The Volokh Conspiracy

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.

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

Grassroots lobbying involves communicating to the public about public matters; so what justifies government intervention in this area? Statements of intent from lobbying statutes in the states indicate that the primary rationale espoused for regulating grassroots lobbying is that the public has a “right to know who is speaking” and an interest in preserving “the integrity of democracy.”

For example, Rhode Island’s declaration of intent states: “Public confidence in the integrity of the legislative process is strengthened by the identification of persons and groups who on behalf of private interests seek to influence the content, introduction, passage or defeat of legislation and by the disclosure of funds expended in that effort.”   Similarly, the state of Washington declares: “The public’s right to know the financing of political campaigns and lobbying and the financial affairs of elected officials and candidates far outweighs any right that these matters remain secret and private.”  When applied to grassroots lobbying, these claims are disturbing in several respects.

First, the vague reference to the “integrity of democracy” is reminiscent of similar claims made by advocates of restrictive campaign finance laws.  However, there is no scientific evidence that restrictive campaign finance laws have much of an impact on citizens’ trust in government; and by extension, lobbying disclosure laws are unlikely to have any important effects either.  I’ll have more to say on this topic Friday.

Second, because grassroots lobbying informs and energizes citizen participation, it can act as a check on malfeasant representatives.  Party bosses may twist a legislator’s arm, but grassroots groups can twist back on the other.  Given this, the presence of disclosure laws that raise the costs of grassroots activism may actually undermine the “integrity of democracy.”

Third, these claims ignore the Supreme Court’s recognition that mandatory disclosure can impose unacceptably high costs on certain unpopular groups and speakers.  All else constant, more information is probably better; for this reason, groups usually undermine their own message by not disclosing relevant information to the public.  But popular prejudice against some speakers or the potential for retribution against those that dare to support controversial views may alter the calculus of disclosure.  The public can always choose to discount anonymous voices, but it’s harder for an unpopular speaker to ignore the message of a brick through the window, or worse.

Finally, the claim that disclosure of grassroots lobbying activities is necessary for the public to know “who is speaking” is quite insulting. In essence, it assumes that citizens who contact a legislator as part of a grassroots campaign are just mindless automatons relaying whatever lines they’re fed, rather than concerned citizens who have taken advantage of the expertise of some trusted group or organization in crafting their own message.

The notion that only some grassroots lobbying is legitimate is manifest in the disparaging term, “Astroturf lobbying.”  In practice, the difference between grassroots lobbying and Astroturf lobbying is primarily whether the speaker agrees or disagrees with the aims of the movement in question.  Nevertheless, there is a widespread notion that the presence of any financial support or expertise on the side of a grassroots campaign somehow renders it illegitimate, but this ignores the realities of collective action problems.

One lesson that emerges from scholarly research is that political entrepreneurs can solve the collective‐action problem. More effective groups are those where some members care enough about the group to take on the cost of coordinating, communicating and mobilizing other individuals. These groups become organized and function as interest groups.

Elected politicians often play the role of political entrepreneur, but outside actors, be they existing interest groups, candidates‐in‐waiting or concerned citizens, may also play the role of political entrepreneur.8 However, unlike incumbent politicians, outside political entrepreneurs often lack a public platform from which to communicate and do not have a professional staff to help organize group members. For these reasons, grassroots lobbyists rely on patrons and contributors to provide resources to inform, coordinate and mobilize group members.

Seen in this light, the frequent assumption that authentic grassroots lobbying can only occur absent political entrepreneurs and professional expertise is simply ridiculous. Unorganized and ordinary citizens with legitimate and latent preferences for policy cannot be expected to monitor the legislative calendar constantly just in case an item of concern should pop up; nor can ordinary citizens be expected to fully comprehend the legislative process so that they can contact the appropriate committee members at the appropriate time.

Advocacy groups and other entrepreneurs provide a valuable function for unorganized interests by monitoring legislation and sending action alerts when appropriate, as well as helping to coordinate grassroots action for maximum effect by informing people about the issues at hand, the relevant actors to contact and the time frame for action.

Far from being a suspect enterprise, political entrepreneurship is a necessary condition for vigorous and robust grassroots lobbying. If anything, it is the absence of such activity that should cause concern, since it would mean that latent groups are left unorganized and their preferences likely ignored by the political process.

Tomorrow I’ll tackle the question of whether ordinary citizens can be expected to comply with existing lobby disclosure regulations.

Ross Perot famously characterized lobbyists as “these guys with alligator shoes”; indeed, few vocations are less esteemed than lobbyists, especially since cable television has romanticized bail-bondsman, tattoo artists, and pawn shop owners.  In contrast to conventional lobbying, which involves paid actors communicating directly with public officials, grassroots lobbying is any effort to organize, coordinate or implore other citizens to contact public officials for the purpose of affecting public policy.

Grassroots lobbying is therefore not just the exercise of free speech and association, but the very process by which like‐minded people coordinate their efforts and petition government for the redress of grievances.  So, whether it takes the form of a public rally, a letter‐writing campaign or an impassioned blog entry, grassroots lobbying is quintessential representative democracy in action.

Every state regulates conventional lobbying to some extent, although the details vary.  Broadly speaking, lobbyists are expected to register with the state and pay fees, identify themselves when talking to public officials, and to file occasional reports detailing their activities and finances.  Lobbyists may also face more restrictive rules for gifts or campaign contributions than ordinary citizens.

These regulations may be understood as consistent with the goal of preventing corruption and the appearance of corruption.  Limits on gifts and contributions help keep the stakes low (for one side of the potential exchange, anyway), while disclosure requirements keep dealings with public officials somewhat transparent.  The idea is that such laws make it more difficult for lobbyists and public officials to engage in illicit quid-pro-quo exchanges, while also insulating innocent communication from being viewed as such.

A more mundane rationale for regulating lobbyists is that legislators find it useful to know who is buttonholing them in the hallway to talk about a pending piece of legislation.  Elected officials probably don’t want to insult a constituent by giving him the brush off, but perhaps can afford to be blunt when dealing with hired guns.

Neither of these rationales for regulating lobbying applies to grassroots lobbying, since grassroots lobbying does not involve any direct communication or interaction with public officials.

Let’s put aside the question of how effective these rules are in practice, or whether such regulations are appropriate when applied to “lobbyists,” conventionally defined (i.e., persons that are paid to communicate directly with public officials with the intent of altering legislative or regulatory action).  Instead, I’d like to focus on the fact that most states define lobbying much more broadly than just the activities of hired guns that deal directly with public officials.

By my count, 22 states define lobbying to include soliciting other citizens to contact public officials, while another 14 states consider any attempt to influence public officials to be lobbying.  In most cases, individuals also must meet a minimum threshold of lobbying activity, based on compensation, expenditures and\or time spent lobbying, before being required to register or file disclosure reports.  However, there is no such threshold in Rhode Island, North Dakota or Wyoming, so just about any public advocacy could fall within the definition of lobbing in those states unless otherwise exempted.

Several states do make clear that religious organizations and the press are exempt from these requirements, and some exempt internal communications by corporations and membership groups.  On the other hand, some states count research or planning as lobbying expenditures, or even define lobbying as the intent to influence policy, so it’s possible to meet the definition of a lobbyist before actually saying anything.

The upshot of this is that the lobbying regulations in 36 states go beyond covering just the activities of stereotypical lobbyists – the guys in alligator shoes — and instead cover some range of public activism that probably few people understand to be regulated, and for which the rationales for regulating lobbyists described above do not apply.

Failure to comply with lobbying regulations can lead to administrative fines, criminal penalties, or being barred from future lobbying.  However, as with campaign finance disclosure laws, violations can cumulate and penalties can be levied per violation (and failure to correct an omission from a previous report can itself be a violation).

Obviously, it’s not possible to fully describe all 50 state laws in one post; Mowing Down the Grassroots contains more details on specific state laws including thresholds for qualifying as a lobbyist, disclosure requirements and penalties.

It’s difficult to know the extent to which these laws stifle political activism.  Our jails are not teeming with grassroots lobbyists, but that doesn’t mean that some people or groups aren’t deterred from getting involved.  The red tape that comes with disclosure requirements can be a hassle and intrusive.  Beyond this, the presence of broad laws gives regulators opportunity to do mischief when it suits them.

More professional interest groups are unlikely to be much fazed by such things, but political activism is not meant to be the province of a few elite actors; it is the right of every citizen.  Tomorrow, I’ll examine the benefits and costs of regulation of grassroots lobbying, including whether ordinary citizens can be expected to comply with disclosure rules.

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.