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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 
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

Posted by Declan McCullagh on Jan 24, 2007 in category free-speech

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