Astroturf and Sunlight

The chilling effect of public disclosure requirements

Two years ago, the Senate rejected an attempt to regulate "astroturf," professional political agitation aimed at stimulating (or simulating) grassroots activity. Recently that measure's supporters have been saying "I told you so," citing the debate over who is behind boisterous criticism of President Obama's health care agenda at congressional town hall meetings.

But if the problem is that special interests with deep pockets tend to dominate public policy debates, stricter limits on political speech will only make things worse. The pros are in a much better position to comply with complicated, demanding registration and reporting requirements, which expose ordinary citizens to legal risk and discourage them from speaking their minds.

Last week Public Citizen lobbyist Craig Holman, whose group supported the astroturf provision rejected by the Senate in 2007, complained to The Hill that the lack of disclosure about business groups' instigation of protests against health care reform makes it hard to know what's really going on. "This goes below the radar," he said. "We don't know who is behind it or who pays for it. We don't know how much of it is happening."

The difficulty is that Holman's right to know conflicts with other people's constitutional right to speak. The regulations he favored would have required "grassroots lobbying firms" to register with the government and file quarterly reports on their activities. But the definition of such firms was broad enough to cover advocacy groups such as the National Rifle Association, the National Right to Life Committee, and the American Civil Liberties Union.

The ACLU warned that the measure "imposes onerous reporting requirements that will chill constitutionally protected activity." It said a wide range of advocacy organizations, including "small, state grassroots organizations with no lobbying presence in Washington," "would now find their communications to the general public about policy matters redefined as lobbying." Since "failure to register and report could have severe civil and potentially criminal sanctions," the ACLU said, some groups "may well decide that silence is the best option." 

A 2007 Institute for Justice study highlights the potential chilling effect of public disclosure requirements. Economist Jeffrey Milyo asked 255 college-educated subjects to fill out the paperwork required by three states (Colorado, California, and Missouri) for groups that support or oppose ballot initiatives.

The subjects, who were paid for participating and received bonuses based on their performance, were given the official instructions and told to complete income and spending reports for a small group with a shoestring budget that supported an initiative raising the minimum wage. Although the scenario was straightforward, not a single subject properly complied with the relevant law; their average score was 41 percent.

"In the real world," Milyo noted, "all 255 participants could be subject to legal penalties, including fines and litigation." Nine out of 10 subjects agreed that "red tape and the specter of legal penalties would deter citizens from engaging in political activity."

Before the experiment, the vast majority of Milyo's subjects did not even realize they had to register and file reports if they wanted to join with a few like-minded neighbors and take a stand on a ballot initiative. Neither did the residents of Park North, Colorado, who in 2006 opposed their neighborhood's annexation by a nearby town. They found out after supporters of annexation sued them for neglecting to register as an "issue committee" and failing to report the money they had spent on lawn signs and flyers. A Colorado think tank, the Independence Institute, was hit by a similar lawsuit after it ran radio ads that criticized two 2005 tax referenda.

The benefits of regulations aimed at exposing astroturf are uncertain. After all, an argument against a particular public policy proposal, no matter who pays for it or what their motivation might be, is successful only if it persuades people. But there is a clear downside to mandatory disclosure: Because reporting requirements are burdensome and intimidating, efforts to make political speech more "transparent" can also make it inaudible.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. 

© Copyright 2009 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Kyle Jordan||

    Ok, who in their right mind actually thinks shit like this is a good idea!?

    I can't grasp honest support of these types of regulations. I think it's far more likely that someone who supports regulations like these is simply doing so because they cannot deal with Free Speech and this is a more clever way to try and sneak their ideas past the masses and elected shitbags.

    Someone, point out some good in these types of regulations for me. I would like to know if there's a "good" position that one can take up while being in support of these ideas as opposed to using them as a cover for deceit and evil.

  • Fist of Etiquette||

    Special interest groups have no right to try to influence policy, even if their members are taxpayers, too. (What makes their interest so special, anyway?)

    Actually, why does any politician care whether the ideas being bellowed at them in their townhalls are being fed to the bellower or the constituent figured out the line from Washington was bullshit all on his own? Either win the crowd over with persuasive arguments, Congressman, or capitulate to the will of the people.

    In either case, if Johnny Lawmaker gets voted out of office, he's always got that lucrative lobbying job to fall back on.

  • Rodram||

    But when lobbyists do their thing, it's totally cool. They do it quietly, in expensive suits, and bring briefcases full of cash money.

  • fuck \'em||

    "Congress shall make NO law"

  • hillbilly||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.



    as I said... fuck'em and the fucking horse they rode in on... fucking fascist, nazi, commie (pick your fav Godwin) bastards!

  • 1A||

    When they try to take away 1A, use 2A... and vice-versa.

  • Untermensch||

    @Kyle Jordan:

    I suspect that there are those who honestly support these restrictions because they haven't thought them through or hold tho the insane belief that with the right people in power these kinds or laws would be used to restrict the evil corporations from running everything. They are the same ones who would sputter "but, but, but… that's not what I meant with that law" the first time it gets used against their own causes, which, by definition, are honest.

    I think there are two sorts who support these things: the clueless tools (the majority) I've just described and mendacious operatives (the minority) who take advantage of the majority for their own ends.

    I think the majority has some sort of naive view of politics in which individuals speaking alone are OK but organized groups are bad (unless they happen to support and not obstruct the good causes, in which case they are good).

    Of course, with any such laws, the discretionary power to prosecute individuals who run afoul of them makes them a weapon, but the average tool who supports them doesn't see that and just thinks of them as a way to root out "corruption" (= whatever the other guy who isn't enlightened like me is doing).

    If such a law were passed, you can bet money that its supporters would be the first to scream and holler when it is used against Code Pink or the local Sustainable Food Co-op...

  • Tricky Prickears||

    Christ, can we talk about real campaign finance and lobbying reform first? This shit is "small potatoes".

  • randy||

    it needs to be repeated again and again:

    ***********
    If you don't want rulers to abuse power. DO NOT GIVE IT TO THEM!
    ************

    Anything else does not work... specially the ultrastupid "we just need the right guys in charge".

  • ||

    hillbilly, the regular folk that are okay with this sort of thing are probably staring at the word "peaceably" in what you quoted. The screamers that are being disruptive just ain't bein peaceable in their assemblage.

    untermensch, very good points.

  • Tomcat1066||

    All to often, freedom of speech is translated in many minds as "freedom of speech for what I like." Take, for example, the self professed libertarian City Commissioner here in town who wants to squash a rap concert at the city owned civic center.

    Obviously, he ain't a libertarian, but it's an example of how people want freedom for what they like, but not for what they oppose.

  • Fluffy||

    The people who support regulation of this kind are engaging in the ad hominem fallacy in that fallacy's literal and textbook meaning.

    Most people use "ad hominem" to mean "You're insulting me, and that's mean!" But that's not what the fallacy entails. The fallacy consists of believing that you can tell the quality of the argument by examining the character of the person making it. If people who didn't like Einstein's theories argued against them by saying, "We can tell Einstein's theories aren't true because he was such a shitbag to his wife, and guys who are mean to their wives can't possibly have the moral character necessary to devise good physics theories," that would be an example of a true ad hominem fallacy.

    The people who propose these regulations truly believe that an argument offered on a given topic in public policy should be considered valid if offered by "the little people" but invalid if offered by "plutocrats" or "da corporashuns". They either aren't capable of examining public policy arguments on their own merits, or don't want to expend the energy to do so. They believe that if they know who is making an argument, they can know if it's true or not, because they live their lives as one great big gigantic logical fallacy. That means that they want to be sure they know who is "behind" political speech, because that's the only tool they have available for judging the worth of that political speech.

  • ||

    Fluffy,

    That is a great point. There is this idea that any agrument made by "interest groups" or "lobbyests" whoever they are must be wrong. But most people don't know the issues very well and have no interest in actually discussing their views with someone on the other side. It is much easier to attack their clothes or who they work for than respond to their arguments.

  • ||

    There used to be a help wanted ad in The Idaho Statesman that ran for a couple years that I remember. The ad was for full time, paid protestors. It paid $280/week back in the early 90s. It was basically a temp agency that supplied marchers for whatever cause would pay the bill. Back then, their biggest client was EarthFirst!. It's difficult at times to present one's side of an argument when faced with paid screamers.

    I'm not endorsing this type of law. It, like so many others, will create more problems than it cures. (not to mention the constitutional questions) I am just tossing out another part to the story.

  • ||

    Beg to differ, Tricky. With the way these town halls are working out, we're seeing what small interests can achieve. The law writers obviously have considered the danger of not regulating them out of existence. As for lobbying in Washington, it is a constitunal fact of life. It can be good or bad, but can only be limited by the people saying no more money.

  • Rich||

    The lobbyists I have encountered operated exactly as set forth in Fluffy's last paragraph.

  • ||

    missing a tion.

  • ||

    John makes what may be the most important point in american politics. Most people don't know the issues very well.

  • ||

    I had a girl friend when I was single who had been a paid professional protestor for the Sierra club in college. They paid her extra if she got arrested.

    But, the fact that the Sierra Club paid poor college students to get arrested said nothing good or bad about their positions. I think that part of the reason why the Left is wetting their pants over this is they have spent the last 40 years over rating the effect of protestors. So what that a thousand or even a hundred thousand people march about this or that. There are 300 million people in the country. I can find a hundred thousand nuts that will agree with me about anything. As much as I enjoy watching congress creatures be confronted by angry old people, I don't think that fact alone means that the old people are right about healthcare or that Obamacare is unpopular. I think they are right and that Obamacare is wildly unpopular but I think that because of the polls I am seeing and that the angry town halls seem to be a nationwide and sustained phenomenon not because of one event.

  • ||

    John, my mom is in her mid 70s and goes to a lot of political meetings. She herself, by her own admission, gets cranky at times in her questioning. There is nothing wrong with angry questions. The problem comes when you have people there to raise their level of understanding of the issues and they can't because people are being disruptive for a paycheck.

  • Rich||

    Most people don't know the issues very well.

    In particular, congresscreatures.

  • jtuf||

    I hear you can have a good career as a paid community organizer. The promotion opportunities are amazing.

  • ||

    jtuf, don't knock it. Jesus was a community organizer;}

  • Nathan Benefield||

    "This goes below the radar," he said. "We don't know who is behind it or who pays for it. We don't know how much of it is happening."

    Thank God!

  • ||

    "John, my mom is in her mid 70s and goes to a lot of political meetings. She herself, by her own admission, gets cranky at times in her questioning. There is nothing wrong with angry questions. The problem comes when you have people there to raise their level of understanding of the issues and they can't because people are being disruptive for a paycheck."

    I agree completly. I don't, however, think that is what is happending at these townhalls. I don't see anyone shouting people out. I just see them asking really hard questions to Congress Creatures and then making fun of their weaseling. They raucous but not out of control.

  • The Libertarian Guy||

    The left is screaming "but, but, it's okay when WE do it!", and now they want restrictions that - unless their Congressional lackeys build in a loophole - will come back to bite them when THEY feel the need to go back to the angry-mob protest well.

  • BruceM||

    I see dishonest/fraudulent speech about politics no different than dishonest/fraudulent speech about a product or service (which has no first amendment protection). I should have no right to lie in my commercial speech, so why should I have a right to lie in my political speech? Misstating who I am or who I represent provides NO BENEFIT to the democratic process or to the marketplace of ideas. Quite the contrary, it hinders the free exchange of ideas by making the veracity of those very exchanges highly questionable and suspect.

    I never like "registration" and filling out forms as an answer, and I dislike a new punitive section of the penal code even more. However, I simply don't agree that the first Amendment protects false political speech. By "false" I don't mean one party disagrees with it, I mean knowingly, intentionally, factually, objectively untrue. Intentionally misstating who you are when that is relevant to your political message is highly damaging and there's no way it should be considered protected speech. Say whatever you want about the merits of the debate, but you can't lie about who you are.

    Does anyone really think it would have been beneficial to the debate over slavery for some slaveowners to pay some free black guys a lot of money to lie and say they were slaves, loved their masters, were treated great, loved the institution of slavery, and the abolitionists had it all wrong? Hopefully not.

    The free exchange of ideas presumes a FAIR, free exchange of ideas. In politics, who the idea comes from is often more important than the idea itself. As such, a lie about the providence of an idea makes the idea itself a lie. I don't have a good answer for preventing this practice, but I have no problem with the notion that it's not free speech, not protected by the first amendment, and can be regulated. The only question is how to regulate it in a reasonable and effective manner.

  • ||

    Yeah Bruce. It will be so easy to regulate false speech. No way that will get out of hand and become an excuse to suppress dissent. Nope. Not at all. I will take the lies and pass on the government regulation thank you.

  • BruceM||

    I just conceded that it will NOT be easy. I don't even have any ideas as to how to go about it.

    I'm just saying this type of false political speech should not have first amendment protection. Nothing more. Making a statement about what I think the law should be (not protected), not about ways to prevent that type of speech. The way I see it, false political speech is no different than slander, false advertising, fighting words, solicitation of a crime, or any other type of unprotected speech.

    Lies are never valid dissent.

  • Fluffy||

    In politics, who the idea comes from is often more important than the idea itself.

    Only to scumbags. As I explained above.

    If who the idea comes from is more important to you than the idea itself, you are deliberately and proudly engaging in a fallacy and you aren't qualified to judge ideas.

  • Fluffy||

    And by the way, it is simply impossible to engage in "false political speech" about the source of an idea unless I violate a trademark.

    If I run an ad claiming to be the NAACP, when I'm not, that would be false. And there's already a mechanism to deal with that, namely trademark law.

    But if I decide to declare myself and the mouse in my pocket "People For Good and Kind Niceness" and run a political ad, you just don't get to declare that I am not "really" a person who likes good and kind niceness. It's that simple. So claiming that making up a name for your group and running ads under that name is "false" is a non sequitur.

  • EscapedWestOfTheBigMuddy||

    And by the way, it is simply impossible to engage in "false political speech" about the source of an idea unless I violate a trademark.

    If I run an ad claiming to be the NAACP, when I'm not, that would be false. And there's already a mechanism to deal with that, namely trademark law.



    Amusing tidbit: a feature of that law is that any particular organization can only hold a trademark on one name at a time, which is why the League of Women Votes is still the League of Women Votes many decades after they stopped discriminating against men.

    If they changed their name someone else could assume the original one and take advantage of their reputation.

  • BruceM||

    Fluffy, the democrat who agrees with the republicans will always carry more weight than democrats who tow the party line. Or vice-versa. People who seemingly should not agree with a position, but do, make that position seem a lot more reasonable and middle-of-the-road than it otherwise is. And nothing is more powerful than when someone takes a position seemingly against their own interest. "Even though I would benefit from X, I am against X" carries far more weight and is far more convincing than "I'm for X (and yeah, I'd benefit from X)."

    In a perfect world, debate would be blind to who is debating. But most of the time, part of the debate is who is doing the talking.

  • ||

    BruceM: "However, I simply don't agree that the first Amendment protects false political speech. By "false" I don't mean one party disagrees with it, I mean knowingly, intentionally, factually, objectively untrue. Intentionally misstating who you are when that is relevant to your political message is highly damaging and there's no way it should be considered protected speech."

    I submit to you that the Left is knowingly and intentionally advancing the notion that we'd all be better off if the government controlled healthcare. You and I (and most of the rest of us here) know that this is factually, objectively untrue.

    Do you presume to ban them from advocating this agenda?

  • BruceM||

    Karl: that's not factually objectively untrue, it's a matter of opinion. Considering how bad healthcare is in America, and considering how worthless and abusive the insurance companies are (what value do they add to the system?), it's very plausible that we would be better off if the government paid for our healthcare. Which is different from "the government controlling healthcare" (nobody is advocating that, which would presumably include all hospitals and doctors working directly for the government and answering only to the government).

    It will be hard for most people, especially since we're nearly all blinded by partisanship, to tell the difference between a false fact and an opinion with which we disagree. There are some people who can take a step back from it and do that, though. But for purposes of this discussion, we should all be able to agree that saying you are something you are not in order to advance your argument is verifiably false, and not a matter of opinion.

  • ||

    No, Bruce. It is not "very plausible that we would be better off if the government paid for our healthcare." There is no factual support for the proposition that you advance. None.

  • BruceM||

    I hate the idea of big government, and we all know the government is far too big as it is. But I do believe there are a few things that should not be permitted to be left to the private sector due to perverse incentives, market failures, and public policy. There are an infinite number of things government should not do, but there is a small number of things that government should do. Running prisons is the best example - privately-run, for-profit prisons have been a disaster and a leading cause of our country incarcerating more people than any other country in the history of planet earth. I'm convinced that subsidizing healthcare for its citizens is another appropriate function of government. "Health insurance" makes no sense. Health is not a commodity you buy and insure, it's your life. Health insurance should never have been permitted to arise in the first place, it's so clearly against public policy that it's akin to letting someone who killed his parents inherit their money.

    We should get rid of nearly every government program out there, end drug prohibition and tax drugs (which would save a fortune in taxpayer dollars), and two of the only things government should be left doing is operating prisons, schools, and subsidizing our healthcare. That's it, other than functions like defense and printing/coining money, there are no other legitimate functions for government.

    To put the burden on employers to pay for employees' healthcare means American companies cannot afford to compete with the rest of the world, where healthcare is subsidized. The health insurance companies all need to be closed down and put out of business immediately. We should not let our general love for business and free markets blind us to the fact that there are a few businesses that should not be permitted.

  • BruceM||

    "We'd be better off if ___" is always a statement of opinion. Even if the blank is filled in with the word "dead". One policy being "better" than another is per se opinion.

    A good guidepost is the law of defamation, where a statement of opinion is always permissible, but a false statement of fact is not. You suck, you're the worst person in the world, you're an asshole, you blow, you're a bitch, and the like are all statements of opinion, not fact.

    And I'd point out that it's pretty hard to say someone would NOT be better off if their most expensive bills were paid for them. At the very least it's a debatable proposition. It's certainly not objectively false (insofar as it's a matter of opinion to begin with).

  • ||

    BruceM:

    ". . . it's very plausible that we would be better off if the government paid for our healthcare"

    I'm sorry, if WHO paid for it?

    And are you SURE that nobody is advocating that government control healthcare? I mean like 100-percent positive? Because I have a feeling a little digging might show that to be factually and objectively untrue . . .

    "It will be hard for most people, especially since we're nearly all blinded by partisanship, to tell the difference between a false fact and an opinion with which we disagree."

    So we'll simply demand that charges be brought against anyone rendering an opinion contrary to our own, under the pretext that such opinions are "false facts." Then we'll turn it over to the courts, who, as we all know, aren't partisan at all.

    While what you're advocating might not directly criminalize partisanship, at least at the very outset, it certainly opens the door for it.

  • BruceM||

    Yes, I realize when the government pays for something it is actually we, the taxpayer, who are paying for it. Still, the government should write the check, as individual people do not have the means to pay to stay alive, nor should they have to. It's unreasonable. So is having to "insure" your health, only to be at the mercy of a for-profit company who has a financial conflict of interest any time health benefits need to be paid. That too is unreasonable.

    I never said it should be a crime to speak false facts. I specificially said I didn't think it should be a crime. All I said was that I do not believe false political speech is protected by the First Amendment. That means it CAN be regulated. That doesn't mean I think it should be.

    Just because you think your political opinions are infallible doesn't mean they're actual facts. They're still just opinions. The government should/should not do X is per se opinion.

  • BruceM||

    oh...

    And are you SURE that nobody is advocating that government control healthcare? I mean like 100-percent positive?

    Yes, I'm positive. Even with the single-payer system, the government would only act to reimburse patients for their medical expenses. Doctors would not work for the government, hospitals would not work for the government, drug companies would not work for the government. Nobody has proposed such a plan, and I doubt anybody ever would. But if you come across a proposed bill that actually says the government will national, own and control all doctors, hospitals, and drug companies, do let me know. But send me a link to the actual bill, not a link to Glenn Beck's interpretation of it.

  • BruceM||

    national = nationalize

  • Paul||

    The regulations he favored would have required "grassroots lobbying firms" to register with the government and file quarterly reports on their activities



    And people say we won the cold war...

  • The Libertarian Guy||

    "You suck, you're the worst person in the world, you're an asshole, you blow, you're a bitch, and the like are all statements of opinion, not fact."

    Um, I can think of a LOT of people that fit one or more of those descriptive terms, and it's not just a matter of opinion.

  • BruceM||

    Libertarian Guy, I'm a lawyer, and I can tell you that as a matter of law in every state in this country, those statements, descriptive as they may be, are all opinions, not facts. I can see how the opinion/fact dichotomy can be complicated, but I know that millions of lawyers around the country understand it. Some statements are a close call, but based on my understanding of the differences between an opinion and a fact, I have no doubt society can tell the difference, even if the average fox news viewer can not.

    I understand it can seem random, as "he's an asshole" is a statement of opinion but "he's a communist" is a statement of fact. There is a HUGE body of law on this distinction and there is an underlying reason to it all.

    Just look at the nature of the statement, don't focus on whether you think everyone would say it's subjectively correct... sure the dumbest person in the world is actually dumb. But "life is better than death" is still an opinion even if nearly everyone would agree.

  • The Libertarian Guy||

    Bruce, I can't think like a lawyer, so I'll have to pass on commenting.

  • Fist of Etiquette||

    ...I have no doubt society can tell the difference, even if the average fox news viewer can not.

    That statement was helpful in putting your facts as asserted into context.

  • Justen Robertson||

    If this whiny tool wants to know who is behind this movement or other, he needs to do some leg work and find out. It's not like political activists make a habit of sneaking through back doors into darkened rooms wearing broad brim hats and trenchcoats. At least, they don't in a country where freedom of speech is a right. It's not even hard to trace these things, it just takes some phone calls and hard work. If he'd really like people to know who's behind what, he could set up a website and invite people to help him do research. Instead, like all whiny tools who want someone else to solve their problems for free, he goes and complains to the government. Go figure.

  • nike shox||

    is good

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement