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33–626 PDF 2007

S. 1, THE SENATE APPROACH TO

LOBBYING REFORM

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 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director-Chief Counsel 

SEAN MCLAUGHLIN, Deputy Chief Minority Counsel/Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

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

Page

IV

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 69

(1)

S. 1, THE SENATE APPROACH TO

LOBBYING REFORM 

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. 

2

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 

3

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 highprofile 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 

4

1 Rumely v. United States, 345 U.S. 41, 47 (1953).

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: 

‘‘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. . . .’’

5

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:]

6

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDI- CIARY, 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 

7

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 

8

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. 

9

Ranking Member Smith believes this should be an across-theboard 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——

10

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 minuteand-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 

11

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. 

12

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 

13

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. 

14

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 agVerDate 0ct 09 2002 10:06 May 17, 2007 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 F:\WORK\CONST\030107\33626.000 HJUD1 PsN: 33626
15

gregate 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 letterwriting 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? 

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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. 

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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:]

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PREPARED STATEMENT OF SARAH DUFENDACH


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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. 

41

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. 

42

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 ordiVerDate 0ct 09 2002 10:06 May 17, 2007 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 F:\WORK\CONST\030107\33626.000 HJUD1 PsN: 33626
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nary 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 naı ̈ve believe it will mean the end of the professional, inside-thebeltway 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 expliVerDate 0ct 09 2002 10:06 May 17, 2007 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 F:\WORK\CONST\030107\33626.000 HJUD1 PsN: 33626
44

cation 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, § 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, § 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 

45

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 

46

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 naı ̈ve 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. 

47

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 understandVerDate 0ct 09 2002 10:06 May 17, 2007 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 F:\WORK\CONST\030107\33626.000 HJUD1 PsN: 33626
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able 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 

49

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 nonprofit 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 

50

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.

—————— 1Tory Newmeyer, Hill Eyes a Treasure Trove, ROLL CALL, Feb. 13, 2006. 2Spotlight, Politics: Earmark Debate Starting to Focus on Transparency, not Reduction, ENVI- RONMENTAL 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). 6See e.g. James Nash, Political Ties Costs Law Firms, COLUMBUS DISPATCH, Feb. 15, 2006 

at B1. 7McIntyre 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.) 10Mills v. Alabama, 384 U.S. 214, 218 (1966). 11 Buckley v. Valeo, 424 U.S. 1 (1976). 12McConnell v. Federal Election Commission, 540 U.S. 93 (2003). 13See 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). 14Watchtower 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. 17Duane St. Clair, Campaign Pamphlets Must Bear Source, Court Says, COLUMBUS DISPATCH, 

Sep. 26, 1993 at 5B. 18McIntyre, supra note 7, 514 U.S at 341–342 (1995). 19Thomas 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). 25Modie, 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? 

51

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 

52

1The 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. 

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

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 

53

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-thescenes 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 slowVerDate 0ct 09 2002 10:06 May 17, 2007 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 F:\WORK\CONST\030107\33626.000 HJUD1 PsN: 33626
54

ing 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 letterwriting 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 

55

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? 

56

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, 

57

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 

58

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 

59

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. 

60

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. 

61

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. 

62

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? 

63

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. 

64

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. 

65

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. 

66

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——

67

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.] 

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f


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f


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123


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124


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126

f


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127


140001.eps
128


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130


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131


140005.eps
132


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133


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f


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176


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f


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f


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170009.eps
195

Æ


170010.eps