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Bloggers dodged a bullet in Senate, but how threatening was it?
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):
There was a political outcry over Section 220 of S.1:
Prompting the Senate to accept (on a largely party-line vote) an
amendment by Sen. Bennett to strip out that section:
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.
Bloggers Would Be Lobbyists
Professor Bainbridge, Others Wrong; Grassroots Bill Targets Bloggers
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).
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
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.
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
$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.
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.
Posted by Declan McCullagh on Jan 24, 2007
in category free-speech
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