporations.
Why not permit commercial corporations all the speech rights of natural persons? There are so many reasons. Here is one: If the corporation’s duty to make money for shareholders would be furthered by bad public policy, then that’s what the corporation will probably promote, and indeed, may be required to promote by law. If disinforming the public will make more money for shareholders, then the commercial corporation will do that. Or perhaps it will choose deliberately to obscure and confuse public debate.
A commercial corporation must pursue narrowly limited objectives—objectives far narrower than those public policy must pursue on behalf of natural persons. Where natural persons always have an interest in thriving debate, tearing down and corrupting the marketplace of ideas often serves commercial corporate purposes better. Naturally, a corporation behaving in those ways will prefer anonymity to disclosure of its identity. Okay, give it anonymity, by name.
June 26, 2010, 6:06 amPersonFromPorlock says:
And this differs from how individuals approach government, how? Any time anyone takes a position on government policy we ought to regard what’s said with a jaundiced eye – there’s just too much opportunity for self-interest there. If some individuals or groups are in fact corporate fronts, cynicism and the Internet will find them out quickly enough.
June 26, 2010, 7:45 amBrett Bellmore says:
You want to shut down the newspaper industry?
June 26, 2010, 9:11 amStephen Lathrop says:
Very little, so long as the natural person is a financially-fixated psychopath. But most natural persons have interests that go beyond personal financial benefit—the legally prescribed limit of a commercial corporation’s policy interest.
In my weaker moments I sometimes imagine people on the right think of nothing but personal finances when they discuss politics, but despite your effort to convince me, I’m not going to buy it. Natural persons have pride, loyalty, idealism, religion, gun hobbies, honor, empathy, ethnic associations, diseases, community interests, family members with different financial interests that they might put ahead of their own. The list is endless.
You may well suppose that a natural person’s political views will express that person’s view of self-interest summed on a multiplicity of axes. But it’s the multiplicity that makes the natural person’s political participation more realistic, valuable, and reliable than any commercial corporation’s.
Isn’t that obvious? Is there anyone on this thread who believes that the founders intended the “ourselves and our Posterity” referred to in the Preamble to refer to any but natural persons?
June 26, 2010, 9:32 amKen Arromdee says:
That doesn’t necessarily mean a real difference, though. While any individual corporation has a narrower range of interests than an individual person, a group of corporations will have different interests for each corporation. Allowing corporations in general to participate in politics still brings a wide range of interests to the table.
The objection to astroturfing really doesn’t have anything to do with corporations specifically. It would be bad for an individual human to hire a few thousand people to pretend to be “independent supporters” of a “grass roots movement” just like it would be bad for a corporation to do so.
June 26, 2010, 11:17 amKen Arromdee says:
I am suspicious of any argument which refers to corporations as psychopaths. These arguments are almost always descended from the single film “The Corporation”.
Corporations aren’t people in an everyday sense. That’s why corporations don’t get to vote or collect Social Security–it’s just terminology. Saying “corporations are people, so I’ll judge them like people, making them psychopaths” is a fallacy because even supporters of corporate personhood never have intended that corporations be treated as people in all aspects.
And if you just want to apply human standards to random things, my favorite example is a protest march. It’s fair to say that a protest march is a psychopath by human standards. Somehow, nobody who claims that corporations are psychopaths thinks that protest marches are too.
June 26, 2010, 11:27 amChris Travers says:
Yet the people who actually do the physical speaking are…. what? Aliens from Mars? Of course, assuming you are “Ken Arromdee” as your legal name, my complaint about anonymously screaming for an end to anonymity does not apply to you.
June 26, 2010, 12:04 pmChris Travers says:
I’m curious about this. Have you heard a corporation speak without a natural person acting on it’s behalf? Have you seen a corporations write or publish something on their own without a natural person doing so? If corporations are able to do these things, then at least we’d have a bright line. Otherwise what exactly do you mean here? I can’t think of a line here that’s tenable and protects the rights of natural persons to speak anonymously and pseudonymously.
June 26, 2010, 12:10 pmChris Travers says:
In general, there’s a point here though corporations have their own priorities and some are far more interested in acting responsibly (believing it to be in their long-term interests) than others.
However, it’s worth noting that people can have honest disagreements about things. For example the ASCAP looks at the Creative Commons as an attempt to undermine their copyrights. I think they are wrong (and dangerously so), but I don’t think it’s a deliberate misrepresentation. See also the arguments over copyright policy between high-tech firms and entertainment firms (this is probably also in part due to VERY different experiences with copyright law in both industries).
Finally, I’d note that I’ve met many people who are far more extremist in protecting corporate profits through public policy than even the corporations. Folks, for example, who think patents should never expire. So I just don’t think corporate astroturfing has a major effect on legislative policy.
(Also I’ve been accused of being an astroturfer before on Huffington Post for arguing against typical network neutrality proposals.)
I think one thing about the astroturfing issue is that it’s a great mechanism for enforcing epistemic closure because it’s easy to allege but hard to disprive. Therefore it makes a great deal of sense to accuse individuals one disagrees with of being astroturfers.
June 26, 2010, 12:20 pmChris Travers says:
(Just to be clear, I don’t think that corporations have a fundamental right to speak anonymously of pseudonymously, but that I cannot find any principled line that could be drawn to regualte that which would not overly burden the individual right to free speech.)
June 26, 2010, 12:30 pmJohn Richmond says:
an army of clever lawyers and accountants will always find a way around any road block
June 26, 2010, 1:11 pmNelson Lee Walker says:
Here’s a practical Tea Party type strategy to create a “Citizen Congress”
A Congress of career politicians will never represent “We the People”, because their highest priority is getting reelected with the help of Big Money.
But “We the People” have more votes than “Big Money” has, and thus can end Congress as a career for professional politicians by never reelecting incumbents.
We can impose single terms every two years, by never reelecting Congress.
Always vote, but only for challengers. Never reelect incumbents.
Keep this up until Congress is mostly “one-termers”, a citizen Congress.
Then keep it up every election, to make a citizen Congress a permanent reality.
Every American’s only intelligent choice is to never reelect anyone in Congress!
The only infallible, unstoppable, guaranteed way to get a truly new Congress,
and a cleaned up new politics is
NEVER REELECT ANY INCUMBENT! DO IT EVERY ELECTION
Nelson Lee Walker of tenurecorrupts.com
June 26, 2010, 2:22 pmChris Travers says:
Won’t ever work. Elected officials from the GOP want to use the Tea Party as pawns in their self-serving games of chess.
June 26, 2010, 2:26 pmKen Arromdee says:
It’s my name, but that’s not relevant. I don’t object to anyone (corporations or just rich guys) speaking anonymously. There’s a difference between not identifying yourself and identifying yourself falsely. Identifying yourself falsely, when the false identification misleads the public about the number of people involved or whether they are being paid to express those opinions, is astroturfing. It is ludicrous to say that astroturfing is just another name for speech that people don’t like. It means considerably more than that.
And yeah, it’s true that the people doing the physical speaking for corporations are humans, not Martians. Fine, let the corporation speak as those humans. I’ll even grant that they can use pseudonyms. But they shouldn’t lie about their funding sources or their number–those 2 people speaking for the corporation should not pretend to be 1000, nor should they pretend that they would still have those opinions if they weren’t being paid. (They can say nothing about their funding sources, but saying nothing isn’t the same as lying.)
June 26, 2010, 3:11 pmKen Arromdee says:
All that an accusation of astroturfing is is an accusation of a particular type of lie. What you are saying amounts to “since an accusation of lying is hard to disprove, there must be something wrong with it”. I don’t see how we can have meaningful discourse without being able to accuse other people of lying; after all, people do lie sometimes.
June 26, 2010, 3:19 pmBrett Bellmore says:
The poll results are consistent with a wide-spread perception that most campaign ‘reforms’ are actually incumbent protection measures.
June 26, 2010, 3:27 pmStephen Lathrop says:
An advocate for political speech by commercial corporations (which I take it you are not) would get on thin ice with that question. It invites the retort that corporations can’t be deprived of speech they don’t have in the first place. If commercial corporations are among the interests of natural persons, then let corporate interests be represented by natural persons using their own resources—just as the other interests of natural persons get represented.
What would you say to distinguishing commercial corporations—not the press, (specially privileged)— from everything else on the basis of style of ownership. Joint stock ownership and governance means no political speech. Expenditures which earn income tax deductions may not be applied to political speech.
By contrast, corporate governance by individual member vote means political speech is okay. A treasury raised exclusively from the contributions of members, who have paid taxes on the money, means political speech is okay.
Doesn’t that divide it pretty cleanly?
June 26, 2010, 4:49 pmElliot says:
I would think the same could apply to a union. Why limit your recommendations to commercial corporations?
June 26, 2010, 5:42 pmConnecticut Lawyer says:
Stephen,
I think you have a rather narrow view of politics.
Think of politics as a clash of interests. Farmers, shippers, artists, students, manufacturers, merchants, consumers, financiers, professionals, whatever. Corporations are just another form of business interest. Why are they so dangerous that you would shut their mouths or restrict what they can say? Why do you care about the deceitful political speech that corporations, as one particular form of business organization, might engage in but not care about the deceitful political speech that unions or professional associations or NGOs or wealthy currency speculators or your average politician might engage in? Isn’t the best solution, the one most consistent with our history and values, to encourage all interests to speak up, to say whatever they want, whenever they want, however they want? And trust to the vigorous exchange of politics to expose any deceit that the public might care about?
Note, too, that people by and large don’t care about political deceit. They understand it happens all the time, they discount all claims made in the political arena to discount for the likelihood of deceit, and at the end of the day, they care mostly about results. Now it’s true that people get all high and mighty and huffy about deceit by their opponents. But they don’t care at all about deceit by their allies. As Exhibit A, I will point out that not one Democrat seems the slightest bit bothered to learn that the cost-projections on which Obamacare were constructed were totally phony and that Obama’s promise that “if you like your health insurance, you can keep it” was false from the get-go. They like the end result and how you get there is just sausage making. Republicans behave exactly the same way. From this we can conclude that complaints about political deceit are purely partisan and political and have nothing whatever to do with principle.
Now it’s true that permitting “monied interests” (to use the old fashioned term) to engage freely in politics means that such interests will prevail at least some of the time, maybe a lot of the time. So what? That’s just the consequence of not living in an egalitarian, socialist democracy where everyone has exactly the same influence (that is to say, none).
Anyway, I’ve enjoyed your comments, which are thoughtful and raised interesting points.
June 26, 2010, 5:49 pmChris Travers says:
How do you define an advocate? Can a CEO of a corporation speak pseudonymously or anonymously about issues which might affect the corporation? Is it limited to professional advocates? If so, can practising attorneys ever speak pseudonymously about anything of political importance?
So what’s political speech? Can the CEO send out an email to members of the corporation saying “this proposed regulation will put us out of business?” What if the CEO tries to ensure that the employees believe that legislation threatens their jobs and that talking with others might be productive. Is that grassroots lobbying?
I guess I’d prefer to draw the line between talking to elected officials and talking to the public rather than between who is talking.
I suppose you could say that corporations could not pay for political speech, but what about salaried employees? Are they still free to speak anonymously on these things?
Finally, in looking at the press exemption, that becomes interesting. Where does, say, Microsoft fit into this? Should we give Microsoft a privileged position in this matter (compared to, say, Oracle) because of their joint ownership of MSNBC? What does the parent company to the New York Times own?
The line seems great in theory, but it breaks down when you start looking at implementation. It’s amazingly complex and implementing it would lead to rules that would make the rules at issue in Citizens United extremely simple by comparison.
June 26, 2010, 7:06 pmChris Travers says:
Well, we can argue whether all lies are wrong. For example, if one publishes a book under a pseudonym, that’s a kind of lie too. I don’t think there’s necessarily anything wrong with pseudonyms. Do you disagree? I’m still looking for a principled distinction between the author of “Dear Abby” and an astroturfer.
June 26, 2010, 7:19 pmKen Arromdee says:
I was under the impression that the author of “Dear Abby” is actually named that, but even assuming a false name, the difference is that the astroturfer is trying to mislead about something other than just a name. Posting under a pseudonym doesn’t make someone an astroturfer. Claiming to have spontaneous opinions that you’re really expressing only because you’re getting paid is. Claiming to be many independent people when they’re not at all independent is. Astroturfing isn’t a generic term that refers to all lying; astroturfing is a specific type of lie, and pseudonyms are a different type of lie.
June 26, 2010, 10:21 pmChris Travers says:
Ken: There have been two authors of Dear Abby. One was named “Ann” and the other was named “Phillis.” So I think it’s a good example of pseudonymous authorship.
However the key question is how you regulate astroturfing without denying everyone the right to speak anonymously and pseudonymously.
June 27, 2010, 10:39 pmConnecticut Lawyer says:
Chris – The question is more fundamental than that. The question is why astroturfing, as a particular category of deceitful political speech, is any worse than any other kind of deceitful political speech.
June 28, 2010, 10:03 amJohn Campbell says:
It just seems to me that the moment most people attain some sort of governmental status, whether it’s at local, regional or national level, honesty and integrity deserts them to be replaced by self interest in bucket loads. Perhaps I am just a cynical old so and so – but I feel very despondent sometimes about how our leaders and representatives behave.
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July 1, 2010, 9:07 pmHobnobBlog » Blog Archive » Assorted Links 6/27/10 says:
[...] Grassroots Lobbying, Campaign Finance Laws and the Integrity of Democracy – “It’s been my pleasure to guest blog this week on the topic of grassroots lobbying regulations. In the four previous posts, I’ve summarized the lessons from Mowing Down the Grassroots: existing lobbying regulations in 36 states are so broad as to cover situations in which individuals or groups communicate to other citizens about public issues (i.e., grassroots lobbying) and such regulations have costs that have gone largely unrecognized. [...]
July 3, 2010, 2:11 pm