Grassroots Lobbying: Constitutionality of Disclosure Requirements

Grassroots Lobbying: Constitutionality of
Disclosure Requirements
Updated February 26, 2008
Jack Maskell
Legislative Attorney
American Law Division

Grassroots Lobbying: Constitutionality of
Disclosure Requirements
The disclosure by professional lobbyists and commercial lobbying firms of
expenditures or payments for “grassroots” lobbying campaigns continues to be an
issue of importance to reformers both inside and outside of Congress. Legislative
proposals, such as S. 1, 110th Congress and H.R. 4682, 109th Congress, had originally
sought to extend public reporting requirements for some paid activities intended to
stimulate “grassroots” lobbying. The lobbying and ethics reform legislation
eventually enacted into law in 2007, the “Honest Leadership and Open Government
Act of 2007” (P.L. 110-81,121 Stat. 735 [S. 1, 110th Congress]) did not, however,
include “grassroots” lobbying disclosure requirements.
As to the constitutionality of requiring such disclosures, it should be noted that
the activities involved in “lobbying,” including the stimulation of “grassroots”
lobbying, clearly implicate and involve freedoms protected by the First Amendment,
including speech, associational rights, and the right to petition the government. The
courts have long found, however, that some burden on these fundamental rights may
be tolerated when a law promotes significant governmental interests, when the
burdens on such activities are, at the most, indirect (such as in disclosure laws), and
when the statute is drawn with enough precision so that a correlation exists between
the information required to be disclosed and the achievement of the interests asserted
as the law’s justification. Under such standards, the courts have upheld against facial
First Amendment challenges required disclosures in the areas of lobbying activities
and campaign financing to promote the interests of preventing corruption and
limiting the undue influences of monied and powerful interests, as well as preventing
merely the “appearance” of such influence, in basic governmental and democratic
processes. The apparent trend in more recent judicial decisions seems to allow the
legislatures some leeway in determining which activities are relevant to the goals of
preserving the integrity of, for example, their own legislative process, and so to
include also in required disclosures some activities that are more on the periphery and
not necessarily themselves directly involved in such process, but are intended to
result in direct contacts and to significantly influence a legislator.
In both state and federal courts, state provisions that reach “indirect” or
“grassroots” lobbying have increasingly been upheld against facial constitutional
challenges. Courts have recognized the growth of importance of these efforts in the
legislative process, and the increased need for legislators and others to be able to
identify and assess pressures on legislators. Under the analysis applied in these
cases, it would appear that a federal statute that requires only disclosure and
reporting, and does not prohibit activity, and that reaches only those who are
compensated to engage in a certain amount of the covered activity, would appear to
fit within those types of provisions upheld in past cases when the statute is narrowly
drafted to exclude groups, organizations, and citizens who do no more than advocate,
analyze, and discuss public policy. Even with the probability of such a crafted
statute withstanding a “facial” challenge, the law might still be subject to an “as
applied” challenge if a particular group could show a reasonable probability that the
disclosures required would result in harassment or reprisals against members.

Background ......................................................1
Constitutional Protection of Lobbying and Advocacy Activities.............3
Governmental Interest in Lobbying Disclosures..........................5
Disclosure of Direct vs. Indirect Lobbying..............................9
As-Applied Analysis..............................................14
Judicial Decisions and State Grassroots Lobbying Disclosure..............16

Grassroots Lobbying: Constitutionality of
Disclosure Requirements
This report discusses the constitutional issues that may arise with respect to a
federal law that would require disclosures of efforts to stimulate so-called
“grassroots” lobbying activities by those entities and persons who are compensated
to engage in such activities.
Activities which are generally described as efforts to stimulate “grassroots”
lobbying (depending on the context of the term and/or the particular bill in question)
are communications which are directed at members of the general public, or at more
selected persons on mailing lists of organizations or other entities, which take
specific positions on legislative matters pending before or public policy issues to be
considered by the legislature, and which contain a so-called “call to action,” that is,
for example, urging the recipients of the communications to contact members of the
legislature to favor or oppose legislative action on the issue.1
Currently, under federal law (the Lobbying Disclosure Act of 1995 [LDA], as
amended), registrations and disclosures by professional lobbyists are triggered and
related only to so-called “direct” lobbying contacts with covered Government2
officials, and those activities which support those direct contacts. The current law’s
registration and reporting requirements are not separately triggered by “grassroots”
lobbying activities. That is, an organization which engages only in “grassroots”
lobbying, regardless of the extent of such “grassroots” lobbying activities, is not
required to register its members, officers or employees who engage in those
activities, and a lobbying firm or other outside lobbyist which conducts only
“grassroots” lobbying campaigns on behalf of a client, regardless of the amount of

1 For purposes of the Internal Revenue Code, for example, not all public “advocacy”
activities are considered “grassroots lobbying.” As noted expressly by the IRS: “... clear
advocacy of specific legislation is not grassroots lobbying at all unless it contains an
encouragement to action.” 26 C.F.R. § 56.4911-2(b)(2). A communication “encourages a
recipient to take action” if it (1) states that the recipient should contact legislators; (2)
provides a legislator’s phone number, address, etc; (3) provides a petition, tear-off postcard,
or similar material to send to a legislator; or (4) specifically identifies a legislator who is
opposed, in favor, or undecided on the specific legislation, or is on the committee
considering the legislation, if the communication itself is “partisan” in nature and can not
be characterized as a full and fair exposition of the issue.
2 2 U.S.C. § 1603(a), see definitions of terms “lobbying activity” and “lobbying contact” in
§ 1602(7) and (8) and “lobbyist” in § 1602(10).

compensation from the client or the amount of grassroots activities engaged in, does
not need to register and report such activities or relationships under the LDA.3
Certain legislative proposals under consideration in the 110th Congress had
originally proposed to include disclosures of efforts to stimulate “grassroots”
lobbying generally in two different ways. In the first instance, only those
professional “lobbyists” who were already required to register under the LDA
provisions (by virtue of their “direct” lobbying contacts) would have been
additionally made to report certain efforts to stimulate “grassroots” lobbying for
clients or employers over a certain amount.4 Secondly, certain entities which were
compensated over a threshold amount ($25,000 or $50,000 in a calendar quarter,
depending on the proposal) to engage in activities to stimulate “grassroots” lobbying
on behalf of an outside client would have separately “triggered” registration and
disclosure of such activities under the proposed amendments to LDA.5
Under either method of coverage, however, an organization which had engaged
only in efforts to stimulate “grassroots” lobbying on behalf of itself, through its own
employees, members, or volunteers, would have not been required to register and file
disclosure reports. Neither the Senate bill, S. 1, 110th Congress, as introduced, nor
the similar House version from the 109th Congress, H.R. 4682, 109th Congress, would
have changed the definition of a “lobbyist” who must register under LDA (that is, a
“lobbyist” to be covered must have still made more than one direct “lobbying
contact,” which expressly excludes solicitations to stimulate grassroots lobbying6).
The only additional registrants under these types of provisions would have been for
“grassroots lobbying firms” which, as noted, would have covered only those entities
compensated over a particular threshold amount by clients to stimulate grassroots
lobbying efforts on the client’s behalf.
Even these somewhat limited and targeted disclosure proposals with respect to
“grassroots” lobbying were not enacted into law. The “grassroots” lobbying
disclosure provisions for registered professional lobbyists, and for commercial direct
mail or public relations firms on behalf of outside clients (“grass roots lobbying
firms”), which had been originally included in S. 1, 110th Congress, were struck from
the Senate bill by a floor amendment, and the lobby reform legislation, the “Honest

3 Once an organization has met the threshold requirements for “direct” lobbying and is
registered, certain background activities and efforts “in support of” its direct “lobbying
contacts,” which may include activities which also support other activities or
communications which are not lobbying contacts such as, in theory, “grassroots” lobbying
efforts, may need to be disclosed generally as “lobbying activities.” 2 U.S.C. § 1602(7).thst
Note H.Rept. 104-339, 104 Cong.,1 Sess., “Lobbying Disclosure Act of 1995,” 13-14
(1995). The instructions of the Clerk of the House and Secretary of the Senate also note that
“Communications excepted by Section 3(8)(B) will constitute ‘lobbying activities’ if they
are in support of other communications which constitute ‘lobbying contacts.’”
4 See, for example, S. 1, 110th Congress, as originally introduced, at Section 220(a)(1) and
(2), and H.R. 4682, 109th Congress, Section 204(a)(1).
5 See, e.g., S. 1, 110th Congress (as introduced), Section 220(b) and (a)(2); and H.R. 4682,

109th Congress, Section 204(b)(4), concerning “grassroots lobbying firms.”

6 2 U.S.C. § 16012(10), “lobbyist”; 2 U.S.C. § 1602(8), “lobbying contact”.

Leadership and Open Government Act of 2007” (P.L. 110-81, 121 Stat. 735,
September 14, 2007), was enacted without grassroots lobbying disclosure
The question and issue of whether paid efforts to stimulate grassroots lobbying
should, at some point, be required to be publicly disclosed as part of a transparency
and “open government” scheme, where the paid influences and pressures upon
Members of Congress may be analyzed and reviewed by the electorate, continues to
be of some import to certain government reform groups and persons both inside and
outside of Congress.8 The following discussion analyzes the constitutional issues
with respect to a federal requirement to report or disclose monies expended or
received by professional lobbyists or commercial organizations for efforts to
stimulate grassroots lobbying by the public, or a certain segment of the public,
regarding specific federal legislation or proposals before Congress.
Constitutional Protection of Lobbying and
Advocacy Activities
The activities involved in “lobbying,” that is, persons individually or in
association with one another engaging in, initiating and/or directing advocacy
communications to public officials on political, social and economic issues of interest
to those individuals and groups, have been found to be intertwined with and
implicate several fundamental rights protected by the First Amendment to the United
States Constitution.9 In Eastern Railroads President Conference v. Noerr Motor
Freight, Inc., the Supreme Court ruled that because of First Amendment
considerations the prohibitions of the Sherman Anti-Trust Act could not reach the
activities of rival businesses to prohibit them acting in concert to lobby legislatures
for favorable transportation legislation. The Court noted that lobbying activities
involve the “right of petition [which] is one of the freedoms protected by the Bill of
Rights,” and could not be restricted by statute without serious First Amendment

7 See S. Amend. 20, 110th Cong. (Sen. Bennett), to “strike a provision relating to paid efforts
to stimulate grassroots lobbying,” agreed to during consideration of S. 1 (110th Congress)
by recorded vote, 55-43, 153 Congressional Record S743 (daily ed. Jan. 18, 2007).
8 See, for example, Campaign Legal Center, Common Cause, Democracy 21, league of
Woman Voters, Public Citizen, and U.S. PIRG, open letter to Members of the House, at pp.

3-5, “Disclosure by Lobbying Firms of Campaigns to Lobby the General Public,” March 7,

2007; OMB Watch, “House Proposal for Grassroots Lobbying Disclosure Due Soon,”

March 20, 2007; The, op-ed, “Look closely at the grassroots,” by Gary D. Bass,
March 19, 2007.
9 United States v. Harriss, 347 U.S. 612 (1954); United States v. Rumely, 345 U.S. 41
(1953); Eastern Railroads President Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,
137-138 (1961). See, generally, discussion in Eastman, Lobbying: A Constitutionally
Protected Right, American Enterprise Institute for Public Policy Research (1977). The rights
asserted have included the freedom of speech, freedom of association and the right to
petition the Government. Note discussion in Browne, “The Constitutionality of Lobby
Reform: Implicating Associational Privacy and the Right to Petition the Government,” 4:2
William & Mary Bill of Rights Journal 717(1995).

implications.10 The Court explained the importance of lobbying activities in our
representative form of government:
In a representative democracy such as this, these branches of government act on
behalf of the people and, to a very large extent, the whole concept of
representation depends upon the ability of the people to make their wishes known11
to their representatives.
The activities involved in lobbying, public advocacy and political expression
about public policy issues, government and legislation, have been found by the
Supreme Court to be among the most important freedoms in preserving an open
democracy.12 The Court has thus noted the “profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide
open,”13 and has in the past explained that “expression on public issues ‘has always14
rested on the highest rung of the hierarchy of First Amendment values.’” The
Supreme Court has therefore found that any regulations imposed by Congress on
such lobbying and advocacy activities may not unduly burden the exercise of
participants’ First Amendment rights.15
Even when a federal regulation on public policy advocacy involved merely a
disclosure and reporting requirement, and not a restriction which directly limits or
prohibits advocacy activities, such a regulation underwent a rigorous constitutional16
scrutiny since, as characterized by the Supreme Court in Buckley v. Valeo, the Court
has recognized the “deterrent effects on the exercise of First Amendment rights”
which may arise “as an unintended but inevitable result of the government’s conduct
in requiring disclosure.”17 The Supreme Court in NAACP v. Alabama18 overturned
a State court contempt citation against the NAACP for that organization’s failure to

10 365 U.S. at 138.
11 365 U.S. at 137.
12 “Discussion of public issues and debate ... are integral to the operation of the system of
government established by our constitution.” Buckley v. Valeo, 424 U.S. 1, 14 (1976). As
early as 1938 Chief Justice Stone postulated on the possible stricter scrutiny under the First
Amendment for “legislation which restricts those political processes which can ordinarily
be expected to bring about repeal of undesirable legislation.” United States v. Carolene
Products Co., 304 U.S. 144, 152, n.4.
13 New York Times v. Sullivan, 376 U.S. 254, 270 (1964); Garrison v. State of Louisiana,

379 U.S. 69 (1964).

14 NAACP v. Clairborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447
U.S. 455, 467 (1980); FCC v. League of Women Voters of California, 468 U.S. 364, 381
15 United States v. Harriss, 347 U.S. 612 (1954); United States v. Rumely, 345 U.S. 41
(1953); Eastern Railroads President Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,

137-138 (1961).

16 United States v. Harriss, 347 U.S. 612 (1954).
17 424 U.S. at 65; United States v. Harriss, supra; NAACP v. Button, 371 U.S. 415 (1963).
18 357 U.S. 449 (1958).

disclose its local membership list. Recognizing that “(e)ffective advocacy of both
public and private points of view, particularly controversial ones, is undeniably
enhanced by group association” and that, based upon the First Amendment rights of
freedom of speech, petition and assembly, the Constitution guarantees the “freedom
to engage in association for the advancement of beliefs and ideas,” the Court noted
the “chilling effect” that certain state actions, such as requiring the disclosure of
membership lists, may have upon the exercise of those rights.19
There has additionally been recognized a constitutional protection for, as well
as a longstanding tradition in our country of, anonymous political speech and
pamphleteering. In McIntyre v. Ohio Elections Commission,20 the Supreme Court
overturned a State statute requiring that the author of a pamphlet or political
document place his or her name and home address on the document when the
material was distributed in relation to an upcoming election/referendum on taxes.
The Court found that the purpose of the identification law in Ohio was to prevent
“fraud and libel” in campaign literature, and to provide information to the voter, but
that requiring the author to put his or her name and address on the literature was
inherently chilling, did not provide for most voters generally useful information, and
did not sufficiently promote the governmental interests asserted as its justification.21
Governmental Interest in Lobbying Disclosures
The Supreme Court has thus recognized the potential threat of the “chilling” of
First Amendment rights in disclosure statutes which require identifications of those
responsible for issue-oriented advocacy and persuasion concerning public policy and
political issues. However, it has been noted as a general principle that although First22
Amendment rights “are fundamental, they are not in their nature absolute”; and the
federal courts have increasingly upheld statutory regulation in the area of lobbying

19 The Supreme Court stated:
Of course, it is immaterial whether the beliefs sought to be advanced by association
pertain to political, economic, religious or cultural matters, any State action which may
have the effect of curtailing the freedom to associate is subject to the closest scrutiny.
The fact that [the State]...has taken no direct action, (citations omitted) to restrict the
right of petitioner’s members to associate freely, does not end the inquiry into the
effect of the production order. (citations omitted) In the domain of these indispensable
liberties, whether of speech, press, or association, the decisions of this Court recognize
that abridgment of such rights, even though unintended, may inevitably follow from
varied forms of governmental action. 357 U.S. at 460 -461; see also Gibson v. Florida
Legislative Investigation Committee, 372 U.S. 539, 544 (1963); Bates v. Little Rock,

361 U.S. 516 (1960); Shelton v. Tucker, 364 U.S. 479 (1960).

20 514 U.S. 334 (1995).
21 “The State may, and does, punish fraud directly. But it cannot seek to punish fraud
indirectly by indiscriminately outlawing a category of speech, based on its content, with no
necessary relationship to the danger sought to be prevented.” 514 U.S. at 357.
22 Whitney v. California, 274 U.S. 357, 373 (1927) [Justice Brandeis concurring];
Terminiello v. Chicago, 337 U.S. 1, 4 (1949), Justice Douglas delivering opinion of the

and campaign disclosures against facial challenges when, on balance, the
governmental interest asserted in the regulation is significant, when possible
limitations on First Amendment rights are only indirect (as in disclosure statutes),
and where the statute in question is drawn with sufficient precision so as to promote
and be relevant to the interests asserted as the statute’s justification.
The Government’s asserted interests in preserving the integrity of fundamental
governmental processes, such as the legislative process, and protecting such
proceedings from corruption and undue influences from those who are paid
specifically to influence them has been long recognized as a significant, important
and compelling governmental interest.23 These interests of promoting and protecting
the integrity of governmental processes from corruption and undue influences, of
shedding light on the workings of Government, and in preserving the confidence of
the public in the integrity and basic fairness of our democratic institutions are the
interests that have informed the decisions permitting, in the field of lobbying
regulation (as well as in some areas of campaign finance regulation), required
disclosures, reporting, and identifications which, out of the context of professional
“lobbying” or campaign finance, might otherwise be problematic from a First
Amendment prospective. Thus, the Supreme Court has upheld the constitutionality
of contribution limitations and disclosure requirements concerning contributors to
and expenditures by political parties, political committees and candidates in Buckley
v. Valeo, the disclosure requirements of the Federal Regulation of Lobbying Act of
1946 in United States v. Harriss, and a range of disclosures, reporting, as well as
certain limitations and prohibitions in a broad range of campaign finance activities
and issue advocacy in McConnell v. Federal Election Commission, 540 U.S. 93
In 1954 the Supreme Court upheld the reporting and registration requirements
of the Federal Regulation of Lobbying Act of 1946. The Court in Harriss, construing
narrowly the provisions of the Federal Regulation of Lobbying Act (2 U.S.C. §§261
et seq., 1994 Code ed.) upheld the constitutionality of that Act. As to the

23 As early as 1853 the Supreme Court noted, for example, the problem of rich contingency
contracts to lobbyists and refused to enforce any such agreement —
which is inconsistent with sound morals or public policy; or which tends to corrupt or
contaminate, by improper influences, the integrity of our social or political institutions.
... Legislators should act from high consideration of public duty. Public policy and
sound morality do therefore imperatively require that courts should put the stamp of
disapprobation on every act, and pronounce void every contract the ultimate or
probable tendency of which would be to sully the purity or mislead the judgments of
those to whom the high trust of legislation is confided.
... Bribes in the shape of high contingent compensation, must necessarily lead to
the use of improper means and the exercise of undue influence. Their necessary
consequence is the demoralization of the agent who covenants for them; he is soon
brought to believe that any means which will produce so beneficial a result to himself
are “proper means”; and that a share of these profits may have the same effect of
quickening the perceptions and warming the zeal of influential or “careless” members
in favor of his bill.
Marshall v. Baltimore & Ohio R.R., 57 U.S. (16 How.) 314, 333-334 (1853).

governmental interest involved in requiring the reports and disclosure from those
who engage in “lobbying,” as that term was defined by the Court, the Court stated:
Present-day legislative complexities are such that individual members of
Congress cannot be expected to explore the myriad pressures to which they are
regularly subjected. Yet full realization of the American ideal of government by
elected representatives depends to no small extent on their ability to properly
evaluate such pressures. Otherwise the voice of the people may all too easily be
drowned out by the voice of special interest groups seeking favored treatment
while masquerading as proponents of the public weal. This is the evil which the
Lobbying Act was designed to help prevent.
Toward that end, Congress has not sought to prohibit these pressures. It has
merely provided for a modicum of information from those who for hire attempt
to influence legislation or who collect or spend funds for that purpose. It wants
only to know who is being hired, who is putting up the money, and how much.
It acted in the same spirit and for a similar purpose in passing the Federal
Corrupt Practices Act — to maintain the integrity of a basic governmental
process. See Burroughs and Cannon v. United States, 290 U.S. 534, 545.
Under these circumstances, we believe that Congress, at least within the
bounds of the Act as we have construed it, is not constitutionally forbidden to
require the disclosure of lobbying activities. To do so would be to deny
Congress in large measure the power of self-protection. And here Congress has
used that power in a manner restricted to its appropriate end. We conclude that
[the registration and reporting sections of the Act], as applied to persons defined24
in §307 [those covered by the Act], do not offend the First Amendment.
The Supreme Court in Buckley and in McConnell, looking at “campaign
finance” regulations, recognized not only the significant governmental interest of
assuring purity in elections, but also ultimately, the interest in mitigating the potential
affect and undue influence of monied interests on the legislative process. The Court
in Buckley, finding that disclosure requirements generally “appear to be the least
restrictive means of curbing the evils” of unwarranted influence and corruption
concerning basic governmental processes,25 noted that governmental interests such
as these may “outweigh” the possible chilling effect of disclosure statutes on First
Amendment rights:
The strict test established by Alabama is necessary because compelled disclosure
has the potential for substantially infringing the exercise of First Amendment
rights. But we have acknowledged that there are governmental interests
sufficiently important to outweigh the possibility of infringement, particularly26
when the “free functioning of our national institutions” is involved.
The prevention of both actual undue influence, and the appearance of the undue
influence of large, monied interests on the legislative process was sufficient for the

24 347 U.S. at 625-626.
25 424 U.S. at 68.
26 424 U.S. at 66, citing Communist Party v. Subversive Activities Control Bd., 367 U.S. 1,

97 (1961).

Supreme Court in McConnell v. FEC to justify not only “disclosures,” but also
contribution limitations and prohibitions, as well as certain expenditure regulations
in the context of campaigns to federal office and the relationship between a
candidate/officeholder and those persons who are involved in the election process by
spending or contributing large sums of money:
Our cases have firmly established that Congress’ legitimate interest extends
beyond preventing simple cash-for-votes corruption to curbing “undue influence27
on an officeholder’s judgment, and the appearances of such influences.
With respect to contribution limitations, the Court reiterated its position: “Our cases
have made clear that the prevention of corruption or its appearance constitutes a
sufficiently important interest to justify political contribution limits.”28
In addition to the general federal lobbying disclosure laws, there is currently a
federal law in force that is commonly known as “FARA,” the Foreign Agents
Registration Act. Similar to the general federal lobbying law, this law, rather than
prohibiting lobbying, or information or propaganda campaigns for or on behalf of
foreign interests, instead requires registrations and disclosures by agents of foreign
interests who engage in political or propaganda activities in the United States on
behalf of such foreign interests, and also requires labeling of certain material
distributed in the United States on behalf of those foreign principals.29 FARA has
been upheld against constitutional challenges based on First Amendment freedoms
because the courts found that the law does not prohibit speech or expression, but
rather merely requires information from those engaging in such activities on behalf
of foreign interests. In United States v. Peace Information Center,30 the federal
district court noted specifically that the law “neither limits nor interferes with
freedom of speech,” nor does it “regulate expression of ideas” or “preclude the
making of any utterances”; rather, the court found that the Act “merely requires
persons carrying on certain activities to identify themselves by filing a registration
st at em ent . ”31
Similarly, the “labeling” and identifying of publicly distributed material under
FARA was challenged on First Amendment grounds in a case concerning the
distribution of films about acid rain produced by the Canadian Film Board and
distributed in the United States. In Meese v. Keene,32 the labeling and public
disclosure requirement was upheld by the Supreme Court against the constitutional

27 540 U.S. at 150, citing FEC v. Colorado Republican Federal Campaign Comm., 533 U.S.

431, 441 (2001).

28 540 U.S. at 143.
29 See 22 U.S.C. §§ 611 et. seq.
30 97 F. Supp. 255 (D.D.C. 1951).
31 97 F. Supp. at 262. See also discussion in Viereck v. United States, 318 U.S. 236, 251
(1943)(Black, J. dissenting); Attorney General v. Irish Northern Aid Committee, 346 F.
Supp. 1384 (S.D.N.Y. 1972), aff’d without opinion, 465 F.2d 1405 (2d Cir.), cert. denied,

409 U.S. 1080 (1972).

32 481 U.S. 465 (1987).

challenges of distributors of the material in the United States. The Court noted that
the act places “no burden on protected expression,” and that the law was not intended
to “prohibit, edit, or restrain the distribution of advocacy materials.”33 Rather, the
Court believed that the labeling requirement added to the information that the public
receives, rather than suppressing any information or expression:
To the contrary, Congress simply required the disseminators of such material to
make additional disclosures that would better enable the public to evaluate the
import of the propaganda. The statute does not prohibit appellee from advising
his audience that the films have not been officially censured in any way.... By
compelling some disclosure of information and permitting more, the Act’s
approach recognizes that the best remedy for misleading or inaccurate speech
contained within material subject to the Act is fair, truthful, and accurate34
Finally, as to governmental interests generally in required disclosures for
activities in this subject area, it is informative to note that the governmental interest
asserted in the 1995 political leafleting “labeling” case in Ohio (McIntyre v. Ohio
Elections Commission), was to prevent “fraud and libel,” and not the deterrence of
corruption or the appearance of corruption or undue influence upon governmental
processes. In McIntyre, while overturning Ohio’s labeling provision on leaflets
which were intended to prevent “fraud and libel,” the Court distinguished the
lobbying and campaign disclosure cases and expressly indicated that, contrary to the
fraud and libel interest, the interests of deterring corruption or the appearance of
corruption of governmental processes was a compelling enough interest to justify
disclosure of, for example, lobbying activities.35
Disclosure of Direct vs. Indirect Lobbying
It has been argued that in both the Harriss and the Buckley cases the Supreme
Court made a specific distinction that, on the one hand, provided significant leeway
to the government to require reporting and disclosures from those “directly” involved
in or impacting the governmental processes being protected, as opposed to regulating
those who are more on the periphery of the targeted activities and so do not directly
impact, influence or communicate with candidates, lawmakers or public officials.36
In Harriss, the Supreme Court found that the lobbying statute, as the Court
interpreted it, “sought the disclosure of ... direct pressures [upon Congress] ...,”37
implying that the statute would not entail “a broader application to organizations

33 481 U.S. at 480.
34 481 U.S. at 480-481.
35 514 U.S. 334, 356, n. 20 (1995).
36 See, for example, discussion by the United States District Court in narrowing the reach
and application of a New Jersey elections and lobbying provision, in ACLU of New Jersey
v. New Jersey Election Law Enforcement Commission, 509 F. Supp. 1123, 1129, 1131-1134
(D.N.J. 1981).
37 347 U.S. at 620. Emphasis added.

seeking to propagandize the general public.”38 Similarly, in Buckley v. Valeo, the
Court had upheld disclosure provisions on independent expenditures by narrowing
their application to groups that engage in express advocacy in relation to candidates,
and who are thus more directly and intimately involved in the electoral process,
rather than merely applying to independent “groups engaged purely in issue
discussion,”39 and who thus have only a tangential or peripheral impact or connection
to the electoral process, candidates and public officials. In the lower court case in
Buckley v. Valeo,40 the United States Court of Appeals overturned former 2 U.S.C.
§ 437a, a disclosure provision concerning independent expenditures, and that part of
the decision was not appealed to Supreme Court.41 The Court of Appeals stated
The Supreme Court has indicated quite plainly that groups seeking only to
advance discussion of public issues or to influence public opinion cannot be
equated to groups whose relation to political processes is direct and intimate. In
United States v. Rumely, 345 U.S. 41 (1953), the Court upheld a resolution
authorizing a House committee to inquire into lobbying activities after construing
it narrowly to apply only to representations made directly to Congress, and not
to indirect efforts to influence legislation by changing the climate of public42
In the context of lobbying disclosure provisions (as in the case of the campaign
disclosure provisions reviewed in the Buckley case), the overbreadth doctrine43 may
arguably counsel that the activities which are subject to disclosure requirements be
carefully defined to exclude required disclosures relating to activities of individuals
or groups that “do no more than discuss issues of public interest,” or activities by
“groups engaged purely in issue discussion.” Disclosure and reporting requirements
which sweep within their scope the activities by issue oriented or advocacy groups
who do no more than publicly discuss, analyze or advocate positions on public issues,
might arguably be too remote and not have a “substantial connection” to the
governmental interest in lobbying regulation recognized in the Harriss case, that is,
the revelation of “direct pressures” and influences upon Congress in order to
“maintain the integrity of a basic governmental process.”44 For example, in United
States v. Rumely, supra, the Supreme Court, in upholding a resolution authorizing a

38 347 U.S. at 621.
39 Buckley v. Valeo, 424 U.S. at 79.
40 519 F. 2d 821 (D.C. Cir. 1975).
41 See Buckley v. Valeo, 424 U.S. 1, 10, n.7.
42 519 F. 2d at 873.
43 Disclosure provisions may not be so broad as to “invade the area of protected freedoms”
(NAACP v. Alabama, supra at 307), and must be fashioned so that the required information
to be disclosed under the law bears “a reasonable relationship to the achievement of the
governmental purpose asserted as [the statute’s] justification” (Bates v. Little Rock, 361 U.S.

516, 525 (1960)), that is, there must “be a ‘relevant correlation’ or ‘substantial relation’

between the governmental interest and the information required to be disclosed.” Buckley
v. Valeo, 424 U.S. 1, 64 (1976).
44 Harriss, supra at 625.

House committee to investigate into “lobbying activities” which the Court narrowly
defined, stated the following:
Surely it cannot be denied that giving the scope to the resolution for which the
Government contends, that is, deriving from it the power to inquire into all
efforts of private individuals to influence public opinion through books and
periodicals, however remote the radiations of influence which they may exert
upon the ultimate legislative process, raises doubts of constitutionality in view45
of the prohibition of the First Amendment.
It does not appear that these standards would, however, necessarily bar Congress
from requiring the disclosure of information from groups or persons compensated to
influence the legislative process, and who attempt to do so through either “direct” or
indirect “grassroots” lobbying activities and communications. In the first instance,
it should be emphasized that while the Supreme Court case of United States v.
Harriss was ostensibly a decision that found permissible required disclosures of
“direct” lobbying activities, the Supreme Court, in narrowly interpreting the
provisions of the 1946 Lobbying Act, expressly explained that the lobbying statute
“sought the disclosure of ... direct pressures [upon Congress] exerted by the lobbyists
themselves or through their hirelings or through an artificially stimulated letter
campaign.” The Supreme Court in Harriss stated:
As in United States v. Rumely, 345 U.S. 41, 47, which involved the interpretation
of similar language, we believe this language should be construed to refer only
to “lobbying in its commonly accepted sense” — to direct communication with
Members of Congress on pending or proposed federal legislation. The legislative
history of the Act makes clear that, at the very least, Congress sought disclosure
of such direct pressures, exerted by the lobbyists themselves or through their46
hirelings or through an artificially stimulated letter campaign.
It is thus significant that the Supreme Court in Harriss included “artificially
stimulated letter campaigns” as among the “direct” pressures on Congress that the
lobbying law of 1946 could regulate by way of disclosures. The kinds of
“grassroots” activities which the various proposed bills seek to include in disclosures
would appear to be within this range of activity when they are sufficiently directed
at conduct that involves such artificially stimulated letter campaigns (which are now
often called “astroturf” lobbying), and as such, would arguably be activity which has
already been considered by the Supreme Court to be of the type which may properly
be subject to disclosure requirements. Grassroots activities by those compensated to
influence legislation, when such activities involve a “call to action,” as opposed to
pure issue discussion or mere advocacy of a particular point of view, would generally
be considered to be those communications that provide arguments and information
in a manner and in a particular context intended and designed to stimulate a letter

45 345 U.S. at 46.
46 347 U.S. 620 (emphasis added).

writing campaign and direct contacts and communications by members of the public
with covered officials that may not have spontaneously occurred.47
Secondly, it should be noted that the distinction between what has been
characterized as “express advocacy,” as opposed to “issue advocacy,” as far as the
permissibility of requiring disclosures of such activities within a campaign context,
while certainly valid in the past, has become less relevant in more recent case law.
The Supreme Court in McConnell v. FEC, allowed certain limitations on, as well as
disclosures about “issue advocacy” advertisements in what were defined as
“electioneering communications” when such communications, regardless of any
“express advocacy” (of the election or defeat of a clearly identified candidate), occur
within a particular time frame near an election.48 The Court in McConnell expressly
denied that, in the context of campaigns, a distinction between such communications
is constitutionally based, but rather was mandated in the past only by statutory
construction: “[A] plain reading of Buckley makes clear that the expenditure
advocacy limitation, in both the expenditure and the disclosure contexts, was the
product of statutory interpretation rather than a constitutional command.”49
Furthermore, the Court found: “Nor are we persuaded, independent of our
precedents, that the First Amendment erects a rigid barrier between express advocacy
and so-called issue advocacy.”50
The Court in McConnell thus upheld the disclosure requirement, even for so-
called issue advocacy (as opposed to the “express advocacy” of the election or defeat
of an identified candidate), when those issue ads ran in a certain time frame before
an election for federal office, thus finding, in effect, that such groups do have enough
of a “direct and intimate” relation to the political process to justify disclosing the
required information regarding their activities. The Supreme Court in McConnell
cited with approval the portion of the District Court’s per curium decision dealing
with the required disclosures under “BCRA,” (the Bipartisan Campaign Reform Act)
of “issues ads”:
... Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust,
and wide-open’ speech can occur when organizations hide themselves from
scrutiny from the voting public. ... Plaintiff’s argument for striking down
BCRA’s disclosure provisions does not reinforce the precious First Amendment
values that Plaintiffs argue are trampled by BCRA, but ignores the competing
First Amendment interest of individual citizens seeking to make informed51

choices in the political marketplace.
47 See, for example, IRS definition of “grassroots” lobbying, in this memorandum, footnote
48 The question of the coverage in the law of “real” issue ads (that are not necessarily
intended as electioneering, even if run in proximity to an election) could still be raised on
a case-by-case basis, that is, on an “as-applied” basis. Wisconsin Right to Life, Inc. v. FEC,

546 U.S. 410 (2006).

49 540 U.S. at 191-192.
50 540 U.S. at 193.
51 540 U.S. at 197, citing the District Court’s per curium decision, at 251 F. Supp. 2d 176,

The Supreme Court decisions thus far with respect to preserving the integrity
of the electoral and legislative processes appear to attempt to balance competing
interests in such a way as to promote a societal value of increasing the opportunity,
effectiveness, and thus the encouragement for participation in the democratic process
by ordinary citizens vis-a-vis the more wealthy or organized “special” interests. The
decisions have thus, in effect, sought to reduce the perceived “monopoly” that
wealthy individuals and monied interests might have in gaining the ear or access to
public officials, thus leaving room for and encouraging ordinary citizens to
participate and have an impact on public policy. In Harriss, for example, the
Supreme Court expressly upheld the disclosure and sunlight provisions of the 1946
lobbying law because “the voice of the people may all too easily be drowned out by
the voice of special interest groups seeking favored treatment while masquerading
as proponents of the public weal.”52 The Supreme Court in McConnell, quoting
specifically from its ruling in Shrink Missouri Government PAC, allowed certain
restrictions and disclosure of particular advocacy activities so as not to discourage
others’ participation in government: “Take away Congress’ authority to regulate the
appearance of undue influence and the ‘cynical assumption that large donors call the
tune could jeopardize the willingness of voters to take part in the democratic
process.’”53 In the Ohio case dealing with identification labeling on political leaflets
and pamphlets, McIntyre v. Ohio Elections Commission, the Supreme Court
invalidated a state law requiring the placing of the author’s name and address on
political pamphlets where it expressly noted that the plaintiff’s activity was not
“coordinated” with any public official, candidate or their “organized supporters” in
an election, but rather was “independent activity pursued by Mrs. McIntyre,”54 similar
in nature and analogous to the activities of “volunteers” in a campaign which need
not be disclosed or counted as campaign contributions under campaign finance law.55
These interests and values of citizen participation may arguably be consonant with
the “grassroots” lobbying proposals under consideration, since such proposals would
not encompass and thus not require disclosure of any activity by an individual for
himself or herself, nor would it reach any activity by those who are merely volunteers

51 (...continued)

237 (D.D.C. 2003).

52 347 U.S. at 625.
53 McConnell, supra at 144, quoting Nixon v. Shrink Missouri Government PAC, 528 U.S.
377, 390 (2000). See, generally, Justice Stephen Breyer, Active Liberty, 43-50, on the
interest of the encouragement of participatory democracy in First Amendment adjudications.
54 514 U.S. at 354.
55 514 U.S. at 351, n.14. The Court also distinguished the requirement of individuals to
place their names and addresses on handbills and leaflets relating to elections, from the
requirement of groups to report on expenditures made in support or opposition to candidates
in elections: “[I]dentification of the author against her will is particularly intrusive; it reveals
unmistakably the contents of her thoughts on a controversial issue. Disclosure of an
expenditure and its use, without more, reveals far less information. It may be information
that a person prefers to keep secret, and undoubtedly it often gives away something about
the spender’s political views. Nonetheless, even though money may ‘talk,’ its speech is less
specific, less personal, and less provocative than a handbill — and as a result, when money
supports an unpopular viewpoint it is less likely to precipitate retaliation.” 514 U.S. at 355.

of an organization and who are not compensated for their duties, as the grassroots
provisions cover only “professional” lobbyists who are compensated above a certain
amount to engage in a particular amount of indirect lobbying activities.
As-Applied Analysis
Although the Supreme Court has explained that disclosure provisions generally
“appear to be the least restrictive means of curbing the evils” of unwarranted56
influence and corruption concerning governmental processes, the Court did note
that the “balance” might be tipped in favor of non-disclosure where an organization
may show that disclosure would result in harassment or threats of reprisal to
contributors or members such that First Amendment rights of association and
expression would seriously be infringed by the disclosures. The Court in Buckley
There could well be a case, similar to those before the Court in Alabama and
Bates, where the threat to the exercise of First Amendment rights is so serious
and the state interest furthered by disclosure so insubstantial that the Act’s
requirements cannot be constitutionally applied. But no appellant in this case has57
tendered record evidence of the sort proffered in Alabama.
As to the evidence which may be necessary to be shown by a minor political
party to exclude such a group from the disclosure requirements of the campaign Act,
the Court in Buckley stated:
The evidence offered need show only a reasonable probability that the compelled
disclosure of a party’s contributors’ names will subject them to threats,
harassment or reprisals from either government officials or private parties. The
proof may include, for example, specific evidence of past or present harassment
of members due to their associational ties, or of harassment directed against the
organization itself. A pattern of threats or specific manifestations of public58
hostility may be sufficient.
Thus although broad facial attacks on provisions of law dealing with such things
as lobbying and political campaigns, where the law merely requires disclosures and
reporting of activities and the amount of expenditures concerning such activities,
would face a significant hurdle because of the recognized important and “vital”59
interest of the Government in assuring the integrity of these processes, such

56 Buckley v. Valeo, 424 U.S. 1, 68 (1976).
57 424 U.S. at 71.
58 424 U.S. at 74.
59 The Supreme Court in McConnell indicated that facial challenges to the disclosure
provisions in the campaign act dealing with prevention of undue influence, potential
corruption, and the appearance of such activities, in the realm of federal elections and
electioneering communications, would not be entertained: “The District Court was also
correct that Buckley forecloses a facial attack on the new provision ... that requires

provisions may be examined under an “as-applied” challenge by particular groups,
entities or individuals. The Supreme Court in McConnell, after quoting the standard
to be used in an as-applied challenge, that is, if the parties can show a “reasonable
probability”of “economic reprisals or physical threats” or other such similar
“harassments,” noted that “our rejection of plaintiffs’ facial challenge to the
requirement to disclose individual donors does not foreclose possible future
challenges to particular applications of that requirement.”60
Judicial Decisions and State Grassroots
Lobbying Disclosure
The clear trend in federal case law concerning constitutional challenges to
lobbying statutes in the states has been to uphold against facial challenges provisions
of state law which require the disclosure of “indirect” lobbying campaigns which
involve “grassroots” lobbying of the nature generally covered in the legislative
proposals discussed.
While at least one state court has found disclosures of “indirect” grassroots
lobbying to be beyond the permissible regulatory arm of the government (concerning
disclosures required by the wording of a voter-adopted referendum),61 the indication
from more recent state court cases is that the courts will uphold statutory
requirements for “grassroots” lobbying activities, that is, those activities that urge or
direct others to make direct communications or contacts with public officials, that are
part of a general regulatory scheme to identify pressures and influences on the
government and its officials, and to increase citizen confidence in the integrity of
governmental institutions and processes. The Supreme Court of the State of
Washington in 1974, for example, upheld very detailed lobbying disclosure
provisions of State law concerning “grassroots” lobbying activities in Young
Americans for Freedom, Inc. v. Gorton.62 Although the court there narrowly
construed the Act so that an organization engaged in such a “lobbying” campaign
need not disclose its member/contributor list,63 the court found that some disclosures

59 (...continued)
disclosure of the names of persons contributing $1,000 or more to segregated funds or
individuals that spend more than $1,000 in a calendar year on electioneering
communications.” 540 U.S. at 170. The Court also noted with approval the scrutiny applied
to such disclosure provisions in this context: “As the District Court observed, amended
FECA § 304’s disclosure requirements are constitutional because they “d[o] not prevent
anyone from speaking.” 540 U.S. at 201.
60 540 U.S. at 198, 199. See specifically, Brown v. Socialist Workers ‘74 Campaign Comm.
(Ohio), 459 U.S. 87, 100 (1982).
61 Montana Auto Association v. Greely, 632 P.2d 300, at 307 (Mont. 1981).
62 522 P.2d 189 (Wash. 1974).
63 “We can agree with the contention of YAF that a required disclosure of its membership
would be an impermissible and unconstitutional intrusion upon its members’ associational
freedoms and the right to privacy. N.A.A.C.P. v. Alabama, 357 U.S. 449 ... (1958).” 522

regarding “grass root” lobbying campaigns, such as amounts expended, were
necessary to fill possible loopholes in lobbying regulation:
To strike down this portion of the initiative would leave a loophole for indirect
lobbying without allowing or providing the public with information and
knowledge re the sponsorship of the lobbying and its financial magnitude....
Thus, it seems abundantly clear, and we are convinced, that the right of the
public to be informed is paramount to any inconvenience that reporting under64
section 20 [RCW §42.17.200] may cause respondent.
The Supreme Court of Vermont in 1995, in Kimbell v. Hooper, upheld the
provisions of a Vermont statute which required, among other items, reporting of65
“indirect contacts to influence legislators.” The court there found that this scheme
of disclosures and reporting was within the legislature’s power to require as a
measure to increase the information available about, the confidence in, and to assure
the integrity of the basic legislative and governmental processes, and that the
Supreme Court precedents had not ruled out required disclosures in lobbying laws
of indirect pressures on public officials:
Provisions that reach “indirect” lobbying activities beyond the parameters
found in Rumely and Harriss are not, as plaintiffs would urge, necessarily
unconstitutional; in fact, the Court intimated in these cases that Congress could
require more stringent reporting.
Properly evaluating the governmental process, and the influence lobbyists
bring to bear upon it, implicates indirect as well as direct communications and66

activities needed to get the message across.
63 (...continued)
P.2d at 191.
64 522 P.2d at 192. The section of the Revised Code of Washington was §42.17.200, entitled
“Grass roots lobbying campaigns” and concerned, as characterized by the court, “indirect”
lobbying, that is, “a program addressed to the public, a substantial portion of which is
intended, designed or calculated primarily to influence legislation....” The sponsor of such
a “program,” if such person has expended over the threshold amounts designated, must
register and report certain items including “[t]he names and addresses of all persons
contributing to the campaign, and the amount contributed by each contributor.” R.C.W.
§42.17.200(2)(c)). To avoid the constitutional infirmities noted, the Supreme Court of
Washington narrowly construed the section in question to apply only to funds expended by
the organization concerning a specific campaign directed at a specific piece of pending or
proposed legislation, and to require the disclosure only of those persons who had either
contributed directly to that specific campaign or who had “earmarked” funds for that
specific campaign. Such an interpretation would eliminate the necessity for disclosure of
an organization’s general membership list when that organization engages in indirect,
grassroots lobbying
65 665 A.2d 44, 46 (Vt. 1995).
66 665 A.2d at 47, 48

A similar state statutory provision requiring indirect, grassroots disclosures was,
in an advisory opinion by a Michigan court, found to be permissible as long as the
reach of the law went to specific solicitations of others to make direct
communications.67 This part of the advisory opinion was affirmed in a case in
controversy in Michigan in 1983.68
As to federal court cases, a United States District Court in 1982 upheld against
a constitutional challenge a New York statute which required registration and
reporting from anyone who is employed by a person or entity and, in such
employment, “attempts to influence the passage or defeat of legislation by either
house of the legislature, approval or disapproval of any legislation by the Governor,
or the adoption or rejection of any rule having the force or effect of law, or the
outcome of any rate-making proceeding by a state agency.”69 The plaintiffs’ principal
contention was that the statute was an over-broad intrusion into protected First
Amendment conduct because it swept within its scope not only “direct contact with
government officials in order to influence legislation,” but also could be interpreted
to cover “any action which could conceivably impact upon governmental action ...”
such as “any discussion of the merits of any governmental action that may ultimately
affect or influence such action,” and as such chills “public discussions or
communications in order to avoid the disclosure provisions of the lobby law.”70 The
court found, however, that the law may permissibly cover both “direct” lobbying and
“indirect” grassroots lobbying activities, and construed the language of the law
narrowly to that end so as to exclude coverage of a broader range of pure issue
discussion or public advocacy activities:
If the foregoing [plaintiff’s argument of the law’s coverage] constituted a
realistic appraisal of the scope of the New York lobby law, this Court would
agree with plaintiffs that it should be struck down as overbroad. However, since
this court believes that the legislation, when put in its proper context, was never
meant to, and in practice, never will reach such activities, the Court declines to
invalidate the law for overbreadth in that regard.
At the outset, the Court notes that Harriss did not hold that only direct
contact with government officials could be regulated by a disclosure law. The
Court held that indirect lobbying, in the forms of campaigns to exhort the public
to send letters and telegrams to public officials, could be included within the71

definition of lobbying activities. United States v. Harriss, supra at 621 n.10.
67 Advisory Opinion on Constitutionality of 1975 PA 227, 242 N.W. 2d 3 (Mich. 1976).
68 Pletz v. Secretary of State, 336 N.W.2d 789, 795 (Mich. 1983).
69 Commission on Independent Colleges and Universities v. New York Temporary State
Commission on Regulation of Lobbying, 534 F. Supp. 489, 491 (N.D. N.Y. 1982), citing
N.Y. Leg. Law §§ 3(a) and (b).
70 534 F. Supp. at 496.
71 534 F. Supp. at 496.

In 1985 the United States Court of Appeals for the 8th Circuit, in Minnesota
State Ethical Practices Board v. National Rifle Association,72 upheld against First
Amendment challenges the provisions of a Minnesota ethics and lobbying law that
required registration and reporting from certain “lobbyists” who are compensated and
who expend a particular threshold amount of time and money “for the purpose of
attempting to influence legislative or administrative action by communicating or
urging others to communicate with public officials.”73 The appellant National Rifle
Association sent mailgrams and letters to all of its own members in Minnesota
(approximately 54,000 persons) urging them to contact their legislators to support
particular state legislation. The court found that the disclosure of the sources of
pressures on legislators through such grassroots lobbying campaigns (an artificially
stimulated letter campaign) to be, in a similar manner as the Supreme Court in
Harriss, a “compelling interest,” and that the potential and incidental burden on First
Amendment rights in a statute that prohibits no activity but requires only disclosure
is, similarly to the case in Buckley v. Valeo, subordinate to the public’s “interest in
disclosure.”74 The fact that the original letters were only written to and between
members within a voluntary association did not in the court’s opinion change the
When persons engage in an extensive letterwriting campaign for the purpose of
influencing specific legislation, the State’s interest is the same whether or not
those persons are members of an association. The appellants have articulated no
reason why their membership in the NRA should give then any greater
constitutional protection with respect to lobbying activity than is enjoyed by
other citizens.
In Florida League of Professional Lobbyists v. Meggs,75 the United States Courtth
of Appeals for the 11 Circuit in 1996 similarly upheld against first amendment
challenges a Florida lobbying disclosure statute which required reporting not only of
direct face-to-face lobbying, but also included “indirect” lobbying activities, such as
“media campaigns,” within its scope. The court there, citing the interests of the
government in providing information to the public and to officeholders about the
various pressures and influences on the legislative performances of public officials
recognized by the Supreme Court in both Harriss and Buckley v. Valeo, said:
The League concedes, as it must, that the state has articulated legitimate
interests.... And, these interests continue to apply when the pressures to be
evaluated by voters and government officials are “indirect” rather than “direct.”
... In fact, the government interest in providing the means to evaluate these
pressures may in some ways be stronger when the pressures are indirect, because
they are harder to identify without the aid of disclosure requirements. Harriss
appears to have acknowledged as much when, even reading the statute narrowly

72 761 F.2d 509 (8th Cir. 1985), cert. denied, 474 U.S. 1082 (1986)
73 761 F.2d at 510, citing Minn. Stat. § 10A.01 subd. 11 (emphasis added).
74 761 F.2d at 512. The court noted that if an appellant can show a particular or specific
burden, reprisal, loss of employment or threat that these required disclosures cause, then the
statute on an “as applied” basis would exempt such disclosure. Id. at 512.
75 87 F.3d 457 (11th Cir. 1996), cert. denied, 519 U.S. 1010 (1996).

to apply only to “direct communication,” it nonetheless defined direct76
communication to include “artificially stimulated letter campaign[s].”
In both state and federal courts, provisions which reach “indirect” or
“grassroots” lobbying, that is, efforts to persuade, urge or convince members of the
public, or members of one’s organization, to make direct communications and
contacts with public officials on a particular issue, have been upheld against facial
constitutional challenges. The courts have noted that the Supreme Court in 1954
expressly upheld required lobbying disclosures relating to “direct” pressures on
legislators by lobbying groups themselves, by their hirelings or through their
“artificially stimulated letter campaigns.” Additionally, the courts have seemed to
recognize the growth of importance of such “grassroots” lobbying efforts in the
legislative process, and the increased need for legislators and others to be able to
identify and assess the pressures on legislators being stimulated (and financed) by
interest groups by such methods. Under the analysis applied in these cases, it would
appear that a federal statute which requires only disclosure and reporting, and does
not prohibit any activity, and which reaches only those who are compensated to
engage in a certain amount of the covered activity (leaving volunteer organizations,
volunteers, and individuals who engage in such activities on their own accord out of
the coverage and sweep of the provisions), would appear to fit within those types of
provisions which have been upheld in judicial decisions when the statute is drafted
in such a manner so as not to be susceptible to an overly broad sweep bringing in
groups, organizations and other citizens who do no more than advocate, analyze and
discuss public policy issues and/or legislation. Even with the probability of such a
crafted disclosure statute withstanding a facial challenge, the law could still at some
point be subject to an “as applied” challenge if a particular group or organization
could show a reasonable probability that the disclosures required would result in
harassment or reprisals against it or its member or contributors.

76 87 F.3d at 460-461.