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+ - S. 1, THE SENATE APPROACH TO LOBBYING REFORM
+
+[House Hearing, 110 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+
+
+ 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
+
+ ______
+
+
+ U.S. GOVERNMENT PRINTING OFFICE
+ WASHINGTON : 2007
+
+33-626 PDF
+
+For Sale by the Superintendent of Documents, U.S. Government Printing Office
+Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
+Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
+
+
+ COMMITTEE ON THE JUDICIARY
+
+ JOHN CONYERS, Jr., Michigan, Chairman
+HOWARD L. BERMAN, California LAMAR SMITH, Texas
+RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
+JERROLD NADLER, New York Wisconsin
+ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
+MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
+ZOE LOFGREN, California BOB GOODLATTE, Virginia
+SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
+MAXINE WATERS, California DANIEL E. LUNGREN, California
+MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
+WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
+ROBERT WEXLER, Florida DARRELL ISSA, California
+LINDA T. SANCHEZ, California MIKE PENCE, Indiana
+STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
+HANK JOHNSON, Georgia STEVE KING, Iowa
+LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
+BRAD SHERMAN, California TRENT FRANKS, Arizona
+ANTHONY D. WEINER, New York LOUIE GOHMERT, Texas
+ADAM B. SCHIFF, California JIM JORDAN, Ohio
+ARTUR DAVIS, Alabama
+DEBBIE WASSERMAN SCHULTZ, Florida
+KEITH ELLISON, Minnesota
+[Vacant]
+
+ Perry Apelbaum, Staff Director-Chief Counsel
+ Sean McLaughlin, Deputy Chief Minority Counsel/Staff Director
+ ------
+
+ Subcommittee on the Constitution, Civil Rights, and Civil Liberties
+
+ JERROLD NADLER, New York, Chairman
+
+ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
+DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
+KEITH ELLISON, Minnesota DARRELL ISSA, California
+JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
+ROBERT C. SCOTT, Virginia JIM JORDAN, Ohio
+MELVIN L. WATT, North Carolina
+STEVE COHEN, Tennessee
+
+ David Lachmann, Chief of Staff
+
+ Paul B. Taylor, Minority Counsel
+
+
+
+ C O N T E N T S
+
+ ----------
+
+ MARCH 1, 2007
+
+ OPENING STATEMENT
+
+ Page
+The Honorable Jerrold Nadler, a Representative in Congress from
+ the State of New York, and Chairman, Subcommittee on the
+ Constitution, Civil Rights, and Civil Liberties................ 1
+The Honorable Trent Franks, a Representative in Congress from the
+ State of Arizona, and Ranking Member, Subcommittee on the
+ Constitution, Civil Rights, and Civil Liberties................ 2
+The Honorable John Conyers, Jr., a Representative in Congress
+ from the State of Michigan, Chairman, Committee on the
+ Judiciary, and Member, Subcommittee on the Constitution, Civil
+ Rights, and Civil Liberties.................................... 5
+The Honorable Darrell Issa, a Representative in Congress from the
+ State of California, and Member, Subcommittee on the
+ Constitution, Civil Rights, and Civil Liberties................ 6
+The Honorable Steve Cohen, a Representative in Congress from the
+ State of Tennessee, and Member, Subcommittee on the
+ Constitution, Civil Rights, and Civil Liberties................ 10
+
+ WITNESSES
+
+Mr. Kenneth A. Gross, Skadden, Arps, Slate, Meagher & Flom LLP
+ Oral Testimony................................................. 12
+ Prepared Statement............................................. 14
+Ms. Sarah Dufendach, Chief of Legislative Affairs, Common Cause
+ Oral Testimony................................................. 16
+ Prepared Statement............................................. 18
+Mr. Bradley A. Smith, Professor of Law, Capital University Law
+ School
+ Oral Testimony................................................. 40
+ Prepared Statement............................................. 41
+Mr. Thomas E. Mann, The Brookings Institution
+ Oral Testimony................................................. 51
+ Prepared Statement............................................. 52
+
+ LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
+
+Prepared Statement of the Honorable Jerrold Nadler, a
+ Representative in Congress from the State of New York, and
+ Chairman, Subcommittee on the Constitution, Civil Rights, and
+ Civil Liberties................................................ 2
+Prepared Statement of the Honorable Trent Franks, a
+ Representative in Congress from the State of Arizona, and
+ Ranking Member, Subcommittee on the Constitution, Civil Rights,
+ and Civil Liberties............................................ 4
+Prepared Statement of the Honorable John Conyers, Jr. a
+ Representative in Congress from the State of Michigan,
+ Chairman, Committee on the Judiciary, and Member, Subcommittee
+ on the Constitution, Civil Rights, and Civil Liberties......... 6
+Prepared Statement of the Honorable Steve Cohen, a Representative
+ in Congress from the State of Tennessee, and Member,
+ Subcommittee on the Constitution, Civil Rights, and Civil
+ Liberties...................................................... 7
+Prepared Statement of the Honorable Jim Jordan, a Representative
+ in Congress from the State of Ohio, and Member, Subcommittee on
+ the Constitution, Civil Rights, and Civil Liberties............ 8
+
+ APPENDIX
+
+Material Submitted for the Hearing Record........................ 69
+
+
+ S. 1, THE SENATE APPROACH TO
+ LOBBYING REFORM
+
+ ----------
+
+
+ THURSDAY, MARCH 1, 2007
+
+ House of Representatives,
+ Subcommittee on the Constitution,
+ Civil Rights, and Civil Liberties,
+ Committee on the Judiciary,
+ Washington, DC.
+ The Subcommittee met, pursuant to notice, at 10:10 a.m., in
+Room 2141, Rayburn House Office Building, the Honorable Jerrold
+Nadler (Chairman of the Subcommittee) presiding.
+ Staff present: David Lachmann, Staff Director; Michelle
+Persaud, Counsel; Paul Taylor, Minority Counsel; and Susana
+Gutierrez, Clerk.
+ Mr. Nadler. Good morning, ladies and gentlemen. This
+hearing of the Subcommittee on the Constitution, Civil Rights,
+and Civil Liberties will come to order.
+ I would like to begin by welcoming everyone to the first
+hearing of this Subcommittee in the 110th Congress. In
+particular, I want to extend a warm welcome to the Ranking
+Member of the Subcommittee, Mr. Franks.
+ I know that whatever disagreements we may have on
+particular matters of policy--and I am sure there will be
+some--we share a dedication to the important work of the
+Subcommittee.
+ I also want to welcome the very distinguished Members of
+this panel, and especially to our new Members.
+ We have an outstanding panel and I very much look forward
+to our working together.
+ I will begin by making an opening statement, before I turn
+for an opening statement to Mr. Franks.
+ Recent scandals--including criminal convictions, involving
+prominent lobbyists, Members of Congress, of the executive
+branch, and of their staffs--have heightened public awareness
+of the need to reform some of the ways in which Congress does
+its business.
+ In keeping with our pledge to reform this institution, the
+Democratic leadership put forward, and the House adopted,
+changes to the House Rules in the first 100 hours of this
+Congress.
+ Today, we begin consideration of proposed changes to the
+Lobby Disclosure Act. The Senate has already acted with the
+passage of S. 1. The House is now beginning its consideration
+of these issues.
+ In addition to the Senate bill, we also have a number of
+proposals put forward by Members of this Committee, by other
+Members of the House and by various activists. These proposals
+merit careful consideration.
+ It is my hope that this hearing will enlighten our efforts
+and that we will be able to work together on a bipartisan basis
+to advance a reform agenda.
+ Some of these issues are very difficult but we have an
+obligation to deal with them and to deal with them right.
+ The American people sent a clear message in November that
+they want their Government cleaned up. We would ignore that
+message at our peril. If the public loses confidence that the
+process of lawmaking is fair and open to all on an equal basis,
+then that can only undermine respect for the rule of law.
+ I would just add that the whole question of lobbyists is
+only one part of the problem. The core issue is the pervasive
+influence of money in politics. So long as we have a political
+system in which office seekers must raise large sums of money
+from people with a direct interest in legislation, the
+regulation of lobbying by itself will not fully solve this
+problem. A lobbyist without a PAC has a hard time corrupting
+the process. We must ensure that a private citizen without a
+PAC gets at least the same consideration as the powerful
+moneyed interests. That is the ultimate goal of our work.
+ So I want to welcome our witnesses today and thank them for
+their testimony and their assistance.
+ [The prepared statement of Mr. Nadler follows:]
+Prepared Statement of the Honorable Jerrold Nadler, a Representative in
+Congress from the State of New York, and Chairman, Subcommittee on the
+ Constitution, Civil Rights, and Civil Liberties
+ Recent scandals, including criminal convictions, involving
+prominent lobbyists, Members of Congress, of the executive branch, and
+their staff, have heightened public awareness of the need to reform the
+way Congress does its business.
+ In keeping with our pledge to reform this institution, the
+Democratic Leadership put forward, and we adopted, changes to the House
+Rules in the first 100 hours of this Congress.
+ Today we begin consideration of proposed changes to the Lobby
+Disclosure Act. The Senate has already acted, with the passage of S. 1.
+The House is now beginning its consideration of these issues. In
+addition to the Senate bill, we also have a number of proposals put
+forward by members of this Committee, by other members of the House and
+by various activists. These proposals merit careful consideration.
+ It is my hope that this hearing will enlighten our efforts, and
+that we will be able to work together, on a bi-partisan basis, to
+advance a reform agenda.
+ Some of these issues are very difficult, but we have an obligation
+to deal with them, and to do it right. The American people sent a clear
+message in November that they want their government cleaned up. We
+ignore that message at our peril.
+ If the public loses confidence that the process of lawmaking is
+fair and open to all on an equal basis, that can only undermine respect
+for the rule of law.
+ I would just add that lobbyists are only one part of the problem.
+The core issue is the pervasive influence of money in politics.
+ So long as we have a political system in which office seekers must
+raise large sums of money from people with a direct interest in
+legislation, the regulation of lobbying, by itself, will not fully
+solve the problem. A lobbyist without a PAC has a hard time corrupting
+the process.
+ We must ensure that a private citizen without a PAC gets at least
+the same consideration as the powerful, moneyed interests. That is the
+ultimate goal of our work.
+ So, I want to welcome our witnesses today, and thank them for their
+testimony and their assistance.
+
+ Mr. Nadler. I would now recognize our distinguished Ranking
+minority Member, the gentleman from Arizona, Mr. Franks, for
+his opening statement.
+ Mr. Franks. Well, thank you, Mr. Chairman, for those kind
+words. And they are reciprocated completely. I hope that all of
+us on this Committee can remind ourselves that we are here for
+such a brief time and that we are here to promote human dignity
+and human freedom. And I consider it a privilege to be here.
+ Mr. Chairman, the introduction of this bill was preceded by
+high-profile ethics probes into actions by prominent officials,
+most notably in the Abramoff scandal.
+ The public, and many of us here, called for decisive action
+to clean up Beltway politics and to curb the misdeeds of
+unscrupulous officials and lobbyists. This should be the
+objective of this bill.
+ However, I am extremely disappointed to learn, through all
+three prepared statements of the Democrats' witnesses, that
+there is, indeed, a movement afoot to revive the blatantly
+unconstitutional grassroots lobbying provisions that were
+wisely stripped from the Senate version of this bill, because
+they had no connection with Washington's ethical scandals.
+ Grassroots lobbying was defined in the original bill as
+``the voluntary efforts of members of the general public to
+communicate their own views on an issue to Federal officials or
+to encourage other members of the general public to do the
+same.''
+ Just reading those words describing what speech could be
+criminalized under such provisions should chill the spine of
+anyone who supports a strong first amendment.
+ Grassroots lobbying is the very lifeblood of a healthy
+democratic Government. Grassroots lobbyists are, perhaps, a
+preacher in Kansas, who encourages his congregation to voice
+their values, or a young activist blogger in Manhattan, who
+encourages her readers to take action to support the saving of
+the people in Darfur, or a non-profit in Scottsdale that
+encourages letter-writing campaigns to pressure for improved
+child health care, and I could go on.
+ What grassroots lobbying provisions would do to such people
+is the question. It would require them to register with the
+Government and report completely and thoroughly each qualified
+communication that was made in their efforts.
+ Failure to capture each piece of data required by the
+Government could result in 10 years in prison and hundreds of
+thousands of dollars in fines. That is 10 years in prison,
+hundreds of thousands of dollars in fines for free speech in
+America.
+ Mr. Chairman, the Supreme Court has made clear that such
+efforts to regulate political activity beyond direct contact
+with Members of Congress is in ``serious constitutional
+doubt.''
+ In Rumley v. the United States, the Supreme Court noted,
+``it is said that indirect lobbying by the pressure of public
+opinion on the Congress is an evil and a danger. That is not an
+evil. It is a good, the healthy essence of the democratic
+process.''
+ Grassroots lobbying is largely responsible for the very
+formation of this country. Grassroots lobbying, through the
+publishing of the Federalist Papers, the famous essays written
+by James Madison and Alexander Hamilton, is largely responsible
+for the ratification of our Constitution.
+ And grassroots lobbying, Mr. Chairman, protected each and
+every guarantee of that Constitution's first amendment:
+``Congress shall make no law respecting an establishment of
+religion, or prohibiting the free exercise thereof; or
+abridging the freedom of speech, or of the press; or of the
+right of the people peaceably to assemble, and to petition the
+Government for a redress of grievances.''
+ But for grassroots lobbying, there would be no American
+Revolution. There would be no abolition of slavery, no labor
+movement, no women's movement, no civil rights movement,
+because very few people would risk 10 years in prison and
+hundreds of thousands of dollars in fines for failing to
+perfectly capture every qualified instance of free speech made
+to spur their cause. How would Dr. Martin Luther King have
+fared under such a law?
+ Subjecting to Federal regulation the voluntary efforts of
+members of the general public to communicate their views cuts
+to the very core of freedom of speech that has made this
+country the most vibrant, creative and free Nation on Earth.
+ Grassroots lobbying regulation is unconstitutional, Mr.
+Chairman. It does nothing to even address the real ethical
+scandals in Government. And it has no place in this bill, now,
+or in the future.
+ And with these concerns in mind, I look forward to hearing
+from all the witnesses today.
+ Thank you, Mr. Chairman.
+ [The prepared statement of Mr. Franks follows:]
+ Prepared Statement of the Honorable Trent Franks, a Representative in
+Congress from the State of Arizona, and Ranking Member, Subcommittee on
+ the Constitution, Civil Rights, and Civil Liberties
+ The introduction of this bill was preceded by high-profile ethics
+probes into actions by prominent government officials, most notably in
+the Abramoff scandal. The public, and many of us here, called for
+decisive action to clean up Beltway politics and to curb the misdeeds
+of unscrupulous officials and lobbyists. This should be the objective
+of the bill, and I am 100% behind this effort.
+ However, I am extremely disappointed to learn, through all 3
+prepared statements of the Democrats' witnesses, that there is indeed a
+movement afoot to revive the blatantly unconstitutional grassroots
+lobbying provisions that were wisely stripped from the Senate version
+of this bill because they had no connection with Washington's ethical
+problems.
+ Grassroots lobbying was defined in the original bill as (quote)
+``the voluntary efforts of members of the general public to communicate
+their own views on an issue to federal officials or to encourage other
+members of the general public to do the same.'' (unquote). Just reading
+the words describing what speech would be criminalized under such
+provisions should chill the spine of anyone who supports a strong First
+Amendment.
+ Grassroots lobbying is the VERY LIFEBLOOD of a healthy democratic
+government.
+ Grassroots lobbyists are, perhaps, a preacher in Kansas who
+encourages his congregation to voice their values; or a young activist
+blogger in Manhattan who encourages her readers to take action to
+support the saving of the people in Darfur; or a nonprofit in
+Scottsdale that encourages letter writing campaigns to pressure for
+improved child health care, and I could go on.
+ What would the grassroots lobbying provision do to such people? It
+would require them to register with the government and report
+completely and thoroughly each qualified communication that was made in
+their efforts. Failure to capture each piece of data required by the
+government could result in 10 years in prison and hundreds of thousands
+of dollars in fines! That's 10 years in prison; Hundreds of thousands
+in fines. For exercising free speech in America.
+ Mr. Chairman, the Supreme Court has made clear that such efforts to
+regulate political activity beyond direct contact with Members of
+Congress is in--quote--``serious constitutional doubt.'' \1\ In Rumely
+v. United States, the Supreme Court noted:
+---------------------------------------------------------------------------
+ \1\ Rumely v. United States, 345 U.S. 41, 47 (1953).
+
+ ``It is said that indirect lobbying by the pressure of public
+ opinion on the Congress is an evil and a danger. That is not an
+ evil; it is a good, the healthy essence of the democratic
+---------------------------------------------------------------------------
+ process. . . .''
+
+ Grassroots lobbying is largely responsible for the very formation
+of this country. Grassroots lobbying through the publishing of The
+Federalist Papers, the famous essays written by James Madison and
+Alexander Hamilton, is largely responsible for the ratification of our
+Constitution. And grassroots lobbying is protected by each and every
+guarantee of that Constitution's First Amendment: (quote) ``Congress
+shall make no law respecting an establishment of religion, or
+prohibiting the free exercise thereof; or abridging the freedom of
+speech, or of the press, or the right of the people peaceably to
+assemble, and to petition the government for a redress of grievances.''
+ But for grassroots lobbying, there would be no American Revolution,
+No Abolition of Slavery, No Labor Movement, No Women's Movement, and No
+Civil Rights Movement, because very few people would risk 10 years in
+prison and hundreds of thousands of dollars in fines for failing to
+perfectly capture every qualified instance of free speech made to spur
+their cause. How would Dr. Martin Luther King have fared under such a
+law?
+ Subjecting to federal regulation the voluntary efforts of members
+of the general public to communicate their own views cuts to the core
+of the freedom of speech that has made this country the most vibrant,
+creative, and free nation on Earth.
+ Grassroots lobbying regulation is unconstitutional, Mr. Chairman.
+It does nothing to even address the real ethical scandals in
+government, and it has no place in this bill now or in the future.
+ With these concerns in mind, I look forward to hearing from all the
+witnesses today.
+
+ Mr. Nadler. Thank you.
+ We will now hear an opening statement from the
+distinguished Chair of the Committee, who has requested to make
+an opening statement.
+ Mr. Conyers. Thank you, Chairman Nadler.
+ I needed to just say a couple of things, because, in my
+mind, my approach here connects the subject matter today with
+the confidence that the American people have to have in the
+integrity of the ballot, the integrity of the voting process,
+and the lobbying reform that we are undertaking.
+ And I commend you for doing this without the usual
+convenience of having a piece of legislation to discuss one way
+or the other. I think we have to take into consideration the
+unusual circumstances in which this hearing is taking place. I
+think it is something that must be done, because we have an
+obligation in the 110th to move forward on this.
+ There are only three points that, to me, I would like to
+hear from the witnesses on: stronger revolving-door provisions,
+enhanced disclosure, and stronger enforcement. And it has
+already been remarked by all of you, how long should Members be
+delayed before they can lobby their former colleagues? I think
+this is a valid question that we all should entertain
+collectively.
+ We need more disclosure from lobbyists about their clients
+and their contacts with Members of Congress. And so we need
+more sunlight on this part of the questions that we are
+examining.
+ We want questions of gifts and pay travel to be very
+carefully parsed, so that we know that we are not just building
+a wall which can be gone around easily. And I think we should
+increase the penalties for non-compliance or violation of the
+lobbying disclosure act requirements.
+ And so, with that said, I thank you for the opportunity to
+make an opening comment. And I look forward to this
+distinguished panel of witnesses.
+ [The prepared statement of Mr. Conyers follows:]
+Prepared Statement of the Honorable John Conyers, Jr., a Representative
+ in Congress from the State of Michigan, Chairman, Committee on the
+Judiciary, and Member, Subcommittee on the Constitution, Civil Rights,
+ and Civil Liberties
+ First, I believe there is a strong need for lobbying reform
+legislation. A public opinion poll taken in 1964 found that 76% of the
+American people trusted their government to do what is right most or
+all of the time. More than forty years later, the landscape is
+decidedly different, with the vast majority of the public having a
+strong lack of faith in Washington's decisions. A January 2006 CBS
+News/New York Times poll found that only 27% of Americans said they
+trust the Federal Government to do what's right ``most of the time''
+and only 5% said that they trusted the Federal Government to do what's
+right ``just about always.''
+ The public's skepticism is partially driven by recent scandals
+involving lobbyists and Members of Congress. We all know the details
+and there is no need to repeat them here. What is important about these
+scandals is that they have revealed systemic problems in the way the
+profession of lobbying is carried out and how lobbying activities are
+disclosed. We need to fix these problems.
+ I believe that there are three essential ingredients to an
+effective lobbying reform measure:
+Stronger Revolving Door Provisions.
+ Current law only requires Members to wait one year after they leave
+the Congress before they can lobby their former colleagues. This has
+led to the unfortunate appearance that people simply run for Congress
+as a stepping stone to a lobbying career. There is also the unfortunate
+appearance that former friends and colleagues, advocating on behalf of
+well heeled special interests, are given greater access to elected
+officials than members of the public who argue for the public good. I
+believe we need greater restrictions on this ``revolving door'' from
+congress to lobbying and sometimes back and forth again.
+Enhanced Disclosure.
+ We also need more disclosure from lobbyists about their clients and
+their contacts with members of Congress. It has been said that sunlight
+is the best disinfectant. We should require lobbyists to file more
+detailed reports disclosing their contacts with Congress as well as
+certifications by the lobbyist that they did not give a gift or pay for
+travel in violation of the rules. These reports should be filed
+electronically, more frequently--quarterly, rather than semi-annually--
+and they should be made available to the public for free over the
+internet.
+Stronger Enforcement.
+ Most significantly, an effective measure should increase the civil
+and criminal penalties for violation of or noncompliance with the
+Lobbying Disclosure Act requirements. This act alone will prove to be a
+great deterrent not only for corrupt activity, and also will signal the
+general importance of timely and accurate disclosures.
+ I thank the panel for joining us and I believe that today's hearing
+will prove to be a positive step in the direction toward real and
+effective lobbying reform.
+
+ Mr. Nadler. Thank you, Mr. Chairman.
+ In the interest of proceeding to our witnesses, and mindful
+of our busy schedules, I would ask that other Members submit
+their statements for the record.
+ Mr. Issa. Mr. Chairman, I have an opening statement.
+ Mr. Nadler. Without objection, all Members will have 5
+days.
+ Do you object?
+ Mr. Issa. Yes, I do.
+ Mr. Nadler. Very well. The objection is heard. Mr. Issa?
+ Mr. Issa. Thank you.
+ And I understand the shortness of time, and I will be
+brief. But I certainly think in order to have both sides be
+heard in the opening process, we need to try to have both sides
+heard.
+ Mr. Chairman, I appreciate your holding this hearing. And
+I, too, would join with you in saying that there is a need for
+reform of many of the aspects of the existing campaign finance
+laws, not the least of which is the continued abuse by 527s of
+the clear intent of prior legislation.
+ Additionally, though, I would like to bring note to the
+Chair's organizational letter on this hearing, in which, Mr.
+Chairman, you said the need for legislation--and the paragraph
+that concerns me the most for today is the one that says the
+need for further reform is highlighted by--during the 109th
+Congress, by scandals involving--and you go on to say Jack
+Abramoff. No problem there. You note Native American tribes.
+ Of course, my only problem here is I neither see these
+Government entities from being covered under the Senate
+legislation, nor were they covered by the House rules, even
+though that was asked for, that we not give a pass to
+Government entities, which is exactly what Jack Abramoff took
+advantage of. So it is very clear that that is not a genuine
+statement of reform, either under the Senate bill or under
+Speaker Pelosi's reforms.
+ But, additionally, I would like to take exception to the
+fact that all of the examples included only Republicans as
+scandalous. Additionally, not only did you not include Mr.
+William Jefferson's $90,000 of cash in his freezer, but you, in
+fact, included former Senator Conrad Burns, charged with
+nothing, and House Majority Leader Tom DeLay, whose only
+violation was a State law, which, to date, has not been
+adjudicated.
+ So I think that to disparage two Republicans, and then to
+name two additional Republicans, both of whom have gone to
+jail, and gone to jail for existing laws, points up exactly the
+fallacy of the hearing here today.
+ We are not talking about laws which are not in place,
+remedies that do not exist, just the opposite. What we are
+doing is showing examples of failure to act, when we already
+could have acted in the case of the Abramoff Government
+loophole. And, then, on a partisan-only basis naming Members of
+Congress--and former Members of Congress, I should say--two of
+whom would certainly not be covered by any or all of the
+proposed legislation. And the other two are in jail today for
+the crimes they committed.
+ So, Mr. Chairman, I would hope that, in the spirit of
+bipartisan behavior, we would get to dealing with 527s, we
+would respect the constitutional right of free speech, and that
+we would move the legislation in a direction which was
+bipartisan and not one that starts off so overtly partisan.
+ With that, I yield back.
+ Mr. Nadler. Thank you.
+ Without further objection, all other Members will have 5
+legislative days to submit opening statements for inclusion in
+the record.
+ [The prepared statement of Mr. Cohen follows:]
+ Prepared Statement of the Honorable Steve Cohen, a Representative in
+ Congress from the State of Tennessee, and Member, Subcommittee on the
+ Constitution, Civil Rights, and Civil Liberties
+ I look forward to hearing from the witnesses today regarding Senate
+Bill S.1, which enhances the transparency for interactions between
+Members of Congress and lobbyists. Too much of the important decision-
+making in Washington is influenced by the power and influence exerted
+by lobbying activity which takes places far from public view. Such a
+situation can easily lead to abuses of the public trust, as evidenced
+by the high-profile scandals from the previous Congress. I hope to
+learn more not only about how S.1 increases transparency, but also
+about how we in the House of Representatives can further strengthen
+reform of the lobbying process.
+
+ [The prepared statement of Mr. Jordan follows:]
+ Prepared Statement of the Honorable Jim Jordan, a Representative in
+ Congress from the State of Ohio
+ Mr. Chairman, I wish to express my approval of Sen. Robert
+Bennett's (R-UT) actions in introducing S.AMDT. 20--passed in the
+Senate on January 18--which removed the grassroots lobbying
+requirements from the bill that is before us today.
+ The Senate rejection of this grassroots lobbying provision is
+entirely appropriate. It would be counter to our purposes in increasing
+transparency and accountability in government to pass a provision that
+would greatly restrict the ability of our constituents to organize and
+petition us. Would we not have much less accountability if we silence
+the families and taxpayers that we serve?
+ Mr. Chairman, it is obvious that restricting grassroots organizing
+would run counter to the First Amendment of the United States
+Constitution, which we swore to uphold. We are clearly forbidden from
+making any law that would restrict each citizen's right to assemble and
+petition government. Grassroots organizations play a valuable role in
+keeping their members up-to-date on legislative activities in Congress.
+Because of them, citizens are able to stay better informed on the
+issues most important to them and better able to cut through the
+confusing jargon we often use here.
+ It is clear that placing grassroots groups under the same
+restrictions as professional lobbyists will greatly slow their
+activities at best and kill many of them off at worst. Many small
+grassroots organizations will have difficulty understanding and
+following the new requirements they would be expected to meet, and the
+risks of accidental failure to comply would intimidate them into
+shutting down their activities. Our nation and our constituents would
+then be the poorer for it. We would be slowing democratic discourse.
+ Mr. Chairman, I want to express my continued concern and wish that
+this grassroots lobbying provision NOT reappear in this House in any
+form. Democracy demands that we vigilantly preserve the rights of our
+constituents and we must keep the lines of communication with them wide
+open.
+
+ Mr. Nadler. Without objection, the Chair will be authorized
+to declare a recess of the hearings.
+ We will be joined today by our colleague, the gentleman
+from Massachusetts, Mr. Meehan. Our colleague has been a leader
+on this issue for many years. Without objection, the gentleman
+from Massachusetts----
+ Mr. Franks. Mr. Chairman?
+ Mr. Nadler. One second--will be permitted to sit with the
+Subcommittee to ask questions of the witnesses for 5 minutes.
+ Mr. Franks. Mr. Chairman, at the request of the Ranking
+Member Smith, I respectfully object to the participation of a
+non-Subcommittee Member.
+ House rules provide for participation in hearings only by
+the Members of that Committee or Subcommittee. House Rule 11
+states each Committee shall apply the 5-minute rule during the
+questioning of witnesses in a hearing until such time as each
+Member of the Committee who so desires has had an opportunity
+to question each witness.
+ The Committee rules only explicitly allow the participation
+of non-Members of a Subcommittee in one instance, and that is
+for the Chair and Ranking Member to participate as ex officio
+Members of any Subcommittee.
+ Any exception to the rules must be granted under unanimous
+consent, and, as a general policy, we intend to object to the
+participation of non-Members.
+ Ranking Member Smith believes this should be an across-the-
+board policy at the Judiciary Committee.
+ Put simply, membership on a Subcommittee should mean
+something. Subcommittee membership allows Members the privilege
+of participation.
+ Also, setting a precedent that allows one non-Member of a
+Subcommittee to participate could lead to a situation where 10
+other Members might also want to do so.
+ I want to stress that this objection has nothing to do with
+the Member in question or the subject matter at hand. Rather,
+we want to establish a general principle that being elected to
+a Subcommittee carries some real weight. Participation in a
+hearing should be the privilege of the Members of that
+Subcommittee.
+ Thank you, Mr. Chairman.
+ Mr. Nadler. I would remind my friend that under Mr.
+Chabot's chairmanship, when I was the Ranking minority Member
+for the last 6 years, this Subcommittee routinely extended the
+courtesy of allowing Members of the full Committee, and other
+Members, regardless of party, to participate in hearings of the
+Subcommittee.
+ It was always our aim, despite the sometimes strenuous
+disagreements we had on policy, to conduct the business of the
+Subcommittee with dignity and comity. It is my hope that we
+will be able to continue to function in that collegial spirit.
+ I would urge my friend to reconsider his objection and
+remind him that once people start objecting to routine
+courtesies, there is likely no end to it. I hope the Members
+will not drag the Subcommittee down that path.
+ We have been sent here by the voters to do their business.
+I am determined to follow that mandate. And I hope we can
+continue, as we have in the past, to extend routine courtesies
+to other Members of the full Committee.
+ Regardless, I remain committed to applying the rules in a
+fair and even-handed manner, but I would invite the gentleman
+to reconsider his objection, if he would.
+ Mr. Franks. Mr. Chairman, at such time as the Ranking
+Member and the Chair of this Committee can have colloquy among
+themselves, I have to maintain my objection.
+ Thank you, sir.
+ Mr. Issa. Mr. Chairman, I would ask for a unanimous consent
+request.
+ Mr. Nadler. The gentleman will state his unanimous consent
+request.
+ Mr. Issa. My unanimous consent is, in the alternative to
+that proposal, that we divide our time equally, alternating 5
+minutes per side. If the majority would agree to a back and
+forth in perpetuity on a 5-minute-per-side, then we would be
+equally dividing the time, and it would be irrelevant who you
+chose to recognize on your side versus the Ranking Member on
+their side.
+ Mr. Nadler. I am not sure I understand what you are
+proposing.
+ Mr. Issa. For each hearing in which unanimous consent was
+granted. Mr. Chairman, on the floor, we normally divide time
+equally 30 minutes per side, 10 minutes per side. This allows
+for each side to control----
+ Mr. Nadler. The rules provide that every Member or every
+person who sits here gets 5 minutes. Now, we have always
+followed the practice--and I don't know that anybody has ever
+kept count, and I certainly never have. I mean, sometimes it
+may happen to be, depending on attendance, more Republicans
+than Democrats or more Democrats than Republicans, and so be
+it. We have never said that, well, there are more Republicans
+here, so some Democrat will get 10 minutes. I mean, I don't
+think we want to go down that--every Member, 5 minutes, sir.
+ Mr. Issa. Mr. Chairman, I offered the unanimous consent in
+order for the Chair of the full Committee and the Ranking
+Member to be able to work together in a collegial fashion to
+find an alternative that might be mutually accepted.
+ Mr. Nadler. I am not sure--I am going to have to object at
+this time.
+ Mr. Issa. That is fine.
+ Mr. Nadler. Because I think we should continue to follow
+alternating 5 minutes, and we will let the full Committee Chair
+and the Ranking minority Member of the full Committee deal with
+this further.
+ For what purpose does the gentleman from Tennessee seek
+recognition?
+ Mr. Cohen. Mr. Chairman, if I could just make like a
+minute-and-a-half opener.
+ Mr. Nadler. Without objection.
+ Mr. Cohen. Thank you, Mr. Chairman.
+ I am the freshman here and the new person. And I don't know
+about Republicans and Democrats and who did wrong. There has
+been wrong done by Democrats and there has been wrong done by
+Republicans.
+ It was shown in the last election, though, that the people
+felt ethics was a major issue. And they didn't like a lot of
+the things they read about in Congress. And Congress went to
+its lowest point ever in the public's regard. It was like 30-
+something percent. And they voted the Democrats in in record
+numbers. So the public spoke.
+ But, regardless, if they were speaking about Democrats or
+Republicans, but they said they want better ethics laws. And we
+need to work together.
+ If Mr. Meehan has expertise--when I was chairman of State
+and local, and we dealt with ethics laws, we encouraged people
+like that to come forward and help us draw a better law for the
+public's interest.
+ I would hope we could have the best expertise, the best
+experience and institutional knowledge to be brought here for
+the public's issue.
+ This isn't a Republican-Democrat thing. This is to make
+Congress better, to uplift all of us.
+ And I am really amazed that somebody brings up Dr. Martin
+Luther King in terms of 527s when you are talking about speech.
+Dr. King changed this Nation by the force of his issue, by the
+people going to the streets, by what mankind should have done
+100 years earlier to pass civil rights laws, after 100 years of
+Jim Crow. And to invoke Dr. King's name on money and politics
+is the opposite of what Dr. King was about. He was about
+issues. He was about spirit. He was about soul. He wasn't about
+dollars. And I object to that as the congressperson from the
+district where he was unfortunately killed.
+ Thank you, Mr. Chairman.
+ Mr. Nadler. Thank you.
+ I would now like to introduce the distinguished members of
+our panel.
+ We have Ken Gross. Our first witness is a leading expert in
+the law of lobbying and campaign finance. Ken Gross is a
+partner at the firm of Skadden, Arps, where he heads the
+political law group. He advises many Fortune 500 companies
+relating to the regulation of political activities.
+ He appears frequently as a legal commentator on CNN, Fox
+and other networks. And his quotes appear regularly in the
+national newspapers. Formerly, he was associate attorney
+general at the Federal Election Commission, where he supervised
+the Office of the General Counsel Enforcement staff and oversaw
+the legal review of audits.
+ He serves on the ABA Committee on Election Law and co-
+chairs the Practicing Law Institute's seminar on ``Corporate
+Political Activities.'' Also, he co-chairs the BNA publication
+on Corporate Political Activities.
+ We also have Sarah Dufendach, who is the chief of
+legislative affairs for Common Cause, an organization created
+by John Gardner in 1970 as one of the very first non-partisan,
+public-advocate, Government-watchdog groups.
+ I would like to join my colleagues in welcoming Sarah back
+to the Hill. She served in the United States House of
+Representatives as a top aide for former Congressman and former
+Whip David Bonior for over 25 years.
+ Sarah left the Hill to become the chief operating officer
+for the Vietnam Veterans of America Foundation, a $25 million
+NGO, providing health care for landmine victims in 24 countries
+over four continents. It received the Nobel Peace Prize for its
+work in the coalition, Campaign for a Landmine Free World. From
+there, she joined Common Cause.
+ We then have Professor Smith, who returned to the Capital
+University campus faculty in 2005, after 5 years here in
+Washington, where he served as commissioner, vice chairman and
+chairman of the Federal Election Commission. As chairman,
+Professor Smith oversaw the implementation of the McCain-
+Feingold campaign finance bill, and successfully fought to
+increase due process protections for defendants in FEC
+enforcement actions.
+ As with our other witnesses, he has previously testified
+before Congress, and his writings have appeared in numerous
+academic journals and popular publications. He is the author of
+``Unfree Speech: The Folly of Campaign Finance Reform.''
+Professor Smith is founder and chairman of the Center for
+Competitive Politics.
+ And, finally, we have Thomas Mann, who is the W. Averell
+Harriman chair and senior fellow in Governance Studies at The
+Brookings Institution. Between 1987 and 1999, he was director
+of Governmental Studies at Brookings. Before that, he was
+executive director of the American Political Science
+Association.
+ He earned his B.A. in political science at the University
+of Florida and his M.A. and Ph.D. at the University of
+Michigan. He first came to Washington in 1969 as a
+congressional fellow in the offices of Senator Philip Hart and
+Representative James O'Hara.
+ Mr. Mann has taught at Princeton University, Johns Hopkins
+University, Georgetown, the University of Virginia and American
+University, and served as an expert witness in the
+constitutional defense of the McCain-Feingold campaign finance
+law.
+ Gentlemen and ladies, each of your written statements will
+be made part of the record in its entirety. I would ask that
+you now summarize your testimony in 5 minutes or less.
+ To help you stay within that time limit, there is a timing
+light at your table. I am sure you are aware of that. When 1
+minute remains, the light will switch from green to yellow, and
+then red, when the 5 minutes are up. Thank you very much.
+ Mr. Gross?
+
+ TESTIMONY OF KENNETH GROSS, SKADDEN, ARPS, SLATE, MEAGHER &
+ FLOM LLP
+
+ Mr. Gross. Good morning, Chairman Nadler, Ranking Member
+Franks and other Members of the Committee. Thank you for
+inviting me to testify.
+ I support S. 1. I think it is a good bill, in general, with
+certain reservations, which I will note.
+ It deals with a lot of provisions: gift provisions, lobby-
+disclosure provisions, revolving-door provisions, et cetera.
+ In terms of gifts, since the gift ban went into effect in
+the House on January 4th, it has actually, I think, worked
+fairly well.
+ I wouldn't mind if there was a small de minimis exception.
+I don't know if the horse has left the barn on that, but I have
+dealt with more questions about tuna-fish sandwiches served
+during plant tours and fact-finding trips and a member visiting
+with an editorial board for a newspaper that may happen to have
+a lobbyist in their organization.
+ And I think the executive branch 20-50 rule--20 per
+occasion and 50 for the year--just takes away a lot of small
+silly questions, so you don't have to throw a $10 bill on the
+table for a tuna-fish sandwich while you are touring around a
+plant or some other presentation that doesn't quite meet the
+widely attended exception.
+ In terms of the lobby provisions, I support them. They have
+quarterly reporting, which is a good thing, more contracted
+periods for when the report has to be made on the public
+record. It has the gift disclosure on it. It cross references
+the FEC political information as well.
+ I think that there are certain small provisions that should
+be blended, so the timing of the information on political
+contributions coincides with the FEC and that the threshold is
+over $200, not $200, which can create some problems with the
+way information is reported.
+ In fact, I think it could be strengthened with some
+additional breakdown on the lobby report between in-house
+lobbying, outside lobbying and trade-association dues related
+to lobbying. That is all required on the current report, but it
+is one aggregate number. And I think if there was a breakdown
+of it, it would further compliance and be a more meaningful
+report.
+ There is a part of the disclosure on the S. 1 proposal that
+does cause me some concern, and that has to do with the
+bundling provisions.
+ What the law says is that if a lobbyist collects or
+arranges for contributions to be forwarded to a Member of
+Congress, a candidate, that that information has to be
+disclosed.
+ I am having a lot of difficulty understanding what that
+provision is saying. I think I know what it means to collect,
+if you are actually gathering contributions and forwarding them
+to a candidate or even distributing coded envelopes, which is
+what is the law at the FEC right now. That is how they define
+bundling. But I do not know what it means to arrange for a
+contribution. I do not know what it means to have an informal
+agreement to forward contributions, solicit contributions,
+direct contributions, when you are not actually necessarily
+handling the contribution.
+ If I serve on your national finance committee and I say I
+will raise $25,000 for you, and then I send an e-mail to
+everybody in the district who I think is likely to contribute
+to you, thousands of dollars are going to come in over the
+transom from those people, potentially, not because of my e-
+mail, but I could claim credit for it.
+ And we all know that when a contribution comes over the
+transom, it has got many claimants, you know, perhaps more
+claimants than Anna Nicole's baby has. And we are going to see
+multiple reporting of the same money coming over. I think there
+needs to be either an elimination of the arrangement provision.
+ The other part of it is I have to report, as a lobbyist,
+any contributions that the Member has actual knowledge that I
+have solicited or raised. How am I supposed to know what actual
+knowledge the Member or the candidate has of contributions have
+been raised? And, as has been noted, you know, there are
+serious penalties in these bills. And I think that has to be
+looked at again before it becomes part of a House bill.
+ In terms of the grassroots lobbying, I know that is a hot-
+button issue. All I have really said about that is that I think
+that you could draft a grassroots-lobbying law that deals with,
+you know, sort of hired lobbying efforts over very high
+thresholds, and it would survive a facial challenge under the
+law. I mean, the 1954 decision on Harris does say that
+artificially stimulated letter-writing campaigns can be subject
+to disclosure.
+ The only concern that I have in the area of grassroots is
+that it cannot interfere with associational rights of an
+organization, and it can set up a rubric for as-applied
+challenge. I think the grassroots provisions could be written
+to survive a facial challenge, but there probably would be a
+good bit of litigation over the application of it as to any
+particular group. And I have expressed some concerns about
+that, despite, I think, the ability of Congress to write a law
+that could survive an overall challenge.
+ Finally, the revolving-door----
+ Mr. Nadler. The 5 minutes has expired. Could you finish
+your statement?
+ Mr. Gross. Sure.
+ I think that the provision in the revolving-door section
+that requires Members of Congress not to participate behind the
+scenes goes too far. I think the 2-year restriction on making
+appearances works. But it is an infringement to extend it to
+behind-the-scenes activity. That is not where the undue
+influence is exercised. It is exercised when you are making an
+appearance or you are using the name of a Member in trying to
+get in the door.
+ Thank you.
+ [The prepared statement of Mr. Gross follows:]
+ Prepared Statement of Kenneth A. Gross
+
+ (with the assistance of Matthew Bobys and Christine Kirk)
+ Good morning Chairman Nadler, Ranking Member Franks, and Members of
+the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil
+Liberties. Thank you for the opportunity to appear before you today to
+discuss the merits of S. 1 and the Senate approach to lobbying reform.
+ My name is Kenneth Gross. I am a partner at Skadden, Arps, Slate,
+Meagher & Flom LLP, where I head the firm's political law practice. I
+specialize in compliance with campaign finance, lobbying, and ethics
+laws. Prior to Skadden, I was head of enforcement in the General
+Counsel's Office of the Federal Election Commission.
+ S. 1 is, overall, a constructive step toward positive reform of the
+federal lobbying law. By emphasizing increased disclosure, the bill
+succeeds in effecting practical change in the way lobbying activities
+are reported and monitored without infringing upon our First Amendment
+rights as citizens to petition our government for a redress of
+grievances.
+ With regard to gifts, the House has already adopted strong gift
+rule provisions. However, I continue to believe that there is room for
+a de minimis provision. It does not have to be $50, the previous
+threshold which some believe was abused and often exceeded, but a small
+exemption for meals of $20 or less per occasion would take care of many
+situations that may arise during, for example, a plant visit or other
+meetings at which a meal is served but where the requirements for a
+widely attended event are not met.
+ The bill undertakes to increase the transparency of lobbying by
+requiring more frequent disclosure with a shorter lag time (days
+between the end of a reporting period and the report's due date), and
+by requiring more substantive disclosure--for example, requiring lobby
+registrants and their lobbyists to disclose their federal political
+contributions and those made by their PACs; and requiring the reporting
+of certain gifts to Members and legislative staff made by lobby
+registrants, lobbyists, and their PACs. However, there should also be a
+breakdown of the aggregate amount currently disclosed on a corporate
+lobby report. The following should be separately itemized: (1) the
+value of in-house personnel, including overhead expenses for all
+employees (not just those who meet the 20% threshold); (2) outside
+lobbyist fees; (3) trade association dues related to lobbying; and (4)
+travel and entertainment expenses.
+ S. 1 takes great steps to increase the transparency of governmental
+decision-making by making electronic filing the standard and requiring
+reports to be searchable, sortable, and posted quickly for the benefit
+of the public.
+ Although the bill does not create an independent enforcement body,
+it does increase the penalties for violations of the lobbying law and
+the making of gifts and for the first time exposes donors of gifts to
+civil enforcement liability. I advocate a meaningful and measured
+enforcement of the law to ensure compliance with these reforms.
+ There are three different areas of reform that I would like to
+address today: bundling, grassroots lobbying, and the revolving door.
+ bundling
+ S. 1 requires lobby registrants and their lobbyists to disclose the
+recipients of contributions of $200 or more per year that they
+``collected or arranged'' and the aggregate amount of those
+contributions. ``Collected funds'' include those that a lobbyist
+forwards to a campaign. ``Arranged funds'' include (i) formal and
+informal agreements to ``credit'' contributions as being raised,
+solicited, or directed by a lobbyist or (ii) actual knowledge by the
+lobbyist that the candidate is aware that the lobbyist raised,
+solicited, or directed the contributions. A lobbyist must also disclose
+the aggregate amount or a good faith estimate of the amount of campaign
+contributions raised at a fundraiser that he or she hosted or
+sponsored.
+ Regarding ``collected funds,'' under current federal election law,
+an individual who bundles contributions must file a conduit report with
+the Federal Election Commission. It is impermissible for an individual
+acting as a representative of a corporation, for example as a Vice
+President for Government Affairs, to collect and forward contributions.
+However, an individual who has a significant position in a campaign and
+has been authorized by the campaign to raise funds, is permitted to
+collect and forward contributions without disclosing this activity.
+Thus, depending on the circumstance, bundling contributions may be
+illegal, require special disclosure, or require no disclosure.
+ What constitutes ``arranging'' contributions is even more difficult
+to define in application. It is typical that contributions received by
+a committee have more than one individual claiming credit for them; it
+is up to the committee to sort this out. This provision might have the
+effect of individuals claiming credit for contributions beyond those
+they are responsible for raising. For example, an individual could have
+an agreement with a campaign to raise a certain amount of money, and
+send out hundreds of e-mails soliciting contributions, and claim credit
+for all contributions made by the recipients of those e-mails, which
+would result in an inflated amount of contributions credited to the
+individual and campaign.
+ Additionally, much of the money raised for federal campaigns (in
+particular, for presidential campaigns) is not raised by lobbyists but
+by friends of a candidate or by senior corporate executives who do not
+meet the definition of ``lobbyist.'' The bundling rules only apply to
+contributions collected or arranged by those defined as lobbyists. If
+Congress is interested in a more complete disclosure provision, it
+would have to apply to all individuals, not just lobbyists.
+Consequently, the bundling provision as written in S. 1 is vague and
+open to misapplication. It should be drafted so it is limited to
+contributions physically handled by a lobbyist or those forwarded to a
+campaign in coded envelopes, as is currently required under Federal
+Election Commission rules.
+ grassroots lobbying
+ As you know, the Senate deleted the grassroots lobbying provision
+from S. 1. The concerns over the now-deleted provisions have been
+generally overstated, but it would be wrong to require disclosure of
+communications among members or employees of an organization. If the
+required disclosure is limited to information regarding the cost of
+artificially stimulated letter-writing or electronic communications,
+sometimes called ``astroturf lobbying,'' there are fewer constitutional
+concerns. In 1954, the Supreme Court specifically upheld the disclosure
+of artificially stimulated letter-writing campaigns, and I believe
+would do so again if legislation was narrowly drawn to address
+disclosure of astroturf lobbying with a specific call to action on
+legislation in the communication. However, an as-applied challenge may
+succeed if a particular group can demonstrate that disclosure would
+result in harassment or threats of reprisal against group members.
+ revolving door
+ Any restrictions on prohibiting Members or certain staff from
+lobbying after they leave Congress must be narrowly and clearly drawn.
+Existing restrictions on appearances by Members and senior staff meet
+that standard. S. 1 contains a provision not previously seen at the
+federal level. It prohibits appearances as lobbyists and behind-the-
+scenes lobbying activities of former Members for two years after
+leaving Congress. At the very least, the enforceability of such a
+provision may be difficult. At worst, it may constitute an improper
+infringement on an individual's right to engage in certain lobbying
+activities.
+ The proposed changes that we are discussing today only address part
+of the puzzle; the regulation of lobbying activity is a delicate
+process. Lobbying is a protected core First Amendment right. Effective
+disclosure is the only viable method of regulation, and this bill
+addresses shortcomings in the current law. It is my sincere hope that
+with the changes proposed in S. 1 and the other issues under discussion
+here, it will start the process of restoring public confidence in the
+legislative process.
+
+ Mr. Nadler. Thank you very much.
+ Ms. Dufendach?
+
+ TESTIMONY OF SARAH DUFENDACH, CHIEF OF
+ LEGISLATIVE AFFAIRS, COMMON CAUSE
+
+ Ms. Dufendach. Good morning. My name is Sarah Dufendach. I
+am the chief of legislative affairs for Common Cause. I want to
+thank Chairman Nadler and Ranking Member Franks and the
+Subcommittee for holding this important hearing and for
+inviting Common Cause.
+ For 37 years, Common Cause has worked for an open,
+accountable and ethical Congress. These issues matter greatly
+to our 300,000 members across the country.
+ The Subcommittee has asked this panel to give our
+perspectives on S. 1, focusing on three particular issues and
+how we think the legislation could be made better.
+ Common Cause strongly supports the bundling provisions of
+S. 1. Bundling is becoming so prevalent that many presidential
+candidates are feeling the public pressure to disclose their
+own bundling. When lobbyists disclose only how much they
+personally give to a Member's campaign, it may vastly
+underestimate the true efforts that that lobbyist could be
+making in soliciting substantially more money for that Member.
+The absence of this information gives an unrealistic picture of
+the role that lobbyists are playing in election fundraising.
+ Common Cause also strongly supports the revolving-door
+provisions in S. 1. Changing the cooling-off period for Members
+of Congress from 1 year to one congressional session better
+reflects the realities of the legislative and election cycles.
+ Lobbying is much more than just contacting Members. So the
+definition should be expanded to reflect the full range of
+knowledge and skills which make hiring former Members so
+attractive to wealthy and powerful special interests.
+ The cooling-off period only affects staff making over
+$110,000. It is still just 1 year and only affects lobbying
+contacts, not activity. It does expand the staff lobbying
+prohibition from just their former Members and Committees to
+the entire body, to the whole House. But that better reflects
+the true reach that staff at that pay grade have.
+ Common Cause believes Astroturf lobbying activities should
+be disclosed. For those who think we don't need this type of
+disclosure, I have got three words: Harry and Louise.
+ According to media accounts, Health Insurance Association
+of America spent $17 million to pay for TV ads attacking the
+Clinton health-care plan. None of that multimillion-dollar
+campaign had to be publicly disclosed.
+ The public and elected officials need to know who is
+sponsoring major campaigns seeking to turn public opinion.
+Otherwise, we can't understand the motivation and the true
+objectives behind that effort.
+ S. 1 is, indeed, landmark ethics legislation. But most
+reform groups think it falls far short in one very important
+area, and that is enforcement of congressional ethics rules.
+Stricter rules mean little if they are not enforced. And the
+public has lost faith in the House to enforce its rules and
+discipline its own Members.
+ In fact, the public, by 80 percent, supports establishing a
+permanent, independent commission to investigate and enforce
+ethics rules for Members of Congress and their staff.
+ State legislatures in 23 States have adopted some form of
+independent ethics enforcement. The Kentucky legislative ethics
+commission was established 14 years ago. When surveyed, 97
+percent of its legislators responded that an independent ethics
+commission does a better job overseeing compliance with State
+ethics rules than committees of legislators, such as the House
+or Senate Ethics Committees. They felt the biggest contribution
+it had made is its ability to depoliticize ethics enforcement.
+ Some critics say that independent ethics enforcement is
+unconstitutional. The Constitution gives the House and the
+Senate the power to punish its Members for disorderly behavior.
+But legal scholars widely believe that Congress has the power
+to delegate the receipt and investigation of complaints to an
+independent body, provided that each chamber retain its power
+to make the final decision about disciplining its Members.
+ My time is running out, and so I will just note that
+Representative Michael Castle and Representative Todd Platts
+have introduced a bill, H.R. 97, to establish an independent
+ethics commission in the House, which has been referred to this
+Subcommittee.
+ With that, I thank you for this opportunity to testify. And
+I look forward to your questions.
+ [The prepared statement of Ms. Dufendach follows:]
+ Prepared Statement of Sarah Dufendach
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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.
+ Whereas, among those States that don't have an independent
+ethics committee are such hotbeds of corruption as Iowa, Utah,
+Vermont, and a State called the best-governed State in the
+Nation by Governing Magazine, the State of Virginia. But, you
+know, you do what you want.
+ I do want to address the grassroots lobbying provisions
+here. They are not in this bill, but, obviously, there are
+people who want them to be in this bill.
+ Ms. Dufendach is a good advocate for her position, a
+skilled woman. I don't know her, but I am impressed by her
+background, and I note that she has spent her entire career in
+Washington.
+ And Mr. Mann I have known for several years, and he is also
+going to urge you to regulate grassroots lobbying. He is a
+talented political scientist, one of the most respected opinion
+leaders in Washington. If you were to go around and try to come
+up with somebody you would give the title of Mr. Washington to,
+it might be Tom Mann, right?
+ Now, I come from a little town in Ohio called Granville,
+Ohio. It has got 3,000 residents, and I will tell you that one
+thing people there don't care about at all and are not
+concerned about is that citizens are contacting Congress. That
+just doesn't worry these folks in the least, nor do they
+particularly care why they are contacting Congress.
+ When a citizen hears about something, about an issue, and
+it moves that citizen to want to take action, it doesn't matter
+where that comes from. And the corrupting link that is supposed
+to be there between lobbyist and the Government is broken,
+because a citizen--a real person, not a fake person, not an
+Astroturf person--a phrase, frankly, I find insulting--a real
+voter, one of your constituents, has to decide to take action
+and call you up. And that breaks that link between the
+lobbyist.
+ It doesn't matter whether the person hears this from a
+radio talk show. It doesn't matter whether they are misinformed
+from a New York Times editorial. The fact is a citizen has
+acted.
+ So pay attention to what it is that you are trying to get
+at. And I think if you do that, you will recognize that
+grassroots lobbying is actually a check on the type of insider
+lobbying that created the kind of scandals that brought some of
+you in the majority into power with people such as Jack
+Abramoff.
+ Thank you very much.
+ [The prepared statement of Mr. Smith follows:]
+ Prepared Statement of Bradley A. Smith
+ Mr. Chairman, Ranking Member Franks, and members of the Committee:
+ Thank you for inviting me here to testify today on the important
+issue of lobbying reform. By way of introduction, I am currently
+Professor of Law at Capital University in Columbus, Ohio; founder and
+Chairman of the Center for Competitive Politics, and Of Counsel in the
+Columbus and Washington offices of the law firm of Vorys, Sater,
+Seymour & Pease. From 2000 to 2005 I served as Commissioner on the
+Federal Election Commission, including a term as Chairman in 2004. In
+this latter capacity, I was privileged to travel and speak throughout
+the country with ordinary Americans concerned about corruption in
+government and the perceived remoteness of Washington to their everyday
+concerns. Although Vorys, Sater, Seymour and Pease represents many
+clients before the government, I am not a registered lobbyist and do
+not lobby myself. I address the Committee today on my own behalf and
+that of the Center for Competitive Politics, and do not speak for the
+law firm of Vorys, Sater, Seymour & Pease or Capital University.
+ The Center for Competitive Politics (``CCP'') is a non-profit
+educational organization operating under Section 501(c)(3) of the tax
+code, with offices in Arlington, Virginia. Through studies, reports,
+conferences, and assistance in litigation, CCP seeks to educate the
+public and lawmakers on the operation and effects of money in the
+political and legislative systems. In light of the comments to follow,
+I also note that neither CCP nor Vorys Sater or Capital University
+engage in what is called ``grassroots lobbying.''
+ As the House considers lobbying reform, it is important to balance
+carefully targeted regulations that address real abuses, while
+minimizing the burden on the vast majority of lobbyists who are honest,
+dedicated individuals helping citizens to exercise their fundamental
+Constitutional Rights of Free Speech and the Right to Petition the
+Government for Redress of Grievances. These are among the most
+important rights guaranteed by our Constitution. Yet all too often in
+the past, we have allowed isolated incidents of improper behavior--
+scandal--to stampede us to hastily conceived, ill-considered measures
+that restrict these important Constitutional rights while doing little
+to address the abuses that allegedly justify the restrictions. All of
+us here know that lobbyists can provide a valuable function, providing
+members with useful, important information on public opinion, and also
+with the information needed to craft wise, beneficial, effective
+legislation. We know that abuses exist, but that they are the
+exception, not the rule.
+ We must also recognize that whatever steps Congress takes, there
+will be a substantial element of popular distrust of the government in
+general and Congress in particular. This is normal in every democracy--
+around the world, even at the peaks of confidence in government in the
+societies most trustful of government, there is typically one-quarter
+to one-third of the electorate that believes that government cannot be
+trusted to pursue the public good. This is normal and indeed it can be
+healthy--it is this skepticism that enables the public to serve as a
+watchdog against government corruption, and as a guardian of its own
+rights against government overreach. There is no legislation you can
+pass, no magic wand you can wave, that will make all Americans trust
+their government, and it would be a mistake to try. Thus, it is
+important to pass serious, balanced legislation, that addresses
+specific and real problems, rather than to engage in populist
+grandstanding or pass measures merely because they ``send a message.''
+ The problem, as I see it, based on my travels around the country
+and my conversations with lobbyists, officeholders, civic leaders, and
+ordinary citizens, is that lobbyists have access to information, and to
+legislators, that is not known to the general public. In a small number
+of isolated cases, lobbyists have used their access, outside of the
+public eye, to bribe or improperly influence members. More commonly,
+the simple lack of transparency, even absent any improprieties, has
+resulted in the public being closed out of decisions made by the
+government. I have never heard it expressed, however, that the problem
+is too much involvement by the American people, or that the people are
+contacting members of Congress, or that citizens and groups are
+attempting to provide information to the people at large. Thus, the
+Senate approach is quite right to focus on legislative transparency,
+and avoid the efforts by some to use lobbying reform to pursue other
+agendas that aim to limit, rather than enhance, popular checks on
+government.
+ In particular, the Senate was quite correct in removing from the
+bill, as it was originally introduced, Section 220, pertaining to the
+regulation and in particular the disclosure of grassroots lobbying. As
+a matter of constitutional law, the Supreme Court has repeatedly
+recognized a right to engage in anonymous political speech. These cases
+include Thomas v. Collins, 323 U.S. 516 (1945) (striking down a statute
+requiring labor organizers to register and disclose to the government
+prior to speaking); NAACP v. Alabama, 357 U.S. 449 (1958) (guaranteeing
+the NAACP the right to protect the identities of its members and
+financial supporters); Talley v. California, 362 U.S. 60 (1960)
+(protecting anonymous speech to the public); McIntyre v. Ohio Elections
+Commission, 514 U.S. 334 (1995) (upholding the right to anonymous
+speech on political issues during the course of a campaign); and
+Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150
+(2002) (striking down a statute requiring prior registration with
+government). Only in the narrow circumstances of political
+advertisements directly related to a candidate election and either
+expressly advocating the election or defeat of a candidate or involving
+substantial expenditures for broadcast ads mentioning a candidate
+within 60 days of an election has the Court ever upheld restrictions on
+anonymous speech. See Buckley v. Valeo, 424 U.S. 1 (1976); McConnell v.
+Federal Election Commission, 540 U.S. 93 (2003). Regulation of
+grassroots lobbying through mandatory disclosure of funding sources
+directly violates the Constitution, as repeatedly interpreted by the
+Supreme Court.
+ Moreover, as a policy matter, regulation of grassroots lobbying
+makes little or no sense in addressing the problem of government
+corruption. Contact between ordinary citizens and members of Congress,
+which is what ``grassroots lobbying'' seeks to bring about, is the
+antithesis of the ``lobbying'' at the heart of the recent congressional
+scandals. It is citizens expressing themselves to fellow citizens, and
+citizens to members of Congress. That they are engaged or
+``stimulated'' to do so by ``grassroots lobbying activities'' is
+irrelevant. Regulation that would hamper efforts to inform and motivate
+citizens to contact Congress will increase the power of professional
+lobbyists inside the beltway. Regardless of what lobbying reform is
+passed, not even the most naive believe it will mean the end of the
+professional, inside-the-beltway lobbyist. Thus, grassroots voices
+remain a critical counterforce to lobbying abuse.
+ Disclosure of the financing, planning, or timing of grassroots
+lobbying activities adds little, and will often be harmful, leading to
+exactly the type of favoritism and/or negative pressure that the public
+abhors. I want to stress that I have first hand experience with being
+on the receiving end of grassroots lobbying campaigns. As a
+Commissioner on the Federal Election Commission, I was the target of
+several such campaigns, one of which generated over 100,000 citizen
+communications. I found it helpful to hear from the public, even if in
+the form of mass generated campaigns. I know that these campaigns were
+easily detected and appropriately discounted (but not ignored or
+resented). No member of Congress even remotely in touch with his
+district will be unaware that a sudden volume of similar calls,
+letters, or emails coming from his or her district is possibly, if not
+probably, part of an orchestrated campaign to generate public support.
+But because the callers themselves are real, there is little to be
+gained by knowing who is funding the underlying information campaign
+that has caused these constituents to contact their Members. The
+constituent's views are what they are; the link between lobbyist and
+Congress is broken by the intercession of the citizen herself.
+ Various Washington-based organizations, many of which employ
+registered lobbyists and many of which have no membership base, have
+attempted to denigrate this citizen activity by referring to it as
+``Astroturf'' lobbying, implying that it is somehow fake or fraudulent.
+But there is nothing fake about real citizens--that is, voters and
+constituents--having views on issues and calling their representatives
+in Washington. It simply does not matter if those views were stimulated
+by a newspaper editorial, a conversation with a friend, a speech at the
+local Rotary Club, or a paid communication. These are real people with
+real concerns, not ``fake'' or ``Astroturf'' constituents.
+ Moreover, there are many valid reasons for preferring anonymity.
+Anonymous speech is not illegitimate in some way. Remember that the
+Federalist Papers were published anonymously, in order to force readers
+to deal with the arguments put forth rather than engaging in ad hominem
+attacks against the authors. As the Supreme Court put it in McIntyre,
+in an opinion written by Justice Stevens, ``[t]he decision to favor
+anonymity may be motivated by fear of economic or official retaliation,
+by concern about social ostracism, or merely by a desire to preserve as
+much of one's privacy as possible.'' 514 U.S. at 357.
+ Many members of this Committee have expressed deep concern about
+what was called the ``K Street Project,'' in which it is believed that
+pressure was placed on organizations in Washington to hire lobbyists on
+the basis of partisan considerations. Of course, the identity of
+lobbyists is necessarily known, and the public can benefit from knowing
+who lobbyists are and with whom members are meeting. That is how the
+public can provide a check on undue influence exercised behind the
+scenes. But grassroots lobbying contacts do not pose the possibility of
+behind the scenes meetings or bribery or improper influence, because by
+definition grassroots lobbying relies on voters--constituents--to take
+action. Efforts to force disclosure of grassroots lobbying needlessly
+open up that field to K Street Project-type pressure. Such forced
+disclosure can make seasoned professionals reluctant to assist
+unpopular causes or those contrary to the current administration,
+resulting in a chilling effect that would deprive grassroots
+organizations of the services of talented consultants who make their
+livings, in part, on Capitol Hill. Indeed, those consultants most
+likely to abandon the field will often be those most motivated by
+ideology. Those motivated by pecuniary gain will have an added
+incentive to bear the cost of disclosure and carry on.
+ Finally, let me note that I have heard, in ways that cause me to
+believe it to be true, that some members have said that ``disclosure''
+is, ``not regulation.'' How absurd! If you honestly believe that, then
+I urge you to begin filling out the forms yourselves and imagine that
+you face civil and criminal penalties for any errors or late filings.
+Clearly, disclosure is regulation, and often the most intrusive
+regulation.
+ In summary, the Senate wisely stripped regulation of grassroots
+lobbying from the bill, and this House would be wise to similarly
+reject opportunistic efforts by various Washington-based interest
+organizations to stifle citizen speech. As further explication of the
+points raised above, I have attached to this statement a copy of CCP's
+Policy Primer, ``Grassroots Lobbying Proposals Seem Not to Further
+Congress' Interest in Correcting Lobbying Abuses.''
+ Let me now address just a few specifics of what was retained in
+Senate Bill 1. First, a Section 212 of S. 1 requires that registrants
+must file quarterly reports ``Not later than 45 days after the end of
+the quarterly period beginning on the 20th day of January, April, July
+and October of each year. . . .'' Accordingly, the quarterly reporting
+period for the first quarter of the year will be January 20th through
+April 19th--not January 1st through March 31st. Needless to say, using
+a different quarterly reporting period for Lobbying Disclosure Act
+purposes than is used for FEC reporting purposes will create
+unnecessarily burdensome accounting problems for separate segregated
+funds whose contributions now have to be reported to the FEC, the Clerk
+of the House and the Secretary of the Senate. I have been told that
+this was not intended, but it appears to be the law as passed out of
+the Senate. I urge you to bring this provision into harmony with FEC
+reporting dates.
+ More substantively, Sec. 212 is one of the key sections of the
+Senate bill, requiring added disclosure of lobbyists political
+contributions. However, I would note that many of the terms in that
+section are vague and left undefined. For example, reporting is
+required whenever a ``fundraising event was hosted, co-hosted, or
+sponsored.'' The FEC has no definition of any of these terms. An
+individual might raise money for an event but not be listed as a
+``host'' or ``sponsor'' of the event; another person might be listed as
+a ``host'' but play no role in raising funds. Indeed, there is no clear
+definition even of what constitutes an ``event.'' What is an event? Any
+gathering? Must it be a physical gathering, or is a video or virtual
+gathering sufficient? If all that is targeted is ``events,'' will
+anything have been accomplished? If these terms are left vague, they
+subject honorable people to civil and even potential criminal penalties
+for honest efforts to engage in political activity, while at the same
+time they may not even address the issues you seek to address. I would
+urge you to make sure you know what the purpose this regulation is, and
+to see that it is appropriately targeted.
+ Section 116 of S. 1 would deny COLA adjustments to members who vote
+against them. I am one of the few people--sometimes I think the only
+person--in the country willing to go on record and say that I believe
+members of Congress ought to be paid more--substantially more--than
+they are currently paid. During the last campaign, I spoke publicly
+against the tireless demagoguery about members ``voting themselves pay
+raises,'' a charge usually made by challengers who fully expected, if
+victorious, to receive the benefits of these past COLA adjustments.
+Nevertheless, I believe it very bad policy to hold a member's own
+income hostage to his voting in a particular way on any bill or
+resolution, and equally bad to create several classes of members
+receiving different levels of pay. Further, I do not see what this
+provision has to do with lobbying reform.
+ I would urge you to reject the Senate approach of establishing a
+``Commission to Strengthen Confidence in Congress.'' The Commission's
+mission, as defined in S. 1, seems to suggest partisan retaliation for
+legislation in some cases long past. I believe it will be destructive
+of efforts to create genuine, nonpartisan ethics reform, or to increase
+public confidence in Congress, to inform the public that you have
+created another ``commission'' with a specific mission to focus on a
+few laws--some passed as long as 5 years before we can expect the
+Commission to meet--apparently chosen for partisan reasons. Some
+members will no doubt draw satisfaction from such an approach, but
+frankly it mocks the entire ethics and lobbying reform project.
+ Let me conclude, generally, by urging moderation. Aim for real
+problems, not appearances. For example, Sec. 212 of S. 1 requires added
+disclosure of contributions arranged as small as $200. There is some
+logic here, as $200 is the threshold for full disclosure of
+contributions under the Federal Election Campaign Act. Yet I doubt that
+any of us in this room really believe that $200 in campaign
+contributions is going to corrupt anybody. Such low thresholds lead to
+voluminous reports that can actually make it harder to find larger
+volumes of money.
+ Similarly, it is easy to dictate voluminous reporting requirements
+for members and staff. But be careful. Complying with formalistic
+reporting requirements should not become the major function of
+Congress. Congress must operate ethically, to be sure, but it must
+exist for reasons other than to comply with ethics rules as well.
+ There are changes, such as earmark reform, that can and should be
+done, many of which are included in the Senate bill. But understand
+that nothing you do will eliminate or prevent every episode of
+corruption--there simply are some corrupt people in the world--and
+trying to do so burdens good, ethical people and can even hinder
+efficient, effective government. Similarly, it is normal and healthy
+that the public have some skepticism of what its government is doing--
+nothing you can do can eliminate all such skepticism. Finally, remember
+that the problem is ``insider'' abuses, not participation by the public
+at large, and avoid those who, in pursuit of their own insider agendas,
+urge regulation of grassroots activities.
+ Thank you.
+ __________
+
+ ATTACHMENT
+
+ POLICY PRIMER: Grassroots Lobbying Proposals Seem Not to Further
+ Congress' Interest in Correcting Lobbying Abuses
+ By Stephen M. Hoersting
+ and Bradley A. Smith
+ (614) 236-6317
+
+ Abstract
+ Of the several policy proposals circulating Capitol Hill to correct
+lobbying abuses, strengthen the relative voice of citizens, and add
+accountability to the earmarking process, one policy prescription seems
+oddly out of place. Proposals for so-called ``grassroots lobbying
+disclosure'' do nothing either to sever the link between lobbyist cash
+and lawmakers' pecuniary interests, or to strengthen the relative voice
+of citizens. Grassroots lobbying--encouraging or stimulating the
+general public to contact lawmakers about issues of general concern--is
+citizen-to-citizen communication that fosters citizen-to-lawmaker
+communication. It correspondingly weakens the relative strength of
+lobbyist-to-lawmaker communications, in furtherance of Congress'
+objective in seeking lobbying reform.
+ Efforts to limit grassroots lobbying, require disclosure of donors,
+or compel lobbyists to register with the government to assist groups in
+contacting fellow citizens, strips donors and consultants of
+constitutionally guaranteed anonymity, and would deprive organizations
+championing unpopular causes of skilled representation. This anonymity,
+long recognized and protected by the Supreme Court, fosters political
+association, guards against unwarranted invasions of privacy, and
+protects the citizens who fund or assist groups such as Progress for
+America or People for the American Way from calumny, obloquy, and
+possible retribution--including retribution by public officials.
+ Disclosure is not always a good thing. The rationale for requiring
+disclosure of contributions to candidate campaigns, and disclosure of
+direct lobbying activity, is the same for protecting anonymity in the
+discussion of policy issues: to protect citizens from retribution by
+abusive officeholders. History demonstrates that while such retribution
+may be uncommon, it is real. Indeed, even today we read of a Texas
+prosecutor who has subpoenaed donor records for a group after the group
+ran grassroots lobbying ads that took a position contrary to that of
+the prosecutor.
+ The abuse of non-profit entities by a handful of lobbyists to host
+golf trips or entertain lawmakers with donations from lobbyist clients
+can be cured in other ways, without enacting disclosure measures too
+attenuated to the problem Congress seeks to correct, and that could
+damage or diminish America's system of information exchange for years
+to come.
+ introduction
+ Senator Dianne Feinstein recently captured public sentiment when
+she said that there should ``be a wall'' between registered lobbyists
+and the pecuniary interests of Members of Congress.\1\ The problem is
+not the technical and professional information lobbyists provide
+lawmakers, nor is it information on the opinions of the American people
+that honorable and ethical lobbyists provide lawmakers everyday.
+Indeed, it is the relative voice of the average citizen that the
+Senator wants to strengthen. This is why Senator Feinstein and Senate
+Rules Committee Chairman Trent Lott have proposed bringing sunlight to
+the earmarking process and other measures that would weaken the link
+between lobbyist cash and lawmaker policy.\2\ Senators Lott and
+Feinstein are not alone. Other proposals include gift bans, travel
+restrictions, other types of earmark reform, revoking floor privileges
+of former lawmakers, slowing the ``revolving door,'' and limiting
+lobbyist donations to charities affiliated with Members, to name a few.
+What all of these proposals seek to do is to limit the direct pecuniary
+exchange between lobbyists and lawmakers.
+ Circulating among these provisions, however, is another
+recommendation that is oddly out of place. It has little or nothing to
+do with reducing the coziness between lobbyists and lawmakers. These
+are the so-called ``grassroots lobbying disclosure'' provisions now
+under consideration in various quarters, which require organizations
+and associations to disclose in detail their efforts to run issue-
+oriented advertising aimed at fellow citizens, and in some cases, to
+identify donors.
+ In proposals to disclose grassroots lobbying, we are witnessing two
+canons of political law on an apparent collision course: that
+government corruption is cured by disclosure; and that the right of
+individuals to speak and associate freely depends upon their ability to
+do so anonymously. But the conflict is a false one--a byproduct of
+fuzzy thinking--because both canons achieve the same purpose when each
+is applied to its proper context. Both protect citizens from abusive
+officeholders. Disclosure regimes for campaign contributions protect
+citizens from officeholders who have free will and can confer benefits
+on large contributors (and pain on opponents) by passing future
+legislation. Disclosure regimes for true lobbying activities, that is,
+consultants engaged in face-to-face meetings with officeholders,
+protects citizens in a similar manner.
+ Regimes that protect the right to speak anonymously with fellow
+citizens about issues, even issues of official action or pending
+legislation, also protect citizens from abusive officeholders by
+reducing an officeholder's ability to visit retribution on those who
+would oppose his policy preferences. Citizens learn much about the
+relative merits of a candidate by knowing who supports him. They learn
+about the legislative process by knowing who is paying consultants to
+meet with officeholders directly. But citizens learn little about the
+relative merits of a clearly presented policy issue by knowing who
+supports it. Grassroots lobbying registration and disclosure regimes
+that would provide honest citizens and abusive officeholders alike with
+knowledge of which groups and individuals support which issues,
+including the timing and intensity of that support, impose too high a
+cost for too little benefit in a constitutional democracy.
+ the value of grassroots lobbying
+ Far from being part of the current problem, grassroots lobbying is
+part of the solution to restoring the people's faith in Congress. Polls
+show that Americans are fed up with what is increasingly seen as a
+corrupt Washington way of business. Ninety percent of Americans favor
+banning lobbyists from giving members of Congress anything of value.
+Two-thirds would ban lobbyists from making campaign contributions. More
+than half favor making it illegal for lobbyists to organize
+fundraisers.\3\ Seventy six percent believe that the White House should
+provide a list of all meetings White House officials have had with
+lobbyist Jack Abramoff.\4\ But there is no evidence whatsoever that the
+public views grassroots lobbying activity as a problem.
+ Indeed, even the name grassroots ``lobbying'' (as opposed to
+``activism,'' ``communication,'' or other term) is in some sense a
+misnomer. ``Grassroots lobbying'' is merely the effort to encourage
+average citizens to contact their representatives about issues of
+public concern. It is not ``lobbying'' at all, as that phrase is
+normally used outside the beltway, meaning paid, full-time advocates of
+special interests meeting in person with members of Congress away from
+the public eye. What the public wants is what Senator Feinstein and
+others have recognized--they want to break the direct links between
+lobbyists and legislators, thus enhancing the voice and influence of
+ordinary citizens. They do not want restrictions on their own efforts
+to contact members of Congress, or on the information they receive
+about Congress.
+ Contact between ordinary citizens and members of Congress, which is
+what ``grassroots lobbying'' seeks to bring about, is the antithesis of
+the ``lobbying'' at the heart of the Abramoff scandals. It is ordinary
+citizens expressing themselves. That they are engaged or ``stimulated''
+to do so by ``grassroots lobbying activities'' is irrelevant. These are
+still individual citizens motivated to express themselves to members of
+Congress.
+ Regulation that would hamper efforts to inform and motivate
+citizens to contact Congress will increase the power of professional
+lobbyists inside the beltway. Regardless of what lobbying reform is
+passed, not even the most naive believe it will mean the end of the
+professional, inside-the-beltway lobbyist. Thus, grassroots voices
+remain a critical counterforce to lobbying abuse. Recently one member
+of Congress expressed his concern that Jack Abramoff's Indian Tribal
+clients were used to contact Christian Coalition members, ``to stir up
+opposition to a gambling bill.'' \5\ But it cannot be denied that the
+individuals who responded to that grassroots lobbying were ordinary
+citizens who were, in fact, opposed to a gambling bill. They are
+precisely the type of people that Congress ought to hear from, rather
+than or in addition to inside-the-beltway lobbyists. Regardless of how
+they learned about the issue, they had to make the decision that the
+issue was important to them, and take the time to call Congress.
+ Disclosure of the financing, planning, or timing of grassroots
+lobbying activities adds little, and will often be harmful, leading to
+exactly the type of favoritism and/or negative pressure that the public
+abhors. No member of Congress even remotely in touch with his district
+will be unaware that a sudden volume of calls coming from his or her
+district is possibly, if not probably, part of an orchestrated campaign
+to generate public support. But because the callers themselves are
+real, there is little to be gained by knowing who is funding the
+underlying information campaign that has caused these constituents to
+contact their Members. The constituent's views are what they are; the
+link between lobbyist and Congress is broken by the intercession of the
+citizen herself.
+ Disclosure, however, comes with a price. The most obvious is that
+it re-establishes the link between the lobbyist and the officeholder.
+When the source behind the grassroots campaign is anonymous--either a
+donor or consultant--the opportunity for favoritism, and for
+retaliation, is gone. Mandatory disclosure reintroduces that link. It
+is true that many financiers of grassroots lobbying campaigns are happy
+to be publicly identified--for example, George Soros and Steve Bing
+make no bones about their efforts to educate the public. Unions, and
+some trade associations, such as the Health Insurance Association of
+America (HIAA) in its 1994 ads urging citizens to oppose a national
+health plan, are more often than not open about their activities. But
+others prefer anonymity, and there are many reasons for wanting
+anonymity and for providing its protection.
+ To use the example of HIAA, under the national health plan proposed
+by the Clinton Administration in 1994, private insurance companies were
+to have a major role in administering the plan. But it would be a role
+achieved through a bidding process. A company donating money or
+expertise to an HIAA ad campaign against adoption of the plan might
+sincerely believe that the plan was bad for America, but be prepared to
+bid to administer the plan had it passed. And even if the plan failed,
+companies in such a highly regulated industry might wish to avoid
+retaliation from disappointed lawmakers who had supported the plan.
+Such a company might therefore prefer anonymity. Anonymity would
+protect it and its lobbyists from retaliation, favoritism and
+government pressure--precisely the result that Congress is seeking to
+achieve in lobbying reform.
+ Others will have other reasons for anonymity. A prominent Democrat
+may not want to be identified as having consulted on ads urging
+citizens to support the nomination of Samuel Alito to the Supreme
+Court; a prominent Republican consultant may not want to be identified
+as being on the other side. Some donors simply don't want to have their
+donations to grassroots lobbying known so that they will not be
+approached for added donations. In each case, anonymity not only
+protects the donor or consultant, it prevents favoritism, retaliation,
+and improper pressure by government officials.\6\ As Justice Stevens
+stated for the Supreme Court in McIntyre v. Ohio Elections Commission,
+anonymous speech, ``exemplifies the purpose behind the Bill of Rights
+and of the First Amendment in particular: to protect unpopular
+individuals from retaliation--and their ideas from suppression.'' \7\
+ Anonymous speech aimed at rousing grassroots opinion is a long and
+honored tradition in American politics. Alexander Hamilton, James
+Madison, and John Jay authored the Federalist Papers anonymously. Most
+of the opposition to the ratification of the Constitution was also
+published anonymously by such distinguished Americans as Richard Henry
+Lee, then New York governor George Clinton, and New York Supreme Court
+Justice Robert Yates.\8\ Other famous Americans known to have engaged
+in anonymous ``grassroots lobbying'' include Thomas Jefferson, Abraham
+Lincoln, Winfield Scott, Benjamin Rush, and New Jersey Governor William
+Livingston.\9\
+ grassroots lobbying disclosure provisions are unrelated to
+ the purpose of lobbying reform
+ Grassroots lobbying disclosure proposals amend the Lobbying
+Disclosure Act of 1995 to reach any employment of paid lobbyists to
+urge the general public to contact a Federal official about an issue of
+general concern. Proposals require ``grassroots lobbying firms'' (or
+organizations that employ lobbyists) to register with the Secretary of
+the Senate or Clerk of the House of Representatives not later than
+twenty days after being retained by a client. Most proposals require
+reporting of all amounts paid for grassroots lobbying activities, or
+amounts paid to ``stimulate'' grassroots lobbying, including separate
+disclosure for all paid advertising. This typically includes monies
+spent for preparation, planning, research, and background work, as well
+as monies spent coordinating lobbying activities with other
+organizations. One approach would expose nonmembers of an organization
+who donate above a certain level--typically $10,000--as a separate
+``client'' listed on the lobbying disclosure form. Such changes would
+dangerously expand the scope of an understandable reform effort into
+uncharted and unconstitutional territory. They would drive many
+publicly spirited persons on either side of an issue--those who care
+passionately about nothing more than the proper administration of
+justice, for example, in the case of the recent Samuel J. Alito
+confirmation hearings--out into the open, and perhaps, therefore, out
+of future debates altogether. They would make seasoned lobbyists
+reluctant to assist unpopular causes or causes contrary to the current
+administration. Compelled disclosure robs such donors or consultants of
+constitutionally protected anonymity, often subjecting them to calumny,
+obloquy and possible retribution by entrenched interests fighting on
+the other side, especially when the other side is the government
+itself. This would have a chilling effect on donors to issues
+organizations on both sides of the aisle, and deprive organizations of
+the services of talented consultants who make their livings, in part,
+on Capitol Hill. Indeed, those most likely to withdraw from the field
+will often be those motivated by ideology. Those motivated by pecuniary
+gain will have an added incentive to bear the cost of disclosure and
+carry on.
+ To clean up the Abramoff mess there is no reason to smoke out the
+more generous donors to groups like Progress for America or Alliance
+for Justice, or to make consultants fearful to assist those
+organizations with controversial issues. Even if those groups hired
+lobbyists for any purpose, including as consultants who know best how
+to craft a message, donations to those groups for grassroots lobbying
+do not support direct lobbyist-to-lawmaker contact--the source of
+public concern. (Nobody cares if a lobbyist flies on a corporate jet--
+what they object to is his giving rides to congressmen on a corporate
+jet!). Grassroots lobbying fosters citizen-to-citizen communication,
+and later, citizen-to-lawmaker communication. The message consists of
+information for citizens, and an appeal to those citizens to take part
+in a public discussion. Some citizens will get involved because they
+agree with the message and share its concern; others because they
+disagree; and still others will not get involved at all. With even the
+most effective grassroots lobbying, however, there is always an
+intervening decision made by the citizen to get involved or not to get
+involved, and to decide on which side of the issue to get involved, to
+what degree, and in what capacity. The aggregate of those individual
+decisions is itself critically important and valuable information to
+the lawmaker.
+ Lawmakers are representatives of the people. No matter how citizens
+first hear of a pending legislative issue, when they engage they are
+engaging in citizen-to-lawmaker communication; the citizens making the
+calls are not registered lobbyists. With the decision to contact
+lawmakers, from whatever side of the debate, citizens reduce the
+relative power of lobbyist-to-lawmaker communication, which is
+precisely the power shift the public wants to see, and is the shift
+most needed in an era of unlit, undisclosed earmarking and lobbying
+scandal.
+ grassroots lobbying disclosure provisions may be unconstitutional
+ In addition to complex policy questions surrounding society and its
+information exchange, regulation of grassroots lobbying raises
+constitutional concerns. The Supreme Court has recognized that ``there
+is practically universal agreement that a major purpose of [the First]
+Amendment was to protect the free discussion of governmental affairs.''
+\10\ In Buckley v. Valeo, the Supreme Court held that regulation of
+political speech and association is constitutionally justified only to
+prevent corruption or the appearance of corruption in government, by
+preventing the exchange of favors that flows from an inordinate
+connection or nexus between campaign donors and lawmakers.\11\ In
+McConnell v. FEC, the Supreme Court extended the rationale to guard
+against the appearance of corruption created by ``access'' to
+politicians.\12\ Neither grassroots lobbying aimed at citizens, nor any
+ensuing contact by citizens to members of Congress, creates the reality
+or appearance of corruption. And both work to alleviate the problem of
+unequal access noted in the McConnell decision.
+ Anonymous grassroots lobbying has received unwavering First
+Amendment protection from the Supreme Court.\13\ As recently as 2002,
+the Supreme Court invalidated a ``village ordinance making it a
+misdemeanor to engage in door-to-door advocacy [with fellow citizens]
+without first registering with the mayor'' as a violation of ``the
+First Amendment protection afforded to anonymous . . . discourse.''
+\14\ And there is no doubt that retribution is real. It is not hard to
+imagine, for example, why the State might have wanted to know the names
+of all members of the NAACP in 1950s Alabama, and why the Supreme Court
+said in response to Alabama's desire to learn those names that ``[i]t
+is hardly a novel perception that compelled disclosure of affiliation
+with groups engaged in advocacy may constitute as effective a restraint
+on freedom of association as [other] forms of governmental action.''
+\15\ It is also easy to imagine the leverage Alabama could have put on
+the NAACP, and the potential damper on the civil rights movement, if
+1950s Alabama knew about the NAACP what the twenty-first century
+Congress proposes to learn about grassroots organizations. What could
+Alabama have done had it known: when the NAACP engaged in preparation,
+planning, research, or background work; when it coordinated activities
+with like minded organizations; when the organization proposed to
+engage its fellow citizens with advertising and in what quantity; or
+knew the names of the consultants that would assist them in the effort?
+ Nor are these merely episodes of the past. In what many consider a
+blatant attempt at intimidation, a Texas county prosecutor recently
+subpoenaed the donor records of a group called the Free Enterprise Fund
+after it ran grassroots lobbying ads critical of his behavior in
+office.\16\ It is easy to forget when rushing to correct lobbyist
+excess, even excess covered by current law, that citizens can be
+intimidated and harassed by officials. In McIntyre v. Ohio Elections
+Commission, Margaret McIntyre, a local anti-tax activist who
+distributed fliers opposing a school levy, was warned she was not
+properly identified on them. Nonetheless, she distributed fliers at the
+Middle School, where her children faced potential retaliation from
+school officials. An assistant schools superintendent who learned
+McIntyre's identity filed a complaint with the Ohio Elections
+Commission in what one Ohio Justice characterized as ``retribution
+against McIntyre for her opposition.'' \17\ The Supreme Court of United
+States invalidated the Ohio statute, stating that ``[t]he decision to
+favor anonymity may be motivated by fear of economic or official
+retaliation, by concern about social ostracism, or merely by a desire
+to preserve as much of one's privacy as possible.'' \18\
+ Requiring even the most grizzled or politically connected lobbyists
+to register and report their attempts to solicit citizens on behalf of
+an organization is also suspect. In Thomas v. Collins, the Supreme
+Court struck down a Texas statute that required labor organizers--
+defined as ``any person who for . . . financial consideration solicits
+[citizens] for membership in a labor union``--to register with the
+Secretary of State, provide his name and union affiliations, and wear a
+State-issued organizer's card before soliciting membership in a labor
+union.\19\ The State claimed the statute affected only the right to
+engage in business as a paid organizer. The Court, however, held there
+was a ``restriction upon the right [of the organizer] to speak and the
+rights of the workers to hear what he had to say,'' \20\ and stated
+that it is ``in our tradition to allow the widest room for discussion,
+and the narrowest range for its restriction, particularly when this
+right is exercised in conjunction with peaceable assembly.'' \21\
+ The potential for elite firms and private consultants to avoid
+unpopular causes to protect their long-range economic interests, and,
+in turn, to deprive unpopular organizations of competent representation
+is not implausible. For example, in 2004, two radio jockeys in
+Washington State (who, by the nature of radio, lacked anonymity)
+stimulated grassroots activity by advocating the repeal of a newly
+passed 9.5 cents per-gallon increase in the Washington state gasoline
+tax.\22\ The jockeys were persuasive, and partly responsible for an
+anti-tax initiative making the ballot with the fourth-highest number of
+signatures of any measure in the history of Washington State. The
+cities of Auburn, Kent, and Seattle filed suit against the radio
+jockeys and their station five months before Washington's citizens
+would decide the fate of the tax repeal. Id. The cities claimed that
+the jockeys failed to report their commentary to the State as in-kind
+contributions to the anti-tax initiative,\23\ which, had it passed,
+would have cost the State of Washington $5.5 billion.\24\ Both parties
+to the litigation are being represented for free; the cities by Foster
+Pepper PLLC, one of the largest law firms in the Pacific Northwest,
+with over 130 attorneys, and the firm handling the State of
+Washington's bond issue for the gas tax increase. The radio jockeys
+found free representation in a non-profit, public-interest law firm,
+headquartered 3000 miles from Washington State.\25\
+ lobbyist abuse of non-profit organizations can be addressed in other
+ ways
+ Jack Abramoff allegedly abused non-profit organizations to cozy up
+to lawmakers, shelter income, bankroll golf junkets, or bolster the
+bank account of his Washington restaurant.\26\ Some cite this abuse of
+outside organizations as demonstrating a need to require disclosure of
+citizen donations to issue campaigns. But Congress may prevent
+lobbyists from hiding gifts or bribes, or financing golf trips to
+Scotland in more direct ways. Congress could require disclosure by
+lobbyists, or perhaps even by non-profit organizations themselves, when
+the non-profit makes direct contact with a lawmaker, that is, when a
+non-profit organization hosts or entertains lawmakers with donations
+from or directed by lobbyists, or when the non-profit accepts gifts
+from lobbyists with instructions to lavish a portion of it on
+lawmakers. But the passing of pecuniary interests from lobbyists to
+lawmakers through non-profit organizations is not a justification for
+requiring citizens who donate to issue campaigns, or the recipient
+organizations, to disclose the amount of those donations, the timing of
+those donations, or the name and home address of the donor.
+ conclusion
+ Anonymous grassroots lobbying is a long and honored tradition,
+engaged in by many of the greatest Americans, including Lincoln and
+Jefferson. The United States Supreme Court has recognized that
+anonymous grassroots lobbying is entitled to the fullest protection of
+the First Amendment.
+ The problem of lobbying abuses is one of lobbyist influence outside
+the light of scrutiny. It is not a problem of citizen influence.
+Grassroots lobbying encourages citizens to get involved, and the
+involvement of citizens breaks the link between lobbyists and
+lawmakers. Hence, grassroots lobbying should be encouraged in every way
+possible, not discouraged, as a way to restore the trust of the
+American people in Congress.
+
+ Stephen M. Hoersting is the Executive Director of the Center for
+Competitive Politics and former General Counsel to the National
+Republican Senatorial Committee.
+ Bradley A. Smith, former Chairman of the Federal Election
+Commission, is Senior Advisor to the Center for Competitive Politics,
+and Professor of Law at Capital University Law School in Columbus,
+Ohio.
+ The Center for Competitive Politics seeks to educate the public on
+the benefits of free competition, fairness, and dynamic participation
+in the political process.
+ Nothing in this primer should be construed as advocacy for or
+against any legislation.
+
+------------
+ \1\ Tory Newmeyer, Hill Eyes a Treasure Trove, Roll Call, Feb. 13,
+2006.
+ \2\ Spotlight, Politics: Earmark Debate Starting to Focus on
+Transparency, not Reduction, Environmental and Energy Daily, Feb. 9,
+2006.
+ \3\ ABC News Washington Post Poll, Majorities See Widespread
+Corruption, Want Tougher Lobbying Restrictions, Jan. 9, 2006, available
+at http://abcnews.go.com/Politics/PollVault/story?id=1487942.
+ \4\ ABC News Washington Post Poll, Majorities Disapprove of Bush on
+Ethics, Favor Release of Abramoff Meeting Records, Jan. 27, 2006,
+available at http://abcnews.go.com/Politics/PollVault/story?id=1547685.
+ \5\ Congressional Quarterly, Transcript of Hearing, Senate
+Committee for Homeland Security and Governmental Affairs, Jan. 25, 2006
+(comments of Senator Durbin).
+ \6\ See e.g. James Nash, Political Ties Costs Law Firms, Columbus
+Dispatch, Feb. 15, 2006 at B1.
+ \7\ McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357
+(1995).
+ \8\ Id. at 343.
+ \9\ Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance
+Reform 7, 18 (2001); McIntyre, 514 U.S. at 361, 363 (Thomas, J.,
+concurring in the judgment.)
+ \10\ Mills v. Alabama, 384 U.S. 214, 218 (1966).
+ \11\ Buckley v. Valeo, 424 U.S. 1 (1976).
+ \12\ McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
+ \13\ See McIntyre v. Ohio Elections Commission, 514 U.S. 334
+(1995); Talley v. California, 362 U.S. 60 (1960); NAACP v. Alabama ex
+rel. Patterson, 357 U.S. 449 (1956). See also First National Bank of
+Boston v. Bellotti, 435 U.S. 765 (1978) (non-anonymous corporate speech
+on public issues protected by First Amendment).
+ \14\ Watchtower Bible v. Village of Stratton, 536 U.S. 150 at 153,
+160 (2002).
+ \15\ NAACP v. Alabama, supra note 13, 357 U.S. at 462 (1956).
+ \16\ Robert Novak, DeLay Prosecutor Subpoenas Critics, Human Events
+Online, Dec. 16, 2005. There was no dispute that the ads were
+unconnected to any election.
+ \17\ Duane St. Clair, Campaign Pamphlets Must Bear Source, Court
+Says, Columbus Dispatch, Sep. 26, 1993 at 5B.
+ \18\ McIntyre, supra note 7, 514 U.S at 341-342 (1995).
+ \19\ Thomas v. Collins, 323 U.S. 516, 519, n1 (1945)
+ \20\ Id. at 524
+ \21\ Id. at 530.
+ \22\ Neil Modie, ``Gas Tax Foes Are Fighting Back,'' The Seattle
+Post-Intelligencer, p. B1 (Aug. 10, 2005).
+ \23\ Id.
+ \24\ Editorial, ``Gas Tax Repeal: Pennies or Projects?'' The
+Seattle Post-Intelligencer, p. C2 (July 10, 2005).
+ \25\ Modie, supra note 22.
+ \26\ Chuck Neubauer and Richard B. Schmitt, Abramoff's Charity
+Began at Home, Los Angeles Times, Feb. 11, 2006, at A1.
+
+ Mr. Nadler. Thank you, Professor, and I congratulate you
+also for being under the 5-minute limit.
+ Mr. Mann?
+
+ TESTIMONY OF THOMAS MANN,
+ THE BROOKINGS INSTITUTION
+
+ Mr. Mann. Thank you, Mr. Chairman.
+ I wish I could say, ``Oh, shucks, I am from a town of 300
+in Ohio.'' Instead, I have to admit I am from Milwaukee,
+Wisconsin, which is much, much bigger.
+ I am delighted to be with you. Thank you for inviting me.
+ As the Chair said, this process of lobbying and ethics
+reform has begun with the adoption of the House rules. There is
+a bipartisan task force at work looking into the possibility of
+building in some independent capacity into the ethics process.
+Your Subcommittee is appropriately dealing with a lobbying
+disclosure act and possible amendments to it.
+ I believe, like others, S. 1 is an excellent point of
+departure for you. There are many sort of, I think, excellent
+and non-controversial provisions in this bill that has passed
+the Senate. And I urge you to use it as a basis.
+ But, obviously, there are two elements that are
+controversial that are included in S. 1, and one that is not,
+that is even more controversial, as the statement from the
+Ranking Member, Mr. Franks, has indicted.
+ Let me just say, on the matter of, if you will, making,
+arranging or collecting political contributions, I believe Mr.
+Nadler, the Chair's statement about money is absolutely
+correct. I believe, in this case, disclosure, transparency is
+the best alternative.
+ And let me say, I don't view this as nefarious lobbyists
+trying to ply you with money and to gain special advantage from
+doing so. Frankly, I think you, as Members, individuals, as
+political parties and the like, frankly, are under too much
+temptation to ask for too much help from those who have
+business before you.
+ And, in some respects, the best thing about transparency
+here is that, if you think it is legitimate, if it won't
+compromise your ability to make independent decisions on what
+those lobbyists want out of Congress, even though they are
+setting up fundraisers for you and arranging other
+contributions for you, then you should have no objection to
+having that information public. I think it is perfectly
+legitimate for you to make the case that it is legitimate, but,
+then, why can't the public know about it as well?
+ Second provision has to do, of course, with the revolving-
+door provision. Again, we have a problem here. More and more
+Members and staff are going to work immediately for lobbying
+firms. This does not exactly set the tone that one would like.
+There is just too much of a perception of private gain from
+public service.
+ There is nothing wrong with lobbying, but if we could just
+put a little breathing room in there, so that Members who are
+leaving voluntarily or are defeated, and staffers, aren't sort
+of so immediately and constantly thinking about how they will
+build their lobbying business, it would be a healthy thing.
+ Ken raised appropriate points about the language, but I
+think it is all--it is doable here, and I urge you to look hard
+at that recommendation.
+ The third provision, final, is the grassroots lobbying.
+ Mr. Franks, if I thought any language would be passed by
+this Subcommittee and Committee and full House that had the
+effect of restricting those people you talked about, I would
+strongly oppose it. So I am with you on the statement.
+ But from what I understand, we are talking about no
+individuals, no lobbying organizations. We are talking about
+lobbying firms and firms that are engaged in providing paid
+advertising to influence specific legislative provisions with a
+$100,000-a-quarter provision. It doesn't require any new
+registration or reporting by individuals and existing
+organizations, except those that are simply in the business of
+doing--the reality is we are not talking about old-style,
+grassroots lobbying.
+ We are talking about a very different set of activities,
+now, that is central to lobbying in Washington. There is a lot
+of research on this. It is a reality.
+ I urge you, Mr. Franks, to approach this with an open mind,
+and if language can be found that achieves that broader
+objective of massively funded lobbying campaigns by paid media
+and exempts everything else, then maybe it is a good thing.
+ Thank you.
+ [The prepared statement of Mr. Mann follows:]
+ Prepared Statement of Thomas E. Mann \1\
+---------------------------------------------------------------------------
+ \1\ The views expressed in this testimony are solely my own and
+should not be ascribed to the trustees, officers, or other staff
+members of The Brookings Institution. A brief resume is attached.
+---------------------------------------------------------------------------
+ Mr. Chairman and other members of the Subcommittee, thank for you
+inviting me to share my views of S. 1, the bill on lobbying reform
+passed by the Senate earlier this year. The prosecution and guilty
+pleas of lobbyist Jack Abramoff, Representatives Randy ``Duke''
+Cunningham and Bob Ney, and several former congressional staff have
+understandably brought to public attention the adequacy of laws,
+congressional rules, and enforcement mechanisms regulating the
+interactions between lobbyists and Members of Congress and their
+staffs. These scandals, ongoing investigations of others, and the
+widespread public perception of a culture of corruption in Washington
+could provide the boost required to enact long-needed changes in that
+regulatory system.
+ Lobbying has changed dramatically in recent years. The number of
+registered lobbyists has tripled. Budgets for Washington representation
+and grassroots lobbying have risen exponentially. Retiring or defeated
+Members are now more likely to stay in Washington and join their ranks.
+Congressional staff routinely move from Capitol Hill to lobbying shops
+around town. Some Members have been actively involved in placing their
+staff and those of their colleagues in key positions within the
+lobbying community. Many Members enlist lobbyists to help raise
+campaign funds for their re-election campaigns, leadership PACs,
+endangered colleagues, and political party committees. The escalating
+cost of campaigns has put intense pressure on Members, even those with
+safe seats, and lobbyists to raise and contribute substantial sums of
+money. At the same time, more opportunities exist for Members and their
+leaders to deliver benefits to lobbyists and their clients. These
+include earmarks, in appropriations and authorization bills;
+invitations to participate in informal mark-up sessions in party task
+forces, standing committees, and conference committees; amendments
+added late in the legislative process under the veil of secrecy; and
+letters and calls to executive branch officials. These conditions
+foster practices that risk conflicts of interest and unethical or
+illegal behavior.
+ The House began the process of ethics and lobbying reform at the
+start of the 110th Congress by enacting in H. Res. 6 a number of rules
+changes governing gifts, privately-financed travel, and earmarks. A
+bipartisan task force has been commissioned to recommend ways of
+strengthening the ethics process in the House, including some role for
+an independent panel composed of former Members and others. What
+remains to be done is the enactment of changes in law, most importantly
+the Lobbying Disclosure Act of 1995 (P.L. 104-65), enhancing the
+transparency of interactions between Members of Congress and lobbyists.
+ S. 1 is an excellent point of departure for your deliberations on
+this latter responsibility. That bill, for example, very constructively
+requires quarterly, instead of semiannual, filing of lobbying
+disclosure reports, which are then made available to the public in a
+timely and useable fashion on the Internet. It also increases the
+penalties for failure to comply with lobbying laws and provides for a
+GAO audit of lobbying reports.
+ One of the most important provisions of S. 1, and also one of the
+most controversial, adds new language requiring lobbyists to disclose
+contributions they make, arrange, or collect for Members, candidates,
+leadership PACs, and political parties. These provisions, contained in
+Section 212 of the Senate bill, are identical to the language of H.R.
+633, introduced by Representatives Chris Van Hollen and Marty Meehan.
+Unlike the restrictions on gifts and travel by lobbyists to Members
+already contained in the House and Senate rules, the new language
+provides for transparency, not prohibition. While federal campaign
+finance law requires candidate and political committees to disclose the
+source and size of contributions of at least $200, including those from
+lobbyists, lobbying disclosure law is silent on contributions. Yet many
+lobbyists are actively involved in political fundraising for Members
+they seek to influence. In addition to direct contributions, these
+efforts include administering leadership PACs, hosting fundraising
+events, and soliciting contributions from others (commonly known as
+``bundling'').
+ I believe public disclosure of these contributions from lobbyists
+to members and their political and party committees would serve the
+broad public interest without unduly invading the privacy rights of
+lobbyists or making unreasonable reporting demands on them. The
+language is carefully crafted to allow ``good faith estimate(s)'' of
+funds raised from events or solicitations when precise figures on such
+amounts are not available. To the extent Members believe such
+contributions are legitimate forms of political participation and do
+not compromise their ability to make independent decisions on
+legislative matters of interest to the lobbyists making the
+contributions, Members ought to be willing to make them transparent.
+The inclusion or exclusion of this provision in the legislation adopted
+by the House is likely to determine the seriousness of its response to
+the scandals associated with Jack Abramoff and the K Street Project.
+ Another important and, therefore, controversial provision of S. 1
+deals with the ``revolving door'' problem. Current law (18 U.S. C. 207)
+provides for a one-year cooling off period before former Members can
+lobby the legislative branch; also, former senior congressional staff
+may not lobby their former employer, whether Member or committee, for
+the same amount of time. The Senate bill extends the cooling off period
+for Members from one to two years; the comparable period for senior
+congressional staff remains one year, but the prohibition on lobbying
+activity is extended to the entire Senate. In addition, the Senate bill
+expands the lobbying activities covered during the cooling off period
+from only direct contacts to include behind-the-scenes activities,
+advice, or consultations in support of lobbying contacts.
+ Make no mistake, this is a very tough provision. It would make
+former members and senior congressional staff less marketable in the
+lobbying community upon their departure from Congress and reduce their
+immediate post-Congress career options. But it would likely have a
+healthy impact on the policy process and the state of American
+democracy. The newly-defined cooling off period would encourage more
+diverse career patterns among former Members and staff, diminish the
+payoff from privileged connections and enhance the benefits of genuine
+expertise, and begin to change a culture fostering the quest for
+private gains from public service. I urge you to retain this language
+in the House bill.
+ The last item I would like to raise with you is one that is absent
+from the Senate bill, after a successful floor amendment to delete it
+from the underlying bill. Grassroots lobbying campaigns now constitute
+a major part of lobbying activities. Huge sums are spent on paid media,
+computerized phone banks, direct mail, and other forms of public
+communications to stimulate lobbying of Congress by citizens. Yet
+professional grassroots (``Astroturf'') lobbying organizations and
+lobbying firms are not required to report on the sums they spend on
+these campaigns. It makes little sense to exclude these activities
+whose costs may well exceed expenditures for direct lobbying.
+ The trick is to define these organizations and activities in a way
+that does not restrict the free flow of information. New requirements
+must also be crafted to avoid placing new reporting burdens on
+organizations that spend relatively small sums on grassroots lobbying
+or that are communicating with their own members or with the general
+public to recruit new members. I understand efforts to amend the
+original Senate language to reflect these concerns are well underway in
+the House. I urge you to bring these negotiations to a successful
+conclusion and include a grassroots lobbying disclosure provision in
+the House bill.
+ In sum, I recommend that you look favorably on S. 1, in particular
+its provisions regarding the disclosure of political contributions
+(including bundling) and the slowing of the revolving door between
+Congress and the lobbying community. I also recommend that you include
+in the House bill a provision to require the disclosure of sums spent
+on behalf of major grassroots lobbying campaigns. When combined with
+the new House rules adopted in January and a strengthened ethics review
+and enforcement process now being considered by a bipartisan task
+force, such a lobbying reform bill would go a long way in responding to
+scandals of recent Congresses and improving the ethical climate in
+Washington.
+
+ Mr. Nadler. Thank you very much.
+ The direct testimony of the witnesses has concluded.
+ As we ask questions of our witnesses, the Chair will
+recognize Members in the order of their seniority in the
+Subcommittee, alternating between majority and minority,
+provided that the Member is present when his or her turn
+arrives. Members who are not present when their term begins
+will be recognized after the other Members have had the
+opportunity to ask their questions. The Chair reserves the
+right to accommodate a Member who is unavoidably late or only
+able to be with us for a short time, especially if there is a
+competing Committee meeting at the same time.
+ I will begin by recognizing myself for 5 minutes.
+ Mr. Gross, you said in your testimony that the bundling
+provision, as written in S. 1, is vague and open to
+misapplication. Can you give us an example of how you think
+this might be remedied?
+ Mr. Gross. I think that if you eliminate the arranged-for
+part of the definition and define collecting as those checks
+that you physically handle and perhaps those that you forward
+in coded envelopes, you will narrow the ambiguity of the
+provision and it will coincide with the FEC definitions of what
+it means to be a conduit. So I think with those changes right
+there, you would go a long way toward improving the provision.
+ Mr. Nadler. Thank you.
+ Let me ask--starting with Mr. Gross--then comment on the
+other members of the panel--one of the concerns we hear about
+Astroturf lobbying--that is, the provision that didn't get into
+S. 1, but there are various suggestions about Astroturf
+lobbying--is that they sweep too broadly.
+ Do the members have suggestions as to how to clarify the
+definition, if necessary, between so-called legitimate--well, I
+won't say ``illegitimate,'' but when you should face a
+disclosure requirement, when you shouldn't, if at all?
+ Mr. Gross first, and then----
+ Mr. Gross. Well, yes, and some of those points have been
+brought out already in the testimony. I think that you
+certainly don't want to do anything that is going to affect the
+associational rights within an organization or sort of
+homegrown grassroots, if you will.
+ I think with dollar thresholds, as has been proposed in the
+S. 1 and some, I think, other drafts that are going around now,
+along with a specific situation where there has been an
+engagement for hired--call it Astroturf, call it what you
+want--a hired effort to artificially stimulate the community
+with either e-mails or letter-writing campaigns, in that
+situation, I think you can at least provide a law that has
+clarity and limited application that is not going to infringe
+somebody speaking on T.V.
+ Also, I think you need a specific call to action. If you
+are going to define grassroots, it should be a specific
+communication to call your congressman and vote yes on H.R. 15,
+not some vague statement that, ``I don't like the Social
+Security laws out there.''
+ Mr. Nadler. But, in other words--so let me see if I
+understand one of the distinctions you are making. If the Right
+to Life Committee or Common Cause or somebody spends $100,000
+on revving up the troops to write Congress, that should not be
+disclosable.
+ Mr. Gross. Right----
+ Mr. Nadler. But, if the Right to Life Committee or Common
+Cause hires ABC law firm to stimulate people to write to
+Congress, that should be disclosable, if it is over a certain
+amount?
+ Mr. Gross. Yes. I think that would be something that could
+perhaps withstand challenge.
+ Mr. Nadler. Yes.
+ Ms. Dufendach, the same questions?
+ Ms. Dufendach. With the exception that if that
+communication was to increase membership for Common Cause, it
+would not be included.
+ I think Congressman Meehan is actually working on a
+proposal that is far narrower than the proposal that was
+defeated in the Senate. And, in fact, we are told that no
+organization at all would ever have to disclose under the new
+proposal.
+ Even in the situation of Harry and Louise, the Health
+Insurance Association would not have had to disclose. Only the
+firm that actually did the campaign would have had to
+disclosure who their client was, what the issue was----
+ Mr. Nadler. In other words, the firm that was paid by
+somebody else----
+ Ms. Dufendach. Yes.
+ Mr. Nadler. ABC Advertising Corp. would have had to
+disclosure that the American Medical Association, let's say--I
+have no idea who did it, but the American Hospital Association,
+whoever, hired them----
+ Ms. Dufendach. Health insurance.
+ Mr. Nadler. Whatever--hired them to gin up local letter
+writing to Congress or whatever.
+ Ms. Dufendach. Yes.
+ Mr. Nadler. Thank you.
+ I am sorry that Mr. Meehan is not here to explain his
+proposal.
+ Does anybody else want to comment on this question?
+ Mr. Smith. I would. Thank you, Mr. Chairman.
+ I would just disagree that the distinction really ought to
+be made.
+ Mr. Nadler. Which distinction? I am sorry.
+ Mr. Smith. Well, the distinction between what should be
+disclosed or what should not, or, some would say, what is
+illegitimate or legitimate.
+ And I note that you began to say that and stopped. But I
+think--because that is what we hear all the time is a lot of
+these folks do think that some of the stuff is illegitimate,
+and we get used to talking in those terms.
+ It is not illegitimate. It is not illegitimate for a group
+to spend money to try to get citizens to talk. And I would
+suggest that what is wrong with Harry and Louise?
+ First, everybody knew who was behind Harry and Louise. This
+was not a big secret.
+ Second, what is wrong with that? American citizens watched
+their televisions and they saw something----
+ Mr. Nadler. We are running out of time.
+ Mr. Mann, quickly?
+ Mr. Mann. Thank you.
+ Mr. Nadler. Do you have a comment on this?
+ Mr. Mann. Nothing is wrong. And if nothing is wrong, what
+possible objection is there to the firms, not the
+organizations, being required to report this as lobbying
+activities? It is a reality. There is nothing wrong with it. It
+is perfectly legitimate. Let's disclose.
+ Mr. Nadler. Thank you, Mr. Mann.
+ My time has expired.
+ Mr. Franks?
+ Mr. Franks. Thank you, Mr. Chairman.
+ Professor Smith, I almost hate to ask you a question
+because your testimony itself was so compelling in my mind.
+ But, you know, the term ``grassroots lobbying'' encompasses
+a broad array of activities, such as simply encouraging other
+people to contact their Federal officials, regardless of their
+opinion on an issue.
+ And I am wondering if you think that criminal penalties for
+failure to comply that include prison and large fines would
+stifle large amounts of legitimate speech, when people just
+refrain from speaking simply to avoid an overzealous
+prosecutor?
+ Mr. Smith. Well, surely the threat of penalties discourages
+people from speaking. If people think they might be subject to
+penalties if they get the law wrong, they don't want to do it.
+ The question comes up, ``Well, what is wrong with requiring
+disclosure? It is just disclosure, you know? I mean, what is
+wrong with that?''
+ Well, you know, you don't see the letters we get from
+people at the FEC who were fined real money for trying to
+comply with disclosure laws and making mistakes. And we have to
+think about people.
+ Would it be better--I mean, there are many unpopular causes
+out there, and there are many of the groups that are capable of
+running grassroots campaigns and stimulating citizen
+involvement in Government who are reliant on their reputations
+in Congress and working in Congress.
+ You know, I know, Mr. Chairman, you have expressed a lot of
+concern about the K Street Project over the years. Well, what
+is grassroots lobbying disclosure, other than a way to
+implement another K Street Project? You find out, well, who is
+paying for this? What firms? And then you can pressure those
+firms. And you say, ``We don't like your clients. We don't like
+who you are hiring as lobbyists.''
+ The wonderful thing about non-disclosure is that is not a
+threat, and there is not a threat to Government, again, because
+we have that voter who is choosing to take action.
+ And voters are misinformed by all kinds of things. Like I
+said, a New York Times editorial will misinform any voter, you
+know? Voters get information from all kinds of sources, from
+talk radio, from grassroots campaigns, from Websites, from
+Rotary Club speeches.
+ We want to encourage voters to get involved, and they are
+your real constituents, and you need to deal with it. And will
+this kind of disclosure chill speech? Sure it will. The Supreme
+Court has recognized that in case after case.
+ I will be real quick here, but Mr. Gross mentioned that he
+thought the court would uphold this kind of disclosure under
+Harris. Well, a lot of water has gone under the bridge since
+Harris, a lot of first amendment water in the last 50 years,
+including, NAACP v. Alabama, Talley v. California.
+ McIntyre v. Ohio, election commission specifically
+distinguished, in holding that you couldn't require disclosure,
+noted that Harris was different because it involved the
+activities of lobbyists who have direct access to elected
+representatives. And that is an opinion by Justice Stephens,
+giving a very narrow interpretation to Harris.
+ I think that if you take this present court and the way it
+has gone on disclosure, it has consistently said that only in
+the narrow context of specific candidate elections can you
+uphold it. And they have done that because they recognize, Mr.
+Franks, that, yes, it has a chilling effect on speech.
+ Mr. Franks. Well, thank you, Professor.
+ Mr. Gross, the Federalist Papers were essays written by
+James Madison and Alexander Hamilton. They were defending the
+ratification of the Constitution that we live under today, and
+they were written anonymously and published in newspapers under
+pen names, pseudonyms, precisely because those Founding Fathers
+wanted to cause people to think about the substance of what
+they were saying, rather than who was saying it.
+ And with sincere respect, to use your words, were they
+artificially stimulating pubic opinion when they did that?
+ Mr. Gross. I don't know. In that situation, probably not.
+The words ``artificially stimulating'' come from the U.S.
+Supreme Court in the Harris case. And I guess, you know, it is
+a question of definition whether this is a hired effort in the
+modern-day, sophisticated effort to influence thinking.
+ I certainly would distinguish any homegrown effort, such as
+the Federalist Papers, and there is some Supreme Court support
+for anonymity for that type of distribution in the McIntyre
+case, as Professor Smith has mentioned.
+ But I do think that can be distinguished from the hiring of
+outside vendors to engage in certain types of--we call it
+Astroturf, call it what you will--communications with a call to
+action with dollar thresholds in it.
+ It is a challenge. It is not the easiest thing in the world
+to do, I would admit that, but I think it can be done.
+ Mr. Franks. Thank you, Mr. Chairman. I think it would be
+tough for me to get another question in.
+ Mr. Nadler. Well, thank you.
+ The distinguished Chair of the Committee, Mr. Conyers?
+ Mr. Conyers. Thank you, Chairman Nadler.
+ There are so many fine lines here, but I would like to
+begin with the question about independent ethics commission,
+because, as I understand it, Common Cause thinks this is a good
+idea, and ACLU does not--two of my friendly organizations.
+ Could you begin a discussion with this, Ms. Dufendach?
+ Ms. Dufendach. I am unaware that the ACLU has said that,
+but I can give you an idea about why Common Cause thinks that
+it is a good idea.
+ I think perhaps the best way to say this is, at this point,
+the Ethics Committee in the House has so little credibility
+that it cannot even protect the innocent. It cannot even, with
+any credibility, dismiss a complaint that is completely
+frivolous, because no one has any faith in it.
+ And the thing that might be the most benefit to Members
+right now is that an independent body could, in fact, do that,
+could do it quickly, swiftly and have penalties for people who
+purposefully file a frivolous complaint.
+ At this point, the Ethics Committee can't--it has been
+proven that it doesn't hold the guilty to task, and it can't
+even really protect the innocent.
+ If you have a specific question about constitutionality or
+anything like that, I could go forward with that. Otherwise, I
+will stop.
+ Mr. Conyers. Well, we were hoping that the Ethics Committee
+had a new slate, now that they are in a new Congress with a
+great change in their membership. We don't want to have the
+problems of the past just hang over whoever joins the Committee
+from this point on. Goodness knows we wouldn't want that to
+happen to the Judiciary Committee.
+ Ms. Dufendach. If I could just comment. Frequently, people
+say that if only the right people could get put on the Ethics
+Committee, it would function. But I think over the last 30
+years, at some place--who decides who are the right people? And
+over the last three decades, it has proven that it can't. It
+either----
+ Mr. Conyers. You don't think there have been any----
+ Ms. Dufendach [continuing]. Too much or doesn't do enough.
+ Mr. Conyers. There have been some right people.
+ Ms. Dufendach. Well, I think the idea of the institutions
+of a democracy are to set up systems and functions where, no
+matter who is in control, the system will allow the democratic
+process to move forward.
+ Mr. Conyers. Ken Gross, do you think this is a stretch here
+that we should try to keep an independent ethics commission or
+that it might create constitutional problems?
+ Mr. Gross. It is conceivable that you could set up an
+investigative body that wouldn't abridge constitutional
+concerns.
+ I am kind of lukewarm on it. I think a lot of the problems
+that the Ethics Committee has had are procedural problems that
+only one Member can file a complaint at another Member. And
+people don't like firing lines assembled in the shape of a
+circle.
+ And, you know, I think if there were complaints, credible
+complaints that could come in, and the Ethics Committee is
+staffed properly, that it could be handled within that
+mechanism without creating another entity, another process,
+which will have investigative powers only, which will, then,
+ultimately, have to refer, presumably, to an ethics commission.
+So I think with modification of some of the procedures that
+were in place, we don't have to go that route.
+ Mr. Conyers. Professor Smith, I wasn't clear on why you
+thought calling Astroturf--using the term ``Astroturf''
+lobbying is something that you consider distasteful. When I
+hear the term, I am thinking of the phenomenon of groups that
+are pretending that they are grassroots groups and they are
+really not at all. They are the product of some clever
+consultant. How do you view that?
+ Mr. Smith. Yes, Mr. Chairman. Let me say here is what I
+would think of in my definition as an Astroturf lobbyist: There
+is a group that is pushing for this regulation that is an
+organization called Democracy 21. It is headed by a guy named
+Fred Wertheimer.
+ They have no members. Fred Wertheimer is a registered
+lobbyist. His power comes because his wife is a prominent
+journalist, and he has direct access to the editorial pages of
+The New York Times, right?
+ To me, he is an Astroturf lobbyist. He purports to come in
+and speak for the American people, but he speaks for himself.
+He doesn't have any members to account to or anything. It is
+funded by a few foundations.
+ When a group, even if it is a business group or something,
+goes out and contacts your voters, they are contacting people
+who are real voters. They are members of what we call the
+grassroots. And if those people choose to contact you, they are
+still grassroots real voters, who are now contacting you.
+ And so I think this idea that their opinions are somehow
+false, or Astroturf, because somebody was paid to contact them
+is very wrong. And I cannot understand the philosophy would
+say, ``There is absolutely nothing wrong with this, but we need
+to regulate it.''
+ Mr. Conyers. Let me ask Ms. Dufendach if she agrees with
+the Wertheimer comparison, since he came out of--didn't he
+start Common Cause?
+ Ms. Dufendach. No, no, no. John Gardner started Common
+Cause.
+ Mr. Conyers. Very well. Okay.
+ Mr. Nadler. The gentleman's time has expired, but I will
+permit Ms. Dufendach to answer the question.
+ Ms. Dufendach. I think when asked what is the problem that
+we are trying to correct here, what it is is you have got $17
+million, $20 million worth of ad campaigns going on nationwide.
+Everybody is seeing them. It does make a difference who is the
+sponsor of them. It serves to put context to what is being
+said.
+ No one is saying that they can't do it. Nobody is saying
+that they don't have the right to lobby, and lobby in this way.
+ All we are saying is please let us know who is behind this,
+so we can judge for ourselves what the message is or the motive
+or the objective of this particular ad campaign is.
+ Common Cause is a grassroots organization. If I thought
+that this was going to imperial our talking with our Members or
+in any way doing our grassroots, I would not be so in favor of
+it.
+ I will also just say that the Sierra Club was opposed to
+the Senate version of this Astroturf. They now have seen the
+very narrow new proposal that is being crafted, and they are
+for it.
+ Mr. Nadler. Thank you, Ms. Dufendach.
+ The gentleman from Indiana?
+ Mr. Pence. Thank you, Mr. Chairman. I appreciate you
+holding this hearing and the civility with which it is being
+conducted, and the thoughtful presentations of the panel.
+ With regard to the independent ethics commission, I would
+observe that it is interesting. I find your comments
+provocative, Ms. Dufendach.
+ But it does seem to me that the call for an independent
+ethics commission in Congress was a call for creating something
+similar to the Independent Counsel Act that there is broad
+bipartisan opinion in Washington that that has been a disaster,
+to create kind of an extra constitutional agency of Government.
+ Whitewater investigations become investigations into lying
+about sex with interns. Investigations into classified leaks
+become prosecutions over perjury before grand juries. I would
+just observe that as a cautionary note with regard to that
+comparison for your consideration.
+ Let me just say, I supported bipartisan legislation in the
+House in January for greater disclosure. I commend the majority
+for their leadership on ethics and earmarks. And so, to Mr.
+Mann's point, I am open to new ideas about how we create
+greater transparency and greater accountability.
+ I am just really struggling with this grassroots provision,
+to be candid, and that has to do with my concern about the
+chilling effect.
+ And I guess I would like to direct my questions, maybe
+first to Mr. Mann, and to the extent that--the panel, Mr.
+Gross, and Mr. Smith in particular.
+ My question is, it seems to me that what has been talked
+about here--the dollar threshold or the rest--all of this
+activates, if, in fact--not if grassroots lobbying goes on to
+generate context to Congress, but if someone is hired to help
+do that.
+ It does seem to me that I am perfectly free, if I was a
+private citizen, to go out and encourage people to write my
+congressman. But I get into a whole range of disclosures if I
+hire somebody who actually knows how to do that. So as long as
+I am kind of learning on my own how to do it and encouraging
+people, as opposed to hiring someone who professionally knows
+how to do it, that I am okay, under some of what has been
+discussed.
+ And I hold the view Common Cause is a storied organization.
+Might be startled to know when I first ran for Congress 15
+years ago, I refused PAC money. I was the first Republican to
+do that. I have gotten over that. But Common Cause was harshly
+critical of me, even though I was advocating something they
+promoted at the time. But that was okay. My veteran father
+said, ``I can disagree with everything you say. But I will
+fight to the death for your right to say it.''
+ So my question to the panel is is there any concern about a
+chilling effect? Would this encourage or discourage a diversity
+of views being expressed to Congress by the American people, if
+we essentially create a new hurdle, when people who are good at
+what they do, who are professional at what they do are engaged
+in assisting?
+ I am beginning with you, Mr. Mann.
+ Mr. Mann. Mr. Pence, I think that is very well-stated. I
+mean, that is the issue. And the key here is in adding any new
+disclosure provision that you don't have that chilling effect,
+that you don't discourage speech.
+ My personal view is the more speech the better. That is why
+I am not in a related area, campaign finance. I am not in the
+business of eliminating money, reducing money. But I do
+believe, in the old days, if you will, one segment of the
+reform community said, ``Let's deregulate and disclose.'' Now,
+they are moving to deregulate and don't disclose.
+ My view in this area is that you need to craft this
+provision in which no individual who hires professional help is
+going to have any reporting requirements at all. That is, you
+have to set this up so that what you are getting at is major or
+major paid communication campaigns to influence the general
+public to lobby Congress on a particular piece of legislation.
+And the only reporting requirement is from the firm that is
+taking in, say, $100,000 a quarter or more from a particular
+client.
+ If you set the limits in that way, you are not going to
+touch any of the legitimate areas of concern that Mr. Franks
+and that Professor Smith have discussed, in my view.
+ Mr. Nadler. Time has expired, but I see Mr. Gross----
+ Mr. Pence. Thank you, Chairman.
+ Mr. Gross. I don't think it is that far of a leap from what
+we are already requiring for direct lobbyists, that type of
+disclosure. And 31 States, based on the last survey that I did
+of States, actually has some form of grassroots disclosure
+right now.
+ Mr. Nadler. Thank you. Does anybody else want to comment on
+that particular point?
+ If not, the gentleman from Alabama?
+ Mr. Davis. Thank you, Mr. Chairman.
+ I know one of the purposes of this hearing is not so much
+to wade into the details of the legislation, but with four of
+you to talk about some of the theoretical underpinnings.
+ Let me make two observations.
+ I certainly take the concerns of my friend from Indiana,
+and I take the concerns, I take it, Professor Smith, that you
+have raised, but I don't understand the constitutional
+argument. I don't understand the argument that there is somehow
+a constitutional impediment on speech if we curtail lobbying
+activity in terms of more disclosures, in terms of more
+information being provided to the general public, for a very
+simple reason.
+ The class of people or the class of entities who choose to
+lobby Congress or who choose to lobby Federal agencies is a
+self-selected group of folks. They decide to engage in a
+particular calling, that of lobbying. It is their right to do
+that.
+ But it seems to me that the institution that is being the
+subject or the target of that speech, if you will, can put
+certain reasonable restrictions on time, place, or manner, can
+put certain reasonable restrictions on how that speech is
+received, how it is parceled out, and how it is disclosed. And
+without boring everybody here with 100 hypotheticals, that is a
+fairly bed-of-rock constitutional principle.
+ So I don't understand the force of the argument that
+somehow we are curtailing the ability of individuals to engage
+in speech, because we limit how and when they can do it and who
+they have to tell about it.
+ The second point that I want to make, again, going back to
+the broad atmospherics here. It is important. The status quo
+that we have is under attack. I agree with that. And there is a
+good reason it is under attack.
+ Right now, I don't think anybody in this room disputes the
+obvious. Certain entities and certain individuals have more
+sway over this institution than others, and it is almost always
+a matter of resources and ability to mobilize. And, by the way,
+last time I checked, ability to mobilize is tied, first and
+foremost, to resources.
+ All of us who have set in this institution the last several
+years have seen riders added to appropriation bills. We have
+seen votes on suspensions.
+ Number one, several years ago, we were having a vote on
+something fairly innocuous involving whether foreign companies
+could sell parts to China that they could use as part of their
+missile program. And the thing was about to pass
+overwhelmingly, and Boeing discovered that it might somehow
+restrict some of their sales in some way, shape or form. And
+130 Members of the House went down to the well to change their
+vote on a suspension bill.
+ Now, whether that was a meritorious decision or not, I
+don't think anybody can cite an example of a bill being on the
+floor and 130 Members going down to change their vote, because
+they discovered, all of a sudden, maybe this cuts the S-CHIP
+program more than we would like, or, ``Gee, maybe this affects
+funding for Medicaid in my State.'' I have never seen 130
+Members change their vote over that kind of thing.
+ There is a reason for that world. There is a concentration
+of power and resources on one side.
+ So I agree with some of the observations that have been
+made that some of this bill may sweep a little bit further than
+necessary. But there, frankly, may be a good reason that we
+have to do that, because the system now is so weighted and so
+imbalanced in one particular direction. So we may have to err
+on the side of regulation and disclosure to correct that
+imbalance.
+ Any responses to any of those observations?
+ Mr. Smith. As the one who has made the constitutional
+argument here on the panel, I guess I feel it is appropriate to
+respond, Mr. Davis.
+ I would go back to the question of what is the harm that
+you are attempting to address? Where is the harm in citizens
+hearing about issues, even if it is from a paid campaign? Why
+is that harmful to them?
+ Now, the only thing I have heard from harm is Ms.
+Dufendach, who has said several times, ``Well, we just have to
+know.''
+ Mr. Mann keeps saying we have to know, but he doesn't even
+say why.
+ Ms. Dufendach says, ``Because, otherwise, we can't judge
+the
+----''
+ Mr. Davis. Isn't the harm the imbalance, Professor Smith?
+ Mr. Smith. Well, but here is where I want to get directly
+into your question, the imbalance is not something--the Supreme
+Court has rejected the notion that you can regulate speech of
+citizens in order to try to create equality.
+ Furthermore, in Buckley v. Valeo, the Supreme Court
+rejected the notion that restrictions on money spending for
+speech can be viewed as time, place and manner restrictions,
+because they are aimed directly at the speech, not at the time,
+place and manner.
+ And the court has consistently upheld the right of citizens
+to engage in anonymous speech. It has recognized only one
+constitutionally justifiable reason, and that is preventing
+quid pro quo corruption, and that corruption is not present
+where you are being contacted by voters----
+ Mr. Davis. Hasn't the court said recently, in the Missouri
+case a few years ago, that the appearance of quid pro quo is
+also a constitutionally recognizable----
+ Mr. Smith. Certainly, the appearance--yes, that is correct.
+ Mr. Davis. And isn't all of this consistent with that
+Missouri ruling? Isn't it all aimed at appearance?
+ Mr. Smith. I would say absolutely not because it still has
+to be the appearance of quid pro quo corruption. And, like I
+say, the one thing I don't----
+ Mr. Davis. Wasn't that interpreted broadly in the Missouri
+case? That case dealt with campaign contribution.
+ Mr. Smith. Well, but that is campaign contributions
+directly to candidates. And the view was that even though you
+were probably not corrupted when somebody gave you a $1,000
+contribution----
+ Mr. Davis. Right.
+ Mr. Smith [continuing]. Somebody might think you were.
+ Mr. Davis. Right.
+ Mr. Smith. But it dealt with specifically with
+contributions to your campaign.
+ Mr. Davis. Doesn't the logic extend past contributions?
+ Mr. Smith. No, it does not, because, in that case, you have
+a citizen who contacts your office. Are you corrupted when one
+of your constituents contacts your office? I don't believe you
+are.
+ Mr. Nadler. The gentleman's time has expired.
+ The gentleman from California?
+ Mr. Issa. Thank you, Mr. Chairman.
+ Professor Smith, I do want to follow up a little bit.
+ First of all, my understanding is the Supreme Court held
+that privacy was a right. You know, we often argue over
+abortion up here on the dais, but isn't--just go through, sort
+of, an analysis.
+ Isn't your ability to have a private vote, to go into a
+voting booth, although it is not as explicitly said in the
+Constitution, isn't there a general belief that you should have
+the privacy of the voting booth, that no one should know how
+you voted?
+ Mr. Smith. Well, I think at least most people would agree
+with that, yes.
+ Mr. Issa. Okay. Isn't it, every single place in the United
+States, if you vote for one of us up on the dais, you vote
+privately, that it is not open to the public in any way, shape
+or form?
+ Mr. Smith. I believe that is true.
+ Mr. Issa. Other than the tally. Okay. Well, following
+through on this, if, in fact, you have a private right of
+communication, then that private right of communication is
+abridged by this reporting.
+ And we are talking about you didn't give a contribution. We
+already regulate contributions, but just the ability to
+communicate privately is abridged, by definition, if we tax it
+with these procedures.
+ Mr. Smith. I think that is correct.
+ Mr. Issa. Okay. Following the same line, though, we
+overtly, as a country, decided that poll taxes were wrong,
+didn't we?
+ Mr. Smith. Yes.
+ Mr. Issa. And that is a tax on or fee on executing your
+constitutional right, right?
+ Mr. Smith. Correct.
+ Mr. Issa. So if an individual or group of individuals want
+to exercise their constitutional right related to voting, we
+have asserted, constitutionally and through numerous court
+action, that you have a right to do these rights privately, and
+that you are not to be taxed or charged a fee unduly on them.
+ SMITH; Well, I think that is correct. And I think it goes
+as well to the chilling effect that has been brought up by Mr.
+Pence and by the Ranking Member and that has been recognized by
+the court repeatedly.
+ There is a chilling effect. The court has recognized it
+over and over. And I go back to it doesn't really matter why.
+As Justice Stephens said in McIntyre, he said, ``The decision
+to favor anonymity may be motivated by fear of economic or
+official retaliation, by concern about ostracism or merely by a
+desire to preserve as much of one's privacy as possible.'' I
+think that is exactly right.
+ Mr. Issa. Now, I am a Californian, and there is a kind of
+an interesting thing in California. When you go to vote in
+California, we can't ask you for a driver's license or other
+proof of who you are. Did you know that?
+ Mr. Smith. I was not specifically aware, I guess, of where
+we stood in California.
+ Mr. Issa. Well, it is something that I have long wanted to
+change. This Committee has worked on trying to get reforms that
+would require that if you want to vote, you prove you have a
+right to vote. And the folks that are not presently on the
+other side of the aisle, but when they are present on the other
+side of the aisle, have pushed back on that. And one of the
+reasons is because that if we had the audacity to demand that
+you prove you have a right to vote that we would be pushing you
+away from the voting booth.
+ Isn't reporting by grassroot groups, both a tax and an
+elimination of anonymity? And wouldn't it, at a minimum, have--
+and I think you have already quoted once--a potential chilling
+effect? And isn't that what we are dealing with here today is
+that that--that potential exists every bit as much in this
+legislation as it exists in polling-place observation, polling-
+place--if you put the Border Patrol at all the voting places in
+California, et cetera?
+ Mr. Smith. If you make it hard for people to hire skilled
+consultants, because those consultants are afraid they are
+representing an unpopular cause, and they rely on the good will
+of folks here in Washington, it very definitely has that
+effect.
+ And to elaborate briefly, you mentioned the tax thing, the
+cost of reporting can be very considerable. Many organizations,
+not big ones, spend $50,000, $60,000 a year or more----
+ Mr. Issa. And last but not least, isn't the most
+influential group probably in the United States right now
+MoveOn.org, a 527, backed by hundreds of millions of dollars by
+just one person who wants to have huge influence, who does so--
+or at least they are on the top 10?
+ Mr. Smith. I will leave it as your characterization. They
+have been a very influential group and were started----
+ Mr. Issa. Right.
+ And last but not least, this legislation, wouldn't it also
+impact groups like EMILY's List? Because this, in fact, talks
+about bundling. If we are going to get into bundling, then
+wouldn't we envision that EMILY's List would be restricted to
+one contribution and not dozens and dozens only given to pro-
+abortion Democrat women?
+ Mr. Smith. Well, I don't know exactly enough of how EMILY's
+List works, but bundling can affect a lot of people. And it
+points up that this is not, as some have tried to make it, sort
+of a partisan issue. You have got the ACLU and a wide variety
+of groups on both sides of the spectrum are concerned about
+this.
+ Mr. Issa. Thank you, Mr. Chairman.
+ Mr. Nadler. We have no more Democratic Members who wish to
+ask questions, so that the Ranking Member's fears were
+misplaced.
+ We will be able, with one more Republican asking questions,
+to finish in time to get to the vote. So I recognize the
+gentleman from Ohio.
+ Mr. Jordan. I appreciate there seems to be consensus
+developing on the definitions and the vagueness there, at least
+I heard from a couple of the panel. Appreciate that. And it
+certainly seems to be something that the Committee can work on.
+ I want to just go back to the principle that--relative to
+the grassroots lobbying issue that Professor Smith has brought
+out, just this fundamental idea that citizens contact their
+Government and why that is a good thing.
+ I mean, my guess is all the members of the panel and
+probably every Member of Congress is like our office. I have
+just been in office 2 months, but one of the things we take
+great pride in is how we respond back to the constituents who
+get a hold of us. So I actually do something each evening,
+because I can't get home to my family. We are here all week,
+and family is back in Ohio.
+ I take 10 or 12 people who have contacted our office that
+day and call them back. And it is amazing how many times that--
+you know, the first one, I say, ``This is Congressman Jordan
+calling,'' that they will say, ``Really?'' I mean, it is just
+amazing that they are talking to--you know--the guy that they
+may have voted for, but who at least represents them.
+ So I guess I come back to this concept. Professor Smith has
+probably said it best. What is wrong with some organization,
+some entity motivating citizens to contact their
+representative?
+ And to call it Astroturf, to call it artificial, to call it
+illegitimate doesn't make sense. It seems that is a good thing.
+ In fact, I think the Chair, if I wrote his statement down
+correctly in his--or in his opening statement, talked about a
+private citizen without a PAC should get as much attention as a
+lobbyist with one. And this would seem to help that citizen
+have a better chance of talking to their representative, the
+representative responding back to them.
+ So, again, just walk me through--and we have had--I looked
+at the testimony. I think Mr. Gross had talked about the
+concerns over the now-deleted provisions have been generally
+overstated. We have got that kind of general statement versus
+what Mr. Smith has said, that it is a chilling effect, that it
+is unconstitutional, that it is a terrible concept to pursue.
+ Just elaborate a little bit more, if you could.
+ Mr. Gross. Well, I think the road we are going down here is
+that there is something unholy or improper about a hired gun in
+a lobbying process, or at least there is some chilling effect
+if you hire somebody to lobby. And, now, we are even talking
+about maybe direct lobbying.
+ You know, all we are talking about here is disclosure. It
+is true that disclosure--I mean, you have the right to address
+your Government. It is a first amendment-protected right. The
+disclosure of that, whether it is direct lobbying or indirect
+lobbying, is a minimal intrusion on that right.
+ So the question is is it a justifiable intrusion? And--go
+ahead.
+ Mr. Jordan. Right. It certainly is. I mean, I think about
+our campaign account. We have a lawyer, who is a CPA, who is--
+He asks me--I mean, down the line--and it is still tough to get
+everything right to comply with campaign finance.
+ Now, we are talking about the influence it is going to have
+on citizens or groups who may spend whatever the threshold
+amount winds up being. That certainly is a chilling effect.
+ Mr. Gross. There is----
+ Mr. Jordan [continuing]. For someone who hires, we hire a
+good person to do our stuff, because we want to get it right.
+ Mr. Gross. And even requiring direct lobbying, which no
+one, I think, is disputing, the disclosure of direct lobbying
+is an intrusion as well. If you go out and hire a lobby firm
+and you gotta keep track of this and report it on your LDA form
+every quarter, there is an intrusion there as well.
+ The court has said if there are large amounts of money
+spent to influence the process--campaign finance is one thing.
+That you can actually limit. But if it is a large amount of
+money to influence the process, and it is not interfering with
+associational rights, that that disclosure of the dollars spent
+on that is a minimal intrusion against the possible corrosive
+effect that undue amounts of money can have on the process,
+whether it is direct or indirect. That is the constitutional
+underpinning for the disclosure of any of this, which is an
+infringement. No question about it.
+ I don't know how else to address it, except that I think if
+you narrowly draw that extension, just by hiring, just by
+requiring disclosure of a hired gun in certain situations is
+not an overwhelming, chilling effect for direct or indirect
+lobbying.
+ Mr. Smith. Mr. Jordan, if I could briefly comment----
+ Mr. Gross. In fact, it is----
+ Mr. Smith [continuing]. I would say that one of the things
+that has been overlooked, too, is there is an effort to do this
+through members, and say, ``Well, we will exempt membership
+organizations.''
+ In addition to the Chair's comment, why should you be
+limited if you don't have a PAC, why, if you haven't had the
+foresight to form a big membership organization 10 years in the
+past, should you now be limited in your ability----
+ Mr. Jordan. Right. Good point.
+ Mr. Smith [continuing]. To speak to the American people.
+ Mr. Mann. The court has upheld disclosure in campaign
+finance. The Lobbying Disclosure Act is not, as far as I know,
+under challenge. Constitutionally, this is a fairly minor
+addition to it. All of the disclosure responsibility is not
+with individuals----
+ Mr. Nadler. Thank you. Thank you.
+ Mr. Mann [continuing]. With others.
+ Mr. Nadler. Thank you.
+ The gentleman's time has expired.
+ We have less than 5 minutes on a vote.
+ Without objection, all Members will have 5 legislative days
+to submit to the Chair additional written questions for the
+witnesses, which we will forward and ask the witnesses to
+respond as promptly as you can, so that their answers may be
+made part of the record.
+ Without objection, all Members will have 5 legislative days
+to submit any additional materials for inclusion in the record.
+ Without objection, I thank the Members of the panel. I
+thank the witnesses. I thank the Members of the Committee.
+ With that, the hearing is adjourned.
+ [Whereupon, at 11:37 a.m., the Subcommittee was adjourned.]
+
+
+ A P P E N D I X
+
+ ----------
+
+ Material Submitted for the Hearing Record
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