The First Amendment is well-known for guaranteeing freedom of speech, freedom of press, freedom of assembly and freedom of religion. Often overlooked in its litany of fundamental civil liberties is the right "to petition the Government for a redress of grievances." It is this distinct clause that prevents Congress and the president from enacting a law that bans lobbying. It is a right that should not be taken lightly and that should not be eroded by the fraudulent acts of a single lobbyist.
The proponents of the lobbying reform bills and proposals making their way through the legislative process have forgotten that one aspect of so-called lobbying reform--that it is a constitutionally protected form of association and expression. But John McCain et al. have taken their copy of the First Amendment (this is assuming they have one) and begun to stomp on it with both feet.
But this is not the first time that McCain and Company have campaigned for a restriction on your political speech rights. Have we forgotten McCain-Feingold? This beast limits the kind of speech and activity done in conjunction with federal elections. While purporting to limit the pernicious influence of soft money and attack ads, what the law really does is limit the type of speech that can be engaged in related to campaigns. Does your ad mention a candidate--even in the context of legitimate legislative activity? Then you have to pay for that with hard money campaign funds. At least until the Court rules on the Wisconsin Right to Life case currently pending.
What McCain and company did with BCRA is craftily define communications relating to candidates as electioneering communications or public communications about candidates in a way that any such communication carries the danger of corruption or the appearance of corruption. Thus, all such communications (with some very limited exceptions) are regulated in terms of the financing of such speech. Thus we have a real limit on the manner in which we conduct candidate oriented speech.
Now, on the back of a criminal (and by pleading guilty, that is what Abramoff is) we have an effort to limit another avenue of free political speech. With the new lobbying reform bills, we have a situation where the type of activity that was once free of restriction is now becoming subject to disclsoure as well. Grassroots lobbying used to be that activity which essentially encourages citizens to excercise their First Amendment right to "petition the government for a redress of grievances." However, according to Sec. 105 of S. 2128,
"Grassroots lobbying (A) means any attempt to influence the general public, or segments thereof, to engage in lobbying contacts whether or not those contacts were made on behalf of a client; and (B) does not include any attempt described in subparagraph (A) by a person or entity directed to its members, employees, officers or shareholders, unless such attempt is financed with funds directly or indirectly received or arranged by a retained regsitrant."
So let's break this down a little.
"Any attempt to influence the general public, or segments thereof to engage in lobbying contacts whether or not those contacts were made on behalf of a client" Since many grassroots lobbying efforts engage in some type of advertising, such as radio or television, any ad that urges people to contact their Congressman or Senator and ask them to vote one way or another on a bill, is an attempt to influence the public. Thus, the type of ad that BCRA could not touch, i.e. the true issue ad that did not refer to a specific Representative or Senator, but included an general exhortation to contact Congress, would now be regulated. Subparagraph A would extend to anyone who acted in response to the advertisement. The whole point of grassroots advertising is to get the public on your side to sway congressional opinion.
Of course, subparagraph B includes a safe harbor that allows organziation to contact internal constitutencies, but honestly, who gives a damn. Real grassroots is about convincing people that your vision is the best. One would assume that most of your employees, members or shareholders would be more easily swayed since they have something already at stake. A limited audience does nothing to stimulate the grassroots. Furhtermore, some of these grassroots lobbying organizations are somewhat small in terms of membership, but have significant clout in the general public, now their speech is going to be regulated.
Again, BCRA and these new lobbying reform bills are being touted as a means of "cleaning up" politics. But what they are really doing is limiting your ability to call Congress onto the carpet for their actions. The campaign finance bill made sure that you could not attack a federal candidate for their positions unless you used hard money, that is money subject to limits on sources and amounts as well as being reported to the FEC. Hard money, by definition, is harder to get, thus the ability of people to influence the election of canddiates is severly restricted. By the way, other provisions of the BCRA are so protective of incumbents as to be laughable.
So with BCRA you have limits on political speech in relation to campaigns for office. With lobbying reform bills, there are now disclosure requirements on efforts to sway the legislative product of Congress. (Remember: Congress shall make no law...abridging...the right of people peaceably to assemble, and to petition the Government for a redress of greivances."
The sum total of these efforts is about power. By enacting these provision, Congress is seeking to take the power of people to complain about and change the composition of their government. In McConnell v. FEC, Justice Thomas in his dissent argued that BCRA was simply the first step in a long slippery slope toward speech and thought control. Justice Thomas did not have to make a great effort at prescience to see this coming. Scandal and catastrophe always preceed a diminuation of rights, and the Abramoff case and the fallout certainly qualify.
In this arena, we cannot cede the battlefield to the reform groups. We must draw the line here, saying, this far, no farther can you go in limiting my political speech. Abramoff was wrong and should be punished, but the American people and our democratic system of government should not have to serve the sentence.
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