RichmondLiberty.org

The Fraudulent Case for the Grassroots Legislation
By Mark Fitzgibbons, GrassrootsFreedom.com[i]

The grassroots legislation, simply stated, is unconstitutional. It is nothing more than some with vested financial and political interests trying to violate the First Amendment rights of others.

Proponents have tried to overcome this fact by making justifications. A review of those justifications demonstrates that they are in fact not only insufficient to overcome the First Amendment barrier against this legislation, but the justifications themselves are false.

Fraud is “an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing or surrender a legal right.”

Unlike the core political speech sought to be protected by opponents of the grassroots legislation, fraud is not protected speech.

Proponents of the grassroots legislation have offered four false, principal justifications for their unconstitutional legislation.

False Justification Number 1. It’s an attempt to regulate Astroturf.

This is clearly false because the legislation does not even try to define Astroturf. It only defines and regulates grassroots lobbying. So within its scope, the legislation necessarily includes something other than what people call Astroturf.

And what is Astroturf? Just from this experience, I’ve seen about a dozen definitions, more like innuendo, but targeted at speech with which the proponents of the legislation disagree, or have vested interests in suppressing.

One witness at the March 1 hearing on lobbying reform legislation before the House Subcommittee on the Constitution, dramatically summed up her justification for trying to violate the First Amendment rights of others by saying she had just three words:

Harry and Louise

What about Harry and Tonto, or Thelma and Louise?

Or Harry and Nancy?

Harry and Louise was a television commercial using actors. The use of actors to make political points has been around since Aristophanes of ancient Greece, at least.

But what if Harry and Louise were discussing puppy adoption legislation, and the commercial was underwritten by The Humane Society . . . or Eukanuba?

No, this advocate of the grassroots legislation was clearly targeting the content and message of that commercial. Those are the same motives used hundreds of years ago to censor political theatre and other forms of political speech. Maybe the object of that commercial was actually lousy legislation.

In any political debate, one side necessarily must be saying what is perceived as untrue by the other side or the other sides. If what one side believes to be “untrue” political arguments become a basis for regulating political speech, then all speakers, ranging from the news media to bloggers, are in jeopardy of having their speech subject to the prior restraint of registration and reporting, or censorship caused by post hoc civil and criminal penalties. And certainly, the speech of politicians must be deemed to be “untrue” by the other side.

Citizens take political action based on many reasons, and based on competing ideas from multiple sources. The corporate news media play a big role in “influencing” public opinion, reaction and action on legislation. Much of what they report is inaccurate or slanted. Why not regulate them?

Attempts to regulate even this thing people call Astroturf are no more than an attempt to regulate communications to the general public that influence public opinion. That is core political speech protected by the First Amendment.

Proponents have the burden of proof that their regulation is targeted at some harm or conduct that may be regulated, and that burden is “well nigh insurmountable.”[ii]

False Justification Number 2 The grassroots legislation is targeted at money in politics, and disclosure is for the benefit of the public.

To paraphrase the aforementioned advocate of the grassroots legislation, and the great constitutional case made at the March 1 hearing, I have just three words to say: No way, folks.

To begin with, ALL of the legislative proposals would include exemptions (I call them big, fat legislative loopholes) for communications to “shareholders, officers, employees and members.”

That translates to corporations, labor unions and large, wealthy membership organizations such as AARP.

The people who insist on these exemptions are the very same ones who have tried to make the name Halliburton and other corporations synonymous with greed and corruption. Yet Halliburton and Fortune 500 companies would be able spend literally hundreds of millions of dollars mobilizing untold millions of corporate shareholders, officers and employees, all people with vested financial interests in legislation, yet not report a dime.

Curious anyone?

Many corporate PACs have “member” corporations. These PACs could make large political contributions, then mobilize dozens or hundreds of “member” corporations on issues, which in turn could mobilize millions of shareholders, etc., yet not report any of these “grassroots” expenditures.

Even for communications to the general public, proponents have already set in place ways not to report under their proposals.

After defeat of the grassroots provisions in the Senate, one recent proposal being circulated would require registration of only retained communication agents, called grassroots lobbying firms, but not employed ones. Such agents are simply defined by a dollar expenditure amount. These retained agents would include fundraisers for nonprofits whose identity is already “disclosed” under fundraising solicitation laws.

These retained agents do not engage in any lobbying whatsoever, but use their expertise to enable their clients to communicate to the general public. Yet they would need to register the same as K Street lobbyists who engage in clandestine, face-to-face contacts with Members of Congress and others who make policy in Washington.

Organizations funded stealthily in the millions of dollars by foundations created by George Soros and others can afford to, and often do, hire as employees high paid communications or fundraising experts on staff.

Those organizations using employees to communicate, but funded by George Soros and foundations with distinct political slants, would therefore not report expenditures on the same issues in competition with small to mid-size associations and nonprofits that rely entirely on voluntary, low-dollar grassroots citizen contributions, but who retain fundraising or other agents to communicate.

And the grassroots legislation would not require disclosure of the billionaires and foundations actually funding these organizations themselves. So the grassroots legislation targets populist causes supported and funded by citizens, yet exempts what the proponents themselves call “Astroturf.”

This government-forced reporting by some, but not by others who actually outspend those who do report, would therefore have the effect of deceiving the public about how much is actually spent on public policy communications. And of course, the targets of news stories about spending will only be those who report, and not those who do not report.

Proponents who claim disclosure is for the public benefit therefore are deceiving the public about the grassroots legislation.

False Justification Number 3. Disclosure is not regulation.

For Members of Congress who even think of using this line, I have a put your money where your mouth is challenge.

Instead of filing your campaign reports with the Federal Election Commission, simply post them on the Internet. After an expensive and embarrassing administrative process with the FEC in which you will certainly pay fines, you will see that disclosure certainly IS regulation.

The New York Times and some other members of the news media have used this false justification as well. That same New York Times that argued in the 2nd Circuit Court of Appeals that its reporter, Judith Miller, who had clandestine contacts with government officials, could not be compelled to disclose her sources even in a criminal investigation. The New York Times and Judith Miller based their refusal to disclose in a criminal proceeding on the First Amendment, under a reporter’s privilege not found in the First Amendment.

But their argument is that government-forced disclosure of sources chills speech and press rights. The New York Times apparently believes it has greater First Amendment rights than mere citizen associations.

And I don’t have time to address the financial interests that The New York Times has in government-forced registration of, and disclosure by, its adversaries in the alternative media.

Also, since Members of Congress and staffers control policy, what about legislation that requires them to make public their banking records to ensure they are not accepting bribes, and warrantless searches of their homes and offices (especially their freezers)?

Unlike the First Amendment, the Fourth Amendment does not begin with “Congress shall make no law . . .”

Certainly given what has happened in Congress, such legislation could be justified as “reasonable” searches and seizures.

While that certainly is disclosure that many citizens might support, the notion of such disclosure is offensive to the precepts of the Bill of Rights.

Therefore, disclosure is most assuredly regulation. And since this regulation is targeted directly at five First Amendment rights, not some harm or conduct that may be regulated, it is unconstitutional.

False Justification Number 4. This is a time, place and manner regulation.

At the March 1 hearing before the House Subcommittee on the Constitution, a new justification for violating the First Amendment through this legislation was offered. This one impressed me since someone actually consulted a law book.

Reasonable time, place and manner restrictions have been upheld to regulate certain conduct that is subject to usual police powers of the state.

Cox v. New Hampshire dealt with citizen marches. That’s traffic regulation.

Ward v. Rock Against Racism dealt with the volume of noise regulation of concerts held in Central Park.

But the grassroots legislation is not a reasonable regulation of some conduct subject to the police powers of the state. It is expressly directed at core political speech, and thus is prohibited by the First Amendment. False justification number 4 is just another crafty attempt to violate the First Amendment.

Loosely but accurately paraphrasing James Madison, the purposes of the First Amendment are to allow citizens to communicate and worship privately among themselves, and to individually or collectively express their will or discontent to their elected officials.

By that standard, the grassroots legislation is the most expansive intrusion on First Amendment rights ever considered since it abridges five First Amendment rights. The false justifications for this proposal are made by those with vested interests in violating the First Amendment rights of others. They are the ones deceiving and misleading the public to part with rights.

The First Amendment was written to prohibit Congress from engaging in such folly.

[i]Taken from remarks made at March 9, 2007 Cato-sponsored Capitol Hill briefing.

[ii]Meyer v. Grant, 486 U.S. 414, 425 (1988).


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