ACLU Letter to the Senate Opposing Expansions of Post-employment Bans and Regulations on Grassroots Lobbying

Re: Oppose expansions of post-employment bans and regulations on grassroots lobbying

Dear Senator:

On behalf of the ACLU, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we urge you to oppose any lobby reform proposals that create broad expansions to the post-employment bans for former Members of Congress and congressional staff, such as S. 2128, the “Lobbying Transparency and Accountability Act of 2006.” We also urge you to oppose the regulation of grassroots lobbying currently contained in S. 2128. Both provisions have serious consequences for constitutionally protected activity.

Broad Expansion of Post-Employment Bans Infringes the Right to Petition the Government for Redress of Grievances

S. 2128’s expansion of post-employment bans, intended to alleviate the “revolving door” problem on Capitol Hill, poses serious First Amendment concerns for both the former staff member who is barred from a form of political speech and also the organization that is barred from using its preferred representative to exercise its right to petition the government. The Supreme Court has consistently required that such restrictions meet the strictest standards, standards these proposals fail to meet. The ACLU believes the current ban is already an infringement on First Amendment rights – expanding the ban to bar former employees from lobbying not only the member or committee for whom they worked but the entire Congress would further violate constitutional rights without advancing the purpose of preventing corruption.

Former congressional staff do not lose their rights as a result of having been employed by the government. The Supreme Court has ruled that lobbying activity is political speech that is at the core of the First Amendment.[1] The protected nature of this activity is not altered by the fact that the speech is on behalf of others for a fee.[2] Additionally, the Court has found that, without specific justification, the Constitution does not tolerate “[t]he loss of First Amendment freedoms, even for minimal periods of time.”[3] This restriction must therefore be judged by traditional First Amendment standards, including the requirement that the restriction be narrowly drawn as to not impose limitations greater than those necessary to protect the interest at stake.[4] Congress has failed to demonstrate a need to expand current, more narrowly tailored restrictions.

The First Amendment additionally guarantees the right to petition the government. Banning organizations from hiring former congressional staff to lobby is denying an organization the right to the advocate of its choice and thus stopping the organization and its constituents from effectively exercising the right to petition the government. Expanding current post-employment bans will further inhibit the ability of organizations to have their concerns heard by the government, while at the same time preventing those most qualified for these positions the right to gainful employment.

There is no doubt that the government has the right to protect itself from improper activities by former government employees. However, this should be done in a way that is mindful of the First Amendment and does not unnecessarily deny the rights of individuals and organizations acting in good faith. There is no evidence that current bans on employment of former congressional staff have had the desired effect of reducing the “revolving door” problem on Capitol Hill, or any evidence that expanding these bans will have this effect. Therefore, the American Civil Liberties Union urges you to reject any proposals to broadly expand current post-employment bans.

The Grassroots Lobbying Provision is Constitutionally Suspect Because it Does Not Serve A Compelling Government Interest and is Not Narrowly Tailored to Achieve the Asserted Goal.

The ACLU urges you to reject attempts to regulate grassroots lobbying.

The right to petition the government is “one of the most precious of the liberties safeguarded by the Bill of Rights.”[5] When viewed through this prism, the thrust of the grassroots lobbying regulation is at best misguided, and at worst would seriously undermine the basic freedom that is the cornerstone of our system of government.

It is well settled that lobbying, which embodies the separate and distinct political freedoms of petitioning, speech, and assembly, enjoys the highest constitutional protection.[6] Petitioning the government is “core political speech,” for which First Amendment protection is “at its zenith.”[7]

Constitutional protection of lobbying is not in the least diminished by the fact that it may be performed for others for a fee.[8] Further, “the First Amendment protects [the] right not only to advocate [one’s] cause but also to select what [one] believe[s] to be the most effective means of doing so.”[9] In Meyer, the Court emphasized that legislative restrictions on political advocacy or advocacy of the passage or defeat of legislation are “wholly at odds with the guarantees of the First Amendment.”[10]

Where the government seeks to regulate such First Amendment protected activity, the regulations must survive exacting scrutiny.[11] To satisfy strict scrutiny, the government must establish: (a) a compelling governmental interest sufficient to override the burden on individual rights; (b) a substantial correlation between the regulation and the furtherance of that interest; and (c) that the least drastic means to achieve its goal have been employed.[12]

A compelling governmental interest cannot be established on the basis of conjecture. There must be a factual record to sustain the government’s assertion that burdens on fundamental rights are warranted. Here, there is little if any record to support the contention that grassroots lobbying needs to be regulated. Without this record, the government will be unable to sustain its assertion that grassroots lobbying should be regulated.

The grassroots lobbying provision is troubling for other reasons as well. First, the provision seems to assume that Americans can easily be manipulated by advocacy organizations to take actions that do not reflect their own interests. To the contrary, Americans are highly independent and capable of making their own judgment. Whether or not they were informed of the problem through a grassroots campaign is irrelevant–their action is based on their own belief in the importance of matters before Congress.

Second, it appears that groups such as the ACLU may end up having to report its activities because of the grassroots lobbying provisions. A “grassroots lobbying firm” means a person or entity that is retained by one or more clients to engage in paid efforts to stimulate grassroots lobbying on behalf of such clients and receives income of, or spends or agrees to spend, an aggregate of $25,000 or more for such efforts in any quarterly period. “Client” under existing law includes the organization that employs an in-house staff person or person who lobbies. If, for example, the ACLU hires an individual to stimulate grassroots lobbying on behalf of the ACLU and pays that individual for her efforts in amounts exceeding $25,000, it appears that individual would be considered a grassroots lobbying firm, and would have to register and report as such. The fact that the ACLU employs that individual appears to be irrelevant to this provision. Unless this is the type of activity that the provision is intended to reach, there is no substantial correlation between the regulation and the furtherance of the government’s alleged interest in regulating that activity.

Another example of the broad reach of this provision is an executive director of a state affiliate of an issue-oriented organization. Even if she is paid a nominal amount and seldom or never interacts directly with congressional offices, she could be forced to register as a federal “grassroots lobbying firm” and file the quarterly detailed reports if that organization itself (the “client”) spends more than $25,000 in a quarter encouraging the general public to contact their federal elected representatives. Since a single full-page advertisement in a major newspaper typically costs more than $25,000, a lot of activists could be defined as “grassroots lobbying firms.”[13]

Finally, the grassroots lobbying provision may very well expose strategy to one’s opponents. The provision requires registration with the Secretary of the Senate and the Clerk of the House of Representatives within 45 days after a grassroots lobbying firm is retained in paid efforts to stimulate grassroots lobbying. This is sure to alert opponents to the fact that an organization is about to engage in a grassroots lobbying campaign. By having to report expenditures, opponents are also able to deduce the extent of the campaign.

Because the grassroots lobbying provision is unsupported by any record of corruption, and because the provision is not narrowly tailored to achieve the government’s asserted interest, the provision is questionable constitutionally. If our government is truly one “of the people, for the people, and by the people,” then the people must be able to disseminate information, contact their representatives, and encourage others to do so as well.

Conclusion

The Senate understandably is concerned about the appearance of impropriety as well as unethical conduct. However, the Abramoff scandal has already demonstrated that most of the activity engaged in by Mr. Abramoff is already illegal. Responses to the scandal should not be taken as an opportunity to suppress the people’s voices and their right to voice their opinions to their elected representatives.

Sincerely,

Caroline Fredrickson Marvin J. Johnson
Director Legislative Counsel

[1] Buckley v. Valeo, 424 U.S. 1, 45 (1976).
[2] Buckley, supra at 16; see also Riley v. National Federation of the Blind of North Carolina, 487 U.S.781 (1988).
[3] National Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C. Cir. 1991) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
[4] See Widmar v. Vincent, 454 U.S. 263 (1983).
[5] United Mineworkers Union v. Illinois State Bar Association, 389 U.S. 217, 222 (1967).
[6] Buckley, supra. at 45 (1976).
[7] Meyer v. Grant, 486 U.S. 414, 425 (1988).
[8] Riley, supra. at 801 (1988).
[9] Meyer v. Grant, supra. at 424.
[10] Id. at 428.
[11] Buckley, supra. at 64.
[12] Id. at 68.
[13] In this scenario, it is not the organization that is defined as a “grassroots lobbying firm,” but the individual staffer.