The Honorable Jerrold Nadler
Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary Committee
2334 Rayburn House Office Building
Washington, DC 20515
The Honorable Trent Franks
Ranking Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary Committee
1237 Longworth House Office Building
Washington, DC 20515
Re: S.1, “The Legislative Transparency and Accountability Act of 2007”
Dear Chairman Nadler and Ranking Member Franks:
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 reject efforts to expand the post-employment bans contained in S.1, the “Legislative Transparency and Accountability Act of 2007.” Section 241 of the bill expands this ban to virtually any employee of a House of Congress for one year, and expands the ban on Members and elected officers to two years.
While S.1 does not contain any restrictions on “grassroots lobbying” activity, we urge you to reject any attempt to add such regulation during House deliberations. Registration and reporting requirements on such activity does little more than raise barriers between the people and their elected representatives.
Broad Expansion of Post-Employment Bans Infringes the Right to Petition the Government for Redress of Grievances
Section 241 of S.1 dramatically expands post-employment bans, intended to alleviate the “revolving door” problem on Capitol Hill. Members of Congress and elected officers would be prohibited from any sort of lobbying activity for two years. S.1, however, expands the post-employment ban to include any employee of a House of Congress for one year. Thus, a clerk or paid intern, runner, mail-room clerk or any other employee that is not engaged in a significant way in legislation would be prohibited from any lobbying contacts in the entire chamber in which that staff was employed for a period of one year. If a Member leaves government service and takes a trusted secretary with her, that secretary would be prohibited from any sort of lobbying contact for a one-year period.
S. 1’s expansion of post-employment bans 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 this proposal fails 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 demonstrates a need to expand the current bans on employment of former congressional staff, or Members. Therefore, the American Civil Liberties Union urges you to reject any proposals to broadly expand current post-employment bans.
Reject Efforts to Incorporate Provisions on “Grassroots Lobbying.”
The Senate considered a provision (Section 220) in S.1 that would have required registration and reporting of grassroots lobbying activities. The ACLU and others opposed this effort because it only served to erect barriers between the people and their elected representatives. The Senate wisely agreed, and removed the provision from the final bill. We urge you to not place such a provision in the bill during consideration by the House.
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 Americans can be easily 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 an issue through a grassroots campaign is irrelevant--their action in contacting their representative is based on their own belief in the importance of matters before Congress.
Requiring groups or individuals to report First Amendment activity to the government is antithetical to the values enshrined in our Constitution. 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 House understandably is concerned about the appearance of impropriety as well as unethical conduct. Care should be taken, however, when legislative action threatens to infringe upon rights essential to our democracy. Responses to recent scandals should not be taken as an opportunity to suppress the people’s voices and their right to voice their opinions to their elected representatives. For these reasons, we urge you to reject the expansion of post-employment bans and reject efforts to insert registration and regulation of grassroots lobbying provisions.
Sincerely,
Caroline Fredrickson
Director
Marvin J. Johnson
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.