By Eliza Newlin Carney, NationalJournal.com
© National Journal Group Inc.
Monday, Jan. 29, 2007

Members of Congress are trumpeting the steps they've taken to clean up Washington. But behind the scenes, some lobbyists are quietly celebrating. That's because activists who engage in so-called grassroots lobbying campaigns recently scored two major victories.

	How can the rules best foster transparency and accountability while protecting the First Amendment?

On Capitol Hill, a strange-bedfellows coalition of conservative and civil rights activists killed new disclosure rules for interest groups that spend big money on grassroots lobbying campaigns. The Senate rejected the disclosure rules even as it approved a package of sweeping lobbying and ethics changes on Jan. 18.

In another big win for lobbyists, the Supreme Court on Jan. 19 agreed to take up a constitutional challenge to a key provision of the 2002 Bipartisan Campaign Reform Act. In Federal Election Commission v. Wisconsin Right to Life [PDF], the court will decide whether the law's restrictions on election-time issue ads are unconstitutional.

On the surface, the recently defeated Senate disclosure rules and the constitutional challenge before the Supreme Court are unrelated. The Senate disclosure dispute is over registration and reporting requirements. The case before the high court tackles whether interest groups may use soft (unregulated) money to pay for certain types of ads.

But both matters turn on the same thorny question, one that complicates all efforts to regulate political and policy activity. That is, how can the rules best foster transparency and accountability while protecting the First Amendment?

In the Senate, the disclosure provision's authors set out to exempt everyday citizen activists, targeting only well-funded interest groups that spend lavishly on sophisticated lobbying blitzes. In theory, at least, the disclosure rules would apply only to groups that already employ a registered lobbyist, and that spend at least $25,000 per quarter on grassroots lobbying.

The idea was, in part, to bring the disclosure rules in line with modern lobbying practices. It's not enough anymore for lobbyists to simply contact lawmakers directly. Increasingly, interest groups also launch what critics call "Astroturf" lobbying drives that dump millions into ads, phone banks and direct mail, all aimed at ginning up a blitz of "grassroots" e-mails and phone calls to Congress.

None of that indirect lobbying is subject to registration or reporting rules. As a result, the lobbying expenditures that show up in public records represent only a fraction of what's actually being spent.

Opponents of increased disclosure argued that the new rules would have trampled on the First Amendment, and squelched legitimate citizen efforts to petition Congress. The proposed rules "would have been a significant chill on the folks that engage in grassroots lobbying efforts," said Marv Johnson, legislative counsel in Washington for the American Civil Liberties Union.

The disclosure rules died in part because they were poorly written, both sides acknowledged. Reform advocates will now push for better disclosure rules when the House takes up lobbying legislation -- but only after tightening up the language. They will need to make crystal clear that the rules apply only to five-figure lobbying campaigns, not to low-budget petitions from average citizens.

In FEC v. Wisconsin Right to Life, the new law's challengers also point to free-speech violations. The BCRA banned interest groups from using soft money to pay for broadcast ads that picture or name a candidate in the run-up to an election. (The ban applied to ads that appear within 30 days of a primary and 60 days of a general election.) The idea was to clamp down on election ads that skirted the rules by masquerading as "issue" advocacy.

The high court upheld those restrictions when the BCRA survived its first constitutional challenge in 2003. But since then, Sandra Day O'Connor, the court's swing vote on campaign finance matters, has retired. Her successor, Samuel Alito Jr., may well favor more lenient rules. The court's decision in the Wisconsin Right to Life case "could be the next step toward a deregulated campaign finance system," wrote Loyola Law School professor Rick Hasen recently on his election law blog.

"This case may result in a change of the ground rules for conducting federal election campaign activity," concurred Paul S. Ryan, associate legal counsel for the nonpartisan Campaign Legal Center, which is defending the BCRA before the Supreme Court in the Wisconsin case.

The House has enacted tough new ethics and lobbying rules, and the Senate deserves credit for following suit. But the Senate's rejection of new disclosure rules comes at a bad time. The lobbying industry has redefined itself, and much activity now goes unreported. If the Supreme Court rolls back restrictions on election-time issue ads, the need for better disclosure will only grow.

-- Eliza Newlin Carney is a NationalJournal.com contributing editor and writer for National Journal and Government Executive. Her e-mail address is ecarney@nationaljournal.com.

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