[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
S. 1, THE SENATE APPROACH TO
LOBBYING REFORM
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 1, 2007
__________
Serial No. 110-4
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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WASHINGTON : 2007
33-626 PDF
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]
Perry Apelbaum, Staff Director-Chief Counsel
Sean McLaughlin, Deputy Chief Minority Counsel/Staff Director
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Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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MARCH 1, 2007
OPENING STATEMENT
Page
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 5
The Honorable Darrell Issa, a Representative in Congress from the
State of California, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 6
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 10
WITNESSES
Mr. Kenneth A. Gross, Skadden, Arps, Slate, Meagher & Flom LLP
Oral Testimony................................................. 12
Prepared Statement............................................. 14
Ms. Sarah Dufendach, Chief of Legislative Affairs, Common Cause
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Mr. Bradley A. Smith, Professor of Law, Capital University Law
School
Oral Testimony................................................. 40
Prepared Statement............................................. 41
Mr. Thomas E. Mann, The Brookings Institution
Oral Testimony................................................. 51
Prepared Statement............................................. 52
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 2
Prepared Statement of the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Ranking Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties............................................ 4
Prepared Statement of the Honorable John Conyers, Jr. a
Representative in Congress from the State of Michigan,
Chairman, Committee on the Judiciary, and Member, Subcommittee
on the Constitution, Civil Rights, and Civil Liberties......... 6
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 7
Prepared Statement of the Honorable Jim Jordan, a Representative
in Congress from the State of Ohio, and Member, Subcommittee on
the Constitution, Civil Rights, and Civil Liberties............ 8
APPENDIX
Material Submitted for the Hearing Record........................ 69
S. 1, THE SENATE APPROACH TO
LOBBYING REFORM
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THURSDAY, MARCH 1, 2007
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Staff present: David Lachmann, Staff Director; Michelle
Persaud, Counsel; Paul Taylor, Minority Counsel; and Susana
Gutierrez, Clerk.
Mr. Nadler. Good morning, ladies and gentlemen. This
hearing of the Subcommittee on the Constitution, Civil Rights,
and Civil Liberties will come to order.
I would like to begin by welcoming everyone to the first
hearing of this Subcommittee in the 110th Congress. In
particular, I want to extend a warm welcome to the Ranking
Member of the Subcommittee, Mr. Franks.
I know that whatever disagreements we may have on
particular matters of policy--and I am sure there will be
some--we share a dedication to the important work of the
Subcommittee.
I also want to welcome the very distinguished Members of
this panel, and especially to our new Members.
We have an outstanding panel and I very much look forward
to our working together.
I will begin by making an opening statement, before I turn
for an opening statement to Mr. Franks.
Recent scandals--including criminal convictions, involving
prominent lobbyists, Members of Congress, of the executive
branch, and of their staffs--have heightened public awareness
of the need to reform some of the ways in which Congress does
its business.
In keeping with our pledge to reform this institution, the
Democratic leadership put forward, and the House adopted,
changes to the House Rules in the first 100 hours of this
Congress.
Today, we begin consideration of proposed changes to the
Lobby Disclosure Act. The Senate has already acted with the
passage of S. 1. The House is now beginning its consideration
of these issues.
In addition to the Senate bill, we also have a number of
proposals put forward by Members of this Committee, by other
Members of the House and by various activists. These proposals
merit careful consideration.
It is my hope that this hearing will enlighten our efforts
and that we will be able to work together on a bipartisan basis
to advance a reform agenda.
Some of these issues are very difficult but we have an
obligation to deal with them and to deal with them right.
The American people sent a clear message in November that
they want their Government cleaned up. We would ignore that
message at our peril. If the public loses confidence that the
process of lawmaking is fair and open to all on an equal basis,
then that can only undermine respect for the rule of law.
I would just add that the whole question of lobbyists is
only one part of the problem. The core issue is the pervasive
influence of money in politics. So long as we have a political
system in which office seekers must raise large sums of money
from people with a direct interest in legislation, the
regulation of lobbying by itself will not fully solve this
problem. A lobbyist without a PAC has a hard time corrupting
the process. We must ensure that a private citizen without a
PAC gets at least the same consideration as the powerful
moneyed interests. That is the ultimate goal of our work.
So I want to welcome our witnesses today and thank them for
their testimony and their assistance.
[The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
Recent scandals, including criminal convictions, involving
prominent lobbyists, Members of Congress, of the executive branch, and
their staff, have heightened public awareness of the need to reform the
way Congress does its business.
In keeping with our pledge to reform this institution, the
Democratic Leadership put forward, and we adopted, changes to the House
Rules in the first 100 hours of this Congress.
Today we begin consideration of proposed changes to the Lobby
Disclosure Act. The Senate has already acted, with the passage of S. 1.
The House is now beginning its consideration of these issues. In
addition to the Senate bill, we also have a number of proposals put
forward by members of this Committee, by other members of the House and
by various activists. These proposals merit careful consideration.
It is my hope that this hearing will enlighten our efforts, and
that we will be able to work together, on a bi-partisan basis, to
advance a reform agenda.
Some of these issues are very difficult, but we have an obligation
to deal with them, and to do it right. The American people sent a clear
message in November that they want their government cleaned up. We
ignore that message at our peril.
If the public loses confidence that the process of lawmaking is
fair and open to all on an equal basis, that can only undermine respect
for the rule of law.
I would just add that lobbyists are only one part of the problem.
The core issue is the pervasive influence of money in politics.
So long as we have a political system in which office seekers must
raise large sums of money from people with a direct interest in
legislation, the regulation of lobbying, by itself, will not fully
solve the problem. A lobbyist without a PAC has a hard time corrupting
the process.
We must ensure that a private citizen without a PAC gets at least
the same consideration as the powerful, moneyed interests. That is the
ultimate goal of our work.
So, I want to welcome our witnesses today, and thank them for their
testimony and their assistance.
Mr. Nadler. I would now recognize our distinguished Ranking
minority Member, the gentleman from Arizona, Mr. Franks, for
his opening statement.
Mr. Franks. Well, thank you, Mr. Chairman, for those kind
words. And they are reciprocated completely. I hope that all of
us on this Committee can remind ourselves that we are here for
such a brief time and that we are here to promote human dignity
and human freedom. And I consider it a privilege to be here.
Mr. Chairman, the introduction of this bill was preceded by
high-profile ethics probes into actions by prominent officials,
most notably in the Abramoff scandal.
The public, and many of us here, called for decisive action
to clean up Beltway politics and to curb the misdeeds of
unscrupulous officials and lobbyists. This should be the
objective of this bill.
However, I am extremely disappointed to learn, through all
three prepared statements of the Democrats' witnesses, that
there is, indeed, a movement afoot to revive the blatantly
unconstitutional grassroots lobbying provisions that were
wisely stripped from the Senate version of this bill, because
they had no connection with Washington's ethical scandals.
Grassroots lobbying was defined in the original bill as
``the voluntary efforts of members of the general public to
communicate their own views on an issue to Federal officials or
to encourage other members of the general public to do the
same.''
Just reading those words describing what speech could be
criminalized under such provisions should chill the spine of
anyone who supports a strong first amendment.
Grassroots lobbying is the very lifeblood of a healthy
democratic Government. Grassroots lobbyists are, perhaps, a
preacher in Kansas, who encourages his congregation to voice
their values, or a young activist blogger in Manhattan, who
encourages her readers to take action to support the saving of
the people in Darfur, or a non-profit in Scottsdale that
encourages letter-writing campaigns to pressure for improved
child health care, and I could go on.
What grassroots lobbying provisions would do to such people
is the question. It would require them to register with the
Government and report completely and thoroughly each qualified
communication that was made in their efforts.
Failure to capture each piece of data required by the
Government could result in 10 years in prison and hundreds of
thousands of dollars in fines. That is 10 years in prison,
hundreds of thousands of dollars in fines for free speech in
America.
Mr. Chairman, the Supreme Court has made clear that such
efforts to regulate political activity beyond direct contact
with Members of Congress is in ``serious constitutional
doubt.''
In Rumley v. the United States, the Supreme Court noted,
``it is said that indirect lobbying by the pressure of public
opinion on the Congress is an evil and a danger. That is not an
evil. It is a good, the healthy essence of the democratic
process.''
Grassroots lobbying is largely responsible for the very
formation of this country. Grassroots lobbying, through the
publishing of the Federalist Papers, the famous essays written
by James Madison and Alexander Hamilton, is largely responsible
for the ratification of our Constitution.
And grassroots lobbying, Mr. Chairman, protected each and
every guarantee of that Constitution's first amendment:
``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 of the
right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.''
But for grassroots lobbying, there would be no American
Revolution. There would be no abolition of slavery, no labor
movement, no women's movement, no civil rights movement,
because very few people would risk 10 years in prison and
hundreds of thousands of dollars in fines for failing to
perfectly capture every qualified instance of free speech made
to spur their cause. How would Dr. Martin Luther King have
fared under such a law?
Subjecting to Federal regulation the voluntary efforts of
members of the general public to communicate their views cuts
to the very core of freedom of speech that has made this
country the most vibrant, creative and free Nation on Earth.
Grassroots lobbying regulation is unconstitutional, Mr.
Chairman. It does nothing to even address the real ethical
scandals in Government. And it has no place in this bill, now,
or in the future.
And with these concerns in mind, I look forward to hearing
from all the witnesses today.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Franks follows:]
Prepared Statement of the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Ranking Member, Subcommittee on
the Constitution, Civil Rights, and Civil Liberties
The introduction of this bill was preceded by high-profile ethics
probes into actions by prominent government officials, most notably in
the Abramoff scandal. The public, and many of us here, called for
decisive action to clean up Beltway politics and to curb the misdeeds
of unscrupulous officials and lobbyists. This should be the objective
of the bill, and I am 100% behind this effort.
However, I am extremely disappointed to learn, through all 3
prepared statements of the Democrats' witnesses, that there is indeed a
movement afoot to revive the blatantly unconstitutional grassroots
lobbying provisions that were wisely stripped from the Senate version
of this bill because they had no connection with Washington's ethical
problems.
Grassroots lobbying was defined in the original bill as (quote)
``the voluntary efforts of members of the general public to communicate
their own views on an issue to federal officials or to encourage other
members of the general public to do the same.'' (unquote). Just reading
the words describing what speech would be criminalized under such
provisions should chill the spine of anyone who supports a strong First
Amendment.
Grassroots lobbying is the VERY LIFEBLOOD of a healthy democratic
government.
Grassroots lobbyists are, perhaps, a preacher in Kansas who
encourages his congregation to voice their values; or a young activist
blogger in Manhattan who encourages her readers to take action to
support the saving of the people in Darfur; or a nonprofit in
Scottsdale that encourages letter writing campaigns to pressure for
improved child health care, and I could go on.
What would the grassroots lobbying provision do to such people? It
would require them to register with the government and report
completely and thoroughly each qualified communication that was made in
their efforts. Failure to capture each piece of data required by the
government could result in 10 years in prison and hundreds of thousands
of dollars in fines! That's 10 years in prison; Hundreds of thousands
in fines. For exercising free speech in America.
Mr. Chairman, the Supreme Court has made clear that such efforts to
regulate political activity beyond direct contact with Members of
Congress is in--quote--``serious constitutional doubt.'' \1\ In Rumely
v. United States, the Supreme Court noted:
---------------------------------------------------------------------------
\1\ Rumely v. United States, 345 U.S. 41, 47 (1953).
``It is said that indirect lobbying by the pressure of public
opinion on the Congress is an evil and a danger. That is not an
evil; it is a good, the healthy essence of the democratic
---------------------------------------------------------------------------
process. . . .''
Grassroots lobbying is largely responsible for the very formation
of this country. Grassroots lobbying through the publishing of The
Federalist Papers, the famous essays written by James Madison and
Alexander Hamilton, is largely responsible for the ratification of our
Constitution. And grassroots lobbying is protected by each and every
guarantee of that Constitution's First Amendment: (quote) ``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.''
But for grassroots lobbying, there would be no American Revolution,
No Abolition of Slavery, No Labor Movement, No Women's Movement, and No
Civil Rights Movement, because very few people would risk 10 years in
prison and hundreds of thousands of dollars in fines for failing to
perfectly capture every qualified instance of free speech made to spur
their cause. How would Dr. Martin Luther King have fared under such a
law?
Subjecting to federal regulation the voluntary efforts of members
of the general public to communicate their own views cuts to the core
of the freedom of speech that has made this country the most vibrant,
creative, and free nation on Earth.
Grassroots lobbying regulation is unconstitutional, Mr. Chairman.
It does nothing to even address the real ethical scandals in
government, and it has no place in this bill now or in the future.
With these concerns in mind, I look forward to hearing from all the
witnesses today.
Mr. Nadler. Thank you.
We will now hear an opening statement from the
distinguished Chair of the Committee, who has requested to make
an opening statement.
Mr. Conyers. Thank you, Chairman Nadler.
I needed to just say a couple of things, because, in my
mind, my approach here connects the subject matter today with
the confidence that the American people have to have in the
integrity of the ballot, the integrity of the voting process,
and the lobbying reform that we are undertaking.
And I commend you for doing this without the usual
convenience of having a piece of legislation to discuss one way
or the other. I think we have to take into consideration the
unusual circumstances in which this hearing is taking place. I
think it is something that must be done, because we have an
obligation in the 110th to move forward on this.
There are only three points that, to me, I would like to
hear from the witnesses on: stronger revolving-door provisions,
enhanced disclosure, and stronger enforcement. And it has
already been remarked by all of you, how long should Members be
delayed before they can lobby their former colleagues? I think
this is a valid question that we all should entertain
collectively.
We need more disclosure from lobbyists about their clients
and their contacts with Members of Congress. And so we need
more sunlight on this part of the questions that we are
examining.
We want questions of gifts and pay travel to be very
carefully parsed, so that we know that we are not just building
a wall which can be gone around easily. And I think we should
increase the penalties for non-compliance or violation of the
lobbying disclosure act requirements.
And so, with that said, I thank you for the opportunity to
make an opening comment. And I look forward to this
distinguished panel of witnesses.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
First, I believe there is a strong need for lobbying reform
legislation. A public opinion poll taken in 1964 found that 76% of the
American people trusted their government to do what is right most or
all of the time. More than forty years later, the landscape is
decidedly different, with the vast majority of the public having a
strong lack of faith in Washington's decisions. A January 2006 CBS
News/New York Times poll found that only 27% of Americans said they
trust the Federal Government to do what's right ``most of the time''
and only 5% said that they trusted the Federal Government to do what's
right ``just about always.''
The public's skepticism is partially driven by recent scandals
involving lobbyists and Members of Congress. We all know the details
and there is no need to repeat them here. What is important about these
scandals is that they have revealed systemic problems in the way the
profession of lobbying is carried out and how lobbying activities are
disclosed. We need to fix these problems.
I believe that there are three essential ingredients to an
effective lobbying reform measure:
Stronger Revolving Door Provisions.
Current law only requires Members to wait one year after they leave
the Congress before they can lobby their former colleagues. This has
led to the unfortunate appearance that people simply run for Congress
as a stepping stone to a lobbying career. There is also the unfortunate
appearance that former friends and colleagues, advocating on behalf of
well heeled special interests, are given greater access to elected
officials than members of the public who argue for the public good. I
believe we need greater restrictions on this ``revolving door'' from
congress to lobbying and sometimes back and forth again.
Enhanced Disclosure.
We also need more disclosure from lobbyists about their clients and
their contacts with members of Congress. It has been said that sunlight
is the best disinfectant. We should require lobbyists to file more
detailed reports disclosing their contacts with Congress as well as
certifications by the lobbyist that they did not give a gift or pay for
travel in violation of the rules. These reports should be filed
electronically, more frequently--quarterly, rather than semi-annually--
and they should be made available to the public for free over the
internet.
Stronger Enforcement.
Most significantly, an effective measure should increase the civil
and criminal penalties for violation of or noncompliance with the
Lobbying Disclosure Act requirements. This act alone will prove to be a
great deterrent not only for corrupt activity, and also will signal the
general importance of timely and accurate disclosures.
I thank the panel for joining us and I believe that today's hearing
will prove to be a positive step in the direction toward real and
effective lobbying reform.
Mr. Nadler. Thank you, Mr. Chairman.
In the interest of proceeding to our witnesses, and mindful
of our busy schedules, I would ask that other Members submit
their statements for the record.
Mr. Issa. Mr. Chairman, I have an opening statement.
Mr. Nadler. Without objection, all Members will have 5
days.
Do you object?
Mr. Issa. Yes, I do.
Mr. Nadler. Very well. The objection is heard. Mr. Issa?
Mr. Issa. Thank you.
And I understand the shortness of time, and I will be
brief. But I certainly think in order to have both sides be
heard in the opening process, we need to try to have both sides
heard.
Mr. Chairman, I appreciate your holding this hearing. And
I, too, would join with you in saying that there is a need for
reform of many of the aspects of the existing campaign finance
laws, not the least of which is the continued abuse by 527s of
the clear intent of prior legislation.
Additionally, though, I would like to bring note to the
Chair's organizational letter on this hearing, in which, Mr.
Chairman, you said the need for legislation--and the paragraph
that concerns me the most for today is the one that says the
need for further reform is highlighted by--during the 109th
Congress, by scandals involving--and you go on to say Jack
Abramoff. No problem there. You note Native American tribes.
Of course, my only problem here is I neither see these
Government entities from being covered under the Senate
legislation, nor were they covered by the House rules, even
though that was asked for, that we not give a pass to
Government entities, which is exactly what Jack Abramoff took
advantage of. So it is very clear that that is not a genuine
statement of reform, either under the Senate bill or under
Speaker Pelosi's reforms.
But, additionally, I would like to take exception to the
fact that all of the examples included only Republicans as
scandalous. Additionally, not only did you not include Mr.
William Jefferson's $90,000 of cash in his freezer, but you, in
fact, included former Senator Conrad Burns, charged with
nothing, and House Majority Leader Tom DeLay, whose only
violation was a State law, which, to date, has not been
adjudicated.
So I think that to disparage two Republicans, and then to
name two additional Republicans, both of whom have gone to
jail, and gone to jail for existing laws, points up exactly the
fallacy of the hearing here today.
We are not talking about laws which are not in place,
remedies that do not exist, just the opposite. What we are
doing is showing examples of failure to act, when we already
could have acted in the case of the Abramoff Government
loophole. And, then, on a partisan-only basis naming Members of
Congress--and former Members of Congress, I should say--two of
whom would certainly not be covered by any or all of the
proposed legislation. And the other two are in jail today for
the crimes they committed.
So, Mr. Chairman, I would hope that, in the spirit of
bipartisan behavior, we would get to dealing with 527s, we
would respect the constitutional right of free speech, and that
we would move the legislation in a direction which was
bipartisan and not one that starts off so overtly partisan.
With that, I yield back.
Mr. Nadler. Thank you.
Without further objection, all other Members will have 5
legislative days to submit opening statements for inclusion in
the record.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
I look forward to hearing from the witnesses today regarding Senate
Bill S.1, which enhances the transparency for interactions between
Members of Congress and lobbyists. Too much of the important decision-
making in Washington is influenced by the power and influence exerted
by lobbying activity which takes places far from public view. Such a
situation can easily lead to abuses of the public trust, as evidenced
by the high-profile scandals from the previous Congress. I hope to
learn more not only about how S.1 increases transparency, but also
about how we in the House of Representatives can further strengthen
reform of the lobbying process.
[The prepared statement of Mr. Jordan follows:]
Prepared Statement of the Honorable Jim Jordan, a Representative in
Congress from the State of Ohio
Mr. Chairman, I wish to express my approval of Sen. Robert
Bennett's (R-UT) actions in introducing S.AMDT. 20--passed in the
Senate on January 18--which removed the grassroots lobbying
requirements from the bill that is before us today.
The Senate rejection of this grassroots lobbying provision is
entirely appropriate. It would be counter to our purposes in increasing
transparency and accountability in government to pass a provision that
would greatly restrict the ability of our constituents to organize and
petition us. Would we not have much less accountability if we silence
the families and taxpayers that we serve?
Mr. Chairman, it is obvious that restricting grassroots organizing
would run counter to the First Amendment of the United States
Constitution, which we swore to uphold. We are clearly forbidden from
making any law that would restrict each citizen's right to assemble and
petition government. Grassroots organizations play a valuable role in
keeping their members up-to-date on legislative activities in Congress.
Because of them, citizens are able to stay better informed on the
issues most important to them and better able to cut through the
confusing jargon we often use here.
It is clear that placing grassroots groups under the same
restrictions as professional lobbyists will greatly slow their
activities at best and kill many of them off at worst. Many small
grassroots organizations will have difficulty understanding and
following the new requirements they would be expected to meet, and the
risks of accidental failure to comply would intimidate them into
shutting down their activities. Our nation and our constituents would
then be the poorer for it. We would be slowing democratic discourse.
Mr. Chairman, I want to express my continued concern and wish that
this grassroots lobbying provision NOT reappear in this House in any
form. Democracy demands that we vigilantly preserve the rights of our
constituents and we must keep the lines of communication with them wide
open.
Mr. Nadler. Without objection, the Chair will be authorized
to declare a recess of the hearings.
We will be joined today by our colleague, the gentleman
from Massachusetts, Mr. Meehan. Our colleague has been a leader
on this issue for many years. Without objection, the gentleman
from Massachusetts----
Mr. Franks. Mr. Chairman?
Mr. Nadler. One second--will be permitted to sit with the
Subcommittee to ask questions of the witnesses for 5 minutes.
Mr. Franks. Mr. Chairman, at the request of the Ranking
Member Smith, I respectfully object to the participation of a
non-Subcommittee Member.
House rules provide for participation in hearings only by
the Members of that Committee or Subcommittee. House Rule 11
states each Committee shall apply the 5-minute rule during the
questioning of witnesses in a hearing until such time as each
Member of the Committee who so desires has had an opportunity
to question each witness.
The Committee rules only explicitly allow the participation
of non-Members of a Subcommittee in one instance, and that is
for the Chair and Ranking Member to participate as ex officio
Members of any Subcommittee.
Any exception to the rules must be granted under unanimous
consent, and, as a general policy, we intend to object to the
participation of non-Members.
Ranking Member Smith believes this should be an across-the-
board policy at the Judiciary Committee.
Put simply, membership on a Subcommittee should mean
something. Subcommittee membership allows Members the privilege
of participation.
Also, setting a precedent that allows one non-Member of a
Subcommittee to participate could lead to a situation where 10
other Members might also want to do so.
I want to stress that this objection has nothing to do with
the Member in question or the subject matter at hand. Rather,
we want to establish a general principle that being elected to
a Subcommittee carries some real weight. Participation in a
hearing should be the privilege of the Members of that
Subcommittee.
Thank you, Mr. Chairman.
Mr. Nadler. I would remind my friend that under Mr.
Chabot's chairmanship, when I was the Ranking minority Member
for the last 6 years, this Subcommittee routinely extended the
courtesy of allowing Members of the full Committee, and other
Members, regardless of party, to participate in hearings of the
Subcommittee.
It was always our aim, despite the sometimes strenuous
disagreements we had on policy, to conduct the business of the
Subcommittee with dignity and comity. It is my hope that we
will be able to continue to function in that collegial spirit.
I would urge my friend to reconsider his objection and
remind him that once people start objecting to routine
courtesies, there is likely no end to it. I hope the Members
will not drag the Subcommittee down that path.
We have been sent here by the voters to do their business.
I am determined to follow that mandate. And I hope we can
continue, as we have in the past, to extend routine courtesies
to other Members of the full Committee.
Regardless, I remain committed to applying the rules in a
fair and even-handed manner, but I would invite the gentleman
to reconsider his objection, if he would.
Mr. Franks. Mr. Chairman, at such time as the Ranking
Member and the Chair of this Committee can have colloquy among
themselves, I have to maintain my objection.
Thank you, sir.
Mr. Issa. Mr. Chairman, I would ask for a unanimous consent
request.
Mr. Nadler. The gentleman will state his unanimous consent
request.
Mr. Issa. My unanimous consent is, in the alternative to
that proposal, that we divide our time equally, alternating 5
minutes per side. If the majority would agree to a back and
forth in perpetuity on a 5-minute-per-side, then we would be
equally dividing the time, and it would be irrelevant who you
chose to recognize on your side versus the Ranking Member on
their side.
Mr. Nadler. I am not sure I understand what you are
proposing.
Mr. Issa. For each hearing in which unanimous consent was
granted. Mr. Chairman, on the floor, we normally divide time
equally 30 minutes per side, 10 minutes per side. This allows
for each side to control----
Mr. Nadler. The rules provide that every Member or every
person who sits here gets 5 minutes. Now, we have always
followed the practice--and I don't know that anybody has ever
kept count, and I certainly never have. I mean, sometimes it
may happen to be, depending on attendance, more Republicans
than Democrats or more Democrats than Republicans, and so be
it. We have never said that, well, there are more Republicans
here, so some Democrat will get 10 minutes. I mean, I don't
think we want to go down that--every Member, 5 minutes, sir.
Mr. Issa. Mr. Chairman, I offered the unanimous consent in
order for the Chair of the full Committee and the Ranking
Member to be able to work together in a collegial fashion to
find an alternative that might be mutually accepted.
Mr. Nadler. I am not sure--I am going to have to object at
this time.
Mr. Issa. That is fine.
Mr. Nadler. Because I think we should continue to follow
alternating 5 minutes, and we will let the full Committee Chair
and the Ranking minority Member of the full Committee deal with
this further.
For what purpose does the gentleman from Tennessee seek
recognition?
Mr. Cohen. Mr. Chairman, if I could just make like a
minute-and-a-half opener.
Mr. Nadler. Without objection.
Mr. Cohen. Thank you, Mr. Chairman.
I am the freshman here and the new person. And I don't know
about Republicans and Democrats and who did wrong. There has
been wrong done by Democrats and there has been wrong done by
Republicans.
It was shown in the last election, though, that the people
felt ethics was a major issue. And they didn't like a lot of
the things they read about in Congress. And Congress went to
its lowest point ever in the public's regard. It was like 30-
something percent. And they voted the Democrats in in record
numbers. So the public spoke.
But, regardless, if they were speaking about Democrats or
Republicans, but they said they want better ethics laws. And we
need to work together.
If Mr. Meehan has expertise--when I was chairman of State
and local, and we dealt with ethics laws, we encouraged people
like that to come forward and help us draw a better law for the
public's interest.
I would hope we could have the best expertise, the best
experience and institutional knowledge to be brought here for
the public's issue.
This isn't a Republican-Democrat thing. This is to make
Congress better, to uplift all of us.
And I am really amazed that somebody brings up Dr. Martin
Luther King in terms of 527s when you are talking about speech.
Dr. King changed this Nation by the force of his issue, by the
people going to the streets, by what mankind should have done
100 years earlier to pass civil rights laws, after 100 years of
Jim Crow. And to invoke Dr. King's name on money and politics
is the opposite of what Dr. King was about. He was about
issues. He was about spirit. He was about soul. He wasn't about
dollars. And I object to that as the congressperson from the
district where he was unfortunately killed.
Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
I would now like to introduce the distinguished members of
our panel.
We have Ken Gross. Our first witness is a leading expert in
the law of lobbying and campaign finance. Ken Gross is a
partner at the firm of Skadden, Arps, where he heads the
political law group. He advises many Fortune 500 companies
relating to the regulation of political activities.
He appears frequently as a legal commentator on CNN, Fox
and other networks. And his quotes appear regularly in the
national newspapers. Formerly, he was associate attorney
general at the Federal Election Commission, where he supervised
the Office of the General Counsel Enforcement staff and oversaw
the legal review of audits.
He serves on the ABA Committee on Election Law and co-
chairs the Practicing Law Institute's seminar on ``Corporate
Political Activities.'' Also, he co-chairs the BNA publication
on Corporate Political Activities.
We also have Sarah Dufendach, who is the chief of
legislative affairs for Common Cause, an organization created
by John Gardner in 1970 as one of the very first non-partisan,
public-advocate, Government-watchdog groups.
I would like to join my colleagues in welcoming Sarah back
to the Hill. She served in the United States House of
Representatives as a top aide for former Congressman and former
Whip David Bonior for over 25 years.
Sarah left the Hill to become the chief operating officer
for the Vietnam Veterans of America Foundation, a $25 million
NGO, providing health care for landmine victims in 24 countries
over four continents. It received the Nobel Peace Prize for its
work in the coalition, Campaign for a Landmine Free World. From
there, she joined Common Cause.
We then have Professor Smith, who returned to the Capital
University campus faculty in 2005, after 5 years here in
Washington, where he served as commissioner, vice chairman and
chairman of the Federal Election Commission. As chairman,
Professor Smith oversaw the implementation of the McCain-
Feingold campaign finance bill, and successfully fought to
increase due process protections for defendants in FEC
enforcement actions.
As with our other witnesses, he has previously testified
before Congress, and his writings have appeared in numerous
academic journals and popular publications. He is the author of
``Unfree Speech: The Folly of Campaign Finance Reform.''
Professor Smith is founder and chairman of the Center for
Competitive Politics.
And, finally, we have Thomas Mann, who is the W. Averell
Harriman chair and senior fellow in Governance Studies at The
Brookings Institution. Between 1987 and 1999, he was director
of Governmental Studies at Brookings. Before that, he was
executive director of the American Political Science
Association.
He earned his B.A. in political science at the University
of Florida and his M.A. and Ph.D. at the University of
Michigan. He first came to Washington in 1969 as a
congressional fellow in the offices of Senator Philip Hart and
Representative James O'Hara.
Mr. Mann has taught at Princeton University, Johns Hopkins
University, Georgetown, the University of Virginia and American
University, and served as an expert witness in the
constitutional defense of the McCain-Feingold campaign finance
law.
Gentlemen and ladies, each of your written statements will
be made part of the record in its entirety. I would ask that
you now summarize your testimony in 5 minutes or less.
To help you stay within that time limit, there is a timing
light at your table. I am sure you are aware of that. When 1
minute remains, the light will switch from green to yellow, and
then red, when the 5 minutes are up. Thank you very much.
Mr. Gross?
TESTIMONY OF KENNETH GROSS, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP
Mr. Gross. Good morning, Chairman Nadler, Ranking Member
Franks and other Members of the Committee. Thank you for
inviting me to testify.
I support S. 1. I think it is a good bill, in general, with
certain reservations, which I will note.
It deals with a lot of provisions: gift provisions, lobby-
disclosure provisions, revolving-door provisions, et cetera.
In terms of gifts, since the gift ban went into effect in
the House on January 4th, it has actually, I think, worked
fairly well.
I wouldn't mind if there was a small de minimis exception.
I don't know if the horse has left the barn on that, but I have
dealt with more questions about tuna-fish sandwiches served
during plant tours and fact-finding trips and a member visiting
with an editorial board for a newspaper that may happen to have
a lobbyist in their organization.
And I think the executive branch 20-50 rule--20 per
occasion and 50 for the year--just takes away a lot of small
silly questions, so you don't have to throw a $10 bill on the
table for a tuna-fish sandwich while you are touring around a
plant or some other presentation that doesn't quite meet the
widely attended exception.
In terms of the lobby provisions, I support them. They have
quarterly reporting, which is a good thing, more contracted
periods for when the report has to be made on the public
record. It has the gift disclosure on it. It cross references
the FEC political information as well.
I think that there are certain small provisions that should
be blended, so the timing of the information on political
contributions coincides with the FEC and that the threshold is
over $200, not $200, which can create some problems with the
way information is reported.
In fact, I think it could be strengthened with some
additional breakdown on the lobby report between in-house
lobbying, outside lobbying and trade-association dues related
to lobbying. That is all required on the current report, but it
is one aggregate number. And I think if there was a breakdown
of it, it would further compliance and be a more meaningful
report.
There is a part of the disclosure on the S. 1 proposal that
does cause me some concern, and that has to do with the
bundling provisions.
What the law says is that if a lobbyist collects or
arranges for contributions to be forwarded to a Member of
Congress, a candidate, that that information has to be
disclosed.
I am having a lot of difficulty understanding what that
provision is saying. I think I know what it means to collect,
if you are actually gathering contributions and forwarding them
to a candidate or even distributing coded envelopes, which is
what is the law at the FEC right now. That is how they define
bundling. But I do not know what it means to arrange for a
contribution. I do not know what it means to have an informal
agreement to forward contributions, solicit contributions,
direct contributions, when you are not actually necessarily
handling the contribution.
If I serve on your national finance committee and I say I
will raise $25,000 for you, and then I send an e-mail to
everybody in the district who I think is likely to contribute
to you, thousands of dollars are going to come in over the
transom from those people, potentially, not because of my e-
mail, but I could claim credit for it.
And we all know that when a contribution comes over the
transom, it has got many claimants, you know, perhaps more
claimants than Anna Nicole's baby has. And we are going to see
multiple reporting of the same money coming over. I think there
needs to be either an elimination of the arrangement provision.
The other part of it is I have to report, as a lobbyist,
any contributions that the Member has actual knowledge that I
have solicited or raised. How am I supposed to know what actual
knowledge the Member or the candidate has of contributions have
been raised? And, as has been noted, you know, there are
serious penalties in these bills. And I think that has to be
looked at again before it becomes part of a House bill.
In terms of the grassroots lobbying, I know that is a hot-
button issue. All I have really said about that is that I think
that you could draft a grassroots-lobbying law that deals with,
you know, sort of hired lobbying efforts over very high
thresholds, and it would survive a facial challenge under the
law. I mean, the 1954 decision on Harris does say that
artificially stimulated letter-writing campaigns can be subject
to disclosure.
The only concern that I have in the area of grassroots is
that it cannot interfere with associational rights of an
organization, and it can set up a rubric for as-applied
challenge. I think the grassroots provisions could be written
to survive a facial challenge, but there probably would be a
good bit of litigation over the application of it as to any
particular group. And I have expressed some concerns about
that, despite, I think, the ability of Congress to write a law
that could survive an overall challenge.
Finally, the revolving-door----
Mr. Nadler. The 5 minutes has expired. Could you finish
your statement?
Mr. Gross. Sure.
I think that the provision in the revolving-door section
that requires Members of Congress not to participate behind the
scenes goes too far. I think the 2-year restriction on making
appearances works. But it is an infringement to extend it to
behind-the-scenes activity. That is not where the undue
influence is exercised. It is exercised when you are making an
appearance or you are using the name of a Member in trying to
get in the door.
Thank you.
[The prepared statement of Mr. Gross follows:]
Prepared Statement of Kenneth A. Gross
(with the assistance of Matthew Bobys and Christine Kirk)
Good morning Chairman Nadler, Ranking Member Franks, and Members of
the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. Thank you for the opportunity to appear before you today to
discuss the merits of S. 1 and the Senate approach to lobbying reform.
My name is Kenneth Gross. I am a partner at Skadden, Arps, Slate,
Meagher & Flom LLP, where I head the firm's political law practice. I
specialize in compliance with campaign finance, lobbying, and ethics
laws. Prior to Skadden, I was head of enforcement in the General
Counsel's Office of the Federal Election Commission.
S. 1 is, overall, a constructive step toward positive reform of the
federal lobbying law. By emphasizing increased disclosure, the bill
succeeds in effecting practical change in the way lobbying activities
are reported and monitored without infringing upon our First Amendment
rights as citizens to petition our government for a redress of
grievances.
With regard to gifts, the House has already adopted strong gift
rule provisions. However, I continue to believe that there is room for
a de minimis provision. It does not have to be $50, the previous
threshold which some believe was abused and often exceeded, but a small
exemption for meals of $20 or less per occasion would take care of many
situations that may arise during, for example, a plant visit or other
meetings at which a meal is served but where the requirements for a
widely attended event are not met.
The bill undertakes to increase the transparency of lobbying by
requiring more frequent disclosure with a shorter lag time (days
between the end of a reporting period and the report's due date), and
by requiring more substantive disclosure--for example, requiring lobby
registrants and their lobbyists to disclose their federal political
contributions and those made by their PACs; and requiring the reporting
of certain gifts to Members and legislative staff made by lobby
registrants, lobbyists, and their PACs. However, there should also be a
breakdown of the aggregate amount currently disclosed on a corporate
lobby report. The following should be separately itemized: (1) the
value of in-house personnel, including overhead expenses for all
employees (not just those who meet the 20% threshold); (2) outside
lobbyist fees; (3) trade association dues related to lobbying; and (4)
travel and entertainment expenses.
S. 1 takes great steps to increase the transparency of governmental
decision-making by making electronic filing the standard and requiring
reports to be searchable, sortable, and posted quickly for the benefit
of the public.
Although the bill does not create an independent enforcement body,
it does increase the penalties for violations of the lobbying law and
the making of gifts and for the first time exposes donors of gifts to
civil enforcement liability. I advocate a meaningful and measured
enforcement of the law to ensure compliance with these reforms.
There are three different areas of reform that I would like to
address today: bundling, grassroots lobbying, and the revolving door.
bundling
S. 1 requires lobby registrants and their lobbyists to disclose the
recipients of contributions of $200 or more per year that they
``collected or arranged'' and the aggregate amount of those
contributions. ``Collected funds'' include those that a lobbyist
forwards to a campaign. ``Arranged funds'' include (i) formal and
informal agreements to ``credit'' contributions as being raised,
solicited, or directed by a lobbyist or (ii) actual knowledge by the
lobbyist that the candidate is aware that the lobbyist raised,
solicited, or directed the contributions. A lobbyist must also disclose
the aggregate amount or a good faith estimate of the amount of campaign
contributions raised at a fundraiser that he or she hosted or
sponsored.
Regarding ``collected funds,'' under current federal election law,
an individual who bundles contributions must file a conduit report with
the Federal Election Commission. It is impermissible for an individual
acting as a representative of a corporation, for example as a Vice
President for Government Affairs, to collect and forward contributions.
However, an individual who has a significant position in a campaign and
has been authorized by the campaign to raise funds, is permitted to
collect and forward contributions without disclosing this activity.
Thus, depending on the circumstance, bundling contributions may be
illegal, require special disclosure, or require no disclosure.
What constitutes ``arranging'' contributions is even more difficult
to define in application. It is typical that contributions received by
a committee have more than one individual claiming credit for them; it
is up to the committee to sort this out. This provision might have the
effect of individuals claiming credit for contributions beyond those
they are responsible for raising. For example, an individual could have
an agreement with a campaign to raise a certain amount of money, and
send out hundreds of e-mails soliciting contributions, and claim credit
for all contributions made by the recipients of those e-mails, which
would result in an inflated amount of contributions credited to the
individual and campaign.
Additionally, much of the money raised for federal campaigns (in
particular, for presidential campaigns) is not raised by lobbyists but
by friends of a candidate or by senior corporate executives who do not
meet the definition of ``lobbyist.'' The bundling rules only apply to
contributions collected or arranged by those defined as lobbyists. If
Congress is interested in a more complete disclosure provision, it
would have to apply to all individuals, not just lobbyists.
Consequently, the bundling provision as written in S. 1 is vague and
open to misapplication. It should be drafted so it is limited to
contributions physically handled by a lobbyist or those forwarded to a
campaign in coded envelopes, as is currently required under Federal
Election Commission rules.
grassroots lobbying
As you know, the Senate deleted the grassroots lobbying provision
from S. 1. The concerns over the now-deleted provisions have been
generally overstated, but it would be wrong to require disclosure of
communications among members or employees of an organization. If the
required disclosure is limited to information regarding the cost of
artificially stimulated letter-writing or electronic communications,
sometimes called ``astroturf lobbying,'' there are fewer constitutional
concerns. In 1954, the Supreme Court specifically upheld the disclosure
of artificially stimulated letter-writing campaigns, and I believe
would do so again if legislation was narrowly drawn to address
disclosure of astroturf lobbying with a specific call to action on
legislation in the communication. However, an as-applied challenge may
succeed if a particular group can demonstrate that disclosure would
result in harassment or threats of reprisal against group members.
revolving door
Any restrictions on prohibiting Members or certain staff from
lobbying after they leave Congress must be narrowly and clearly drawn.
Existing restrictions on appearances by Members and senior staff meet
that standard. S. 1 contains a provision not previously seen at the
federal level. It prohibits appearances as lobbyists and behind-the-
scenes lobbying activities of former Members for two years after
leaving Congress. At the very least, the enforceability of such a
provision may be difficult. At worst, it may constitute an improper
infringement on an individual's right to engage in certain lobbying
activities.
The proposed changes that we are discussing today only address part
of the puzzle; the regulation of lobbying activity is a delicate
process. Lobbying is a protected core First Amendment right. Effective
disclosure is the only viable method of regulation, and this bill
addresses shortcomings in the current law. It is my sincere hope that
with the changes proposed in S. 1 and the other issues under discussion
here, it will start the process of restoring public confidence in the
legislative process.
Mr. Nadler. Thank you very much.
Ms. Dufendach?
TESTIMONY OF SARAH DUFENDACH, CHIEF OF
LEGISLATIVE AFFAIRS, COMMON CAUSE
Ms. Dufendach. Good morning. My name is Sarah Dufendach. I
am the chief of legislative affairs for Common Cause. I want to
thank Chairman Nadler and Ranking Member Franks and the
Subcommittee for holding this important hearing and for
inviting Common Cause.
For 37 years, Common Cause has worked for an open,
accountable and ethical Congress. These issues matter greatly
to our 300,000 members across the country.
The Subcommittee has asked this panel to give our
perspectives on S. 1, focusing on three particular issues and
how we think the legislation could be made better.
Common Cause strongly supports the bundling provisions of
S. 1. Bundling is becoming so prevalent that many presidential
candidates are feeling the public pressure to disclose their
own bundling. When lobbyists disclose only how much they
personally give to a Member's campaign, it may vastly
underestimate the true efforts that that lobbyist could be
making in soliciting substantially more money for that Member.
The absence of this information gives an unrealistic picture of
the role that lobbyists are playing in election fundraising.
Common Cause also strongly supports the revolving-door
provisions in S. 1. Changing the cooling-off period for Members
of Congress from 1 year to one congressional session better
reflects the realities of the legislative and election cycles.
Lobbying is much more than just contacting Members. So the
definition should be expanded to reflect the full range of
knowledge and skills which make hiring former Members so
attractive to wealthy and powerful special interests.
The cooling-off period only affects staff making over
$110,000. It is still just 1 year and only affects lobbying
contacts, not activity. It does expand the staff lobbying
prohibition from just their former Members and Committees to
the entire body, to the whole House. But that better reflects
the true reach that staff at that pay grade have.
Common Cause believes Astroturf lobbying activities should
be disclosed. For those who think we don't need this type of
disclosure, I have got three words: Harry and Louise.
According to media accounts, Health Insurance Association
of America spent $17 million to pay for TV ads attacking the
Clinton health-care plan. None of that multimillion-dollar
campaign had to be publicly disclosed.
The public and elected officials need to know who is
sponsoring major campaigns seeking to turn public opinion.
Otherwise, we can't understand the motivation and the true
objectives behind that effort.
S. 1 is, indeed, landmark ethics legislation. But most
reform groups think it falls far short in one very important
area, and that is enforcement of congressional ethics rules.
Stricter rules mean little if they are not enforced. And the
public has lost faith in the House to enforce its rules and
discipline its own Members.
In fact, the public, by 80 percent, supports establishing a
permanent, independent commission to investigate and enforce
ethics rules for Members of Congress and their staff.
State legislatures in 23 States have adopted some form of
independent ethics enforcement. The Kentucky legislative ethics
commission was established 14 years ago. When surveyed, 97
percent of its legislators responded that an independent ethics
commission does a better job overseeing compliance with State
ethics rules than committees of legislators, such as the House
or Senate Ethics Committees. They felt the biggest contribution
it had made is its ability to depoliticize ethics enforcement.
Some critics say that independent ethics enforcement is
unconstitutional. The Constitution gives the House and the
Senate the power to punish its Members for disorderly behavior.
But legal scholars widely believe that Congress has the power
to delegate the receipt and investigation of complaints to an
independent body, provided that each chamber retain its power
to make the final decision about disciplining its Members.
My time is running out, and so I will just note that
Representative Michael Castle and Representative Todd Platts
have introduced a bill, H.R. 97, to establish an independent
ethics commission in the House, which has been referred to this
Subcommittee.
With that, I thank you for this opportunity to testify. And
I look forward to your questions.
[The prepared statement of Ms. Dufendach follows:]
Prepared Statement of Sarah Dufendach
Mr. Nadler. Thank you. And I congratulate you for coming in
under the 5 minutes.
Professor Smith?
TESTIMONY OF BRADLEY SMITH, PROFESSOR OF LAW, CAPITAL
UNIVERSITY LAW SCHOOL
Mr. Smith. Thank you, Mr. Chairman, Ranking Member Franks
and Members of the Committee. My name is Brad Smith. I am a
professor at Capital Law School. I practice law with the firm
of Vorys, Sater, Seymour and Pease.
And I am here today in my capacity as chairman of the
Center for Competitive Politics, which works to educate the
public on the benefits of free and open political
participation.
The point I would leave for you, more than anything, is to,
as you consider what approach to take, is to think about what
exactly is the goal, what is the harm that you are trying to
address, and how do the measures that you are considering
address it.
For example, S. 1 requires quite a bit of lobbying
reporting. Now, I don't have a particular problem with that. I
think it helps the public understand what lobbyists are doing
in terms of contact with their legislators to help them
understand what Government is doing.
On the other hand, much of that reporting is simply
duplicative of Federal Election Commission reporting. And much
of that information that the Senate bill would require to be
put into a database is already available through private
databases, such as Political Money Line and Open Secrets and so
on. And, as the law is drafted, it would seem to require a
separate reporting date. So the people would have to report the
same thing, but twice, to different folks on different
timelines.
So I would just urge you to think about these things. Is it
really necessary or is this just kind of show to make the
public feel good, like something is going on? There is a need
for something to be done substantively. But let's make sure we
don't mess it up by just kind of throwing in the kitchen sink.
I have listed some various concerns in my prepared
testimony. I share many of Mr. Gross's points about vagueness
of some of the issues. I do think there are problems. And I
think one reason there is some issue with the vagueness on some
of these terms, which I have highlighted in my testimony, is
that it is not entirely clear what is the harm you are trying
to address. And so you end up with a provision that is fairly
vague in trying to address it.
In terms of an ethics committee, you know, I don't have any
strong opinion as to whether you ought to have a separate
ethics group or not. If you want a little police force that
goes around and checks up on you, that is kind of your
business.
I do think that the public often has shown, and I think
benefits, from being able to hold Members directly responsible
for what they do, and I think they have shown that they can do
that.
I note that the list that is included in Ms. Dufendach's
testimony, what States have ethics committees, that the most
toughest ones are Kentucky. No scandals there with Governor--no
scandals in Connecticut, another one of the toughest ones where
the governor has had to resign not long ago.
Whereas, among those States that don't have an independent
ethics committee are such hotbeds of corruption as Iowa, Utah,
Vermont, and a State called the best-governed State in the
Nation by Governing Magazine, the State of Virginia. But, you
know, you do what you want.
I do want to address the grassroots lobbying provisions
here. They are not in this bill, but, obviously, there are
people who want them to be in this bill.
Ms. Dufendach is a good advocate for her position, a
skilled woman. I don't know her, but I am impressed by her
background, and I note that she has spent her entire career in
Washington.
And Mr. Mann I have known for several years, and he is also
going to urge you to regulate grassroots lobbying. He is a
talented political scientist, one of the most respected opinion
leaders in Washington. If you were to go around and try to come
up with somebody you would give the title of Mr. Washington to,
it might be Tom Mann, right?
Now, I come from a little town in Ohio called Granville,
Ohio. It has got 3,000 residents, and I will tell you that one
thing people there don't care about at all and are not
concerned about is that citizens are contacting Congress. That
just doesn't worry these folks in the least, nor do they
particularly care why they are contacting Congress.
When a citizen hears about something, about an issue, and
it moves that citizen to want to take action, it doesn't matter
where that comes from. And the corrupting link that is supposed
to be there between lobbyist and the Government is broken,
because a citizen--a real person, not a fake person, not an
Astroturf person--a phrase, frankly, I find insulting--a real
voter, one of your constituents, has to decide to take action
and call you up. And that breaks that link between the
lobbyist.
It doesn't matter whether the person hears this from a
radio talk show. It doesn't matter whether they are misinformed
from a New York Times editorial. The fact is a citizen has
acted.
So pay attention to what it is that you are trying to get
at. And I think if you do that, you will recognize that
grassroots lobbying is actually a check on the type of insider
lobbying that created the kind of scandals that brought some of
you in the majority into power with people such as Jack
Abramoff.
Thank you very much.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Bradley A. Smith
Mr. Chairman, Ranking Member Franks, and members of the Committee:
Thank you for inviting me here to testify today on the important
issue of lobbying reform. By way of introduction, I am currently
Professor of Law at Capital University in Columbus, Ohio; founder and
Chairman of the Center for Competitive Politics, and Of Counsel in the
Columbus and Washington offices of the law firm of Vorys, Sater,
Seymour & Pease. From 2000 to 2005 I served as Commissioner on the
Federal Election Commission, including a term as Chairman in 2004. In
this latter capacity, I was privileged to travel and speak throughout
the country with ordinary Americans concerned about corruption in
government and the perceived remoteness of Washington to their everyday
concerns. Although Vorys, Sater, Seymour and Pease represents many
clients before the government, I am not a registered lobbyist and do
not lobby myself. I address the Committee today on my own behalf and
that of the Center for Competitive Politics, and do not speak for the
law firm of Vorys, Sater, Seymour & Pease or Capital University.
The Center for Competitive Politics (``CCP'') is a non-profit
educational organization operating under Section 501(c)(3) of the tax
code, with offices in Arlington, Virginia. Through studies, reports,
conferences, and assistance in litigation, CCP seeks to educate the
public and lawmakers on the operation and effects of money in the
political and legislative systems. In light of the comments to follow,
I also note that neither CCP nor Vorys Sater or Capital University
engage in what is called ``grassroots lobbying.''
As the House considers lobbying reform, it is important to balance
carefully targeted regulations that address real abuses, while
minimizing the burden on the vast majority of lobbyists who are honest,
dedicated individuals helping citizens to exercise their fundamental
Constitutional Rights of Free Speech and the Right to Petition the
Government for Redress of Grievances. These are among the most
important rights guaranteed by our Constitution. Yet all too often in
the past, we have allowed isolated incidents of improper behavior--
scandal--to stampede us to hastily conceived, ill-considered measures
that restrict these important Constitutional rights while doing little
to address the abuses that allegedly justify the restrictions. All of
us here know that lobbyists can provide a valuable function, providing
members with useful, important information on public opinion, and also
with the information needed to craft wise, beneficial, effective
legislation. We know that abuses exist, but that they are the
exception, not the rule.
We must also recognize that whatever steps Congress takes, there
will be a substantial element of popular distrust of the government in
general and Congress in particular. This is normal in every democracy--
around the world, even at the peaks of confidence in government in the
societies most trustful of government, there is typically one-quarter
to one-third of the electorate that believes that government cannot be
trusted to pursue the public good. This is normal and indeed it can be
healthy--it is this skepticism that enables the public to serve as a
watchdog against government corruption, and as a guardian of its own
rights against government overreach. There is no legislation you can
pass, no magic wand you can wave, that will make all Americans trust
their government, and it would be a mistake to try. Thus, it is
important to pass serious, balanced legislation, that addresses
specific and real problems, rather than to engage in populist
grandstanding or pass measures merely because they ``send a message.''
The problem, as I see it, based on my travels around the country
and my conversations with lobbyists, officeholders, civic leaders, and
ordinary citizens, is that lobbyists have access to information, and to
legislators, that is not known to the general public. In a small number
of isolated cases, lobbyists have used their access, outside of the
public eye, to bribe or improperly influence members. More commonly,
the simple lack of transparency, even absent any improprieties, has
resulted in the public being closed out of decisions made by the
government. I have never heard it expressed, however, that the problem
is too much involvement by the American people, or that the people are
contacting members of Congress, or that citizens and groups are
attempting to provide information to the people at large. Thus, the
Senate approach is quite right to focus on legislative transparency,
and avoid the efforts by some to use lobbying reform to pursue other
agendas that aim to limit, rather than enhance, popular checks on
government.
In particular, the Senate was quite correct in removing from the
bill, as it was originally introduced, Section 220, pertaining to the
regulation and in particular the disclosure of grassroots lobbying. As
a matter of constitutional law, the Supreme Court has repeatedly
recognized a right to engage in anonymous political speech. These cases
include Thomas v. Collins, 323 U.S. 516 (1945) (striking down a statute
requiring labor organizers to register and disclose to the government
prior to speaking); NAACP v. Alabama, 357 U.S. 449 (1958) (guaranteeing
the NAACP the right to protect the identities of its members and
financial supporters); Talley v. California, 362 U.S. 60 (1960)
(protecting anonymous speech to the public); McIntyre v. Ohio Elections
Commission, 514 U.S. 334 (1995) (upholding the right to anonymous
speech on political issues during the course of a campaign); and
Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150
(2002) (striking down a statute requiring prior registration with
government). Only in the narrow circumstances of political
advertisements directly related to a candidate election and either
expressly advocating the election or defeat of a candidate or involving
substantial expenditures for broadcast ads mentioning a candidate
within 60 days of an election has the Court ever upheld restrictions on
anonymous speech. See Buckley v. Valeo, 424 U.S. 1 (1976); McConnell v.
Federal Election Commission, 540 U.S. 93 (2003). Regulation of
grassroots lobbying through mandatory disclosure of funding sources
directly violates the Constitution, as repeatedly interpreted by the
Supreme Court.
Moreover, as a policy matter, regulation of grassroots lobbying
makes little or no sense in addressing the problem of government
corruption. Contact between ordinary citizens and members of Congress,
which is what ``grassroots lobbying'' seeks to bring about, is the
antithesis of the ``lobbying'' at the heart of the recent congressional
scandals. It is citizens expressing themselves to fellow citizens, and
citizens to members of Congress. That they are engaged or
``stimulated'' to do so by ``grassroots lobbying activities'' is
irrelevant. Regulation that would hamper efforts to inform and motivate
citizens to contact Congress will increase the power of professional
lobbyists inside the beltway. Regardless of what lobbying reform is
passed, not even the most naive believe it will mean the end of the
professional, inside-the-beltway lobbyist. Thus, grassroots voices
remain a critical counterforce to lobbying abuse.
Disclosure of the financing, planning, or timing of grassroots
lobbying activities adds little, and will often be harmful, leading to
exactly the type of favoritism and/or negative pressure that the public
abhors. I want to stress that I have first hand experience with being
on the receiving end of grassroots lobbying campaigns. As a
Commissioner on the Federal Election Commission, I was the target of
several such campaigns, one of which generated over 100,000 citizen
communications. I found it helpful to hear from the public, even if in
the form of mass generated campaigns. I know that these campaigns were
easily detected and appropriately discounted (but not ignored or
resented). No member of Congress even remotely in touch with his
district will be unaware that a sudden volume of similar calls,
letters, or emails coming from his or her district is possibly, if not
probably, part of an orchestrated campaign to generate public support.
But because the callers themselves are real, there is little to be
gained by knowing who is funding the underlying information campaign
that has caused these constituents to contact their Members. The
constituent's views are what they are; the link between lobbyist and
Congress is broken by the intercession of the citizen herself.
Various Washington-based organizations, many of which employ
registered lobbyists and many of which have no membership base, have
attempted to denigrate this citizen activity by referring to it as
``Astroturf'' lobbying, implying that it is somehow fake or fraudulent.
But there is nothing fake about real citizens--that is, voters and
constituents--having views on issues and calling their representatives
in Washington. It simply does not matter if those views were stimulated
by a newspaper editorial, a conversation with a friend, a speech at the
local Rotary Club, or a paid communication. These are real people with
real concerns, not ``fake'' or ``Astroturf'' constituents.
Moreover, there are many valid reasons for preferring anonymity.
Anonymous speech is not illegitimate in some way. Remember that the
Federalist Papers were published anonymously, in order to force readers
to deal with the arguments put forth rather than engaging in ad hominem
attacks against the authors. As the Supreme Court put it in McIntyre,
in an opinion written by Justice Stevens, ``[t]he decision to favor
anonymity may be motivated by fear of economic or official retaliation,
by concern about social ostracism, or merely by a desire to preserve as
much of one's privacy as possible.'' 514 U.S. at 357.
Many members of this Committee have expressed deep concern about
what was called the ``K Street Project,'' in which it is believed that
pressure was placed on organizations in Washington to hire lobbyists on
the basis of partisan considerations. Of course, the identity of
lobbyists is necessarily known, and the public can benefit from knowing
who lobbyists are and with whom members are meeting. That is how the
public can provide a check on undue influence exercised behind the
scenes. But grassroots lobbying contacts do not pose the possibility of
behind the scenes meetings or bribery or improper influence, because by
definition grassroots lobbying relies on voters--constituents--to take
action. Efforts to force disclosure of grassroots lobbying needlessly
open up that field to K Street Project-type pressure. Such forced
disclosure can make seasoned professionals reluctant to assist
unpopular causes or those contrary to the current administration,
resulting in a chilling effect that would deprive grassroots
organizations of the services of talented consultants who make their
livings, in part, on Capitol Hill. Indeed, those consultants most
likely to abandon the field will often be those most motivated by
ideology. Those motivated by pecuniary gain will have an added
incentive to bear the cost of disclosure and carry on.
Finally, let me note that I have heard, in ways that cause me to
believe it to be true, that some members have said that ``disclosure''
is, ``not regulation.'' How absurd! If you honestly believe that, then
I urge you to begin filling out the forms yourselves and imagine that
you face civil and criminal penalties for any errors or late filings.
Clearly, disclosure is regulation, and often the most intrusive
regulation.
In summary, the Senate wisely stripped regulation of grassroots
lobbying from the bill, and this House would be wise to similarly
reject opportunistic efforts by various Washington-based interest
organizations to stifle citizen speech. As further explication of the
points raised above, I have attached to this statement a copy of CCP's
Policy Primer, ``Grassroots Lobbying Proposals Seem Not to Further
Congress' Interest in Correcting Lobbying Abuses.''
Let me now address just a few specifics of what was retained in
Senate Bill 1. First, a Section 212 of S. 1 requires that registrants
must file quarterly reports ``Not later than 45 days after the end of
the quarterly period beginning on the 20th day of January, April, July
and October of each year. . . .'' Accordingly, the quarterly reporting
period for the first quarter of the year will be January 20th through
April 19th--not January 1st through March 31st. Needless to say, using
a different quarterly reporting period for Lobbying Disclosure Act
purposes than is used for FEC reporting purposes will create
unnecessarily burdensome accounting problems for separate segregated
funds whose contributions now have to be reported to the FEC, the Clerk
of the House and the Secretary of the Senate. I have been told that
this was not intended, but it appears to be the law as passed out of
the Senate. I urge you to bring this provision into harmony with FEC
reporting dates.
More substantively, Sec. 212 is one of the key sections of the
Senate bill, requiring added disclosure of lobbyists political
contributions. However, I would note that many of the terms in that
section are vague and left undefined. For example, reporting is
required whenever a ``fundraising event was hosted, co-hosted, or
sponsored.'' The FEC has no definition of any of these terms. An
individual might raise money for an event but not be listed as a
``host'' or ``sponsor'' of the event; another person might be listed as
a ``host'' but play no role in raising funds. Indeed, there is no clear
definition even of what constitutes an ``event.'' What is an event? Any
gathering? Must it be a physical gathering, or is a video or virtual
gathering sufficient? If all that is targeted is ``events,'' will
anything have been accomplished? If these terms are left vague, they
subject honorable people to civil and even potential criminal penalties
for honest efforts to engage in political activity, while at the same
time they may not even address the issues you seek to address. I would
urge you to make sure you know what the purpose this regulation is, and
to see that it is appropriately targeted.
Section 116 of S. 1 would deny COLA adjustments to members who vote
against them. I am one of the few people--sometimes I think the only
person--in the country willing to go on record and say that I believe
members of Congress ought to be paid more--substantially more--than
they are currently paid. During the last campaign, I spoke publicly
against the tireless demagoguery about members ``voting themselves pay
raises,'' a charge usually made by challengers who fully expected, if
victorious, to receive the benefits of these past COLA adjustments.
Nevertheless, I believe it very bad policy to hold a member's own
income hostage to his voting in a particular way on any bill or
resolution, and equally bad to create several classes of members
receiving different levels of pay. Further, I do not see what this
provision has to do with lobbying reform.
I would urge you to reject the Senate approach of establishing a
``Commission to Strengthen Confidence in Congress.'' The Commission's
mission, as defined in S. 1, seems to suggest partisan retaliation for
legislation in some cases long past. I believe it will be destructive
of efforts to create genuine, nonpartisan ethics reform, or to increase
public confidence in Congress, to inform the public that you have
created another ``commission'' with a specific mission to focus on a
few laws--some passed as long as 5 years before we can expect the
Commission to meet--apparently chosen for partisan reasons. Some
members will no doubt draw satisfaction from such an approach, but
frankly it mocks the entire ethics and lobbying reform project.
Let me conclude, generally, by urging moderation. Aim for real
problems, not appearances. For example, Sec. 212 of S. 1 requires added
disclosure of contributions arranged as small as $200. There is some
logic here, as $200 is the threshold for full disclosure of
contributions under the Federal Election Campaign Act. Yet I doubt that
any of us in this room really believe that $200 in campaign
contributions is going to corrupt anybody. Such low thresholds lead to
voluminous reports that can actually make it harder to find larger
volumes of money.
Similarly, it is easy to dictate voluminous reporting requirements
for members and staff. But be careful. Complying with formalistic
reporting requirements should not become the major function of
Congress. Congress must operate ethically, to be sure, but it must
exist for reasons other than to comply with ethics rules as well.
There are changes, such as earmark reform, that can and should be
done, many of which are included in the Senate bill. But understand
that nothing you do will eliminate or prevent every episode of
corruption--there simply are some corrupt people in the world--and
trying to do so burdens good, ethical people and can even hinder
efficient, effective government. Similarly, it is normal and healthy
that the public have some skepticism of what its government is doing--
nothing you can do can eliminate all such skepticism. Finally, remember
that the problem is ``insider'' abuses, not participation by the public
at large, and avoid those who, in pursuit of their own insider agendas,
urge regulation of grassroots activities.
Thank you.
__________
ATTACHMENT
POLICY PRIMER: Grassroots Lobbying Proposals Seem Not to Further
Congress' Interest in Correcting Lobbying Abuses
By Stephen M. Hoersting
and Bradley A. Smith
(614) 236-6317
Abstract
Of the several policy proposals circulating Capitol Hill to correct
lobbying abuses, strengthen the relative voice of citizens, and add
accountability to the earmarking process, one policy prescription seems
oddly out of place. Proposals for so-called ``grassroots lobbying
disclosure'' do nothing either to sever the link between lobbyist cash
and lawmakers' pecuniary interests, or to strengthen the relative voice
of citizens. Grassroots lobbying--encouraging or stimulating the
general public to contact lawmakers about issues of general concern--is
citizen-to-citizen communication that fosters citizen-to-lawmaker
communication. It correspondingly weakens the relative strength of
lobbyist-to-lawmaker communications, in furtherance of Congress'
objective in seeking lobbying reform.
Efforts to limit grassroots lobbying, require disclosure of donors,
or compel lobbyists to register with the government to assist groups in
contacting fellow citizens, strips donors and consultants of
constitutionally guaranteed anonymity, and would deprive organizations
championing unpopular causes of skilled representation. This anonymity,
long recognized and protected by the Supreme Court, fosters political
association, guards against unwarranted invasions of privacy, and
protects the citizens who fund or assist groups such as Progress for
America or People for the American Way from calumny, obloquy, and
possible retribution--including retribution by public officials.
Disclosure is not always a good thing. The rationale for requiring
disclosure of contributions to candidate campaigns, and disclosure of
direct lobbying activity, is the same for protecting anonymity in the
discussion of policy issues: to protect citizens from retribution by
abusive officeholders. History demonstrates that while such retribution
may be uncommon, it is real. Indeed, even today we read of a Texas
prosecutor who has subpoenaed donor records for a group after the group
ran grassroots lobbying ads that took a position contrary to that of
the prosecutor.
The abuse of non-profit entities by a handful of lobbyists to host
golf trips or entertain lawmakers with donations from lobbyist clients
can be cured in other ways, without enacting disclosure measures too
attenuated to the problem Congress seeks to correct, and that could
damage or diminish America's system of information exchange for years
to come.
introduction
Senator Dianne Feinstein recently captured public sentiment when
she said that there should ``be a wall'' between registered lobbyists
and the pecuniary interests of Members of Congress.\1\ The problem is
not the technical and professional information lobbyists provide
lawmakers, nor is it information on the opinions of the American people
that honorable and ethical lobbyists provide lawmakers everyday.
Indeed, it is the relative voice of the average citizen that the
Senator wants to strengthen. This is why Senator Feinstein and Senate
Rules Committee Chairman Trent Lott have proposed bringing sunlight to
the earmarking process and other measures that would weaken the link
between lobbyist cash and lawmaker policy.\2\ Senators Lott and
Feinstein are not alone. Other proposals include gift bans, travel
restrictions, other types of earmark reform, revoking floor privileges
of former lawmakers, slowing the ``revolving door,'' and limiting
lobbyist donations to charities affiliated with Members, to name a few.
What all of these proposals seek to do is to limit the direct pecuniary
exchange between lobbyists and lawmakers.
Circulating among these provisions, however, is another
recommendation that is oddly out of place. It has little or nothing to
do with reducing the coziness between lobbyists and lawmakers. These
are the so-called ``grassroots lobbying disclosure'' provisions now
under consideration in various quarters, which require organizations
and associations to disclose in detail their efforts to run issue-
oriented advertising aimed at fellow citizens, and in some cases, to
identify donors.
In proposals to disclose grassroots lobbying, we are witnessing two
canons of political law on an apparent collision course: that
government corruption is cured by disclosure; and that the right of
individuals to speak and associate freely depends upon their ability to
do so anonymously. But the conflict is a false one--a byproduct of
fuzzy thinking--because both canons achieve the same purpose when each
is applied to its proper context. Both protect citizens from abusive
officeholders. Disclosure regimes for campaign contributions protect
citizens from officeholders who have free will and can confer benefits
on large contributors (and pain on opponents) by passing future
legislation. Disclosure regimes for true lobbying activities, that is,
consultants engaged in face-to-face meetings with officeholders,
protects citizens in a similar manner.
Regimes that protect the right to speak anonymously with fellow
citizens about issues, even issues of official action or pending
legislation, also protect citizens from abusive officeholders by
reducing an officeholder's ability to visit retribution on those who
would oppose his policy preferences. Citizens learn much about the
relative merits of a candidate by knowing who supports him. They learn
about the legislative process by knowing who is paying consultants to
meet with officeholders directly. But citizens learn little about the
relative merits of a clearly presented policy issue by knowing who
supports it. Grassroots lobbying registration and disclosure regimes
that would provide honest citizens and abusive officeholders alike with
knowledge of which groups and individuals support which issues,
including the timing and intensity of that support, impose too high a
cost for too little benefit in a constitutional democracy.
the value of grassroots lobbying
Far from being part of the current problem, grassroots lobbying is
part of the solution to restoring the people's faith in Congress. Polls
show that Americans are fed up with what is increasingly seen as a
corrupt Washington way of business. Ninety percent of Americans favor
banning lobbyists from giving members of Congress anything of value.
Two-thirds would ban lobbyists from making campaign contributions. More
than half favor making it illegal for lobbyists to organize
fundraisers.\3\ Seventy six percent believe that the White House should
provide a list of all meetings White House officials have had with
lobbyist Jack Abramoff.\4\ But there is no evidence whatsoever that the
public views grassroots lobbying activity as a problem.
Indeed, even the name grassroots ``lobbying'' (as opposed to
``activism,'' ``communication,'' or other term) is in some sense a
misnomer. ``Grassroots lobbying'' is merely the effort to encourage
average citizens to contact their representatives about issues of
public concern. It is not ``lobbying'' at all, as that phrase is
normally used outside the beltway, meaning paid, full-time advocates of
special interests meeting in person with members of Congress away from
the public eye. What the public wants is what Senator Feinstein and
others have recognized--they want to break the direct links between
lobbyists and legislators, thus enhancing the voice and influence of
ordinary citizens. They do not want restrictions on their own efforts
to contact members of Congress, or on the information they receive
about Congress.
Contact between ordinary citizens and members of Congress, which is
what ``grassroots lobbying'' seeks to bring about, is the antithesis of
the ``lobbying'' at the heart of the Abramoff scandals. It is ordinary
citizens expressing themselves. That they are engaged or ``stimulated''
to do so by ``grassroots lobbying activities'' is irrelevant. These are
still individual citizens motivated to express themselves to members of
Congress.
Regulation that would hamper efforts to inform and motivate
citizens to contact Congress will increase the power of professional
lobbyists inside the beltway. Regardless of what lobbying reform is
passed, not even the most naive believe it will mean the end of the
professional, inside-the-beltway lobbyist. Thus, grassroots voices
remain a critical counterforce to lobbying abuse. Recently one member
of Congress expressed his concern that Jack Abramoff's Indian Tribal
clients were used to contact Christian Coalition members, ``to stir up
opposition to a gambling bill.'' \5\ But it cannot be denied that the
individuals who responded to that grassroots lobbying were ordinary
citizens who were, in fact, opposed to a gambling bill. They are
precisely the type of people that Congress ought to hear from, rather
than or in addition to inside-the-beltway lobbyists. Regardless of how
they learned about the issue, they had to make the decision that the
issue was important to them, and take the time to call Congress.
Disclosure of the financing, planning, or timing of grassroots
lobbying activities adds little, and will often be harmful, leading to
exactly the type of favoritism and/or negative pressure that the public
abhors. No member of Congress even remotely in touch with his district
will be unaware that a sudden volume of calls coming from his or her
district is possibly, if not probably, part of an orchestrated campaign
to generate public support. But because the callers themselves are
real, there is little to be gained by knowing who is funding the
underlying information campaign that has caused these constituents to
contact their Members. The constituent's views are what they are; the
link between lobbyist and Congress is broken by the intercession of the
citizen herself.
Disclosure, however, comes with a price. The most obvious is that
it re-establishes the link between the lobbyist and the officeholder.
When the source behind the grassroots campaign is anonymous--either a
donor or consultant--the opportunity for favoritism, and for
retaliation, is gone. Mandatory disclosure reintroduces that link. It
is true that many financiers of grassroots lobbying campaigns are happy
to be publicly identified--for example, George Soros and Steve Bing
make no bones about their efforts to educate the public. Unions, and
some trade associations, such as the Health Insurance Association of
America (HIAA) in its 1994 ads urging citizens to oppose a national
health plan, are more often than not open about their activities. But
others prefer anonymity, and there are many reasons for wanting
anonymity and for providing its protection.
To use the example of HIAA, under the national health plan proposed
by the Clinton Administration in 1994, private insurance companies were
to have a major role in administering the plan. But it would be a role
achieved through a bidding process. A company donating money or
expertise to an HIAA ad campaign against adoption of the plan might
sincerely believe that the plan was bad for America, but be prepared to
bid to administer the plan had it passed. And even if the plan failed,
companies in such a highly regulated industry might wish to avoid
retaliation from disappointed lawmakers who had supported the plan.
Such a company might therefore prefer anonymity. Anonymity would
protect it and its lobbyists from retaliation, favoritism and
government pressure--precisely the result that Congress is seeking to
achieve in lobbying reform.
Others will have other reasons for anonymity. A prominent Democrat
may not want to be identified as having consulted on ads urging
citizens to support the nomination of Samuel Alito to the Supreme
Court; a prominent Republican consultant may not want to be identified
as being on the other side. Some donors simply don't want to have their
donations to grassroots lobbying known so that they will not be
approached for added donations. In each case, anonymity not only
protects the donor or consultant, it prevents favoritism, retaliation,
and improper pressure by government officials.\6\ As Justice Stevens
stated for the Supreme Court in McIntyre v. Ohio Elections Commission,
anonymous speech, ``exemplifies the purpose behind the Bill of Rights
and of the First Amendment in particular: to protect unpopular
individuals from retaliation--and their ideas from suppression.'' \7\
Anonymous speech aimed at rousing grassroots opinion is a long and
honored tradition in American politics. Alexander Hamilton, James
Madison, and John Jay authored the Federalist Papers anonymously. Most
of the opposition to the ratification of the Constitution was also
published anonymously by such distinguished Americans as Richard Henry
Lee, then New York governor George Clinton, and New York Supreme Court
Justice Robert Yates.\8\ Other famous Americans known to have engaged
in anonymous ``grassroots lobbying'' include Thomas Jefferson, Abraham
Lincoln, Winfield Scott, Benjamin Rush, and New Jersey Governor William
Livingston.\9\
grassroots lobbying disclosure provisions are unrelated to
the purpose of lobbying reform
Grassroots lobbying disclosure proposals amend the Lobbying
Disclosure Act of 1995 to reach any employment of paid lobbyists to
urge the general public to contact a Federal official about an issue of
general concern. Proposals require ``grassroots lobbying firms'' (or
organizations that employ lobbyists) to register with the Secretary of
the Senate or Clerk of the House of Representatives not later than
twenty days after being retained by a client. Most proposals require
reporting of all amounts paid for grassroots lobbying activities, or
amounts paid to ``stimulate'' grassroots lobbying, including separate
disclosure for all paid advertising. This typically includes monies
spent for preparation, planning, research, and background work, as well
as monies spent coordinating lobbying activities with other
organizations. One approach would expose nonmembers of an organization
who donate above a certain level--typically $10,000--as a separate
``client'' listed on the lobbying disclosure form. Such changes would
dangerously expand the scope of an understandable reform effort into
uncharted and unconstitutional territory. They would drive many
publicly spirited persons on either side of an issue--those who care
passionately about nothing more than the proper administration of
justice, for example, in the case of the recent Samuel J. Alito
confirmation hearings--out into the open, and perhaps, therefore, out
of future debates altogether. They would make seasoned lobbyists
reluctant to assist unpopular causes or causes contrary to the current
administration. Compelled disclosure robs such donors or consultants of
constitutionally protected anonymity, often subjecting them to calumny,
obloquy and possible retribution by entrenched interests fighting on
the other side, especially when the other side is the government
itself. This would have a chilling effect on donors to issues
organizations on both sides of the aisle, and deprive organizations of
the services of talented consultants who make their livings, in part,
on Capitol Hill. Indeed, those most likely to withdraw from the field
will often be those motivated by ideology. Those motivated by pecuniary
gain will have an added incentive to bear the cost of disclosure and
carry on.
To clean up the Abramoff mess there is no reason to smoke out the
more generous donors to groups like Progress for America or Alliance
for Justice, or to make consultants fearful to assist those
organizations with controversial issues. Even if those groups hired
lobbyists for any purpose, including as consultants who know best how
to craft a message, donations to those groups for grassroots lobbying
do not support direct lobbyist-to-lawmaker contact--the source of
public concern. (Nobody cares if a lobbyist flies on a corporate jet--
what they object to is his giving rides to congressmen on a corporate
jet!). Grassroots lobbying fosters citizen-to-citizen communication,
and later, citizen-to-lawmaker communication. The message consists of
information for citizens, and an appeal to those citizens to take part
in a public discussion. Some citizens will get involved because they
agree with the message and share its concern; others because they
disagree; and still others will not get involved at all. With even the
most effective grassroots lobbying, however, there is always an
intervening decision made by the citizen to get involved or not to get
involved, and to decide on which side of the issue to get involved, to
what degree, and in what capacity. The aggregate of those individual
decisions is itself critically important and valuable information to
the lawmaker.
Lawmakers are representatives of the people. No matter how citizens
first hear of a pending legislative issue, when they engage they are
engaging in citizen-to-lawmaker communication; the citizens making the
calls are not registered lobbyists. With the decision to contact
lawmakers, from whatever side of the debate, citizens reduce the
relative power of lobbyist-to-lawmaker communication, which is
precisely the power shift the public wants to see, and is the shift
most needed in an era of unlit, undisclosed earmarking and lobbying
scandal.
grassroots lobbying disclosure provisions may be unconstitutional
In addition to complex policy questions surrounding society and its
information exchange, regulation of grassroots lobbying raises
constitutional concerns. The Supreme Court has recognized that ``there
is practically universal agreement that a major purpose of [the First]
Amendment was to protect the free discussion of governmental affairs.''
\10\ In Buckley v. Valeo, the Supreme Court held that regulation of
political speech and association is constitutionally justified only to
prevent corruption or the appearance of corruption in government, by
preventing the exchange of favors that flows from an inordinate
connection or nexus between campaign donors and lawmakers.\11\ In
McConnell v. FEC, the Supreme Court extended the rationale to guard
against the appearance of corruption created by ``access'' to
politicians.\12\ Neither grassroots lobbying aimed at citizens, nor any
ensuing contact by citizens to members of Congress, creates the reality
or appearance of corruption. And both work to alleviate the problem of
unequal access noted in the McConnell decision.
Anonymous grassroots lobbying has received unwavering First
Amendment protection from the Supreme Court.\13\ As recently as 2002,
the Supreme Court invalidated a ``village ordinance making it a
misdemeanor to engage in door-to-door advocacy [with fellow citizens]
without first registering with the mayor'' as a violation of ``the
First Amendment protection afforded to anonymous . . . discourse.''
\14\ And there is no doubt that retribution is real. It is not hard to
imagine, for example, why the State might have wanted to know the names
of all members of the NAACP in 1950s Alabama, and why the Supreme Court
said in response to Alabama's desire to learn those names that ``[i]t
is hardly a novel perception that compelled disclosure of affiliation
with groups engaged in advocacy may constitute as effective a restraint
on freedom of association as [other] forms of governmental action.''
\15\ It is also easy to imagine the leverage Alabama could have put on
the NAACP, and the potential damper on the civil rights movement, if
1950s Alabama knew about the NAACP what the twenty-first century
Congress proposes to learn about grassroots organizations. What could
Alabama have done had it known: when the NAACP engaged in preparation,
planning, research, or background work; when it coordinated activities
with like minded organizations; when the organization proposed to
engage its fellow citizens with advertising and in what quantity; or
knew the names of the consultants that would assist them in the effort?
Nor are these merely episodes of the past. In what many consider a
blatant attempt at intimidation, a Texas county prosecutor recently
subpoenaed the donor records of a group called the Free Enterprise Fund
after it ran grassroots lobbying ads critical of his behavior in
office.\16\ It is easy to forget when rushing to correct lobbyist
excess, even excess covered by current law, that citizens can be
intimidated and harassed by officials. In McIntyre v. Ohio Elections
Commission, Margaret McIntyre, a local anti-tax activist who
distributed fliers opposing a school levy, was warned she was not
properly identified on them. Nonetheless, she distributed fliers at the
Middle School, where her children faced potential retaliation from
school officials. An assistant schools superintendent who learned
McIntyre's identity filed a complaint with the Ohio Elections
Commission in what one Ohio Justice characterized as ``retribution
against McIntyre for her opposition.'' \17\ The Supreme Court of United
States invalidated the Ohio statute, stating that ``[t]he decision to
favor anonymity may be motivated by fear of economic or official
retaliation, by concern about social ostracism, or merely by a desire
to preserve as much of one's privacy as possible.'' \18\
Requiring even the most grizzled or politically connected lobbyists
to register and report their attempts to solicit citizens on behalf of
an organization is also suspect. In Thomas v. Collins, the Supreme
Court struck down a Texas statute that required labor organizers--
defined as ``any person who for . . . financial consideration solicits
[citizens] for membership in a labor union``--to register with the
Secretary of State, provide his name and union affiliations, and wear a
State-issued organizer's card before soliciting membership in a labor
union.\19\ The State claimed the statute affected only the right to
engage in business as a paid organizer. The Court, however, held there
was a ``restriction upon the right [of the organizer] to speak and the
rights of the workers to hear what he had to say,'' \20\ and stated
that it is ``in our tradition to allow the widest room for discussion,
and the narrowest range for its restriction, particularly when this
right is exercised in conjunction with peaceable assembly.'' \21\
The potential for elite firms and private consultants to avoid
unpopular causes to protect their long-range economic interests, and,
in turn, to deprive unpopular organizations of competent representation
is not implausible. For example, in 2004, two radio jockeys in
Washington State (who, by the nature of radio, lacked anonymity)
stimulated grassroots activity by advocating the repeal of a newly
passed 9.5 cents per-gallon increase in the Washington state gasoline
tax.\22\ The jockeys were persuasive, and partly responsible for an
anti-tax initiative making the ballot with the fourth-highest number of
signatures of any measure in the history of Washington State. The
cities of Auburn, Kent, and Seattle filed suit against the radio
jockeys and their station five months before Washington's citizens
would decide the fate of the tax repeal. Id. The cities claimed that
the jockeys failed to report their commentary to the State as in-kind
contributions to the anti-tax initiative,\23\ which, had it passed,
would have cost the State of Washington $5.5 billion.\24\ Both parties
to the litigation are being represented for free; the cities by Foster
Pepper PLLC, one of the largest law firms in the Pacific Northwest,
with over 130 attorneys, and the firm handling the State of
Washington's bond issue for the gas tax increase. The radio jockeys
found free representation in a non-profit, public-interest law firm,
headquartered 3000 miles from Washington State.\25\
lobbyist abuse of non-profit organizations can be addressed in other
ways
Jack Abramoff allegedly abused non-profit organizations to cozy up
to lawmakers, shelter income, bankroll golf junkets, or bolster the
bank account of his Washington restaurant.\26\ Some cite this abuse of
outside organizations as demonstrating a need to require disclosure of
citizen donations to issue campaigns. But Congress may prevent
lobbyists from hiding gifts or bribes, or financing golf trips to
Scotland in more direct ways. Congress could require disclosure by
lobbyists, or perhaps even by non-profit organizations themselves, when
the non-profit makes direct contact with a lawmaker, that is, when a
non-profit organization hosts or entertains lawmakers with donations
from or directed by lobbyists, or when the non-profit accepts gifts
from lobbyists with instructions to lavish a portion of it on
lawmakers. But the passing of pecuniary interests from lobbyists to
lawmakers through non-profit organizations is not a justification for
requiring citizens who donate to issue campaigns, or the recipient
organizations, to disclose the amount of those donations, the timing of
those donations, or the name and home address of the donor.
conclusion
Anonymous grassroots lobbying is a long and honored tradition,
engaged in by many of the greatest Americans, including Lincoln and
Jefferson. The United States Supreme Court has recognized that
anonymous grassroots lobbying is entitled to the fullest protection of
the First Amendment.
The problem of lobbying abuses is one of lobbyist influence outside
the light of scrutiny. It is not a problem of citizen influence.
Grassroots lobbying encourages citizens to get involved, and the
involvement of citizens breaks the link between lobbyists and
lawmakers. Hence, grassroots lobbying should be encouraged in every way
possible, not discouraged, as a way to restore the trust of the
American people in Congress.
Stephen M. Hoersting is the Executive Director of the Center for
Competitive Politics and former General Counsel to the National
Republican Senatorial Committee.
Bradley A. Smith, former Chairman of the Federal Election
Commission, is Senior Advisor to the Center for Competitive Politics,
and Professor of Law at Capital University Law School in Columbus,
Ohio.
The Center for Competitive Politics seeks to educate the public on
the benefits of free competition, fairness, and dynamic participation
in the political process.
Nothing in this primer should be construed as advocacy for or
against any legislation.
------------
\1\ Tory Newmeyer, Hill Eyes a Treasure Trove, Roll Call, Feb. 13,
2006.
\2\ Spotlight, Politics: Earmark Debate Starting to Focus on
Transparency, not Reduction, Environmental and Energy Daily, Feb. 9,
2006.
\3\ ABC News Washington Post Poll, Majorities See Widespread
Corruption, Want Tougher Lobbying Restrictions, Jan. 9, 2006, available
at http://abcnews.go.com/Politics/PollVault/story?id=1487942.
\4\ ABC News Washington Post Poll, Majorities Disapprove of Bush on
Ethics, Favor Release of Abramoff Meeting Records, Jan. 27, 2006,
available at http://abcnews.go.com/Politics/PollVault/story?id=1547685.
\5\ Congressional Quarterly, Transcript of Hearing, Senate
Committee for Homeland Security and Governmental Affairs, Jan. 25, 2006
(comments of Senator Durbin).
\6\ See e.g. James Nash, Political Ties Costs Law Firms, Columbus
Dispatch, Feb. 15, 2006 at B1.
\7\ McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357
(1995).
\8\ Id. at 343.
\9\ Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance
Reform 7, 18 (2001); McIntyre, 514 U.S. at 361, 363 (Thomas, J.,
concurring in the judgment.)
\10\ Mills v. Alabama, 384 U.S. 214, 218 (1966).
\11\ Buckley v. Valeo, 424 U.S. 1 (1976).
\12\ McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
\13\ See McIntyre v. Ohio Elections Commission, 514 U.S. 334
(1995); Talley v. California, 362 U.S. 60 (1960); NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449 (1956). See also First National Bank of
Boston v. Bellotti, 435 U.S. 765 (1978) (non-anonymous corporate speech
on public issues protected by First Amendment).
\14\ Watchtower Bible v. Village of Stratton, 536 U.S. 150 at 153,
160 (2002).
\15\ NAACP v. Alabama, supra note 13, 357 U.S. at 462 (1956).
\16\ Robert Novak, DeLay Prosecutor Subpoenas Critics, Human Events
Online, Dec. 16, 2005. There was no dispute that the ads were
unconnected to any election.
\17\ Duane St. Clair, Campaign Pamphlets Must Bear Source, Court
Says, Columbus Dispatch, Sep. 26, 1993 at 5B.
\18\ McIntyre, supra note 7, 514 U.S at 341-342 (1995).
\19\ Thomas v. Collins, 323 U.S. 516, 519, n1 (1945)
\20\ Id. at 524
\21\ Id. at 530.
\22\ Neil Modie, ``Gas Tax Foes Are Fighting Back,'' The Seattle
Post-Intelligencer, p. B1 (Aug. 10, 2005).
\23\ Id.
\24\ Editorial, ``Gas Tax Repeal: Pennies or Projects?'' The
Seattle Post-Intelligencer, p. C2 (July 10, 2005).
\25\ Modie, supra note 22.
\26\ Chuck Neubauer and Richard B. Schmitt, Abramoff's Charity
Began at Home, Los Angeles Times, Feb. 11, 2006, at A1.
Mr. Nadler. Thank you, Professor, and I congratulate you
also for being under the 5-minute limit.
Mr. Mann?
TESTIMONY OF THOMAS MANN,
THE BROOKINGS INSTITUTION
Mr. Mann. Thank you, Mr. Chairman.
I wish I could say, ``Oh, shucks, I am from a town of 300
in Ohio.'' Instead, I have to admit I am from Milwaukee,
Wisconsin, which is much, much bigger.
I am delighted to be with you. Thank you for inviting me.
As the Chair said, this process of lobbying and ethics
reform has begun with the adoption of the House rules. There is
a bipartisan task force at work looking into the possibility of
building in some independent capacity into the ethics process.
Your Subcommittee is appropriately dealing with a lobbying
disclosure act and possible amendments to it.
I believe, like others, S. 1 is an excellent point of
departure for you. There are many sort of, I think, excellent
and non-controversial provisions in this bill that has passed
the Senate. And I urge you to use it as a basis.
But, obviously, there are two elements that are
controversial that are included in S. 1, and one that is not,
that is even more controversial, as the statement from the
Ranking Member, Mr. Franks, has indicted.
Let me just say, on the matter of, if you will, making,
arranging or collecting political contributions, I believe Mr.
Nadler, the Chair's statement about money is absolutely
correct. I believe, in this case, disclosure, transparency is
the best alternative.
And let me say, I don't view this as nefarious lobbyists
trying to ply you with money and to gain special advantage from
doing so. Frankly, I think you, as Members, individuals, as
political parties and the like, frankly, are under too much
temptation to ask for too much help from those who have
business before you.
And, in some respects, the best thing about transparency
here is that, if you think it is legitimate, if it won't
compromise your ability to make independent decisions on what
those lobbyists want out of Congress, even though they are
setting up fundraisers for you and arranging other
contributions for you, then you should have no objection to
having that information public. I think it is perfectly
legitimate for you to make the case that it is legitimate, but,
then, why can't the public know about it as well?
Second provision has to do, of course, with the revolving-
door provision. Again, we have a problem here. More and more
Members and staff are going to work immediately for lobbying
firms. This does not exactly set the tone that one would like.
There is just too much of a perception of private gain from
public service.
There is nothing wrong with lobbying, but if we could just
put a little breathing room in there, so that Members who are
leaving voluntarily or are defeated, and staffers, aren't sort
of so immediately and constantly thinking about how they will
build their lobbying business, it would be a healthy thing.
Ken raised appropriate points about the language, but I
think it is all--it is doable here, and I urge you to look hard
at that recommendation.
The third provision, final, is the grassroots lobbying.
Mr. Franks, if I thought any language would be passed by
this Subcommittee and Committee and full House that had the
effect of restricting those people you talked about, I would
strongly oppose it. So I am with you on the statement.
But from what I understand, we are talking about no
individuals, no lobbying organizations. We are talking about
lobbying firms and firms that are engaged in providing paid
advertising to influence specific legislative provisions with a
$100,000-a-quarter provision. It doesn't require any new
registration or reporting by individuals and existing
organizations, except those that are simply in the business of
doing--the reality is we are not talking about old-style,
grassroots lobbying.
We are talking about a very different set of activities,
now, that is central to lobbying in Washington. There is a lot
of research on this. It is a reality.
I urge you, Mr. Franks, to approach this with an open mind,
and if language can be found that achieves that broader
objective of massively funded lobbying campaigns by paid media
and exempts everything else, then maybe it is a good thing.
Thank you.
[The prepared statement of Mr. Mann follows:]
Prepared Statement of Thomas E. Mann \1\
---------------------------------------------------------------------------
\1\ The views expressed in this testimony are solely my own and
should not be ascribed to the trustees, officers, or other staff
members of The Brookings Institution. A brief resume is attached.
---------------------------------------------------------------------------
Mr. Chairman and other members of the Subcommittee, thank for you
inviting me to share my views of S. 1, the bill on lobbying reform
passed by the Senate earlier this year. The prosecution and guilty
pleas of lobbyist Jack Abramoff, Representatives Randy ``Duke''
Cunningham and Bob Ney, and several former congressional staff have
understandably brought to public attention the adequacy of laws,
congressional rules, and enforcement mechanisms regulating the
interactions between lobbyists and Members of Congress and their
staffs. These scandals, ongoing investigations of others, and the
widespread public perception of a culture of corruption in Washington
could provide the boost required to enact long-needed changes in that
regulatory system.
Lobbying has changed dramatically in recent years. The number of
registered lobbyists has tripled. Budgets for Washington representation
and grassroots lobbying have risen exponentially. Retiring or defeated
Members are now more likely to stay in Washington and join their ranks.
Congressional staff routinely move from Capitol Hill to lobbying shops
around town. Some Members have been actively involved in placing their
staff and those of their colleagues in key positions within the
lobbying community. Many Members enlist lobbyists to help raise
campaign funds for their re-election campaigns, leadership PACs,
endangered colleagues, and political party committees. The escalating
cost of campaigns has put intense pressure on Members, even those with
safe seats, and lobbyists to raise and contribute substantial sums of
money. At the same time, more opportunities exist for Members and their
leaders to deliver benefits to lobbyists and their clients. These
include earmarks, in appropriations and authorization bills;
invitations to participate in informal mark-up sessions in party task
forces, standing committees, and conference committees; amendments
added late in the legislative process under the veil of secrecy; and
letters and calls to executive branch officials. These conditions
foster practices that risk conflicts of interest and unethical or
illegal behavior.
The House began the process of ethics and lobbying reform at the
start of the 110th Congress by enacting in H. Res. 6 a number of rules
changes governing gifts, privately-financed travel, and earmarks. A
bipartisan task force has been commissioned to recommend ways of
strengthening the ethics process in the House, including some role for
an independent panel composed of former Members and others. What
remains to be done is the enactment of changes in law, most importantly
the Lobbying Disclosure Act of 1995 (P.L. 104-65), enhancing the
transparency of interactions between Members of Congress and lobbyists.
S. 1 is an excellent point of departure for your deliberations on
this latter responsibility. That bill, for example, very constructively
requires quarterly, instead of semiannual, filing of lobbying
disclosure reports, which are then made available to the public in a
timely and useable fashion on the Internet. It also increases the
penalties for failure to comply with lobbying laws and provides for a
GAO audit of lobbying reports.
One of the most important provisions of S. 1, and also one of the
most controversial, adds new language requiring lobbyists to disclose
contributions they make, arrange, or collect for Members, candidates,
leadership PACs, and political parties. These provisions, contained in
Section 212 of the Senate bill, are identical to the language of H.R.
633, introduced by Representatives Chris Van Hollen and Marty Meehan.
Unlike the restrictions on gifts and travel by lobbyists to Members
already contained in the House and Senate rules, the new language
provides for transparency, not prohibition. While federal campaign
finance law requires candidate and political committees to disclose the
source and size of contributions of at least $200, including those from
lobbyists, lobbying disclosure law is silent on contributions. Yet many
lobbyists are actively involved in political fundraising for Members
they seek to influence. In addition to direct contributions, these
efforts include administering leadership PACs, hosting fundraising
events, and soliciting contributions from others (commonly known as
``bundling'').
I believe public disclosure of these contributions from lobbyists
to members and their political and party committees would serve the
broad public interest without unduly invading the privacy rights of
lobbyists or making unreasonable reporting demands on them. The
language is carefully crafted to allow ``good faith estimate(s)'' of
funds raised from events or solicitations when precise figures on such
amounts are not available. To the extent Members believe such
contributions are legitimate forms of political participation and do
not compromise their ability to make independent decisions on
legislative matters of interest to the lobbyists making the
contributions, Members ought to be willing to make them transparent.
The inclusion or exclusion of this provision in the legislation adopted
by the House is likely to determine the seriousness of its response to
the scandals associated with Jack Abramoff and the K Street Project.
Another important and, therefore, controversial provision of S. 1
deals with the ``revolving door'' problem. Current law (18 U.S. C. 207)
provides for a one-year cooling off period before former Members can
lobby the legislative branch; also, former senior congressional staff
may not lobby their former employer, whether Member or committee, for
the same amount of time. The Senate bill extends the cooling off period
for Members from one to two years; the comparable period for senior
congressional staff remains one year, but the prohibition on lobbying
activity is extended to the entire Senate. In addition, the Senate bill
expands the lobbying activities covered during the cooling off period
from only direct contacts to include behind-the-scenes activities,
advice, or consultations in support of lobbying contacts.
Make no mistake, this is a very tough provision. It would make
former members and senior congressional staff less marketable in the
lobbying community upon their departure from Congress and reduce their
immediate post-Congress career options. But it would likely have a
healthy impact on the policy process and the state of American
democracy. The newly-defined cooling off period would encourage more
diverse career patterns among former Members and staff, diminish the
payoff from privileged connections and enhance the benefits of genuine
expertise, and begin to change a culture fostering the quest for
private gains from public service. I urge you to retain this language
in the House bill.
The last item I would like to raise with you is one that is absent
from the Senate bill, after a successful floor amendment to delete it
from the underlying bill. Grassroots lobbying campaigns now constitute
a major part of lobbying activities. Huge sums are spent on paid media,
computerized phone banks, direct mail, and other forms of public
communications to stimulate lobbying of Congress by citizens. Yet
professional grassroots (``Astroturf'') lobbying organizations and
lobbying firms are not required to report on the sums they spend on
these campaigns. It makes little sense to exclude these activities
whose costs may well exceed expenditures for direct lobbying.
The trick is to define these organizations and activities in a way
that does not restrict the free flow of information. New requirements
must also be crafted to avoid placing new reporting burdens on
organizations that spend relatively small sums on grassroots lobbying
or that are communicating with their own members or with the general
public to recruit new members. I understand efforts to amend the
original Senate language to reflect these concerns are well underway in
the House. I urge you to bring these negotiations to a successful
conclusion and include a grassroots lobbying disclosure provision in
the House bill.
In sum, I recommend that you look favorably on S. 1, in particular
its provisions regarding the disclosure of political contributions
(including bundling) and the slowing of the revolving door between
Congress and the lobbying community. I also recommend that you include
in the House bill a provision to require the disclosure of sums spent
on behalf of major grassroots lobbying campaigns. When combined with
the new House rules adopted in January and a strengthened ethics review
and enforcement process now being considered by a bipartisan task
force, such a lobbying reform bill would go a long way in responding to
scandals of recent Congresses and improving the ethical climate in
Washington.
Mr. Nadler. Thank you very much.
The direct testimony of the witnesses has concluded.
As we ask questions of our witnesses, the Chair will
recognize Members in the order of their seniority in the
Subcommittee, alternating between majority and minority,
provided that the Member is present when his or her turn
arrives. Members who are not present when their term begins
will be recognized after the other Members have had the
opportunity to ask their questions. The Chair reserves the
right to accommodate a Member who is unavoidably late or only
able to be with us for a short time, especially if there is a
competing Committee meeting at the same time.
I will begin by recognizing myself for 5 minutes.
Mr. Gross, you said in your testimony that the bundling
provision, as written in S. 1, is vague and open to
misapplication. Can you give us an example of how you think
this might be remedied?
Mr. Gross. I think that if you eliminate the arranged-for
part of the definition and define collecting as those checks
that you physically handle and perhaps those that you forward
in coded envelopes, you will narrow the ambiguity of the
provision and it will coincide with the FEC definitions of what
it means to be a conduit. So I think with those changes right
there, you would go a long way toward improving the provision.
Mr. Nadler. Thank you.
Let me ask--starting with Mr. Gross--then comment on the
other members of the panel--one of the concerns we hear about
Astroturf lobbying--that is, the provision that didn't get into
S. 1, but there are various suggestions about Astroturf
lobbying--is that they sweep too broadly.
Do the members have suggestions as to how to clarify the
definition, if necessary, between so-called legitimate--well, I
won't say ``illegitimate,'' but when you should face a
disclosure requirement, when you shouldn't, if at all?
Mr. Gross first, and then----
Mr. Gross. Well, yes, and some of those points have been
brought out already in the testimony. I think that you
certainly don't want to do anything that is going to affect the
associational rights within an organization or sort of
homegrown grassroots, if you will.
I think with dollar thresholds, as has been proposed in the
S. 1 and some, I think, other drafts that are going around now,
along with a specific situation where there has been an
engagement for hired--call it Astroturf, call it what you
want--a hired effort to artificially stimulate the community
with either e-mails or letter-writing campaigns, in that
situation, I think you can at least provide a law that has
clarity and limited application that is not going to infringe
somebody speaking on T.V.
Also, I think you need a specific call to action. If you
are going to define grassroots, it should be a specific
communication to call your congressman and vote yes on H.R. 15,
not some vague statement that, ``I don't like the Social
Security laws out there.''
Mr. Nadler. But, in other words--so let me see if I
understand one of the distinctions you are making. If the Right
to Life Committee or Common Cause or somebody spends $100,000
on revving up the troops to write Congress, that should not be
disclosable.
Mr. Gross. Right----
Mr. Nadler. But, if the Right to Life Committee or Common
Cause hires ABC law firm to stimulate people to write to
Congress, that should be disclosable, if it is over a certain
amount?
Mr. Gross. Yes. I think that would be something that could
perhaps withstand challenge.
Mr. Nadler. Yes.
Ms. Dufendach, the same questions?
Ms. Dufendach. With the exception that if that
communication was to increase membership for Common Cause, it
would not be included.
I think Congressman Meehan is actually working on a
proposal that is far narrower than the proposal that was
defeated in the Senate. And, in fact, we are told that no
organization at all would ever have to disclose under the new
proposal.
Even in the situation of Harry and Louise, the Health
Insurance Association would not have had to disclose. Only the
firm that actually did the campaign would have had to
disclosure who their client was, what the issue was----
Mr. Nadler. In other words, the firm that was paid by
somebody else----
Ms. Dufendach. Yes.
Mr. Nadler. ABC Advertising Corp. would have had to
disclosure that the American Medical Association, let's say--I
have no idea who did it, but the American Hospital Association,
whoever, hired them----
Ms. Dufendach. Health insurance.
Mr. Nadler. Whatever--hired them to gin up local letter
writing to Congress or whatever.
Ms. Dufendach. Yes.
Mr. Nadler. Thank you.
I am sorry that Mr. Meehan is not here to explain his
proposal.
Does anybody else want to comment on this question?
Mr. Smith. I would. Thank you, Mr. Chairman.
I would just disagree that the distinction really ought to
be made.
Mr. Nadler. Which distinction? I am sorry.
Mr. Smith. Well, the distinction between what should be
disclosed or what should not, or, some would say, what is
illegitimate or legitimate.
And I note that you began to say that and stopped. But I
think--because that is what we hear all the time is a lot of
these folks do think that some of the stuff is illegitimate,
and we get used to talking in those terms.
It is not illegitimate. It is not illegitimate for a group
to spend money to try to get citizens to talk. And I would
suggest that what is wrong with Harry and Louise?
First, everybody knew who was behind Harry and Louise. This
was not a big secret.
Second, what is wrong with that? American citizens watched
their televisions and they saw something----
Mr. Nadler. We are running out of time.
Mr. Mann, quickly?
Mr. Mann. Thank you.
Mr. Nadler. Do you have a comment on this?
Mr. Mann. Nothing is wrong. And if nothing is wrong, what
possible objection is there to the firms, not the
organizations, being required to report this as lobbying
activities? It is a reality. There is nothing wrong with it. It
is perfectly legitimate. Let's disclose.
Mr. Nadler. Thank you, Mr. Mann.
My time has expired.
Mr. Franks?
Mr. Franks. Thank you, Mr. Chairman.
Professor Smith, I almost hate to ask you a question
because your testimony itself was so compelling in my mind.
But, you know, the term ``grassroots lobbying'' encompasses
a broad array of activities, such as simply encouraging other
people to contact their Federal officials, regardless of their
opinion on an issue.
And I am wondering if you think that criminal penalties for
failure to comply that include prison and large fines would
stifle large amounts of legitimate speech, when people just
refrain from speaking simply to avoid an overzealous
prosecutor?
Mr. Smith. Well, surely the threat of penalties discourages
people from speaking. If people think they might be subject to
penalties if they get the law wrong, they don't want to do it.
The question comes up, ``Well, what is wrong with requiring
disclosure? It is just disclosure, you know? I mean, what is
wrong with that?''
Well, you know, you don't see the letters we get from
people at the FEC who were fined real money for trying to
comply with disclosure laws and making mistakes. And we have to
think about people.
Would it be better--I mean, there are many unpopular causes
out there, and there are many of the groups that are capable of
running grassroots campaigns and stimulating citizen
involvement in Government who are reliant on their reputations
in Congress and working in Congress.
You know, I know, Mr. Chairman, you have expressed a lot of
concern about the K Street Project over the years. Well, what
is grassroots lobbying disclosure, other than a way to
implement another K Street Project? You find out, well, who is
paying for this? What firms? And then you can pressure those
firms. And you say, ``We don't like your clients. We don't like
who you are hiring as lobbyists.''
The wonderful thing about non-disclosure is that is not a
threat, and there is not a threat to Government, again, because
we have that voter who is choosing to take action.
And voters are misinformed by all kinds of things. Like I
said, a New York Times editorial will misinform any voter, you
know? Voters get information from all kinds of sources, from
talk radio, from grassroots campaigns, from Websites, from
Rotary Club speeches.
We want to encourage voters to get involved, and they are
your real constituents, and you need to deal with it. And will
this kind of disclosure chill speech? Sure it will. The Supreme
Court has recognized that in case after case.
I will be real quick here, but Mr. Gross mentioned that he
thought the court would uphold this kind of disclosure under
Harris. Well, a lot of water has gone under the bridge since
Harris, a lot of first amendment water in the last 50 years,
including, NAACP v. Alabama, Talley v. California.
McIntyre v. Ohio, election commission specifically
distinguished, in holding that you couldn't require disclosure,
noted that Harris was different because it involved the
activities of lobbyists who have direct access to elected
representatives. And that is an opinion by Justice Stephens,
giving a very narrow interpretation to Harris.
I think that if you take this present court and the way it
has gone on disclosure, it has consistently said that only in
the narrow context of specific candidate elections can you
uphold it. And they have done that because they recognize, Mr.
Franks, that, yes, it has a chilling effect on speech.
Mr. Franks. Well, thank you, Professor.
Mr. Gross, the Federalist Papers were essays written by
James Madison and Alexander Hamilton. They were defending the
ratification of the Constitution that we live under today, and
they were written anonymously and published in newspapers under
pen names, pseudonyms, precisely because those Founding Fathers
wanted to cause people to think about the substance of what
they were saying, rather than who was saying it.
And with sincere respect, to use your words, were they
artificially stimulating pubic opinion when they did that?
Mr. Gross. I don't know. In that situation, probably not.
The words ``artificially stimulating'' come from the U.S.
Supreme Court in the Harris case. And I guess, you know, it is
a question of definition whether this is a hired effort in the
modern-day, sophisticated effort to influence thinking.
I certainly would distinguish any homegrown effort, such as
the Federalist Papers, and there is some Supreme Court support
for anonymity for that type of distribution in the McIntyre
case, as Professor Smith has mentioned.
But I do think that can be distinguished from the hiring of
outside vendors to engage in certain types of--we call it
Astroturf, call it what you will--communications with a call to
action with dollar thresholds in it.
It is a challenge. It is not the easiest thing in the world
to do, I would admit that, but I think it can be done.
Mr. Franks. Thank you, Mr. Chairman. I think it would be
tough for me to get another question in.
Mr. Nadler. Well, thank you.
The distinguished Chair of the Committee, Mr. Conyers?
Mr. Conyers. Thank you, Chairman Nadler.
There are so many fine lines here, but I would like to
begin with the question about independent ethics commission,
because, as I understand it, Common Cause thinks this is a good
idea, and ACLU does not--two of my friendly organizations.
Could you begin a discussion with this, Ms. Dufendach?
Ms. Dufendach. I am unaware that the ACLU has said that,
but I can give you an idea about why Common Cause thinks that
it is a good idea.
I think perhaps the best way to say this is, at this point,
the Ethics Committee in the House has so little credibility
that it cannot even protect the innocent. It cannot even, with
any credibility, dismiss a complaint that is completely
frivolous, because no one has any faith in it.
And the thing that might be the most benefit to Members
right now is that an independent body could, in fact, do that,
could do it quickly, swiftly and have penalties for people who
purposefully file a frivolous complaint.
At this point, the Ethics Committee can't--it has been
proven that it doesn't hold the guilty to task, and it can't
even really protect the innocent.
If you have a specific question about constitutionality or
anything like that, I could go forward with that. Otherwise, I
will stop.
Mr. Conyers. Well, we were hoping that the Ethics Committee
had a new slate, now that they are in a new Congress with a
great change in their membership. We don't want to have the
problems of the past just hang over whoever joins the Committee
from this point on. Goodness knows we wouldn't want that to
happen to the Judiciary Committee.
Ms. Dufendach. If I could just comment. Frequently, people
say that if only the right people could get put on the Ethics
Committee, it would function. But I think over the last 30
years, at some place--who decides who are the right people? And
over the last three decades, it has proven that it can't. It
either----
Mr. Conyers. You don't think there have been any----
Ms. Dufendach [continuing]. Too much or doesn't do enough.
Mr. Conyers. There have been some right people.
Ms. Dufendach. Well, I think the idea of the institutions
of a democracy are to set up systems and functions where, no
matter who is in control, the system will allow the democratic
process to move forward.
Mr. Conyers. Ken Gross, do you think this is a stretch here
that we should try to keep an independent ethics commission or
that it might create constitutional problems?
Mr. Gross. It is conceivable that you could set up an
investigative body that wouldn't abridge constitutional
concerns.
I am kind of lukewarm on it. I think a lot of the problems
that the Ethics Committee has had are procedural problems that
only one Member can file a complaint at another Member. And
people don't like firing lines assembled in the shape of a
circle.
And, you know, I think if there were complaints, credible
complaints that could come in, and the Ethics Committee is
staffed properly, that it could be handled within that
mechanism without creating another entity, another process,
which will have investigative powers only, which will, then,
ultimately, have to refer, presumably, to an ethics commission.
So I think with modification of some of the procedures that
were in place, we don't have to go that route.
Mr. Conyers. Professor Smith, I wasn't clear on why you
thought calling Astroturf--using the term ``Astroturf''
lobbying is something that you consider distasteful. When I
hear the term, I am thinking of the phenomenon of groups that
are pretending that they are grassroots groups and they are
really not at all. They are the product of some clever
consultant. How do you view that?
Mr. Smith. Yes, Mr. Chairman. Let me say here is what I
would think of in my definition as an Astroturf lobbyist: There
is a group that is pushing for this regulation that is an
organization called Democracy 21. It is headed by a guy named
Fred Wertheimer.
They have no members. Fred Wertheimer is a registered
lobbyist. His power comes because his wife is a prominent
journalist, and he has direct access to the editorial pages of
The New York Times, right?
To me, he is an Astroturf lobbyist. He purports to come in
and speak for the American people, but he speaks for himself.
He doesn't have any members to account to or anything. It is
funded by a few foundations.
When a group, even if it is a business group or something,
goes out and contacts your voters, they are contacting people
who are real voters. They are members of what we call the
grassroots. And if those people choose to contact you, they are
still grassroots real voters, who are now contacting you.
And so I think this idea that their opinions are somehow
false, or Astroturf, because somebody was paid to contact them
is very wrong. And I cannot understand the philosophy would
say, ``There is absolutely nothing wrong with this, but we need
to regulate it.''
Mr. Conyers. Let me ask Ms. Dufendach if she agrees with
the Wertheimer comparison, since he came out of--didn't he
start Common Cause?
Ms. Dufendach. No, no, no. John Gardner started Common
Cause.
Mr. Conyers. Very well. Okay.
Mr. Nadler. The gentleman's time has expired, but I will
permit Ms. Dufendach to answer the question.
Ms. Dufendach. I think when asked what is the problem that
we are trying to correct here, what it is is you have got $17
million, $20 million worth of ad campaigns going on nationwide.
Everybody is seeing them. It does make a difference who is the
sponsor of them. It serves to put context to what is being
said.
No one is saying that they can't do it. Nobody is saying
that they don't have the right to lobby, and lobby in this way.
All we are saying is please let us know who is behind this,
so we can judge for ourselves what the message is or the motive
or the objective of this particular ad campaign is.
Common Cause is a grassroots organization. If I thought
that this was going to imperial our talking with our Members or
in any way doing our grassroots, I would not be so in favor of
it.
I will also just say that the Sierra Club was opposed to
the Senate version of this Astroturf. They now have seen the
very narrow new proposal that is being crafted, and they are
for it.
Mr. Nadler. Thank you, Ms. Dufendach.
The gentleman from Indiana?
Mr. Pence. Thank you, Mr. Chairman. I appreciate you
holding this hearing and the civility with which it is being
conducted, and the thoughtful presentations of the panel.
With regard to the independent ethics commission, I would
observe that it is interesting. I find your comments
provocative, Ms. Dufendach.
But it does seem to me that the call for an independent
ethics commission in Congress was a call for creating something
similar to the Independent Counsel Act that there is broad
bipartisan opinion in Washington that that has been a disaster,
to create kind of an extra constitutional agency of Government.
Whitewater investigations become investigations into lying
about sex with interns. Investigations into classified leaks
become prosecutions over perjury before grand juries. I would
just observe that as a cautionary note with regard to that
comparison for your consideration.
Let me just say, I supported bipartisan legislation in the
House in January for greater disclosure. I commend the majority
for their leadership on ethics and earmarks. And so, to Mr.
Mann's point, I am open to new ideas about how we create
greater transparency and greater accountability.
I am just really struggling with this grassroots provision,
to be candid, and that has to do with my concern about the
chilling effect.
And I guess I would like to direct my questions, maybe
first to Mr. Mann, and to the extent that--the panel, Mr.
Gross, and Mr. Smith in particular.
My question is, it seems to me that what has been talked
about here--the dollar threshold or the rest--all of this
activates, if, in fact--not if grassroots lobbying goes on to
generate context to Congress, but if someone is hired to help
do that.
It does seem to me that I am perfectly free, if I was a
private citizen, to go out and encourage people to write my
congressman. But I get into a whole range of disclosures if I
hire somebody who actually knows how to do that. So as long as
I am kind of learning on my own how to do it and encouraging
people, as opposed to hiring someone who professionally knows
how to do it, that I am okay, under some of what has been
discussed.
And I hold the view Common Cause is a storied organization.
Might be startled to know when I first ran for Congress 15
years ago, I refused PAC money. I was the first Republican to
do that. I have gotten over that. But Common Cause was harshly
critical of me, even though I was advocating something they
promoted at the time. But that was okay. My veteran father
said, ``I can disagree with everything you say. But I will
fight to the death for your right to say it.''
So my question to the panel is is there any concern about a
chilling effect? Would this encourage or discourage a diversity
of views being expressed to Congress by the American people, if
we essentially create a new hurdle, when people who are good at
what they do, who are professional at what they do are engaged
in assisting?
I am beginning with you, Mr. Mann.
Mr. Mann. Mr. Pence, I think that is very well-stated. I
mean, that is the issue. And the key here is in adding any new
disclosure provision that you don't have that chilling effect,
that you don't discourage speech.
My personal view is the more speech the better. That is why
I am not in a related area, campaign finance. I am not in the
business of eliminating money, reducing money. But I do
believe, in the old days, if you will, one segment of the
reform community said, ``Let's deregulate and disclose.'' Now,
they are moving to deregulate and don't disclose.
My view in this area is that you need to craft this
provision in which no individual who hires professional help is
going to have any reporting requirements at all. That is, you
have to set this up so that what you are getting at is major or
major paid communication campaigns to influence the general
public to lobby Congress on a particular piece of legislation.
And the only reporting requirement is from the firm that is
taking in, say, $100,000 a quarter or more from a particular
client.
If you set the limits in that way, you are not going to
touch any of the legitimate areas of concern that Mr. Franks
and that Professor Smith have discussed, in my view.
Mr. Nadler. Time has expired, but I see Mr. Gross----
Mr. Pence. Thank you, Chairman.
Mr. Gross. I don't think it is that far of a leap from what
we are already requiring for direct lobbyists, that type of
disclosure. And 31 States, based on the last survey that I did
of States, actually has some form of grassroots disclosure
right now.
Mr. Nadler. Thank you. Does anybody else want to comment on
that particular point?
If not, the gentleman from Alabama?
Mr. Davis. Thank you, Mr. Chairman.
I know one of the purposes of this hearing is not so much
to wade into the details of the legislation, but with four of
you to talk about some of the theoretical underpinnings.
Let me make two observations.
I certainly take the concerns of my friend from Indiana,
and I take the concerns, I take it, Professor Smith, that you
have raised, but I don't understand the constitutional
argument. I don't understand the argument that there is somehow
a constitutional impediment on speech if we curtail lobbying
activity in terms of more disclosures, in terms of more
information being provided to the general public, for a very
simple reason.
The class of people or the class of entities who choose to
lobby Congress or who choose to lobby Federal agencies is a
self-selected group of folks. They decide to engage in a
particular calling, that of lobbying. It is their right to do
that.
But it seems to me that the institution that is being the
subject or the target of that speech, if you will, can put
certain reasonable restrictions on time, place, or manner, can
put certain reasonable restrictions on how that speech is
received, how it is parceled out, and how it is disclosed. And
without boring everybody here with 100 hypotheticals, that is a
fairly bed-of-rock constitutional principle.
So I don't understand the force of the argument that
somehow we are curtailing the ability of individuals to engage
in speech, because we limit how and when they can do it and who
they have to tell about it.
The second point that I want to make, again, going back to
the broad atmospherics here. It is important. The status quo
that we have is under attack. I agree with that. And there is a
good reason it is under attack.
Right now, I don't think anybody in this room disputes the
obvious. Certain entities and certain individuals have more
sway over this institution than others, and it is almost always
a matter of resources and ability to mobilize. And, by the way,
last time I checked, ability to mobilize is tied, first and
foremost, to resources.
All of us who have set in this institution the last several
years have seen riders added to appropriation bills. We have
seen votes on suspensions.
Number one, several years ago, we were having a vote on
something fairly innocuous involving whether foreign companies
could sell parts to China that they could use as part of their
missile program. And the thing was about to pass
overwhelmingly, and Boeing discovered that it might somehow
restrict some of their sales in some way, shape or form. And
130 Members of the House went down to the well to change their
vote on a suspension bill.
Now, whether that was a meritorious decision or not, I
don't think anybody can cite an example of a bill being on the
floor and 130 Members going down to change their vote, because
they discovered, all of a sudden, maybe this cuts the S-CHIP
program more than we would like, or, ``Gee, maybe this affects
funding for Medicaid in my State.'' I have never seen 130
Members change their vote over that kind of thing.
There is a reason for that world. There is a concentration
of power and resources on one side.
So I agree with some of the observations that have been
made that some of this bill may sweep a little bit further than
necessary. But there, frankly, may be a good reason that we
have to do that, because the system now is so weighted and so
imbalanced in one particular direction. So we may have to err
on the side of regulation and disclosure to correct that
imbalance.
Any responses to any of those observations?
Mr. Smith. As the one who has made the constitutional
argument here on the panel, I guess I feel it is appropriate to
respond, Mr. Davis.
I would go back to the question of what is the harm that
you are attempting to address? Where is the harm in citizens
hearing about issues, even if it is from a paid campaign? Why
is that harmful to them?
Now, the only thing I have heard from harm is Ms.
Dufendach, who has said several times, ``Well, we just have to
know.''
Mr. Mann keeps saying we have to know, but he doesn't even
say why.
Ms. Dufendach says, ``Because, otherwise, we can't judge
the
----''
Mr. Davis. Isn't the harm the imbalance, Professor Smith?
Mr. Smith. Well, but here is where I want to get directly
into your question, the imbalance is not something--the Supreme
Court has rejected the notion that you can regulate speech of
citizens in order to try to create equality.
Furthermore, in Buckley v. Valeo, the Supreme Court
rejected the notion that restrictions on money spending for
speech can be viewed as time, place and manner restrictions,
because they are aimed directly at the speech, not at the time,
place and manner.
And the court has consistently upheld the right of citizens
to engage in anonymous speech. It has recognized only one
constitutionally justifiable reason, and that is preventing
quid pro quo corruption, and that corruption is not present
where you are being contacted by voters----
Mr. Davis. Hasn't the court said recently, in the Missouri
case a few years ago, that the appearance of quid pro quo is
also a constitutionally recognizable----
Mr. Smith. Certainly, the appearance--yes, that is correct.
Mr. Davis. And isn't all of this consistent with that
Missouri ruling? Isn't it all aimed at appearance?
Mr. Smith. I would say absolutely not because it still has
to be the appearance of quid pro quo corruption. And, like I
say, the one thing I don't----
Mr. Davis. Wasn't that interpreted broadly in the Missouri
case? That case dealt with campaign contribution.
Mr. Smith. Well, but that is campaign contributions
directly to candidates. And the view was that even though you
were probably not corrupted when somebody gave you a $1,000
contribution----
Mr. Davis. Right.
Mr. Smith [continuing]. Somebody might think you were.
Mr. Davis. Right.
Mr. Smith. But it dealt with specifically with
contributions to your campaign.
Mr. Davis. Doesn't the logic extend past contributions?
Mr. Smith. No, it does not, because, in that case, you have
a citizen who contacts your office. Are you corrupted when one
of your constituents contacts your office? I don't believe you
are.
Mr. Nadler. The gentleman's time has expired.
The gentleman from California?
Mr. Issa. Thank you, Mr. Chairman.
Professor Smith, I do want to follow up a little bit.
First of all, my understanding is the Supreme Court held
that privacy was a right. You know, we often argue over
abortion up here on the dais, but isn't--just go through, sort
of, an analysis.
Isn't your ability to have a private vote, to go into a
voting booth, although it is not as explicitly said in the
Constitution, isn't there a general belief that you should have
the privacy of the voting booth, that no one should know how
you voted?
Mr. Smith. Well, I think at least most people would agree
with that, yes.
Mr. Issa. Okay. Isn't it, every single place in the United
States, if you vote for one of us up on the dais, you vote
privately, that it is not open to the public in any way, shape
or form?
Mr. Smith. I believe that is true.
Mr. Issa. Other than the tally. Okay. Well, following
through on this, if, in fact, you have a private right of
communication, then that private right of communication is
abridged by this reporting.
And we are talking about you didn't give a contribution. We
already regulate contributions, but just the ability to
communicate privately is abridged, by definition, if we tax it
with these procedures.
Mr. Smith. I think that is correct.
Mr. Issa. Okay. Following the same line, though, we
overtly, as a country, decided that poll taxes were wrong,
didn't we?
Mr. Smith. Yes.
Mr. Issa. And that is a tax on or fee on executing your
constitutional right, right?
Mr. Smith. Correct.
Mr. Issa. So if an individual or group of individuals want
to exercise their constitutional right related to voting, we
have asserted, constitutionally and through numerous court
action, that you have a right to do these rights privately, and
that you are not to be taxed or charged a fee unduly on them.
SMITH; Well, I think that is correct. And I think it goes
as well to the chilling effect that has been brought up by Mr.
Pence and by the Ranking Member and that has been recognized by
the court repeatedly.
There is a chilling effect. The court has recognized it
over and over. And I go back to it doesn't really matter why.
As Justice Stephens said in McIntyre, he said, ``The decision
to favor anonymity may be motivated by fear of economic or
official retaliation, by concern about ostracism or merely by a
desire to preserve as much of one's privacy as possible.'' I
think that is exactly right.
Mr. Issa. Now, I am a Californian, and there is a kind of
an interesting thing in California. When you go to vote in
California, we can't ask you for a driver's license or other
proof of who you are. Did you know that?
Mr. Smith. I was not specifically aware, I guess, of where
we stood in California.
Mr. Issa. Well, it is something that I have long wanted to
change. This Committee has worked on trying to get reforms that
would require that if you want to vote, you prove you have a
right to vote. And the folks that are not presently on the
other side of the aisle, but when they are present on the other
side of the aisle, have pushed back on that. And one of the
reasons is because that if we had the audacity to demand that
you prove you have a right to vote that we would be pushing you
away from the voting booth.
Isn't reporting by grassroot groups, both a tax and an
elimination of anonymity? And wouldn't it, at a minimum, have--
and I think you have already quoted once--a potential chilling
effect? And isn't that what we are dealing with here today is
that that--that potential exists every bit as much in this
legislation as it exists in polling-place observation, polling-
place--if you put the Border Patrol at all the voting places in
California, et cetera?
Mr. Smith. If you make it hard for people to hire skilled
consultants, because those consultants are afraid they are
representing an unpopular cause, and they rely on the good will
of folks here in Washington, it very definitely has that
effect.
And to elaborate briefly, you mentioned the tax thing, the
cost of reporting can be very considerable. Many organizations,
not big ones, spend $50,000, $60,000 a year or more----
Mr. Issa. And last but not least, isn't the most
influential group probably in the United States right now
MoveOn.org, a 527, backed by hundreds of millions of dollars by
just one person who wants to have huge influence, who does so--
or at least they are on the top 10?
Mr. Smith. I will leave it as your characterization. They
have been a very influential group and were started----
Mr. Issa. Right.
And last but not least, this legislation, wouldn't it also
impact groups like EMILY's List? Because this, in fact, talks
about bundling. If we are going to get into bundling, then
wouldn't we envision that EMILY's List would be restricted to
one contribution and not dozens and dozens only given to pro-
abortion Democrat women?
Mr. Smith. Well, I don't know exactly enough of how EMILY's
List works, but bundling can affect a lot of people. And it
points up that this is not, as some have tried to make it, sort
of a partisan issue. You have got the ACLU and a wide variety
of groups on both sides of the spectrum are concerned about
this.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Nadler. We have no more Democratic Members who wish to
ask questions, so that the Ranking Member's fears were
misplaced.
We will be able, with one more Republican asking questions,
to finish in time to get to the vote. So I recognize the
gentleman from Ohio.
Mr. Jordan. I appreciate there seems to be consensus
developing on the definitions and the vagueness there, at least
I heard from a couple of the panel. Appreciate that. And it
certainly seems to be something that the Committee can work on.
I want to just go back to the principle that--relative to
the grassroots lobbying issue that Professor Smith has brought
out, just this fundamental idea that citizens contact their
Government and why that is a good thing.
I mean, my guess is all the members of the panel and
probably every Member of Congress is like our office. I have
just been in office 2 months, but one of the things we take
great pride in is how we respond back to the constituents who
get a hold of us. So I actually do something each evening,
because I can't get home to my family. We are here all week,
and family is back in Ohio.
I take 10 or 12 people who have contacted our office that
day and call them back. And it is amazing how many times that--
you know, the first one, I say, ``This is Congressman Jordan
calling,'' that they will say, ``Really?'' I mean, it is just
amazing that they are talking to--you know--the guy that they
may have voted for, but who at least represents them.
So I guess I come back to this concept. Professor Smith has
probably said it best. What is wrong with some organization,
some entity motivating citizens to contact their
representative?
And to call it Astroturf, to call it artificial, to call it
illegitimate doesn't make sense. It seems that is a good thing.
In fact, I think the Chair, if I wrote his statement down
correctly in his--or in his opening statement, talked about a
private citizen without a PAC should get as much attention as a
lobbyist with one. And this would seem to help that citizen
have a better chance of talking to their representative, the
representative responding back to them.
So, again, just walk me through--and we have had--I looked
at the testimony. I think Mr. Gross had talked about the
concerns over the now-deleted provisions have been generally
overstated. We have got that kind of general statement versus
what Mr. Smith has said, that it is a chilling effect, that it
is unconstitutional, that it is a terrible concept to pursue.
Just elaborate a little bit more, if you could.
Mr. Gross. Well, I think the road we are going down here is
that there is something unholy or improper about a hired gun in
a lobbying process, or at least there is some chilling effect
if you hire somebody to lobby. And, now, we are even talking
about maybe direct lobbying.
You know, all we are talking about here is disclosure. It
is true that disclosure--I mean, you have the right to address
your Government. It is a first amendment-protected right. The
disclosure of that, whether it is direct lobbying or indirect
lobbying, is a minimal intrusion on that right.
So the question is is it a justifiable intrusion? And--go
ahead.
Mr. Jordan. Right. It certainly is. I mean, I think about
our campaign account. We have a lawyer, who is a CPA, who is--
He asks me--I mean, down the line--and it is still tough to get
everything right to comply with campaign finance.
Now, we are talking about the influence it is going to have
on citizens or groups who may spend whatever the threshold
amount winds up being. That certainly is a chilling effect.
Mr. Gross. There is----
Mr. Jordan [continuing]. For someone who hires, we hire a
good person to do our stuff, because we want to get it right.
Mr. Gross. And even requiring direct lobbying, which no
one, I think, is disputing, the disclosure of direct lobbying
is an intrusion as well. If you go out and hire a lobby firm
and you gotta keep track of this and report it on your LDA form
every quarter, there is an intrusion there as well.
The court has said if there are large amounts of money
spent to influence the process--campaign finance is one thing.
That you can actually limit. But if it is a large amount of
money to influence the process, and it is not interfering with
associational rights, that that disclosure of the dollars spent
on that is a minimal intrusion against the possible corrosive
effect that undue amounts of money can have on the process,
whether it is direct or indirect. That is the constitutional
underpinning for the disclosure of any of this, which is an
infringement. No question about it.
I don't know how else to address it, except that I think if
you narrowly draw that extension, just by hiring, just by
requiring disclosure of a hired gun in certain situations is
not an overwhelming, chilling effect for direct or indirect
lobbying.
Mr. Smith. Mr. Jordan, if I could briefly comment----
Mr. Gross. In fact, it is----
Mr. Smith [continuing]. I would say that one of the things
that has been overlooked, too, is there is an effort to do this
through members, and say, ``Well, we will exempt membership
organizations.''
In addition to the Chair's comment, why should you be
limited if you don't have a PAC, why, if you haven't had the
foresight to form a big membership organization 10 years in the
past, should you now be limited in your ability----
Mr. Jordan. Right. Good point.
Mr. Smith [continuing]. To speak to the American people.
Mr. Mann. The court has upheld disclosure in campaign
finance. The Lobbying Disclosure Act is not, as far as I know,
under challenge. Constitutionally, this is a fairly minor
addition to it. All of the disclosure responsibility is not
with individuals----
Mr. Nadler. Thank you. Thank you.
Mr. Mann [continuing]. With others.
Mr. Nadler. Thank you.
The gentleman's time has expired.
We have less than 5 minutes on a vote.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as you can, so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
Without objection, I thank the Members of the panel. I
thank the witnesses. I thank the Members of the Committee.
With that, the hearing is adjourned.
[Whereupon, at 11:37 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record