Tocqueville Meets the Speech Police

The two pillars of representative democracy are free and open elections and free and open debate.  Every schoolchild is taught not only that the Bill of Rights enshrines citizens’ rights to speech, association and petition, but that America is great because citizens speak out on issues of public concern and bring their arguments directly to politicians.

Many readers likely recall the classic 1975 “Schoolhouse Rock!” segment on how a bill becomes a law (“I’m Just a Bill”), in which legislation requiring school buses to stop at railroad crossings starts with “just an idea” until some “folks back home” decide they want a law passed and contact their congressman. But today, should you decide to exercise your rights as an American with only civics lessons and the Bill of Rights as your guide, beware.

Nowadays, you need more than just the courage of your convictions and a soapbox to speak out on matters of public importance; you need a good lawyer, too.  Just ask Bishop Lori of Bridgeport, Connecticut:

In March 2009, state legislators in Connecticut tried to rush through a bill that was widely recognized as a blatant act of retribution against the Roman Catholic Church. The Bridgeport Diocese had previously been successful in fighting for a conscience-protection amendment to gay marriage legislation.  Elected officials responded with Raised Bill 1098.  This legislation would require lay people to govern corporations that own church property, which would effectively strip Catholic bishops and pastors of control over Church finances.

The bill was introduced without notice and placed on the legislative fast-track. But state legislators underestimated the Most Reverend William Lori, the blogging bishop of Bridgeport. Lori used his website to inform the faithful and send out a call to action.

On just four days’ notice, the Bridgeport Diocese arranged for buses to take parishioners to a hastily scheduled hearing at the state Capitol in Hartford. The subsequent flood of phone calls and e-mails, along with the prospect of an overflowing and hostile crowd led legislators to cancel the hearing and abandon the bill (although the rally went on as planned with the crowd estimated at more than 3,500 people).

Six weeks after the rally, the Office of State Ethics (OSE) informed the Bridgeport Diocese that it may have violated state lobbying regulations. Connecticut law defines lobbying as communicating or soliciting others to communicate with any public official, or their staff, for the purpose of influencing any legislative or administrative action. The next week, the OSE threatened the church with a formal complaint and multiple fines of $10,000 each.

That’s when the Diocese brought a federal lawsuit, which in turn prompted the Connecticut Attorney General, Richard Blumenthal, to tell the Office of State Ethics to back off. Unfortunately, Blumenthal did not issue a formal advisory opinion, which might have offered some protection to future grassroots efforts, and his letter to the OSE made clear that he still supports strict regulation of grassroots lobbying, even for churches communicating to their members.

For his part, the Reverend Lori was gracious and turned the other cheek. He promptly posted a note on his blog thanking the Attorney General, and even praised Blumenthal:

“His opinion is a truly significant announcement that stands not just with our State’s Catholics but with all citizens of the State whose fundamental civil liberties were placed in jeopardy by the application by the OSE of the State’s lobbying registration requirements. It is essential that citizens have the right to organize and communicate their views to their government without being required to register as lobbyists.”

It’s tempting to view this as a happy ending, but this abuse of power was stopped only because regulators made the mistake of picking on a powerful group; most political entrepreneurs do not have the resources of the Catholic Church backing them up.  No one was fired or placed on administrative leave.  The law hasn’t been repealed.  The only lesson learned by regulators is that next time they should harass a more hapless opponent.

This vignette nicely illustrates one of the central points of “Mowing Down the Grassroots,” a report that I recently authored for the Institute for Justice:  Overbroad lobbying laws in the states raise the costs of political activity and set legal traps for unsuspecting citizens.

It’s my honor to be guest blogging this week.  I’ll be discussing the topic of grassroots lobbying and some of the findings from my related research.  However, I’m not a lawyer, just a social scientist, so please temper your expectations accordingly (since we all know that when used as a modifier, “social” means “not”; e.g., social justice, social security, social worker, etc.).

Correction: As noted in the comments, it’s Raised Bill 1098, not 1089 as originally written.

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