Bloggers dodged a bullet in Senate, but how threatening was it? [fs]

This is news from a few days ago, but still worth mentioning. First,=20
Senate bill S.1 could have threatened some political bloggers (my own=20
clearest reading of it indicated it applied only to ones making or=20
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_3-6151=
519.html

Prompting the Senate to accept (on a largely party-line vote) an=20
amendment by Sen. Bennett to strip out that section:
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.=
cfm?congress=3D110&session=3D1&vote=3D00017

Now Mark Fitzgibbons, a critic of Section 220, is arguing that it would=20
have applied to more than just that subset of bloggers I mentioned=20
above. He forwarded me his blog entry. I'll include it below.

-Declan

---

http://www.grassrootsfreedom.com/gw3/articles-news/articles.php?action=3D=
view&CMSArticleID=3D591&CMSCategoryID=3D23

Bloggers Would Be Lobbyists
Professor Bainbridge, Others Wrong; Grassroots Bill Targets Bloggers=20
under $25,000
By Mark Fitzgibbons, GrassrootsFreedom.com

Professor Stephen Bainbridge =93doesn=92t buy=94 that the grassroots lobb=
ying=20
legislation would make bloggers into lobbyists who must report quarterly =

to Congress (Blogger Registration Story: Bogus? StephenBainbridge.com).=20
He=92s wrong.

Section 220, the grassroots provisions of the Senate lobbying reform=20
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=20
re-introduced in the House, I=92ll treat it as still alive.

The mistake made by Professor Bainbridge is a misreading of the=20
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,=20
=93grassroots lobbying firm,=94 which is a creation of Section 220(a) of =
the=20
legislation. Professor Bainbridge makes the same mistake I=92ve seen made=
=20
by others, so this detailed statutory analysis will hopefully put that=20
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 =93grassroots lobbying firm.=94 Bloggers and many other=20
grassroots causes, of course, create and publish their own=20
communications. The term =93grassroots lobbying firm=94 does not apply to=
=20
communications prepared =93in-house=94 and published by nonprofits and=20
bloggers. Bloggers, etc., nevertheless, would still be subject to=20
registration and quarterly reporting, as described in more detail below, =

for the communications they prepare in-house, costing under $25,000 and=20
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=20
separately triggers another set of registration and reporting=20
requirements for the communications agents themselves, who would need to =

report their =93clients=94 even though the agents meet none of the=20
qualifications of a lobbyist. For example, such agents would be required =

to register and report even though they have no =93contacts=94 with Congr=
ess=20
and spend less than 20 percent of their time for any given client. See=20
more below.

This critical distinction between communications prepared or sent by=20
bloggers and grassroots causes on their own, and those prepared or sent=20
by communications agents who are =93retained,=94 is essential to=20
understanding Section 220, and why the former would need to be reported=20
even when costing under $25,000 per quarter.

And this is precisely why bloggers would be subject to registration=20
under Section 220. The following statutory analysis walks through the=20
detail to explain why this conclusion must be reached.

Language of the Legislation and Existing Law Must Be Read Together

I=92ll refer to the existing law as =93DLA,=94 for Disclosure of Lobbying=
=20
Activities Act, codified at 2 USC 1601 and following. In the existing=20
law, 2 USC (DLA) 1602(10) defines lobbyist for reporting purposes as one =

employed or retained who makes two or more lobbying =93contacts=94 and wh=
ose=20
lobbying =93activities=94 are more than 20 percent of the time for his =93=
client.=94

A =93client=94 may include employers. A client may be the lobbyist=92s=20
employer or his own entity, including a sole proprietorship. =93Client=94=
 is=20
defined in DLA 1602(2) as any person or entity that employs or retains=20
another person for financial or other compensation to conduct lobbying=20
activities. A person or entity whose employees act as lobbyists on its=20
own behalf is both a client and employer of such employees. =93Employee=94=
=20
is defined at DLA 1602(5) as an officer, employee, partner or proprietor =

of a person or entity.

A =93lobbyist=94 for reporting purposes is any individual who is employed=
 or=20
retained by a =93client=94 for financial or other compensation for servic=
es=20
that include more than one lobbying contact, but does not include=20
individuals whose lobbying activities constitute less than 20 percent of =

the =93time engaged in the services provided by such individual to that=20
client over a [three month] period.=94 DLA 1602(9), with bracketed=20
language as it would be amended by S. 1.

Lobbying =93contacts=94 are oral or written communications to =93covered=94=
=20
government officials, including Members of Congress, their staff, the=20
White House, etc. DLA 1602(8). That may consist of just two emails,=20
letters or phone calls to Members of Congress. Lobbying =93activities=94 =
are=20
preparation, planning, research and other background work. DLA 1602(7).

Section 220(a) would amend the definition of lobbying activities in DLA=20
1602(7) to include =93paid efforts to stimulate grassroots lobbying.=94=20
=93Paid=94 efforts is not defined by any dollar amount, but simply by onl=
y=20
one qualifier, and that is the communications are directed at more than=20
500 members of the general public. Section 220(a), creating DLA=20
1602(18)(B). Clearly, then, here is where the bill defines =93paid=94 as =

nothing more than speech and publication to the general public, with no=20
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=20
language means by way of a brief example. =93Bob=94 who blogs only on=20
Saturdays for his site, =93Oppose All Tax Increases,=94 is likely to be h=
it=20
hardest because his research and writing takes up more than 20 percent=20
of his time for his blog, and his blog is read by more than 500 people.=20
He sends two emails to Congress opposing tax increase legislation. Boom, =

he=92s a lobbyist. Since bloggers were not expressly exempted, they=20
certainly fit within the =93new=94 definition of lobbyists who must regis=
ter=20
and report quarterly.

It Gets Worse

Further evidencing the =93intent=94 of the legislation to regulate=20
low-dollar communications by nonprofits and others such as bloggers,=20
Section 220(b)(1) expressly makes =93paid=94 grassroots communications=20
ineligible for the low-dollar registration exemptions for direct=20
lobbying conducted by actual, direct lobbyists. =93Retained=94 actual=20
lobbyists would be exempt if total income is less than [$2,500] per=20
quarter, and =93employed=94 actual lobbyists would be exempt if expenses =
are=20
less than [$10,000] per quarter. DLA 1603(a)(3)(A)(i) and (ii).

The registration requirements for actual lobbyists are contained in DLA=20
1603. However, DLA 1603(a)(3)(A)(i) and (ii) expressly create the=20
low-dollar exemptions to registration for =93retained=94 and =93employed=94=
=20
lobbyists. These subparagraphs (i) and (ii) within the statute serve no=20
purpose other than to exempt low-dollar lobbying activities from=20
registration and reporting.

Section 220(b)(1) amends DLA 1603(a)(3)(A) by stating, =93For purposes of=
=20
clauses (i) and (ii), the term =91lobbying activities=92 shall not includ=
e=20
paid efforts to stimulate grassroots lobbying.=94 Section 220(b)(1),=20
therefore, does not exempt =93paid=94 grassroots communications from any =

registration requirement. Instead, it makes those communications=20
ineligible for the low-dollar exemptions by expressly referring to DLA=20
1603(a)(3)(A)(i) and (ii). And because Section 220(a) defines =93paid=94 =

communications as nothing more than communications to 500 or more=20
members of the public, regardless of the medium used, bloggers are not=20
eligible for the low-dollar registration exemptions available even to K=20
Street lobbyists.

$25,000 Threshold Applies to Grassroots Lobbying Firms, Whatever Those Ar=
e

The $25,000 reporting threshold about which many are confused therefore=20
does not apply to communications made by small grassroots causes and=20
bloggers, since by statutory construction there is no dollar threshold=20
exempting bloggers from registration.

Section 220(a) amends DLA 1602 by creating new subsection (19), and=20
creating a new term, =93grassroots lobbying firm=94 (=93GLF=94). A GLF is=
=20
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=20
receives income of, or spends or agrees to spend $25,000 or more for=20
such efforts in any quarterly period.

So a GLF is one retained merely to, in some undefined way, assist in=20
communicating to the general public. Note: a GLF need not have any=20
lobbying contacts, and need not spend at least 20 percent of their time=20
on lobbying =93activities=94 for their =93client,=94 which is the thresho=
ld for=20
actual lobbyists under DLA 1602(9). GLFs would be required to register=20
and report quarterly to Congress merely because some communications are=20
made, or are intended to be made, to the general public, thereby=20
creating a prior restraint on speech and press rights.

Under the definition of GLF in proposed DLA 1602(19), a GLF appears to=20
be doing the same as journalists, newspapers or any other person or=20
entity =93paid=94 or =93spending=94 more than $25,000 per quarter based m=
erely=20
on the fact that the communications somehow =93influence the general=20
public to contact one or more [government] officials (or Congress) to=20
urge such officials (or Congress) to take specific action.=94 See Section=
=20
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=20
activity occurring in Washington.

There is absolutely no language or requirement in the legislation that=20
the only GLFs who must register are those retained by lobbyists or=20
clients who have lobbyists. In fact, Section 220 would apply to genuine=20
nonprofits and simple bloggers who do not have lobbyists. Claims that=20
Section 220 is targeted at =93Astroturf=94 lobbying or in support of=20
lobbyists are therefore false.

To Conclude

The bottom line is that under Section 220 many =93political=94 bloggers=20
would need to register and would be subject to the civil fines of up to=20
$200,000 and potential criminal penalties (see the House bill that=20
passed in 2006) for reporting failures, by virtue of their own=20
communications to more than 500 people and costing under $25,000. A=20
blogger may be a =93client=94 and his own =93lobbyist=94 at the same time=
=2E

Separate registration and reporting requirements would apply to a new=20
term, =93grassroots lobbying firm,=94 which are persons retained to, in s=
ome=20
undefined way, participate in communications about policy made to more=20
than 500 people.

The $25,000 threshold applies to grassroots lobbying firms. The=20
legislation would make bloggers subject to registration regardless of=20
the $25,000 threshold that applies separately to GLFs.

Some claim that it is not the =93legislative intent=94 of Section 220 to =

regulate bloggers. Legislative intent is not, however, derived by the=20
press releases of a few misguided senators or by Washington insiders=20
with an agenda. It is, first and foremost, derived by the actual=20
language of the legislation as it would amend existing law. After=20
dissection of the complex maze -- yet clearly -- Section 220 would=20
regulate bloggers, other legitimate grassroots causes and individuals=20
who do not have lobbyists.

Mark Fitzgibbons
GrassrootsFreedom.com
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