First Amendment violation, my astroturf

[Updated below]

Groups lobbying for Christian right, "pro-family" and liberal causes have been up in arms over Senate bill S. 1, Legislative Transparency and Accountability Act), Section 220. This provision in the reform bill attempts to shine some light on astroturf groups paid to generate "fake grassroots" support for (or against) legislation through direct mail or e-mail "action alerts," etc. Think Jack Abramoff and Indian gaming.

Melanie Sloan, executive director of Citizens for Ethics and Responsibility in Washington, calls astroturfing misleading. "It makes it appear as if there is a mass movement in opposition or in support of a piece of legislation when that doesn't really exist. It's generated. It's to fool lawmakers."

One could argue that non-profits alerting like-minded voters to contact their representatives regarding issues is something else. Generally, astroturfing is paid for by industry groups. But lobbyists for grassroots, non-commercial causes feel targeted by Section 220 provisions they believe will require them to document their activities.

Beginning last spring, groups like Grover Norquist's Americans for Tax Reform, the Family Research Council and Citizens Against Government Waste joined American Family Voices (AFV), a nonprofit group led by Clinton administration veteran Mike Lux, in opposing the provision. (AFV was responsible for repeated anti-Republican incumbent robocalls in competitive congressional districts last fall. Democrats and Republicans alike wanted to know who was paying for them. AFV wasn't talking.)

True to form, these groups are trying to create some grassroots support for defeating it.

In Richard A. Viguerie's action alert at GrassrootsFreedom.com, the father of direct mail advocacy writes, "The Senate would make exercising your First Amendment rights a crime."

The American Family Association's action alert claims:

Senators favoring this bill are simply tired of hearing from you. That is the bottom line. They don’t want to hear from you. They don’t want you to be informed. They want to silence you. How? By simply keeping you from receiving information that AFA provides. (my emphasis)

Concerned Women for America complains the bill, "won't allow organizations such as Concerned Women for America (CWA) to correspond with the public on legislative issues."

None of which is true.

A press statement by OMB Watch counters:

It only requires some lobby firms, advertisers and lobbyists that exceed significant dollar thresholds to let the public know who they are representing. Nonprofits have been disclosing lobbying costs to the federal and state governments for decades without any restriction on what they can say or how often they can say it. This provision does not change that.

Concerned Women for America thinks otherwise, arguing:

That citizens are 'stimulated' to contact their representatives by so-called 'grassroots lobbying activities' is irrelevant. Newspaper editorials, op-eds, grassroots advertisements and e-mail alerts are all ways to influence people to contact their elected representatives on an issue. Just as it would be unconstitutional to monitor the press because of their influence over their readership, the First Amendment also protects the right of the people to 'petition the government for a redress of grievances.' To monitor motivation as to why a citizen would contact Members on an issue is attacking that First Amendment right.

But that's like saying it's a violation of the First Amendment to require the New York Times and FoxNews to have a business license, or to ask who funded the Swift Boat ads.

The "grassroots lobbying" provision was first proposed in 2005 by Sen. John McCain, who explained:

It requires greater disclosure of the activities of lobbyists, including for the first time, grassroots lobbying firms. … Lobbyists distorted the truth, not only with false messages, but also with fake messengers. I hope by having, for the first time, disclosure of grassroots activities and the financial interests behind misleading front groups, that such a fraud on Members and voters can be avoided.

OMB Watch has this analysis:

The legislation ... which is co-sponsored by the leading Democrat and Republican in the Senate, requires grassroots lobbying disclosure for those companies, organizations, and lobbyists already required to register under the Lobbying Disclosure Act and spending significant amounts of money on grassroots lobbying activities.

More specifically, the entity must first qualify to register under the Lobbying Disclosure Act (spend $24,500 semi-annually on direct lobbying activities, which the Democrats are proposing to change to $10,000 per quarter). If the entity qualifies for registration and spends $25,000 on grassroots lobbying activities, then will it be required to report on grassroots lobbying activities. Additionally, communications with less than 500 people or with any number of members are not considered grassroots lobbying communications, and, therefore, would not be counted in the calculation of grassroots lobbying expenditures. Special rules are proposed for large grassroots lobbying firms, that is, firms that spend or have revenue of $25,000 or more in a quarter.

Section 220 -- even if not constructed narrowly enough to target only astroturf firms (and if not, it should be amended, not repealed) -- would require revealing the source of the cash behind the "action alerts" and the canned spam that follows them. But nothing in the provision prohibits citizens spreading issue information/misinformation to your friends at church or sending prefab e-mails and faxes to your representatives.

According to The Hill, John McCain, "considered one of the most authoritative voices on ethics- and lobbying-related issues in the Senate," has revoked support for his own reform in an effort to court the Christian right. Which may mean Americans will lose our chance to get reform right.

Update:

The amendment to strike Section 220 passed by 55 to 43 at 8:21 p.m. John McCain voted to remove his own provision.