Weeding them out by the roots: the unconstitutionality of regulating grassroots issue advocacy.

• Author: Sekulow, Jay Alan
• Position: Symposium: The Law of Lobbying

INTRODUCTION

American history has been shaped by appeals to the general public to support or oppose a particular course of action being considered by government leaders. Political advocacy seeking support from the citizenry has a long, storied tradition in the United States, from Thomas Payne's Common Sense, (1) which challenged the authority of the British government over the Colonies, to the Federalist Papers, (2) which urged support for passage of the United States Constitution. Similarly, the impetus for many legislative programs, civil rights statutes, and other important governmental decisions has come from individuals and groups that successfully rallied their fellow citizens in support of the proposed action at issue. It is unsurprising that the District of Columbia Circuit once observed that "indirect lobbying by the pressure of public opinion on the Congress.... is not an evil; it is a good, the healthy essence of the democratic process." (3)

During the past several years, Congress has repeatedly considered legislation that would regulate or prohibit certain forms of grassroots education and issue advocacy. For example, the Bipartisan Campaign Reform Act of 2002 (BCRA) (4) includes provisions that prevent non-profit organizations and other corporations from using their general treasury funds to pay for advertisements aired close to a federal election that discuss issues of public importance while mentioning public officials that are running for re-election. (5) This includes communications that merely encourage members of the general public to call their elected representatives in support of (or opposition to) pending legislation or judicial nominations. (6) More recently, under several bills that have been proposed in Congress, citizen activists and grassroots organizations that inform their fellow citizens about important issues and encourage them to contact their elected representatives to urge them to take specific action with regard to legislation or judicial nominations would have to register with the government and regularly file reports on their activities, just like professional lobbyists. (7)

Legislation that regulates or prohibits grassroots issue advocacy violates the First Amendment because it is not narrowly tailored to achieve a compelling governmental interest. Grassroots issue advocacy is at the heart of the First Amendment's protection of the freedoms of speech and the press and of the right to petition the government for a redress of grievances. While the government has an interest in "preventing corruption and the appearance of corruption," (8) laws that regulate or prohibit citizen-to-citizen speech about public policy issues are not narrowly tailored to achieve this interest. There is a clear and important difference between making cash contributions to a political candidate and encouraging the general public to support or oppose legislation or judicial nominees. Grassroots issue advocacy increases citizen participation in the democratic process by encouraging Americans to exercise their right to inform their elected representatives about their positions on important issues. While some public officials may find their constituents' letters, e-mails, faxes, and phone calls voicing their opinions about pending legislation or nominations to be annoying or inconvenient, there is no compelling governmental interest in regulating or prohibiting the grassroots issue advocacy that often prompts those communications.

This Article focuses on issue advocacy; it does not address restrictions on campaign contributions or limitations on advocating for or against a particular political candidate or party. The Article also makes an important distinction between "grassroots" issue advocacy and professional lobbying. Grassroots issue advocacy (or grassroots lobbying) consists of communications directed toward the general public (or a subset of the general public) that provide information about a policy issue and encourage citizens to share their opinions on that issue with public officials. Widespread support among average Americans for the position advocated is the sine qua non of successful grassroots lobbying. By contrast, a professional lobbyist is a person who is paid, as a part of his or her job, to communicate to public officials or their staffs his or her clients' position on particular issues. Professional lobbying is not wholly dependent upon support from the general public to be successful. While the line between grassroots advocacy and professional lobbying may become blurred in some instances, it is an important dichotomy that has constitutional significance.

Part I of this Article provides a brief historical overview of the right to petition the government for a redress of grievances. This right extends beyond an individual's ability to express his or her personal opinion to government leaders to include attempts to encourage other like-minded citizens to voice their own opinions through individual communications or collective petitions.

Part II discusses bills recently considered in Congress that would force many individuals, non-profit groups, and grassroots organizations to register with the government in order to inform the public about important issues and encourage citizens to contact their elected officials to ask them to support or oppose a particular bill or nomination. Supreme Court cases on lobbying clearly show that this unprecedented expansion of lobbying regulation to include grassroots issue advocacy would violate the First Amendment.

Part III explains why regulating or prohibiting grassroots issue advocacy is not the least restrictive means of achieving a compelling governmental interest. To the contrary, such legislation restricts public debate on important issues and decreases the influence that the average citizen has on the government process. The Supreme Court's recent decision in Federal Election Commission v. Wisconsin Right to Life, Inc. (9) properly held that Congress does not have free reign to regulate grassroots issue advocacy in the name of "reform." The decision recognized that encouraging members of the general public to contact their elected officials in support of a judicial nominee is much different than a political advertisement that asks voters to vote for a particular candidate.

1. GRASSROOTS ISSUE ADVOCACY IS A VALID EXERCISE OF THE RIGHT TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES

   The First Amendment states that "Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances." (10) The right to petition the government for a redress of grievances is more than a mere artifact of history. Although the proverbial town hall meeting or printed pamphlet of the eighteenth century has been largely replaced by television, radio, the Internet, and other means of communication, the First Amendment's protection of grassroots advocacy remains unchanged. The right to petition is inextricably tied to the history of the United States and of England before it, and it is also a corollary to the freedoms of speech and the press. Restrictions on grassroots issue advocacy implicate the First Amendment's protection of the fight to petition and the freedoms of speech and the press, and, as such, they must be narrowly tailored to achieve a compelling governmental interest.

   1. English Antecedents to the Right to Petition the Government for a Redress of Grievances

      The right to petition the government for a redress of grievances has a long history in Anglo-American law and is "unquestionably one of the oldest, most treasured rights in the history of democracy." (11) "The practice of petitioning the King for redress long antedated Magna Carts." (12) The fight was originally quite limited, as it was "available for the benefit of the monarch, not the claimant." (13) However, in 1215, Magna Carts recognized the right to petition as a method for placing "a check on the exercise of [the King's] power." (14) In paragraph sixty-seven of Magna Carts, King John expressly crafted a process for his Barons to petition for the redress of "transgressions." "Magna Carts provided for a petition by barons to the King notifying him of his failure to observe the pledges contained in the Great Charter." (15)

      Magna Carta simply redressed wrongs. The significant thing is that the wrongs were substantially those of all bad governments in any age and the principles of redress have changed but little through the centuries. Each clause was addressed to a specific problem, written in direct and simple language, prepared by practical men who knew what they were about. (16) Four centuries later, a train of abuses, including the denial of rights and privileges confirmed in Magna Carts, gave rise to the 1628 Petition of Right. The Petition of Right pressed the case of serious grievances by Parliament against the Crown. King Charles I took cognizance of the Petition and agreed to examine the merits of its claims. (17)

      It is significant that the right to petition helped contribute to the rise of legislative power in England. Petitions were "central to Parliament's accumulation of power," and the right to petition became more than "a mere tenuous appellate mechanism for resolving disputes or ... a method for barons to secure their privileges against the King." (18) Eventually, the "fight to petition the House of Commons, as an extension of the original Magna Carta provision ... [became] guaranteed to every commoner." (19) Parliament "had an interest in considering all petitions because any given grievance could ground an attempt to increase Parliament's power at the expense of royal authority." (20)

      Over time, the right to petition "came to be regarded as part of the Constitution, that fabric of political customs which defined English rights" and, "by the seventeenth century, monarchial challenge to a petition...