This is news from a few days ago, but still worth mentioning. First, Senate bill S.1 could have threatened some political bloggers (my own clearest reading of it indicated it applied only to ones making or spending $25K per quarter): http://news.com.com/2100-1028_3-6151311.html There was a political outcry over Section 220 of S.1: http://news.com.com/Lobby+bill+spares+political+bloggers/2100-1028_3-6151519.html Prompting the Senate to accept (on a largely party-line vote) an amendment by Sen. Bennett to strip out that section: http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=1&vote=00017 Now Mark Fitzgibbons, a critic of Section 220, is arguing that it would have applied to more than just that subset of bloggers I mentioned above. He forwarded me his blog entry. I'll include it below. -Declan --- http://www.grassrootsfreedom.com/gw3/articles-news/articles.php?action=view&CMSArticleID=591&CMSCategoryID=23 Bloggers Would Be Lobbyists Professor Bainbridge, Others Wrong; Grassroots Bill Targets Bloggers under $25,000 By Mark Fitzgibbons, GrassrootsFreedom.com Professor Stephen Bainbridge “doesn’t buy” that the grassroots lobbying legislation would make bloggers into lobbyists who must report quarterly to Congress (Blogger Registration Story: Bogus? StephenBainbridge.com). He’s wrong. Section 220, the grassroots provisions of the Senate lobbying reform bill S. 1, was nixed by the Bennett Amendment before the remainder of S. 1 was passed by that chamber. Since Section 220 is likely be re-introduced in the House, I’ll treat it as still alive. The mistake made by Professor Bainbridge is a misreading of the legislation and the underlying lobbying reporting law that it would have amended. That mistake is based on a $25,000 threshold for a new term, “grassroots lobbying firm,” which is a creation of Section 220(a) of the legislation. Professor Bainbridge makes the same mistake I’ve seen made by others, so this detailed statutory analysis will hopefully put that issue to rest once and for all. First of all, it is important to distinguish (1) the communications made by bloggers, nonprofits or other grassroots causes on their own from (2) the use of a “grassroots lobbying firm.” Bloggers and many other grassroots causes, of course, create and publish their own communications. The term “grassroots lobbying firm” does not apply to communications prepared “in-house” and published by nonprofits and bloggers. Bloggers, etc., nevertheless, would still be subject to registration and quarterly reporting, as described in more detail below, for the communications they prepare in-house, costing under $25,000 and communicated to 500 or more members of the public. When grassroots causes, such as nonprofits, retain communications agents who are paid or who agree to spend $25,000 in any quarter, this separately triggers another set of registration and reporting requirements for the communications agents themselves, who would need to report their “clients” even though the agents meet none of the qualifications of a lobbyist. For example, such agents would be required to register and report even though they have no “contacts” with Congress and spend less than 20 percent of their time for any given client. See more below. This critical distinction between communications prepared or sent by bloggers and grassroots causes on their own, and those prepared or sent by communications agents who are “retained,” is essential to understanding Section 220, and why the former would need to be reported even when costing under $25,000 per quarter. And this is precisely why bloggers would be subject to registration under Section 220. The following statutory analysis walks through the detail to explain why this conclusion must be reached. Language of the Legislation and Existing Law Must Be Read Together I’ll refer to the existing law as “DLA,” for Disclosure of Lobbying Activities Act, codified at 2 USC 1601 and following. In the existing law, 2 USC (DLA) 1602(10) defines lobbyist for reporting purposes as one employed or retained who makes two or more lobbying “contacts” and whose lobbying “activities” are more than 20 percent of the time for his “client.” A “client” may include employers. A client may be the lobbyist’s employer or his own entity, including a sole proprietorship. “Client” is defined in DLA 1602(2) as any person or entity that employs or retains another person for financial or other compensation to conduct lobbying activities. A person or entity whose employees act as lobbyists on its own behalf is both a client and employer of such employees. “Employee” is defined at DLA 1602(5) as an officer, employee, partner or proprietor of a person or entity. A “lobbyist” for reporting purposes is any individual who is employed or retained by a “client” for financial or other compensation for services that include more than one lobbying contact, but does not include individuals whose lobbying activities constitute less than 20 percent of the “time engaged in the services provided by such individual to that client over a [three month] period.” DLA 1602(9), with bracketed language as it would be amended by S. 1. Lobbying “contacts” are oral or written communications to “covered” government officials, including Members of Congress, their staff, the White House, etc. DLA 1602(8). That may consist of just two emails, letters or phone calls to Members of Congress. Lobbying “activities” are preparation, planning, research and other background work. DLA 1602(7). Section 220(a) would amend the definition of lobbying activities in DLA 1602(7) to include “paid efforts to stimulate grassroots lobbying.” “Paid” efforts is not defined by any dollar amount, but simply by only one qualifier, and that is the communications are directed at more than 500 members of the general public. Section 220(a), creating DLA 1602(18)(B). Clearly, then, here is where the bill defines “paid” as nothing more than speech and publication to the general public, with no harm of any sorts being targeted, and no dollar amount attached. Simple Example Let me interrupt here to explain what this complex mass of statutory language means by way of a brief example. “Bob” who blogs only on Saturdays for his site, “Oppose All Tax Increases,” is likely to be hit hardest because his research and writing takes up more than 20 percent of his time for his blog, and his blog is read by more than 500 people. He sends two emails to Congress opposing tax increase legislation. Boom, he’s a lobbyist. Since bloggers were not expressly exempted, they certainly fit within the “new” definition of lobbyists who must register and report quarterly. It Gets Worse Further evidencing the “intent” of the legislation to regulate low-dollar communications by nonprofits and others such as bloggers, Section 220(b)(1) expressly makes “paid” grassroots communications ineligible for the low-dollar registration exemptions for direct lobbying conducted by actual, direct lobbyists. “Retained” actual lobbyists would be exempt if total income is less than [$2,500] per quarter, and “employed” actual lobbyists would be exempt if expenses are less than [$10,000] per quarter. DLA 1603(a)(3)(A)(i) and (ii). The registration requirements for actual lobbyists are contained in DLA 1603. However, DLA 1603(a)(3)(A)(i) and (ii) expressly create the low-dollar exemptions to registration for “retained” and “employed” lobbyists. These subparagraphs (i) and (ii) within the statute serve no purpose other than to exempt low-dollar lobbying activities from registration and reporting. Section 220(b)(1) amends DLA 1603(a)(3)(A) by stating, “For purposes of clauses (i) and (ii), the term ‘lobbying activities’ shall not include paid efforts to stimulate grassroots lobbying.” Section 220(b)(1), therefore, does not exempt “paid” grassroots communications from any registration requirement. Instead, it makes those communications ineligible for the low-dollar exemptions by expressly referring to DLA 1603(a)(3)(A)(i) and (ii). And because Section 220(a) defines “paid” communications as nothing more than communications to 500 or more members of the public, regardless of the medium used, bloggers are not eligible for the low-dollar registration exemptions available even to K Street lobbyists. $25,000 Threshold Applies to Grassroots Lobbying Firms, Whatever Those Are The $25,000 reporting threshold about which many are confused therefore does not apply to communications made by small grassroots causes and bloggers, since by statutory construction there is no dollar threshold exempting bloggers from registration. Section 220(a) amends DLA 1602 by creating new subsection (19), and creating a new term, “grassroots lobbying firm” (“GLF”). A GLF is defined as a person or entity retained by 1 or more clients to engage in paid efforts to stimulate grassroots lobbying for such clients, and receives income of, or spends or agrees to spend $25,000 or more for such efforts in any quarterly period. So a GLF is one retained merely to, in some undefined way, assist in communicating to the general public. Note: a GLF need not have any lobbying contacts, and need not spend at least 20 percent of their time on lobbying “activities” for their “client,” which is the threshold for actual lobbyists under DLA 1602(9). GLFs would be required to register and report quarterly to Congress merely because some communications are made, or are intended to be made, to the general public, thereby creating a prior restraint on speech and press rights. Under the definition of GLF in proposed DLA 1602(19), a GLF appears to be doing the same as journalists, newspapers or any other person or entity “paid” or “spending” more than $25,000 per quarter based merely on the fact that the communications somehow “influence the general public to contact one or more [government] officials (or Congress) to urge such officials (or Congress) to take specific action.” See Section 220(a), creating DLA 1602(18). Clearly, then, Section 220(a) is targeted at speech and publication to the general public, not some harm or activity occurring in Washington. There is absolutely no language or requirement in the legislation that the only GLFs who must register are those retained by lobbyists or clients who have lobbyists. In fact, Section 220 would apply to genuine nonprofits and simple bloggers who do not have lobbyists. Claims that Section 220 is targeted at “Astroturf” lobbying or in support of lobbyists are therefore false. To Conclude The bottom line is that under Section 220 many “political” bloggers would need to register and would be subject to the civil fines of up to $200,000 and potential criminal penalties (see the House bill that passed in 2006) for reporting failures, by virtue of their own communications to more than 500 people and costing under $25,000. A blogger may be a “client” and his own “lobbyist” at the same time. Separate registration and reporting requirements would apply to a new term, “grassroots lobbying firm,” which are persons retained to, in some undefined way, participate in communications about policy made to more than 500 people. The $25,000 threshold applies to grassroots lobbying firms. The legislation would make bloggers subject to registration regardless of the $25,000 threshold that applies separately to GLFs. Some claim that it is not the “legislative intent” of Section 220 to regulate bloggers. Legislative intent is not, however, derived by the press releases of a few misguided senators or by Washington insiders with an agenda. It is, first and foremost, derived by the actual language of the legislation as it would amend existing law. After dissection of the complex maze -- yet clearly -- Section 220 would regulate bloggers, other legitimate grassroots causes and individuals who do not have lobbyists. Mark Fitzgibbons GrassrootsFreedom.com _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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