Grassroots Lobbying: Constitutionality of Disclosure Requirements

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Politics

Type:

Abstract:

Certain legislative proposals, such as S. 1, 110th Congress, and H.R. 4682, 109th Congress, seek to extend public reporting requirements for some activities intended to stimulate "grassroots" lobbying. The activities involved in "lobbying," including the stimulation of "grassroots" lobbying, clearly implicate and involve freedoms protected by the First Amendment, including speech, associational rights, and the right to petition the government. The courts have long found, however, that certain burdens on these fundamental rights may be tolerated in a statute when the statute seeks to promote significant governmental and societal interests, when the burdens on such activities are, at the most, indirect (such as in disclosure laws), and when the statute is drawn with enough precision so that a correlation exists between the information required to be disclosed and the achievement of the interests asserted as the law's justification.

Under such standards, the courts have upheld against facial First Amendment challenges required disclosures and detailed reporting in the areas of lobbying activities and campaign finance regulation to promote the interests of preventing corruption and limiting the undue influences of monied and powerful interests, as well as preventing merely the appearance of such corruption or influence, in basic governmental and democratic processes. The apparent trend in more recent judicial decisions seems to allow the legislatures some leeway in determining which activities are relevant to the goals of preserving the integrity of, for example, their own legislative process, and so to include also in required disclosures some activities that are more on the periphery and not necessarily themselves directly involved in such process, but are intended to result in direct contacts and to significantly influence a legislator.

In both state and federal courts, state provisions that reach "indirect" or "grassroots" lobbying have been upheld against facial constitutional challenges. The courts have noted that the Supreme Court in 1954 expressly upheld required lobbying disclosures relating to "direct" pressures on legislators by lobbying groups themselves, by their hirelings or through their "artificially stimulated letter campaigns." In addition, the courts have seemed to recognize the growth of importance of such "grassroots" lobbying efforts in the legislative process, and the increased need for legislators and others to be able to identify and assess the pressures on legislators being stimulated (and financed) by interest groups by such methods.

Under the analysis applied in these cases, it would appear that a federal statute that requires only disclosure and reporting, and does not prohibit any activity, and that reaches only those who are compensated to engage in a certain amount of the covered activity, would appear to fit within those types of provisions that have been upheld in judicial decisions when the statute is drafted in such a manner so as not to include groups, organizations, and other citizens who do no more than advocate, analyze, and discuss public policy issues and legislation. Even with the probability of such a crafted disclosure statute withstanding a facial challenge, the law could still at some point be subject to an "as applied" challenge if a particular group or organization could show a reasonable probability that the disclosures required would result in harassment or reprisals against it or its members or contributors.