Civil Liberties

'The Most Expansive Intrusion on First Amendment Rights Ever'?

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Richard Viguerie claims a lobbying reform bill the Senate is considering would force bloggers and political activists to register with the government, under the threat of criminal penalties:

Section 220 of S. 1, the lobbying reform bill currently before the Senate, would require grassroots causes, even bloggers, who communicate to 500 or more members of the public on policy matters, to register and report quarterly to Congress the same as the big K Street lobbyists. Section 220 would amend existing lobbying reporting law by creating the most expansive intrusion on First Amendment rights ever. For the first time in history, critics of Congress will need to register and report with Congress itself.

The bill would require reporting of "paid efforts to stimulate grassroots lobbying," but defines "paid" merely as communications to 500 or more members of the public, with no other qualifiers. On January 9, the Senate passed Amendment 7 to S. 1, to create criminal penalties, including up to one year in jail, if someone "knowingly and willingly fails to file or report."

Viguerie, whose warning has been picked up by several online publications, says Sen. David Vitter (R-La.), who introduced the penalty amendment, and Sen. Robert Bennett (R-Utah) are trying to remove Section 220. If so, I guess they agree with Viguerie's interpretation, but I'm not so sure.

The text of S. 1 is available here. Section 220 defines "paid efforts to stimulate grassroots lobbying" as "any paid attempt in support of lobbying contacts on behalf of a client to influence the general public or segments thereof to contact one or more covered legislative or executive branch officials (or Congress as a whole) to urge such officials (or Congress) to take specific action with respect to a matter described in section 3(8)(A), except that such term does not include any communications by an entity directed to its members, employees, officers, or shareholders." The definition also excludes efforts "directed at less than 500 members of the general public." Maybe I'm missing something, but I don't see how that would cover bloggers or grassroots activists who are not being paid by a client to lobby the government. 

Update: According to the ACLU, which opposes Section 220, grassroots political groups could be affected because "'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." The quote is from a letter to senators dated January 17, 2007, which does not seem to be online, but the ACLU sent a similar letter last year that is.

Another Update: Mark Fitzgibbons of American Target Advertising, who sent me the ACLU letter, explains how some bloggers could be covered by the law: Title 2, Section 1602 of the U.S. Code says a "client" is "any person or entity that employs or retains another person for financial or other compensation to conduct lobbying activities on behalf of that person or entity." It adds that "a person or entity whose employees act as lobbyists on its own behalf is both a client and an employer of such employees." An "employee" includes "a proprietor of a person or entity." A "lobbyist" is "any individual who is employed or retained by a client for financial or other compensation." Therefore, says Fitzgibbons, "a blogger, acting in a sole proprietorship capacity, may be both the client and lobbyist by engaging in lobbying activity, which would be redefined to include communications to more than 500 members of the public." If your blog generates income, I gather, you're a "sole proprietor," making you both employer and employee, client and lobbyist. If, like most bloggers, you don't make any money from blogging, you're in the clear. Otherwise, assuming this bill passes in its current form, you'd better hire a lawyer.

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  1. It might cover this blog, for one.

  2. Just an FYI to add some context, Richard Viguerie is the king of conservative junk mail, having amassed an enormous amount of money and power stuffing your mailbox full of right wing “direct mail.”

    He is paid by lobbying clients to contact the public on behalf of his clients.

  3. joe: That may be, but that doesn’t mean he isn’t right.

  4. It might cover this blog, for one.

    What are you suggesting? Remember, there is no “lobbying” if the Reasonwriters write without regard to the pattern of moneyflows. And they have assured us they do.

  5. That he is a right wing shill does suggest he might not have the best interest of Joe Schmoe blogger in mind.

    This does appear to be a quasi-astro-turf outrage campaign.

  6. Bergamot, tabloito,

    I agree that Viguerie’s glaring conflict of interest doesn’t make his statement wrong. The obvious misreading of the amendment – pretending it applies to bloggers, when in fact in only applies to people being paid by a client to lobby the government – is what makes Viguerie wrong.

    I was just speculating on WHY he would accidently, and in completely good faith, make such an obvious mistake.

  7. A) IN GENERAL– The term `paid efforts to stimulate grassroots lobbying’ means blah blah blah….

    I think the important part is that it says “in general”, leaving the true definition up to interpretation.

  8. This is what I got from NRA-ILA on this issue.

    It’s always tough to decipher the implications and interpretrations of laws now-a-days and therein lies a bit of the problem. Congress messing with the right of the people to petition their government, no matter what the intentions of the current crop of harlots, always makes me a bit wary.

    I really don’t care for requirements that a group cannot urge non-memebers to contact officials regarding legislation without registering with those same officials (NRAs interpretration). One can claim that they are trying to ‘clean up’ the government or lobbying, but that’s kind of like the fox and henhouses….

  9. How do you define “communications to 500 members of public”? Does it mean 500 unique visitors or 500 visits? Is there any time frame, such as 500 unique visitors per day? Per month? How about visits to separate articles? What if I don’t have a counter installed (the law does not demand it) and assume that I get fewer than 500 readers per a given time period?

    This provision is so vague that I doubt it could ever be enforced.

  10. It really sounds like it targets things like Richard Viguerie’s “push” media mailings, not “pull” media like blogs. Not that restrictions on spammers like Viquerie aren’t odious, too, but adding “content-seeking readers” to the list would make this safer for bloggers and still poison for Viquerie’s mailings. Must wash hands now….

  11. This provision is so vague that I doubt it could ever be enforced.

    Vagueness is usually a sign that *any* inferred infraction is fair game for prosecution. If anything is a silver lining, the vagueness is what will get it shot down by the courts.

    That they have to shoot anything down is a sad indicator of how far afield the federalistas have gone to protect the well-connected political class.

    It’s not the Benjamins. It’s about the power (and keeping it). The Benjamins are a nice after-affect.

  12. fuck this

  13. For those who are interested in learning more about grassroots lobbying disclosure, the Center for Competitive Politics has been writing about the issue for a while. The current lead post on the CCP blog contains links to a number of resources that readers might find helpful in untangling the First Amendment issues surrounding the issue and exploring the potential consequences of requiring citizens to disclose their political communications with other citizens.

  14. Grass roots gun rights groups do an enormous amount of work to inform members when legislation is being introduced that they should be concerned about, both in their state legislatures and at that national level.

    I’m sure that this goes on for a lot of issues, but 2nd amendment groups are ones that I have direct experience with. The people that are responsible for this provision would certainly love to shut up these groups that put them under a magnifying glass every time they try to sneak through some piece of crap like this.

    This is speech sensorship. I can’t see how it could be interpreted any other way. It is in the same category as the “fairness doctrine”.

  15. I’m with Joe. Nothing in the text of the bill says they would come after any of us for blogging, unless someone is paying us.

    I doubt SCOTUS would ever approve of a law that would prevent an individual from expressing his or her’s own political opinions regardless of the type of media or time of year. You can’t exclude citizens own opinions from the political process. That would never fly.

    But it is possible to prevent people from representing someone else’s political opinion for a fee. That’s what they are trying to target. But then again, Congress can’t hit the broadside of a barn.

  16. It’s not a matter of SCOTUS “approving” a law. They just don’t have to hear the appeal and it gets “approved”.

    And it doesn’t matter. By the time the case reaches their level of examination the damaging effects of that law would already be in effect. The Republicans would just mark it up as a done deal and claim that any “hypothetical damage” would be negligible.

  17. Caesar Bush:

    Isn’t the way the dance usually plays out sees the ACLU getting an injunction against the law going into effect and the case working through the federal court system?

  18. How do you define “communications to 500 members of public”? Does it mean 500 unique visitors or 500 visits? Is there any time frame, such as 500 unique visitors per day? Per month? How about visits to separate articles?

    Exactly. One may have the least read blog in the sphere, but could still be claimed to communicate to more than 500 people. At some point in time, we have to call all of these efforts what they are: an attempt to limit the influence of citizens upon government. CFR laws do exactly that. Now this lobbying “reform” bill attempts to do the same. There seems to be an increasing fear (in government) that the people they serve might have an influence on the decisions made within said government. And if a dollar changed hands during the process, well that just can’t be tolerated.

  19. Indeed, the only qualifier given to “paid” is communicating with more than 500 people (which means I do not have to worry any time soon), but I do believe that the context of that particular line, and taking the entirety of section 220 into account, that it would be a very long strech to require bloggers to register. It would be impossible to make bloggers register who had no banner ads, because they are in no way “paid”, whether that word is clarified or not. For bloggers who do have banner ads, they are not paid to disseminate any message, merely to provide an advertising space, like a billboard, and as such, they cannot be said to be “paid” in the context of section 220.
    thebillreader.blogspot.com did an analysis of S1 recently that is worth checking out

  20. Read by 500 or more people? Has no one reflected that any letter to the editor in a good size city newspaper gets that many eyeballs?

    All right, let’s take them at their word. Let us register. All 300 million of us. In fact, let’s be thorough- if you write to a two blogs and a newspaper, that’s three registrations. And let’s not forget the foreign press, faithfully read by many over here. The Times of London, the Economist, Paris Match, der Speigel, L’Osservatore Romano.. and let’s not be prejudiced- how ’bout the Beijing People’s Daily and the Times of India? All their reporters, feature writers, letters, even the ads, hey, why not- corporations are major political contributors, you know…
    Our goal should be to have at least two billion separate registrations fed into Big Brother’s tracking system.

    The best way to kill a cat? Drown it in milk….

  21. Let us register. All 300 million of us.

    Darn. I was going to suggest that.

  22. How am I supposed to know how many people read my blog at lowerdown.com? Well, I don’t keep any logs, and I don’t track my readers in any way. For all I know, I don’t have ANY readers.

  23. An amendment striking section 220 from the bill was passed, narrowly.

  24. What I don’t understand is what registration & reporting is supposed to accomplish. It would be stupid for a lobbyist to keep hir existence a secret. The registration list would be advertising for them. And what are they supposed to report? Seems they’re reporting all the time, to everyone they can; what good — or harm — would one more report do?

  25. If your blog generates income, I gather, you’re a “sole proprietor,” making you both employer and employee, client and lobbyist.

    Why do I suspect that would include tip jars?

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