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Legal Commentary: The Volokh Conspiracy
Why Regulate Grassroots Lobbying?
By Jeff Milyo
Grassroots lobbying involves communicating to the public about public matters; so what justifies government intervention in this area? Statements of intent from lobbying statutes in the states indicate that the primary rationale espoused for regulating grassroots lobbying is that the public has a ?right to know who is speaking? and an interest in preserving ?the integrity of democracy.?
For example, Rhode Island?s declaration of intent states: ?Public confidence in the integrity of the legislative process is strengthened by the identification of persons and groups who on behalf of private interests seek to influence the content, introduction, passage or defeat of legislation and by the disclosure of funds expended in that effort.? Similarly, the state of Washington declares: ?The public?s right to know the financing of political campaigns and lobbying and the financial affairs of elected officials and candidates far outweighs any right that these matters remain secret and private.? When applied to grassroots lobbying, these claims are disturbing in several respects.
First, the vague reference to the ?integrity of democracy? is reminiscent of similar claims made by advocates of restrictive campaign finance laws. However, there is no scientific evidence that restrictive campaign finance laws have much of an impact on citizens? trust in government; and by extension, lobbying disclosure laws are unlikely to have any important effects either. I?ll have more to say on this topic Friday.
Second, because grassroots lobbying informs and energizes citizen participation, it can act as a check on malfeasant representatives. Party bosses may twist a legislator?s arm, but grassroots groups can twist back on the other. Given this, the presence of disclosure laws that raise the costs of grassroots activism may actually undermine the ?integrity of democracy.?
Third, these claims ignore the Supreme Court?s recognition that mandatory disclosure can impose unacceptably high costs on certain unpopular groups and speakers. All else constant, more information is probably better; for this reason, groups usually undermine their own message by not disclosing relevant information to the public. But popular prejudice against some speakers or the potential for retribution against those that dare to support controversial views may alter the calculus of disclosure. The public can always choose to discount anonymous voices, but it?s harder for an unpopular speaker to ignore the message of a brick through the window, or worse.
Finally, the claim that disclosure of grassroots lobbying activities is necessary for the public to know ?who is speaking? is quite insulting. In essence, it assumes that citizens who contact a legislator as part of a grassroots campaign are just mindless automatons relaying whatever lines they?re fed, rather than concerned citizens who have taken advantage of the expertise of some trusted group or organization in crafting their own message.
The notion that only some grassroots lobbying is legitimate is manifest in the disparaging term, ?Astroturf lobbying.? In practice, the difference between grassroots lobbying and Astroturf lobbying is primarily whether the speaker agrees or disagrees with the aims of the movement in question. Nevertheless, there is a widespread notion that the presence of any financial support or expertise on the side of a grassroots campaign somehow renders it illegitimate, but this ignores the realities of collective action problems.
One lesson that emerges from scholarly research is that political entrepreneurs can solve the collective?action problem. More effective groups are those where some members care enough about the group to take on the cost of coordinating, communicating and mobilizing other individuals. These groups become organized and function as interest groups.
Elected politicians often play the role of political entrepreneur, but outside actors, be they existing interest groups, candidates?in?waiting or concerned citizens, may also play the role of political entrepreneur.8 However, unlike incumbent politicians, outside political entrepreneurs often lack a public platform from which to communicate and do not have a professional staff to help organize group members. For these reasons, grassroots lobbyists rely on patrons and contributors to provide resources to inform, coordinate and mobilize group members.
Seen in this light, the frequent assumption that authentic grassroots lobbying can only occur absent political entrepreneurs and professional expertise is simply ridiculous. Unorganized and ordinary citizens with legitimate and latent preferences for policy cannot be expected to monitor the legislative calendar constantly just in case an item of concern should pop up; nor can ordinary citizens be expected to fully comprehend the legislative process so that they can contact the appropriate committee members at the appropriate time.
Advocacy groups and other entrepreneurs provide a valuable function for unorganized interests by monitoring legislation and sending action alerts when appropriate, as well as helping to coordinate grassroots action for maximum effect by informing people about the issues at hand, the relevant actors to contact and the time frame for action.
Far from being a suspect enterprise, political entrepreneurship is a necessary condition for vigorous and robust grassroots lobbying. If anything, it is the absence of such activity that should cause concern, since it would mean that latent groups are left unorganized and their preferences likely ignored by the political process.
Tomorrow I?ll tackle the question of whether ordinary citizens can be expected to comply with existing lobby disclosure regulations.
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