Unintended Consequences of Grassroots Lobbying Regulations

The benefits and costs of mandatory disclosure for grassroots lobbying campaigns are not limited to the question how much does the public need to know about a speaker versus how important is the safe harbor of anonymity for some speakers.  The process of disclosure has its own costs, a point that is not well-appreciated by many.

Consider that once classified as a lobbyist, an individual or group must not only register and pay a licensing fee, but must also submit periodic reports.  In some states disclosure is minimal (e.g., South Dakota, which only requires annual registration), but in others, grassroots lobbyists must file quarterly or even monthly expense reports, detailing things such as all legislation that is relevant to the group’s activities, the amounts of contributions including donated items, the names and addresses of contributors and itemized expenditures.  For sophisticated professional advocacy groups, these requirements are likely just a nuisance, but for ordinary citizens they can be quite daunting.

For example, consider that the state of Washington defines no less than 11 different types of lobbyists.  In particular, “grassroots lobbying” is defined as “a program addressed to the general public, a substantial portion of which is intended, designed or calculated primarily to influence state legislation.” Any person or organization that sponsors grassroots activities that are not otherwise reportable under one of the other 10 definitions of lobbying must then file an initial grassroots lobbying report within 30 days of initiating any grassroots activity.

Grassroots sponsors in Washington are then required to file monthly activity reports, as well as a final report once that particular grassroots campaign is completed. These monthly reports require that groups identify not only the topic on which they are focused, but the actual bill, rule or rate number, as well as the names and addresses of all principals or managers of the organization.

And in Washington grassroots groups must also disclose the names and addresses of all employees or firms hired by the group, including the terms of their compensation. These monthly reports also require the disclosure of contributor names and addresses, as well as contribution amounts. Finally, grassroots lobbying organizations must report expenditures disaggregated by 10 different categories, with separate entries for radio, television and print advertising, as well as for signs and mailings.

To be sure, these tasks by themselves are not Herculean, but a complicating factor is that state lobbying rules are not written in manner that makes them accessible to ordinary citizens; after reading all 50 state laws relating to grassroots lobbying, I think it is safe to say that very little effort has been devoted to that end.

As a simple demonstration, I fed the first paragraph of Massachusetts grassroots lobbying law into several different on-line readability calculators, the kind of readability tests used to check technical and military manuals.  Let’s just say that the complexity of the regulation was outside the bounds for which such calculators are intended, since the resulting scores implied that an individual would need more than 30 years of formal education (even I finished my doctoral thesis in less time).

Yet, because lobbying laws in 36 states are so broad as to cover what should be the laudable activities of an engaged citizenry  – i.e., communicating to fellow citizens via rallies, meet-ups, pamphleteering, blogging, open letters, handbills, et. – it becomes necessary for ordinary people to navigate these rules.

In an earlier report also published by the Institute for Justice, I conducted a “compliance experiment” in which I asked about 250 people to try their hand at completing some state disclosure forms for a political committee.  Subjects were presented with a simple scenario that included a few different transactions, such as an advertising expenditure, an anonymous contribution, and an in-kind donation.

Subjects were given actual disclosure forms and instructions from California, Colorado or Missouri.  The result wasn’t pretty; bottom-line: participants were flummoxed by the task.  Despite being incentivized with monetary payments, not one could complete the disclosure forms correctly; most made multiple major errors, and several couldn’t even begin to follow the official instructions.

When debriefed on the experience, several participants expressed frustration and incredulity that anyone would be expected to complete such forms just to participate in the political process.  Some even offered that they would never want to get involved in politics if it meant complying with such rules.

Of course, anyone trying to comply with disclosure regulations can contact state regulators for help.  But that doesn’t mean you’ll get much help, or immediate help, or even the right answers.  For example, Massachusetts provides a “training manual” for lobbyists; it consists of the text of the state law and a disclaimer to the effect that the manual is not legal advice and people should consult legal counsel.  Apparently, regulators in Massachusetts are not even confident in their ability to cut and paste the text of the law!

But to seek help in complying with a law, you need to know about the law.  In the compliance experiment, only 7% of participants were aware of the need for political committees to register with the state.  I’d be very surprised if as many people know that you might need to register as a lobbyist in order to talk to fellow citizens about public issues in most states.  But once informed, if the participants in the  compliance experiment are any indication, many people would be peeved.

Survey evidence gathered by Dick Carpenter suggests that in the abstract financial disclosure for political actors is popular; this is likely because very few citizens run for office or even make campaign contributions, so they imagine such rules applied only to other people.  But once framed as whether the respondents own name, address, and employer should be made public, support for disclosure laws falls dramatically; further, most respondents agree that mandatory disclosure would make them less likely to financially support political causes.

The unintended consequences of complex and overbroad laws are therefore not just the possibility of abuse by regulatory authorities, but the deterrent effect that such regulations have for citizen engagement in politics.  Regulation of grassroots activism in the states stands in stark contrast to the basic principle affirmed in Citizens United v. Federal Election Commission:

 “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney … or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’”

 

Update: corrected an unfortunate spelling error, as noted in comments