Possible expansion of lobbying restrictions threaten First Amendment

President Trump’s immigration executive order has dominated the spotlight this week. Meanwhile, Washington’s so-called “influence industry” – and those seeking to influence the regulation of that industry – focused on another executive order prohibiting certain incoming administration officials from lobbying the administration after they leave government.

While the directive’s immediate effects are limited in scope, commentary on the order inevitably also has extended to demands for greater regulation of lobbying generally, and specifically so-called “shadow lobbying.” Putting aside the mellifluous rhetoric, cracking down on “shadow lobbyists” will have no meaningful impact on preventing corruption, and will merely impose more administrative burdens on citizens’ First Amendment activities.

{mosads}The special-interest constituency pushing for more regulation of lobbying has long complained that too many lobbyists are exploiting purported legal loopholes. By keeping their activities outside of the legal definition of lobbying and under the threshold for registering and reporting, these “shadow lobbyists” are supposedly contributing to a culture of corruption in Washington.

At a high level, this grievance is as absurd as claiming that a citizen is exploiting a loophole in the tax code by not earning enough to trigger the threshold for paying taxes. For both policy and administrative reasons, most laws must set thresholds below which they do not apply. If every time someone acting below a regulated threshold prompts someone else to advocate lowering the threshold, the law’s scope will constantly expand until everything is regulated. This is both socially undesirable and practically untenable.

Indeed, we see this ill-advised trend in proposals to expand the federal and state lobbying laws, and many of which states have implemented. Last year the New York State Joint Commission on Public Ethics decided to regulate certain public relations consultants as lobbyists. After a wave of protest and litigation, brought in part by the Center for Competitive Politics on behalf of PR firms, the state legislature acted to reign in JCOPE’s overreach. Yet the agency still maintains its ruling covers PR firms if they contact bloggers, volunteer journalists, and social media personalities.

Still, the push to regulate these broader activities as lobbying continues. Last week, the National Institute for Lobbying, a lobbyist trade group, proposed regulating as lobbyists “public relations firms, political strategists, pollsters, advertising and media consultants, grassroots and coalition specialists, Internet and digital media experts and others who work to influence public policy decisions on behalf of their clients.” As policy advocacy increasingly shifts to these avenues, we should recognize this proposal for what it is: a few traditional lobbyists attempting to impose the same regulatory burdens that apply to them on other policy professionals.

Many state and municipal lobbying laws and regulatory agencies also purport to impose no minimum threshold for lobbyist registration. In Missouri, the Center for Competitive Politics is representing Ronald Calzone, a concerned citizen who merely shared his views on proposed legislation with state legislators, against the Missouri Ethics Commission’s charges that he failed to register as a lobbyist. This, despite the fact that Mr. Calzone was not paid or designated by anyone to act as a lobbyist, and merely referenced his affiliation with a non-profit organization with no financial resources in his discussions with legislators.

It is unclear exactly what the anti-corruption rationale is for forcing more individuals to register and report as lobbyists. In U.S. v. Harriss, a seminal case addressing the federal lobbying registration and reporting requirements, the Supreme Court identified a mere informational interest in enabling members of Congress “to properly evaluate” the “myriad pressures to which they are regularly subjected.” The majority opinion never discussed an interest in curbing “corruption,” and one justice who voted to invalidate the law even noted that “this [law] does not deal with corruption.”

Curiously, the majority also cited vaguely Congress’s interest in “self-protection” in regulating lobbying. Protection against what? The voices of constituents? Democratic accountability?

At the same time, the court also acknowledged the concern that the lobbying law may “act as a deterrent to the[] exercise of First Amendment rights.” This deterrent should not be understated. The lobbying laws are not easy to understand. Take, for example, the reporting last week comparing Trump’s lobbying executive order with his predecessor’s corresponding directive. Much of this coverage was inaccurate, due to journalists’ failure to grasp subtle legal distinctions between President Obama’s order defining “lobbying” in reference to the Lobbying Disclosure Act, versus Trump’s order incorporating by reference the LDA’s definition of “lobbying activities.” 

These are the types of legal complexities that large corporations and well-funded advocacy groups pay fortunes for attorneys to navigate. Meanwhile, grassroots organizations are left at risk of running afoul of the law. To expand these lobbying laws to cover even more activities that are attenuated from direct lobbying would merely broaden the regulatory burdens without achieving any public benefit. 

Eric Wang is a political law attorney in Washington, D.C. and a senior fellow with the Center for Competitive Politics.

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