Weeding Them Out by the Roots - The Unconstitutionality of Regulation Grassroots Issue Advocacy

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WEEDING THEM OUT BY THE R OOTS: THEU NCONSTITUTIONALITY OF R EGULATING

GRASSROOTS ISSUE ADVOCACY

Jay Alan Sekulow* & Erik M. Zimmerman**

I NTRODUCTION

American history has been shaped by appeals to the general public to

support or oppose a particular course of action being considered by governmentleaders. 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 consideredlegislation 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

* Chief Counsel, American Center for Law and Justice, Washington, D.C.; B.A.,Mercer University; J.D., Mercer Law School; Ph.D., Regent University. Jay Sekulow servedas counsel of record and presented oral arguments before the Supreme Court of the UnitedStates in McConnell v. FEC, 540 U.S. 93 (2003), where the Court ruled unanimously thatminors have the constitutional right to contribute to political campaigns. 540 U.S. at 231-32.

** Research Counsel, American Center for Law and Justice, Virginia Beach, Va.;B.A., Niagara University; J.D., Regent University School of Law.

1. THOMAS PAINE, COMMON SENSE (1776).

2. THE FEDERALIST.3. Rumely v. United States, 197 F.2d 166, 174 (D.C. Cir. 1952).

4. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.




2008] WEEDING THEM OUT BY THE ROOTS 165

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 andof 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

5. FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652 (2007).

6. Id.

7. H.R. 2093, 110th Cong. (as introduced, May 1, 2007); S. 1, 110th Cong. § 220 (asintroduced, Jan. 4, 2007); H.R. 4682, 109th Cong. (as introduced, Feb. 1, 2006).

8. Buckley v. Valeo, 424 U.S. 1, 45 (1976) (per curiam).




166 STANFORD LAW & POLICY REVIEW [Vol. 19:1

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 notwholly 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 andencourage 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 contacttheir elected officials in support of a judicial nominee is much different than a

political advertisement that asks voters to vote for a particular candidate.

I. GRASSROOTS ISSUE ADVOCACY IS A VALID EXERCISE OF THE R IGHT TO

PETITION THE GOVERNMENT FOR A R EDRESS 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.

9. 127 S. Ct. 2652.

10. U.S. CONST. amend. I.





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 right to petition and the freedoms of speech andthe press, and, as such, they must be narrowly tailored to achieve a compelling

governmental interest.

A. 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 Carta.”12 The right was originally quite

limited, as it was “available for the benefit of the monarch, not the claimant.”13

However, in 1215, Magna Carta 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 Carta, King John expressly crafted a process for his Barons to

petition for the redress of “transgressions.” “Magna Carta 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 Carta, 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

11. Andrew P. Thomas, Easing the Pressure on Pressure Groups: Toward aConstitutional Right To Lobby, 16 HARV. J.L. & PUB. POL’Y 149, 181 (1993).

12. Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right To Petition, 66 FORDHAM L. R EV. 2153, 2163 (1998).

13. Id.

14. Id. at 2164.

15. Id.

16. GOLDWIN SMITH, A CONSTITUTIONAL AND LEGAL HISTORY OF E NGLAND 133 (1955).

17. Id. at 320.





to secure their privileges against the King.”18 Eventually, the “right 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 groundan 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 . . . was[]

defended on the basis that petitioning was an ancient right.”21 By the

seventeenth century, English judges “viewed the right of petition as the

‘birthright of the subject,’”22 and “following the Glorious Revolution of 1688,

the right was codified in the English Bill of Rights.”23 The right was hailed by

William Blackstone as “one of an Englishman’s absolute rights.”24

B. The American Experience

It is well-known that English settlers of the American continent

implemented English legal principles in the colonies that they established. For

example, the Massachusetts Body of Liberties of 1641 expressly recognized the

right to petition:

Every man whether Inhabitant or fforreiner, free or not free shall have libertie

to come to any publique Court, Councell, or Towne meeting, and either by

speech or writeing to move any lawfull, seasonable, and materiall question, or

to present any necessary motion, complaint, petition, Bill or information,

whereof that meeting hath proper cognizance, so it be done in convenient

time, due order, and respective manner.25

In Virginia, “the colonists exercised the right [to petition] inveterately.”26

Petitions “‘concerning almost any conceivable subject,’ from changing the

tobacco laws to prohibiting horse racing on the Sabbath, flooded the colonial

legislature.”27 Other charters and constitutions affirmed the right to petition for

redress of grievances.28

18. Mark, supra note 12, at 2165-67.

19. 4 R ONALD D. R OTUNDA & JOHN E. NOWAK , TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 20.53, at 689 (3d ed. 1999).

20. Mark, supra note 12, at 2167-68.

21. Id. at 2169.

22. Thomas, supra note 11, at 182.

23. Id. (citations omitted).

24. Id. at 181-82.

25. BODY OF LIBERTIES OF THE MASSACUSETTS COLLONIE (1641), reprinted in SELECTCHARTERS & OTHER DOCUMENTS ILLUSTRATIVE OF AMERICAN HISTORY, 1606-1775, at 75(William MacDonald ed., 1899).

26. Thomas, supra note 11, at 183.

27. Id.

28. See Julie Spanbauer, The First Amendment Right To Petition Government for a





The right to petition “was repeatedly affirmed in pre-Revolutionary

declarations, including the Stamp Act of Congress of 1765 and the Declaration

and Resolves of the First Continental Congress in 1774. Eight of the twelve

states that adopted constitutions following the Declaration of Independencerecognized a specific constitutional right to petition.”29 The First Continental

Congress declared that they “have a right peaceably to assemble, consider of

their grievances, and petition the king; and that all prosecutions, prohibitory

proclamations, and commitments for the same, are illegal.”30 Moreover, the

Second Continental Congress approved a Petition to King George for redress of

the many grievances that were propelling the colonies toward revolution.31

That plea for redress was rejected, and the fact that repeated petitions to

Parliament and the King had no beneficial effect contributed to the momentum

building for a revolution.

The Declaration of Independence provides an excellent example of the

centrality of the right to petition to our nation’s Founders. Unless the

“enumeration of complaints contained in the Declaration of Independence islittle but revolutionary rhetoric, rather than a list of actual complaints, . . . we

must conclude that petitioning was a, if not the, key vehicle providing

protection for subjects of the crown.”32 The Declaration of Independence “lists

the King’s ‘injuries and usurpations,’ including among them his purported

undermining of the legitimate processes of colonial government.”33 The

Declaration declares:

In every stage of these Oppressions We have Petitioned for Redress in the

most humble terms: Our repeated Petitions have been answered only by

repeated injury. A Prince, whose character is thus marked by every act which

may define a Tyrant, is unfit to be the ruler of a free people.34

Given the English and colonial tradition recognizing the right to petition

the government for a redress of grievances, it is unsurprising that the right to

petition is among the first rights contained in the Bill of Rights.35

Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 28 nn.83-87 (1993) (collecting other charter provisions regarding the right to petition).

29. Stacie L. Fatka & Jason Miles Levien, Protecting the Right To Petition: Why a Lobbying Contingency Fee Prohibition Violates the Constitution, 35 HARV. J. ON LEGIS. 559, 563 (1998).

30. DECLARATION & R ESOLVES, FIRST CONTINENTAL CONGRESS (Oct. 14, 1774),reprinted in CHARLES C. A NSILL & LIBRARY OF CONG. LEGISLATIVE R EFERENCE SERV., DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE U NION OF THE AMERICAN STATES 3(1927).

31. See PETITION TO THE K ING (JULY 8, 1775), reprinted in SELECT CHARTERS, supra note 25, at 381-85.

32. Mark, supra note 12, at 2191.33. Id. at 2192.

34. THE DECLARATION OF I NDEPENDENCE para. 30 (U.S. 1776).

35. See 1 A NNALS OF CONGRESS 451 (Joseph Gales ed., 1789) (proposing that “[t]he people shall not be restrained from peaceably assembling and consulting for their commongood; nor from applying to the Legislature by petitions, or remonstrances, for redress of their





While the right to petition has long been officially recognized, it has not

always been respected in practice. For example, prior to the Civil War, the

House of Representatives adopted a so-called “Gag Rule” prohibiting citizens

from lodging petitions for redress as a way to deal with the flood of abolition petitions it had been presented with.36 In response, John Quincy Adams offered

a forceful and eloquent defense of an untrammeled right to petition the

government for a redress of grievances. He asserted that not even “the most

abject despotism” would “deprive the citizen of the right to supplicate for a

boon, or to pray for mercy.”37

C. The Supreme Court Has Repeatedly Recognized the Fundamental

Importance of the Right To Petition the Government for a Redress of

Grievances

The Supreme Court has stated that the right to petition is “one of ‘the most

precious of the liberties safeguarded by the Bill of Rights.’”38

It “is cut fromthe same cloth as the other guarantees of [the First] Amendment, and is an

assurance of a particular freedom of expression.”39 Moreover, the right to

petition the legislature “is implied by ‘the very idea of a government,

republican in form.’”40 The right to petition “cannot be denied without

violating those fundamental principles of liberty and justice which lie at the

base of all civil and political institutions.”41

The 1876 case of United States v. Cruikshank 42 provides one of the

Supreme Court’s first major pronouncements on the right to petition. The Court

declared:

The right of the people peaceably to assemble for the purpose of

petitioning Congress for a redress of grievances, or for any thing else

connected with the powers or the duties of the national government, is an

attribute of national citizenship, and, as such, under the protection of, and

guaranteed by, the United States. The very idea of a government, republican in

form, implies a right on the part of its citizens to meet peaceably for

consultation in respect to public affairs and to petition for a redress of

grievances”).

36. See Garrett Epps, The Antebellum Political Background of the Fourteenth Amendment , 67 LAW & CONTEMP. PROBS. 175, 192 (2004).

37. Thomas, supra note 11, at 183 (citing Kingsley Bryce Smellie, Right of Petition, in 11 E NCYCLOPEDIA OF THE SOCIAL SCIENCES 98, 100 (1937)).

38. BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine

Workers v. Ill. Bar Ass’n, 389 U.S. 217, 222 (1967)).39. McDonald v. Smith, 472 U.S. 479, 482 (1985).

40. BE&K , 536 U.S. at 524-25 (quoting United States v. Cruikshank, 92 U.S. 542, 552(1876)).

41. See De Jonge v. Oregon, 299 U.S. 353, 364 (1937).

42. 92 U.S. 542 (1876).





grievances.43

The Cruikshank Court acknowledged that the right to petition is directly linked

to the freedom of association.

Years later, the Court stated in Bridges v. California: “No purpose inratifying the Bill of Rights was clearer than that of securing for the people of

the United States much greater freedom of religion, expression, assembly, and

petition than the people of Great Britain had ever enjoyed.”44 The Court further

considered the relationship between the Petition Clause and the other First

Amendment rights in its 1945 decision of Thomas v. Collins.45 The Thomas

Court explained:

It was not by accident or coincidence that the rights to freedom in speech

and press were coupled in a single guaranty with the rights of the people

peaceably to assemble and to petition for redress of grievances. All these,

though not identical, are inseparable. They are cognate rights, and therefore

are united in the First Article’s assurance.46

Thus, government policies that infringe upon the right to petition oftenimplicate the freedoms of speech and association as well.

The Court reaffirmed the importance of the right to petition in Schneider v.

Smith.47 The Court explained:

The purpose of the Constitution and Bill of Rights, unlike more recent

models promoting a welfare state, was to take government off the backs of

people. The First Amendment’s ban against Congress “abridging” freedom of

speech, the right peaceably to assemble and to petition, and the “associational

freedom” that goes with those rights create a preserve where the views of the

individual are made inviolate. This is the philosophy of Jefferson that “the

opinions of men are not the object of civil government, nor under its

jurisdiction.”48

Thereafter, the Supreme Court has repeatedly emphasized the strong bond

between the right to petition and the other rights guaranteed by the FirstAmendment. As the Court stated in McDonald v. Smith, “[t]he Petition Clause

. . . was inspired by the same ideals of liberty and democracy that gave us the

freedoms to speak, publish, and assemble.”49 Laws that restrict the right to

43. Id. at 552-53.

44. Bridges v. California, 314 U.S. 252, 265 (1941) (emphasis added).

45. 323 U.S. 516 (1945); see also David C. Frederick, John Quincy Adams, Slavery,and the Disappearance of the Right of Petition, 9 LAW & HIST. R EV. 113, 118-20 (1991).

46. Thomas, 323 U.S. at 530 (citations omitted); see also United Mine Workers v. Ill.Bar Ass’n, 389 U.S. 217, 222 (1967) (noting that the rights of assembly and to petition thegovernment “are intimately connected, both in origin and in purpose, with the other FirstAmendment rights of free speech and free press”).

47. 390 U.S. 17 (1968).48. Id . at 25 (citations omitted). Substantial authority suggests that the right to petition

is protected by the Fourteenth Amendment against interference by state governments.Edwards v. South Carolina, 372 U.S. 229 (1963); see also Hague v. C.I.O., 307 U.S. 496,511-13 (1939).

49. McDonald v. Smith, 472 U.S. 479, 485 (1985) (citing United Mine Workers, 389





petition often implicate the other guarantees of the First Amendment:

An individual’s freedom . . . to petition the government for the redress of

grievances could not be vigorously protected from interference by the State

unless a correlative freedom to engage in group effort toward those ends werenot also guaranteed. According protection to collective effort on behalf of

shared goals is especially important in preserving political and cultural

diversity and in shielding dissident expression from suppression by the

majority. Consequently, we have long understood as implicit in the right to

engage in activities protected by the First Amendment a corresponding right to

associate with others in pursuit of a wide variety of political, social, economic,

educational, religious, and cultural ends.50

In other words, the right to petition guarantees “a correlative freedom to

engage in group effort” to gather support for the petition from the general

public.51

In light of the importance of the right to petition, restrictions on that right

must satisfy strict scrutiny in order to pass constitutional muster. The Supreme

Court has stated: “[The] power to regulate must be so exercised as not, inattaining a permissible end, unduly to infringe the protected freedom . . . .

[R]egulation of First Amendment rights is always subject to exacting judicial

review.”52 Regarding the right to petition, the Court has explained:

We start with the premise that the rights to assemble peaceably and to

petition for a redress of grievances are among the most precious of the

liberties safeguarded by the Bill of Rights. These rights, moreover, are

intimately connected, both in origin and in purpose, with the other First

Amendment rights of free speech and free press. “All these, though not

identical, are inseparable.” The First Amendment would, however, be a

hollow promise if it left government free to destroy or erode its guarantees by

indirect restraints so long as no law is passed that prohibits free speech, press,

petition, or assembly as such. We have therefore repeatedly held that laws

which actually affect the exercise of these vital rights cannot be sustainedmerely because they were enacted for the purpose of dealing with some evil

within the State’s legislative competence, or even because the laws do in fact

provide a helpful means of dealing with such an evil.53

U.S. at 222).

50. Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (citations omitted).

51. See id.; First Nat’l Bank v. Bellotti, 435 U.S. 765, 791 n.31 (1978) (reasoning that“[i]f the First Amendment protects the right of corporations to petition legislative andadministrative bodies, there hardly can be less reason for allowing corporate views to be

presented openly to the people when they are to take action in their sovereign capacity [on areferendum proposal]” (emphasis added)); E. R.R. Presidents Conference v. Noerr MotorFreight, Inc., 365 U.S. 127, 128-30, 139-40 (1960) (holding that a lobbying campaign

directed at the public to create distaste for the trucking industry and to encourage retention oflaws destructive to the industry was protected by the First Amendment right to petition).

52. Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 294 (1981).

53. United Mine Workers, 389 U.S. at 222 (upholding a union’s right, as a corollary tothe right to petition, to employ attorneys by retainer or salary to represent union members)(citations omitted).





It is clear that “indirect restraints” on the exercise of First Amendment

rights may be just as onerous as direct prohibitions. Consequently, a statute or

regulation that infringes upon the right to petition must further a compelling

governmental interest and be narrowly tailored to serve that interest.54

II. R EGULATING “GRASSROOTS LOBBYING” WOULD

VIOLATE THE FIRST AMENDMENT

Recent lobbying reform bills in Congress55 have included provisions that

would bring “grassroots lobbying” within the regulatory framework established

by the Lobbying Disclosure Act of 1995 (LDA).56 The LDA imposes

registration and reporting requirements upon “lobbyists” and “lobbying firms,”

i.e., those who are paid to contact public officials on behalf of a client.57 The

definition of “lobbyist” under the LDA reflects the public’s understanding of

that word: someone who is paid, as a part of his or her profession, to talk with

public officials and their staffs to express their clients’ interests.58

When peoplehear the word “lobbyist,” they think of someone who works full-time in

Washington, D.C. and has special “insider” access to members of Congress that

the average citizen does not have. The word “lobbyist” was created to describe

“one who frequents the lobby or the precincts of a Legislature or other

deliberative assembly with the view of influencing the views of its members.”59

The grassroots lobbying bills would greatly expand the coverage of the

LDA to include a new class of lobbyist, “grassroots lobbying firms,” which are

individuals and organizations that spend a certain amount of money

encouraging people to contact public officials about pending legislation or

judicial nominees.60 “Grassroots lobbying” is something of a misnomer

because it is essentially the opposite of “professional lobbying.” Grassroots

54. See generally McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995)(concluding that Ohio’s statute prohibiting the distribution of anonymous campaign literaturewas not “narrowly tailored” to the state’s interest of preventing fraud and libel); Meyer v.Grant, 486 U.S. 414, 420-25 (1988) (applying strict scrutiny and striking down Colorado’s

prohibition on paid petition circulators as an unconstitutional restriction on First Amendmentfreedoms); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam) (stating that anabridgement of First Amendment political expression may only be sustained “if the Statedemonstrates a sufficiently important interest and employs means closely drawn to avoidunnecessary abridgement of [those] freedoms”).

55. H.R. 2093, 110th Cong. (as introduced, May 1, 2007); S. 1, 110th Cong., § 220 (asintroduced, Jan. 4, 2007); H.R. 4682, 109th Cong. (as introduced, Feb. 1, 2006).

56. Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (codified asamended at 2 U.S.C. §§ 1601-1612 (2008)).

57. 2 U.S.C. § 1602(9), (10).58. 2 U.S.C. § 1602(10).

59. Rumely v. United States, 197 F.2d 166, 174-75 (D.C. Cir. 1952) (emphasis added).

60. S. 1 § 220(a)(2) (as introduced, Jan. 4, 2007) (amending Lobbying Disclosure Act §3, 2 U.S.C. § 1602 (2008)); H.R. 4682 § 204(a)(2) (as introduced, Feb. 1, 2006) (amendingLobbying Disclosure Act § 3, 2 U.S.C. § 1602 (2008)).





lobbying is simply the efforts of average Americans to share their viewpoints

with their elected representatives and encourage other Americans to do the

same. Millions of Americans lack the resources and connections necessary to

hire a professional lobbyist to convey their viewpoints to members of Congress,so their only recourse is to express their views to their own members of

Congress and to encourage their neighbors to do likewise.

The grassroots lobbying bills would bring many groups and individuals

that are not professional lobbyists within the lobbying regulatory regime.

Simply spending the requisite amount of money on issue advocacy within a

three month period would be enough to bring a grassroots organization within

the scope of the LDA; no direct contact with public officials is required . By

greatly expanding the scope of lobbying regulation, the grassroots lobbying

bills would affect many houses of worship, public interest organizations, law

firms, radio and TV personalities, nonprofit and for-profit organizations, the

media, and private individuals that voluntarily choose to pay for any medium to

distribute their message to the general public. These groups and individualswould be required to register with Congress and make quarterly disclosures

about their activities that would be made available to the public on an easily

searchable government website.61

A church or other exempt 501(c)(3)

organization could trigger the registration and filing requirements for

“grassroots lobbying firms” without violating the “no substantial part” test

already applicable to them under current tax law.62 The bills also included

financial and criminal penalties for failure to comply with the registration and

reporting requirements.63

A primary reason why professional lobbying is regulated is to minimize the

likelihood that a public official will ignore the voices of his constituents when

their opinion differs from the voice of a favored special interest group. The

grassroots lobbying bills would cover the activities of many grassroots

organizations and media firms that have no direct or indirect contact with

members of Congress. “Grassroots lobbying” does not suddenly become

“professional lobbying”—subject to onerous registration and reporting

requirements and possible fines—simply because a citizen pays a printer to

produce his fliers, a web designer to run his website, or a newspaper to run his

issue advertisement.

Citizen involvement in Congress’s decision-making process is a good to be

61. See, e.g., S. 1 §§ 211, 212, 217, 220 (amending Lobbying Disclosure Act §§ 3-6, 2U.S.C. §§ 1602-1605 (2008)); H.R. 4682 §§ 202, 204, 205, 207 (amending LobbyingDisclosure Act §§ 3-6, 2 U.S.C. §§ 1602-1605 (2008)).

62. The tax code provides exemption for churches and certain other organizations solong as “no substantial part ” of their activities include, inter alia, “carrying on propaganda,or otherwise attempting, to influence legislation . . . .” I.R.C. § 501(c)(3) (2008) (emphasisadded).

63. S. 1 §§ 216, 223 (amending Lobbying Disclosure Act § 7, 2 U.S.C. § 1606 (2008));H.R. 4682 § 402 (amending Lobbying Disclosure Act § 7, 2 U.S.C. § 1606 (2008)).





encouraged, not an evil to be contained. Given the importance of grassroots

advocacy to the proper functioning of a democracy, it is no surprise that

members of Congress of both parties frequently claim to have grassroots

support for their positions and praise their constituents for their grassrootsadvocacy.64 One scholar recently explained in testimony before a House

subcommittee opposing the regulation of grassroots advocacy:

Contact between ordinary citizens and members of Congress, which is

what “grassroots lobbying” seeks to bring about, is the antithesis of the

“lobbying” at the heart of the recent congressional scandals. It is citizens

expressing themselves to fellow citizens, and citizens to members of

Congress. That they are engaged or “stimulated” to do so by “grassroots

lobbying activities” is irrelevant. Regulation that would hamper efforts to

inform and motivate citizens to contact Congress will increase the power of

professional lobbyists inside the beltway. Regardless of what lobbying reform

is passed, not even the most naïve believe it will mean the end of the

professional, inside-the-beltway lobbyist. Thus, grassroots voices remain a

critical counterforce to lobbying abuse.65

Grassroots lobbying bills are based upon the paternalistic notion that the

government needs to regulate grassroots organizations because citizens are

naïve, gullible, and incapable of making well-informed decisions about public

policy on their own.

[G]rassroots lobbying provision[s] . . . assume that Americans can easily

be manipulated by advocacy organizations to take actions that do not reflect

their own interests. To the contrary, Americans are highly independent and

capable of making their own judgment. Whether or not they were informed of

the problem through a grassroots campaign is irrelevant—their action is based

on their own belief in the importance of matters before Congress.66

64. See, e.g., 153 CONG. R EC. H2203 (daily ed. Mar. 6, 2007) (statement of SpeakerPelosi honoring a citizen for opening up the Democratic Party in California to thegrassroots); 153 CONG. R EC. E473 (daily ed. Mar. 6, 2007) (statement of Rep. Insleehonoring a citizen for her grassroots advocacy on wilderness issues); 153 CONG. R EC. S1368(daily ed. Jan. 31, 2007) (statement of Sen. Grassley citing grassroots opinion on raising theminimum wage); 153 CONG. R EC. S1281 (daily ed. Jan. 29, 2007) (statement of Sen.Menendez honoring a citizen for her grassroots advocacy on environmental issues); 153CONG. R EC. H964 (daily ed. Jan. 29, 2007) (statement of Rep. Woolsey praising grassrootsorganizations that oppose the Iraq war); 153 CONG. R EC. H2866 (daily ed. Jan. 22, 2007)(statement of Rep. McGovern praising grassroots organizations that oppose the Iraq war);153 CONG. R EC. S601 (daily ed. Jan. 16, 2007) (statement of Sen. Sanders citing grassrootssupport for the Global Warming Pollution Reduction Act); 153 CONG. R EC. H468 (daily ed.Jan. 12, 2007) (statement of Rep. Murphy of Connecticut citing grassroots opposition to a

provision of the Medicare Act); 153 CONG. R EC. S287 (daily ed. Jan. 9, 2007) (statement ofSen. Dorgan citing grassroots support for Internet freedom).

65. S. 1, The Lobbying Transparency and Accountability Act of 2007: Hearing Beforethe H. Subcomm. on the Constitution of the H. Comm. on the Judiciary, 110th Cong. 1(2007) (statement of Professor Bradley A. Smith, Chairman, Center for CompetitivePolitics).

66. Letter from ACLU to the Senate Opposing Expansions of Post-employment Bansand Regulations on Grassroots Lobbying (Mar. 7, 2006), available at





It is unsurprising that many organizations from all sides of the political

spectrum have opposed the grassroots lobbying bills on First Amendment and

policy grounds.67

While the grassroots lobbying bills have failed to gain sufficient support to be enacted thus far, the mere fact that they will likely be offered again in the

future is troubling. Those who oppose the regulation of grassroots issue

advocacy have two reasons to believe that future attempts to impose such

regulation will be unsuccessful. First, support for the grassroots lobbying bills

within the 110th Congress decreased after public interest and civil liberties

organizations explained that the bills were broad enough to cover a wide range

of issue advocacy by non-profit organizations. Some early support for the bills

may have been based upon the misunderstanding that they only covered

activities by professional lobbyists. Second, supporters of the bills that

understood how broad they were argued that they were necessary to prevent

corruption but never presented a persuasive argument that they were narrowly

tailored to achieve that end. As explained in Part III, infra, the Wisconsin Rightto Life case affirmatively established that regulating grassroots issue advocacy

is not narrowly tailored to achieve a compelling interest. There is still a need to

articulate why the bills would violate the First Amendment, however, as the

bills’ most ardent supporters are likely to continue to advocate for their passage

http://www.aclu.org/freespeech/gen/24423leg20060307.html.

67. See, e.g., Letter from the ACLU to House Judiciary Subcommittee on theConstitution, Civil Rights, and Civil Liberties Regarding S. 1, “The LegislativeTransparency and Accountability Act of 2007” (Feb. 28, 2007), available at http://www.aclu.org/freespeech/gen/28756leg20070228.html; Letter from the ACLU to the Senate, supra note 66;Amanda B. Carpenter, Pelosi Targets Grassroots Freedom of Speech, HUMANEVENTS.COM,

Dec. 18, 2006, http://www.humanevents.com/article.php?id=18510&keywords=grassroots;Coalition Letter from the American Association of Christian Schools et al. to Members ofthe Subcommittee on the Constitution, Civil Rights, and Civil Liberties Urging theOpposition to Efforts To Regulate Grassroots Lobbying (Feb. 28, 2007), available athttp://www.aclu.org/freespeech/gen/28958leg20070228.html; Free Speech Coalition, Inc.,The Unconstitutionality of Section 220—the So-Called “Grassroots Lobbying” Registrationand Disclosure Provisions (Jan. 16, 2007) (unpublished report), available at http://www.freespeechcoalition.org/pdfs/FSCConstitutionalAnalysis.pdf; Letter from FreeSpeech Coalition, Inc. to Joan Claybrook, President, Public Citizen (Dec. 14, 2006),available at http://freespeechcoalition.org/pdfs/ClaybrookLetterAndAnalysis.pdf; SamKastensmidt, Senate Measure To Muzzle Grassroots Organizations, GOOD NEWS DAILY, Jan.2007, http://www.goodnewsdaily.net/modules/news/article.php?storyid=3821; Gun Ownersof America, Lobbying Reform Provisions Unconstitutional and Would Protect Corruption(Apr. 2006), http://www.gunowners.org/op0610.htm; National Right to Life, Elitist Special-Interest Groups Press Congress To Curb “Grassroots Lobbying,” as NRLC Fights Back (Feb.

1, 2007), http://www.nrlc.org/FreeSpeech/NRLCFightsforGrassrootsLobbying.html; Letterfrom the Traditional Values Coalition to the House Judiciary Committee on Concerns withRegulating Grassroots Lobbying (Mar. 1, 2007), http://www.traditionalvalues.org/pdf_files/030107TVCConcernswithRegulatingGrassrootsLobbying.pdf; Westin A. Price Foundation,Grass Roots Lobbying Alert (Mar. 5, 2007), http://www.westonaprice.org/federalupdate/aa2007/06mar2007.html.





in the future.

A. Free Speech Considerations

By expanding the LDA to include many forms of issue advocacy that are

far removed from the traditional meaning of “lobbying,” grassroots lobbying

bills would violate the First Amendment because they are not narrowly tailored

to achieve a compelling state interest.68 “[T]here is practically universal

agreement that a major purpose of [the First] Amendment was to protect the

free discussion of governmental affairs.”69 Speech concerning political issues

and proposed legislation is at the “core of the protection afforded by the First

Amendment.”70

Discussion of public issues and debate on the qualifications of candidates

are integral to the operation of the system of government established by our

Constitution. The First Amendment affords the broadest protection to such

political expression in order “to assure [the] unfettered interchange of ideas for

the bringing about of political and social changes desired by the people.”71

The Supreme Court has explained, “[w]hen a law burdens core political

speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is

narrowly tailored to serve an overriding state interest.”72 “The [Constitution]

requires that statutes affecting First Amendment interests be narrowly tailored

to their legitimate objectives.”73 Many regulations affecting political speech

may attempt to serve “important” (or even compelling) state interests and yet

still conflict with the First Amendment because they are not narrowly tailored

to serve these interests. A statute is only narrowly tailored “if it targets and

eliminates no more than the exact source of the ‘evil’ it seeks to remedy.”74

There is no government interest sufficiently compelling to justify the broad

68. See generally McConnell v. FEC, 540 U.S. 93 (2003); Buckley v. Am. Const. LawFound., 525 U.S. 182 (1999); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995);Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1988); Frisby v. Schultz, 487U.S. 474 (1988); Meyer v. Grant, 486 U.S. 414 (1988); FCC v. League of Women Voters ofCal., 468 U.S. 364 (1984); Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447U.S. 530 (1980); Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam); Police Dep’t of Chi. v.Mosley, 408 U.S. 92 (1972); Mills v. Alabama, 384 U.S. 214 (1966); Gibson v. Fla.Legislative Investigation Comm., 372 U.S. 539 (1963); Louisiana ex rel. Gremillion v.

NAACP, 366 U.S. 293 (1961); Shelton v. Tucker, 364 U.S. 479 (1960); Talley v. California,362 U.S. 60 (1960); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357U.S. 449 (1958); United States v. Harriss, 347 U.S. 612 (1953); United States v. Rumely,345 U.S. 41 (1953).

69. Mills, 384 U.S. at 218.

70. See McIntyre, 514 U.S. at 346.71. Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

72. McIntyre, 514 U.S. at 347.

73. Mosley, 408 U.S. at 101.

74. Frisby v. Schultz, 487 U.S. 474, 485 (1988) (quoting City Council of L.A. v.Taxpayers for Vincent, 466 U.S. 789, 808-10 (1984)).





and onerous regulation of grassroots advocacy contained in the grassroots

lobbying bills. While the government has an interest in preventing actual or

apparent corruption, there is an obvious and important difference between

bribery or large cash contributions to an elected official and simply informingfellow citizens about important issues and encouraging them to become

involved. Grassroots lobbying regulation does not address the so-called

“culture of corruption” in Washington because it limits communications

between members of the general public.

The Supreme Court has noted that:

[T]he threat of enforcement of an overbroad law may deter or “chill”

constitutionally protected speech—especially when the overbroad statute

imposes criminal sanctions. Many persons, rather than undertake the

considerable burden (and sometimes risk) of vindicating their rights through

case-by-case litigation, will choose simply to abstain from protected speech—

harming not only themselves but society as a whole, which is deprived of an

uninhibited marketplace of ideas.75

The grassroots lobbying bills would actually harm the government’s

interest in preventing corruption by increasing the power of professional

lobbyists while decreasing the influence of grassroots organizations. This

would limit the public’s access to “an uninhibited marketplace of ideas”

dealing with public policy issues.76

The chilling effect that the grassroots lobbying bills would have on the

freedom of speech and the right to petition is illustrated by the effect that a

similar bill would have had earlier in American history. For example, an

eighteenth century version of the grassroots lobbying bills would have forced

the authors of Common Sense and the Federalist Papers to disclose their

identities, register with the government, and report their activities on pain of

criminal and civil penalties. While modern day advocates do not face the kind

of grave consequences risked by those who spoke out against the Britishgovernment, their ability to anonymously organize and gather citizen support

for a cause—especially an unpopular one—would be significantly hampered by

the grassroots lobbying bills.

Moreover, had grassroots lobbying regulation existed during the 1950s and

1960s, it would have stifled the civil rights movement. As one commentator

explained while the Senate was considering grassroots lobbying regulation:

Forty-three years ago, civil-rights leader Martin Luther King Jr. declared

his dream to 250,000 marchers and a national television audience: an America

without racial segregation.

King recognized that a decades-long grassroots campaign of nonviolent

protest, culminating in the 1963 March on Washington, might bring his dream

into reality. That grassroots effort, and the media campaign surrounding it,

75. Virginia v. Hicks, 539 U.S. 113, 119 (2003).

76. See generally id. (noting the chilling effect that overbroad statutes often have on thefree exchange of ideas).





was the most successful in American history, and led to passage of the Civil

Rights Act of 1964 and the Voting Rights Act of 1965.77

The harm that grassroots lobbying regulation would have done to the civil

rights movement would have been real and substantial:We cannot forget that King was out front on an issue of national

importance. We cannot forget his fate, and that it was a tragedy. In such an

environment, we might wonder how secure would be his backers and

consultants if the “Big Six” had to register with the government, disclose their

spending, and report the names of the consultants brave enough to help them.

. . . .

It is not hard to imagine . . . why one Jim Crow state might have wanted

to know the names of all NAACP members in 1950s Alabama, and why the

Supreme Court said in response to Alabama’s desire to learn those names that

“[i]t is hardly a novel perception that compelled disclosure of affiliation with

groups engaged in advocacy may constitute as effective a restraint on freedom

of association as [other] forms of governmental action.” It is also easy to

imagine the leverage Alabama could have put on the NAACP and the rest ofthe “Big Six” civil-rights groups if 1950s Alabama knew about the NAACP

what the twenty-first century Congress proposes to learn about grassroots

organizations.78

The article concluded by noting:

It is easy to kid ourselves that there will never be a cause so divisive and

deserving as racial equality that disclosure could now impede its progress. But

we cannot know this with certainty, and, if the past is to be our guide, it seems

that there surely will be such an issue in the future. That it is why it is

important to remember Martin Luther King Jr., the civil-rights struggle, and

the 1963 March on Washington, when we are considering measures that may

frighten tomorrow’s skilled consultants away from tomorrow’s unpopular

causes.79

Although many of the hotly contested issues have changed since the 1950sand 1960s, the chilling effect that grassroots lobbying regulation would have on

the exercise of First Amendment rights would be very real for today’s

advocates.

B. United States v. Rumely

The Supreme Court’s decision in United States v. Rumely80 shows that the

grassroots lobbying bills would violate the First Amendment. In Rumely, the

Supreme Court considered a broadly worded congressional resolution that

77. Stephen M. Hoersting, MLK, Grassroots Lobbyist , NAT’L R EV. O NLINE, Jan. 15,2007, http://article.nationalreview.com/?q=NDUxMzM5NmNiMjFkMThhMjgzZjhmMDkyZGVmYzBhZjk=.

78. Id.

79. Id.

80. 345 U.S. 41 (1953).





authorized the investigation of “all lobbying activities intended to influence,

encourage, promote, or retard legislation.”81 Rumely involved a grassroots

organization called the Committee for Constitutional Government (CCG)

whose basic function was the “distribution of printed material to influencelegislation indirectly.”82 A congressional committee sought to require Rumely,

the secretary of CCG, to disclose information about those who bought CCG’s

books and pamphlets for further distribution.83 Rumely testified that “[o]ur

lobbying consists of going out with a viewpoint to the country, and informing

people and letting the people talk to their Members of the Congress.”84

CCG “attempt[ed] to influence legislation indirectly by distributing

hundreds of thousands of copies of [books and pamphlets] to people throughout

the United States.”85 For example, “[w]hen the Taft-Hartley law was under

discussion, CCG published a pamphlet ‘Labor Monopolies or Freedom’ of

which 250,000 copies were distributed.”86 The government argued that “the

publication of books upon national issues is indirect lobbying”87 which

Congress may regulate like traditional lobbying. Rumely was convicted forrefusing to disclose the requested information.88

The United States Court of Appeals for the District of Columbia Circuit

reversed Rumely’s conviction.89 The court explained that the resolution would

violate the First Amendment if it was broad enough to authorize the regulation

of grassroots issue advocacy. The court noted that, “[i]f Congress had

authorized its Committee to inquire generally into attempts to influence public

opinion upon national affairs by books, pamphlets, and other writings, its

authorization would have been void.”90 The court of appeals squarely rejected

the rationale for regulation of grassroots lobbying: “It is said that indirect

lobbying by the pressure of public opinion on the Congress is an evil and a

danger. That is not an evil; it is a good, the healthy essence of the democratic

process.”91 The court explained:

If it be true that those who today would influence legislation turn from

the buttonholes of the legislators to the forum of public opinion for support, a

great good in the cause of representative government has been done. The evil

to be dealt with is at the buttonhole, not in the arena of public discussion.92

81. Id. at 44.

82. Id. at 50 (Douglas, J., concurring).

83. Id. at 42.

84. Rumely v. United States, 197 F.2d 166, 170 (D.C. Cir. 1952).

85. Rumely, 345 U.S. at 51 (Douglas, J., concurring).

86. Id. at 51, n.3 (Douglas, J., concurring).

87. Rumely, 197 F.2d at 172.

88. Rumely, 345 U.S. at 42.

89. Rumely, 197 F.2d at 166.

90. Id. at 174.

91. Id.

92. Id. at 177.





Since the resolution would have clearly violated the First Amendment if it

had applied to Rumely’s grassroots advocacy, the court of appeals interpreted it

to apply only to “lobbying in its commonly accepted sense” rather than “efforts

to influence public opinion.”93 The Supreme Court affirmed, holding that the resolution must not be

interpreted to apply to grassroots issue advocacy in order to avoid “a serious

constitutional doubt” and a “[g]rave constitutional question.”94 The Court cited

with approval the court of appeals’ analysis of the First Amendment problems

posed by a broad reading of the resolution:

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

view of the prohibition of the First Amendment. In light of the opinion of

Prettyman, J., below and of some of the views expressed here, it would not be

seemly to maintain that these doubts are fanciful or factitious.95

The Court held that “the phrase ‘lobbying activities’ readily lends itself to

the construction placed upon it below, namely, ‘lobbying in its commonly

accepted sense,’ that is, ‘representations made directly to the Congress, its

members, or its committees,’ and does not reach . . . attempts ‘to saturate the

thinking of the community.’”96 In other words, there is a critical difference

between citizen issue advocacy and traditional lobbying as a profession.

Rumely is one of the many cases where the Court has interpreted a statute,

regulation, or resolution narrowly in order to uphold its constitutionality.97

Justices Douglas and Black concurred, arguing that the resolution violated

the First Amendment because its broad language applied to Rumely’s

grassroots advocacy. The concurring opinion explained:

[ Rumely] represents a segment of the American press. Some may likewhat his group publishes; others may disapprove. These tracts may be the

essence of wisdom to some; to others their point of view and philosophy may

be anathema. . . . We have here a publisher who through books and pamphlets

seeks to reach the minds and hearts of the American people. . . . Like the

publishers of newspapers, magazines, or books, this publisher bids for the

minds of men in the market place of ideas. The aim of the historic struggle for

a free press was “to establish and preserve the right of the English people to

93. Id. at 175.

94. Rumely, 345 U.S. at 48.

95. Id. at 46.

96. Id. at 47 (citation omitted).

97. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) (limiting the scope of an aliendetention statute in light of the Fifth Amendment’s Due Process Clause); United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (limiting the scope of a child pornography statutein light of the First Amendment); Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989)(limiting the scope of a federal advisory committee statute in light of the separation of

powers and Article II).





full information in respect of the doings or misdoings of their government.”

That is the tradition behind the First Amendment. Censorship or previous

restraint is banned.98

The concurring opinion aptly noted that the regulation of grassroots advocacywould have a chilling effect on the exercise of First Amendment rights:

If the present inquiry were sanctioned, the press would be subjected to

harassment that in practical effect might be as serious as censorship. A

publisher, compelled to register with the Federal Government, would be

subjected to vexatious inquiries. A requirement that a publisher disclose the

identity of those who buy his books, pamphlets, or papers is indeed the

beginning of surveillance of the press. . . . The finger of government leveled

against the press is ominous. Once the government can demand of a publisher

the names of the purchasers of his publications, the free press as we know it

disappears. Then the spectre of a government agent will look over the shoulder

of everyone who reads.99

In other words, requiring those who seek to gather the public’s support on a

policy issue to register with the government and disclose information abouttheir activities may have a significant chilling effect on the exercise of their

First Amendment rights. It may also discourage other people from associating

with the advocate and his or her organization.

The concurring opinion added:

The books and pamphlets that are critical of the administration, that

preach an unpopular policy in domestic or foreign affairs, that are in disrepute

in the orthodox school of thought will be suspect and subject to investigation.

The press and its readers will pay a heavy price in harassment. . . . [F]ear will

take the place of freedom in the libraries, book stores, and homes of the land.

Through the harassment of hearings, investigations, reports, and subpoenas

government will hold a club over speech and over the press.100

One of the main purposes of the First Amendment is to protect speech and

petitions that are critical of public officials and government policies. Theconcurring opinion observed that this protection would be rendered

meaningless if the government could force those who disagree with its policies

to disclose details about their activities and supporters.

C. United States v. Harriss

Unlike Rumely, United States v. Harriss101 dealt primarily with the

regulation of professional lobbyists. The main activity at issue in Harriss was

traditional lobbying, i.e., “the payment of compensation to others to

communicate face-to-face with members of Congress, at public functions and

98. Rumely, 345 U.S. at 56 (Douglas, J., concurring).

99. Id. at 57 (Douglas, J., concurring).

100. Id. at 57-58 (Douglas, J., concurring).

101. 347 U.S. 612 (1954).





committee hearings.”102 In support of their direct meetings with public

officials, the lobbyists also engaged in “an artificially stimulated letter

campaign.”103

The Court considered the meaning of a statute that required any person“receiving any contributions or expending any money” to “influence, directly

or indirectly, the passage or defeat of any legislation by the Congress of the

United States” to report to Congress.104 The Court explained: “As in United

States v. Rumely . . . 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.”105

The Court noted that “Congress sought disclosure of such direct pressures,

exerted by the lobbyists themselves or through their hirelings or through an

artificially stimulated letter campaign.”106 Importantly, however, the Court

added that “Congress would have intended the Act to operate on this narrower

basis, even if a broader application to organizations seeking to propagandizethe general public were not permissible.”107 The Court noted that the rationale

for regulating professional lobbying was to ensure that “the voice of the people

[is not] drowned out by the voice of special interest groups seeking favored

treatment while masquerading as proponents of the public weal.”108

Like Rumely, the Harriss case reinforced the distinction between contacts

made by professional lobbyists and grassroots issue advocacy and confirmed

that grassroots lobbying regulation would violate the First Amendment. The

Harriss Court stated that Congress may regulate professional lobbyists and the

way that the statute was construed—to regulate lobbyist contacts with federal

officials alone—allowed it to be narrowly tailored “in a manner restricted to its

appropriate end.”109 By contrast, the grassroots lobbying bills are not narrowly

tailored to ensure that “the voice of the people” is not drowned out by theefforts of professional lobbyists.110 To the contrary, the bills would muzzle the

voice of the people by chilling the exercise of their First Amendment rights.

In his Harriss dissent, Justice Jackson explained:

The First Amendment forbids Congress to abridge the right of the people

“to petition the Government for a redress of grievances.” If this right is to have

an interpretation consistent with that given to other First Amendment rights, it

confers a large immunity upon activities of persons, organizations, groups and

102. Id. at 615.

103. Id. at 617.

104. Id. at 615 n.1.

105. Id. at 618.

106. Id . at 620.

107. Id. at 620-21 (emphasis added).

108. Id. at 625.

109. Id. at 626.

110. See id. at 625.





classes to obtain what they think is due them from government . . . .

The Court’s opinion presupposes, and I do not disagree, that Congress

has power to regulate lobbying for hire as a business or profession and to

require such agents to disclose their principals, their activities, and theirreceipts. However, to reach the real evils of lobbying without cutting into the

constitutional right of petition is a difficult and delicate task for which the

Court’s action today gives little guidance. I am in doubt whether the Act as

construed does not permit applications which would abridge the right of

petition, for which clear, safe and workable channels must be maintained.111

Justice Jackson aptly noted that reform efforts must be narrowly tailored to

minimize “the real evils” of professional lobbying so that the right to petition is

not violated.

Justices Douglas and Black also dissented in Harriss, arguing that the

statute was too vague to be saved by the court’s narrowing construction. They

argued that “the formula adopted to save this Act is too dangerous for use. It

can easily ensnare people who have done no more than exercise their

constitutional rights of speech, assembly, and press.”112 They also explainedthat:

[I]f Congress could impose registration requirements on the exercise of First

Amendment rights, saving to the courts the salvage of the good from the bad,

and meanwhile causing all who might possibly be covered to act at their peril,

the law would in practical effect be a deterrent to the exercise of First

Amendment rights.

. . . .

The language of the Act is so broad that one who writes a letter or makes

a speech or publishes an article or distributes literature . . . has no fair notice

when he is close to the prohibited line . . . . Since the Act touches on the

exercise of First Amendment rights, and is not narrowly drawn to meet precise

evils, its vagueness has some of the evils of a continuous and effectiverestraint.113

Justices Douglas and Black observed that the regulation of grassroots

lobbying would have a particularly chilling effect upon the efforts of public

advocacy groups, non-profit organizations, and other smaller “lobbies”:

[R]egistration and disclosure requirements present demonstrable threats to the

very existence of smaller lobbies, especially so-called “public interest”

lobbies, that amount to the de facto denial of the right of petition. . . .

[S]maller, less financially secure lobbies, particularly those promoting

unpopular causes, watch their pool of members and financial contributions

evaporate when disclosure laws are enacted. In addition, the increased

administrative costs involved in complying with extensive lobbying

regulations can deter some lobbies from participating in the political process,

111. Id. at 635-36 (Jackson, J., dissenting) (emphasis added).

112. Id. at 628 (Douglas, J., dissenting).

113. Id. at 632-33 (Douglas, J., dissenting).





thereby frustrating their ability to exercise the right of petition.114

Justices Douglas and Black illustrated that the spectre of government

registration and the costs associated with mandatory reporting would have a

significant adverse effect upon public interest and non-profit groups, many ofwhich have minimal financial resources. The grassroots lobbying bills would

have a similar effect.

D. Montana Auto Association v. Greely

While various lower court opinions have analyzed lobbying regulations in

light of Rumely and Harriss,115 the Montana Supreme Court’s opinion in

Montana Auto Association v. Greely116 provides the best explanation of why

regulation of grassroots issue advocacy violates the First Amendment. In

Greely, the Montana Supreme Court unanimously struck down provisions of a

lobbying statute that are quite similar in effect to the grassroots lobbying bills.

Greely involved a ballot initiative that added numerous amendments toMontana’s existing lobbying act to expand its coverage.117 The statute included

within the definition of “unprofessional conduct,” inter alia, any “attempt[] to

influence the action of any public official on any measure . . . [by] the promise

of support or opposition at any future election.”118

The lobbying statute also covered the efforts of organizations “to solicit,

directly, indirectly or by an advertising campaign, the lobbying efforts of

another person” through mailings, publications, or other methods that

encouraged people to contact public officials.119 The Montana Supreme Court

gave the following five examples of activities that would trigger lobbying

regulation:

(1) Action by union officers asking union members to support or oppose

a right-to-work law.(2) Mailing of newsletters by an organized church to members and

nonmembers encouraging the reader to contact a public official on an abortion

law.

(3) Activity by a farm group which suggests to farmers that they should

contact state officials in order to improve grain or cattle prices.

(4) Action by any business, labor, farm, religious, social or other group

requesting people to contact their legislators to assist in passage or repeal of a

law.

114. Id. (Douglas, J., dissenting).

115. See, e.g., Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir.

1996); Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509 (8th Cir. 1985); Comm’n onIndep. Colls. & Univs. v. N.Y. Temp. State Comm’n, 534 F. Supp. 489 (N.D.N.Y. 1982).

116. 632 P.2d 300 (Mont. 1981).

117. Id. at 302.

118. Id. at 305.

119. Id. at 306.





(5) Publication or broadcast by anyone, other than an individual, of a

newspaper, pamphlet, newsletter, television program, or radio program which

encourages readers or listeners to contact a legislator or state official.120

The law was challenged under the First Amendment’s protection of thefreedoms of speech and the press and the right to petition the government for a

redress of grievances as well as the Montana Constitution.121

The Montana Supreme Court unanimously held that the provision

prohibiting “attempt[s] to influence the action of any public official on any

measure . . . [by] the promise of support or opposition at any future election”

was “an unconstitutional infringement of the right to free speech.”122 The court

noted that grassroots advocacy allows members of the public to participate in

the democratic process in a meaningful way:

[T]he prohibited conduct is nothing more than a standard and accepted

means of involvement in the political process. The only real influence that

most voters can exert upon elected officials is to give or withhold their vote.

When an issue comes before an elected official, it is certainly permissible for

the official’s constituents to express their desires as to that issue. If the issue isimportant enough to a voter, the official may be told that a certain action on

the measure would create such disaffection that the voter could not, in good

conscience, support that official in any future election. This is not a threat. It

is a free expression of the only real power an elector possesses. Criticism of

government is at the very center of the constitutional protection of free

speech.123

The court also explained that:

The constitutional guaranty of free speech provides for the opportunity to

persuade to action, not merely to describe facts. It is a fundamental principle

of our constitutional system that the opportunity for free political expression

has as its end that government may be responsive to the will of the people. No

law could stand which would prevent an elector from voting for or against an

incumbent. Likewise, no law can stand which would prevent a voter fromexpressing to an elected official an intention to vote for or against that official

if certain action is or is not taken. Such a restraint is impermissible under both

the First Amendment to the U.S. Constitution and article II, § 7 of the

Montana Constitution.124

In addition, the court unanimously held that the statute’s broad application

to groups that “solicit, directly, indirectly or by an advertising campaign, the

lobbying efforts of another person” was unconstitutional.125 The court

discussed the previously mentioned examples of organizational actions that

120. Id. at 306-07.

121. Id. at 302.122. Id. at 304-05.

123. Id . at 305 (emphasis added).

124. Id. (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964); Thomas v.Collins, 323 U.S. 516, 537 (1945)).

125. Id. at 306.





would fall within the statute’s definition such as “[a]ction by union officers

asking union members to support or oppose a right-to-work law.”126 Applying

the Supreme Court’s decisions in Rumely and Harriss, the court held that the

section could not be construed in a manner that would be consistent with theFirst Amendment.127 The court reiterated the Rumely Court’s statement that a

regulatory “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,” would

“raise[] doubts of constitutionality in view of the prohibition of the First

Amendment.”128 The court concluded that the section violated the First

Amendment because it covered the activities of groups that encouraged their

own members, or members of the general public, to contact public officials in

support of a particular law.129

Moreover, the court held that the statute’s application to any group’s

“[p]ublication or broadcast . . . of a newspaper, pamphlet, newsletter, television

program, or radio program which encourages readers or listeners to contact alegislator or state official” is an “unconstitutional infringement of the freedom

of the press.”130 The court compared the section to a state electioneering law

that the Supreme Court considered in Mills v. Alabama.131 In Mills, a

newspaper editor was arrested for publishing an editorial on election day urging

people to vote a certain way on ballot issues.132 The Mills Court held that the

application of the statute to the editor violated the First Amendment.133 The

Montana Supreme Court included the following quote from Mills in its

discussion of the application of the lobbying statute to publications:

Whatever differences may exist about interpretations of the First

Amendment, there is practically universal agreement that a major purpose of

that Amendment was to protect the free discussion of governmental affairs.

This of course includes discussions of candidates, structures and forms of

government, the manner in which government is operated or should beoperated, and all such matters relating to political processes. The Constitution

specifically selected the press, which includes not only newspapers, books,

and magazines, but also humble leaflets and circulars, to play an important

role in the discussion of public affairs. Thus the press serves and was designed

to serve as a powerful antidote to any abuses of power by governmental

officials and as a constitutionally chosen means for keeping officials elected

by the people responsible to all the people whom they were selected to

126. Id.

127. Id.

128. Id. at 307 (quoting United States v. Rumely, 345 U.S. 41, 46 (1953)).

129. Id. at 307-08.

130. Id. at 307.

131. 384 U.S. 214 (1966).

132. Id. at 216.

133. Id. at 220.





serve.134

The court observed that the newspaper editorials in Mills would constitute

lobbying activity under the Montana statute and added that the statute

“constitutes a more drastic infringement on freedom of the press and freedomof speech than was present in Mills.”135

Importantly, the court rejected the argument that the provision applying

lobbying restrictions to groups that “solicit, directly, indirectly or by an

advertising campaign, the lobbying efforts of another person” is supported by a

compelling government interest. While the court held that “[l]aws regulating or

monitoring the raising and spending of money in the political arena” are

supported by a compelling state interest,136 the court was “unable to find any

compelling state interest which requires the inclusion of [the grassroots

provisions].”137 In other words, while regulating traditional, professional

lobbying firms that directly contact elected officials on a regular basis may

further a compelling state interest, regulating groups that encourage members of

the public to oppose legislation does not further such an interest.In addition, the Greely court struck down certain disclosure requirements,

rejecting the argument that the statute was constitutional because it regulated,

rather than prohibited, certain conduct.138 The statute required those who must

register as lobbyists to disclose certain information, including any payments

made for the publication and distribution of newsletters, leaflets, or other

materials that are primarily devoted to lobbying matters.139 The court held that

this requirement “seriously infringes freedom of the press.”140 The court

observed that, “above all else, the First Amendment means that government has

no power to restrict expression because of its message, its ideas, its subject

matter, or its content.”141 The court added:

It is true that it is regulation which does not amount to direct censorship.

Nevertheless, evidence was presented below that the additional burden ofreporting could cause certain of the plaintiffs to cease publication of their

newsletters. We find this potential for indirect limitation of freedom of the

press is a sufficient basis for the elimination of [the section]. The fact that

advocacy may persuade the electorate is hardly a reason to suppress it.142

The Greely court echoed the sentiments of the dissenting opinion of

Justices Douglas and Black in Harriss that requiring public interest

organizations to report to the government about their issue advocacy would

134. Greely, 632 P.2d at 307 (quoting Mills, 384 U.S. at 218-19).

135. Id. at 308.

136. Id. at 303.

137. Id. at 308.

138. Id. at 309.

139. Id.

140. Id.

141. Id. (quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)).

142. Id. (citing First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978)).





have a chilling effect on the exercise of their First Amendment rights.

Similarly, the burdensome registration and reporting requirements that the

grassroots lobbying bills would impose on grassroots issue advocates, or the

printers and website providers that help them to distribute their message to thegeneral public, would violate the First Amendment.

III. THE SUPREME COURT R EAFFIRMED IN W ISCONSIN R IGHT TO L IFE THAT

GRASSROOTS ISSUE ADVOCACY IS PROTECTED BY THE FIRST AMENDMENT

The Supreme Court’s decision in Federal Election Commission v.

Wisconsin Right to Life, Inc.143 reiterated that the First Amendment provides

broad protection for grassroots issue advocacy. The Court acknowledged the

breadth of the chilling effect that BCRA § 203,144 as applied to grassroots issue

advertisements, would have upon the exercise of First Amendment rights. The

decision should help to discourage future attempts to regulate grassroots issue

advocacy through lobbying or campaign reform legislation.

A. Background and Procedural History of the Wisconsin Right to Life Case

Wisconsin Right to Life, Inc. is a non-profit advocacy organization that is

tax exempt under section 501(c)(4) of the Internal Revenue Code.145 The

group’s mission statement provides:

Wisconsin Right to Life believes that each human life is inherently

valuable from fertilization to natural death. Our mission is: “To make

euthanasia, infanticide, abortion and destruction of human embryos socially,

ethically and legally unacceptable solutions to human problems and to

promote positive alternatives to each of these acts.”146

Among other things, Wisconsin Right to Life conducts grassroots issue

advocacy campaigns designed to inform the public about important issues and

encourage them to contact their elected representatives.147 For example, in July

2004, the organization broadcast the following radio advertisement, entitled

“Wedding,” regarding the United States Senate’s filibuster of some of the

President’s judicial nominees:

PASTOR: And who gives this woman to be married to this man?

BRIDE’S FATHER: Well, as father of the bride, I certainly could. But

instead, I’d like to share a few tips on how to properly install drywall. Now

you put the drywall up . . .

143. 127 S. Ct. 2652 (2007).144. 2 U.S.C. § 441b(b)(2) (2002).

145. Wis. Right to Life, Inc., 127 S. Ct. at 2660.

146. Wisconsin Right to Life, Inc., Our Mission and Vision, http://www.wrtl.org/resources/churchpastor/ (last visited Apr. 1, 2007).

147. See Wis. Right to Life, Inc., 127 S. Ct. at 2659.





VOICE-OVER: Sometimes it’s just not fair to delay an important

decision.

But in Washington it’s happening. A group of Senators is using the

filibuster delay tactic to block federal judicial nominees from a simple “yes”or “no” vote. So qualified candidates don’t get a chance to serve.

It’s politics at work, causing gridlock and backing up some of our courts

to a state of emergency.

Contact Senators Feingold and Kohl and tell them to oppose the

filibuster.

Visit: BeFair.org

Paid for by Wisconsin Right to Life (befair.org), which is responsible for

the content of this advertising and not authorized by any candidate or

candidate’s committee.148

Wisconsin Right to Life aired similar radio and television ads in July

2004.149 The group planned to run similar ads throughout August 2004 but

recognized that they would become prohibited “electioneering

communications” under BCRA § 203 on August 15, 2004, which was thirty

days before Wisconsin’s primary elections.150 BCRA § 203 prohibits

corporations (including non-profit corporations) from using their general

treasury funds to finance any “electioneering communication.”151 This term

includes “any broadcast, cable, or satellite communication” that occurs within

thirty days before a primary election or sixty days before a general election

which “refers to a clearly identified candidate for Federal office.”152

Wisconsin Right to Life filed suit against the Federal Election Commission

on the grounds that BCRA § 203, as applied to its grassroots issue advocacy,

violated the First Amendment.153 Just one year earlier, in McConnell v. Federal

Election Commission,154 the Supreme Court had considered a facial challenge

to BCRA § 203 because it extended beyond “express advocacy” for or against a particular candidate to include speech about public issues that merely mentions

a candidate.155 The McConnell plaintiffs “challenge[d] the expanded regulation

on the grounds that it is both overbroad and underinclusive.”156

While the Court stated that “the distinction between express advocacy and

so-called issue advocacy is not constitutionally compelled,”157 it proceeded to

148. Id. at 2660.

149. Id. at 2660-61.

150. Id. at 2661.

151. 2 U.S.C. § 441b(b)(2) (2002).

152. 2 U.S.C. § 434(f)(3)(A) (2002).

153. Wis. Right to Life, Inc., 127 S. Ct. at 2661.

154. 540 U.S. 93 (2003).

155. Id. at 203-07.

156. Id. at 204.

157. Id. at 204-05.





“examine the degree to which BCRA burdens First Amendment expression and

evaluate whether a compelling governmental interest justifies that burden.”158

Although the plaintiffs conceded that “the Government has a compelling

interest in regulating advertisements that expressly advocate the election ordefeat of a candidate for federal office,”159 they argued that “the justifications

that adequately support the regulation of express advocacy do not apply to

significant quantities of speech encompassed by the definition of electioneering

communications.”160 The Court responded by stating:

This argument fails to the extent that the issue ads broadcast during the

thirty- and sixty-day periods preceding federal primary and general elections

are the functional equivalent of express advocacy. The justifications for the

regulation of express advocacy apply equally to ads aired during those periods

if the ads are intended to influence the voters’ decisions and have that

effect.161

In rejecting the facial challenge to BCRA § 203, the Court noted:

The precise percentage of issue ads that clearly identified a candidate and

were aired during [the] relatively brief preelection time spans but had no

electioneering purpose is a matter of dispute between the parties and among

the judges on the District Court. Nevertheless, the vast majority of ads clearly

had such a purpose.162

The Court stated, “[w]e are therefore not persuaded that plaintiffs have

carried their heavy burden of proving that [§ 203] is overbroad.”163 The Court

stated that the percentage of instances in which BCRA § 203 covered genuine

issue ads that may be constitutionally protected speech was not “substantial”

enough to justify invalidating BCRA § 203.164

Importantly, the McConnell Court stated, “we assume that the interests that

justify the regulation of campaign speech might not apply to the regulation of

genuine issue ads.”165 The Court also mentioned the possibility that, in some

cases, BCRA § 203 could “inhibit some constitutionally protected corporateand union speech.”166 This appeared to leave open the possibility that

organizations desiring to air “genuine issue ads” prior to a federal election

could bring as-applied challenges to BCRA § 203.

Although the district court in Wisconsin Right to Life initially held that


159. Id. The Court observed, “[s]ince our decision in Buckley, Congress’ power to prohibit corporations and unions from using funds in their treasuries to financeadvertisements expressly advocating the election or defeat of candidates in federal electionshas been firmly embedded in our law.” Id. at 203.

160. Id. at 205-06.

161. Id. at 206.

162. Id. (citations omitted).

163. Id. at 207.

164. Id.

165. Id. at 206 & n.88.

166. Id. at 207.





McConnell foreclosed as-applied challenges to BCRA § 203,167 the Supreme

Court remanded the case and held that it “did not purport to resolve future as-

applied challenges” to BCRA § 203 in McConnell.168 On remand, the district

court held that Wisconsin Right to Life’s issue ads “are neither expressadvocacy nor its functional equivalent.”169 The district court noted that, under

Buckley v. Valeo,170 “delving into a speaker’s subjective intent is both

dangerous and undesirable when First Amendment freedoms are at stake.”171

The court observed, “it appears to this Court that the judiciary, in conducting

First Amendment analysis, should not be in the business of trying to read any

speaker’s mind. Such an inquiry is unprecedented and not properly a part of

any First Amendment analysis.”172 An advertisement that mentions a particular

candidate should be evaluated “within the four corners” of the ad.173

The district court also held that “the Government has not articulated a

sufficiently compelling interest to justify the burden that BCRA § 203 places

on WRTL’s First Amendment rights.”174 The court noted that, in McConnell,

the Supreme Court concluded that regulating express advocacy and itsfunctional equivalent shortly before elections is justified by compelling

interests such as “preventing corruption, preserving the integrity of the electoral

process, and preserving the public’s confidence in its government.”175 The

district court noted, however, that the McConnell Court left open the question

of “whether the government interests that justify regulating express advocacy

and its functional equivalent also apply to the regulation of genuine issue

ads.”176 The district court explained:

The common denominator between express advocacy and its functional

equivalent, as the Supreme Court defined it in McConnell, is the link between

the words and images used in the ad and the fitness, or lack thereof, of the

candidate for public office. . . . Conversely, it is the absence of that link that

enables an issue ad to be fairly regarded as a genuine issue ad. More

importantly, it is the absence of that link which obviates the likelihood of political corruption and public cynicism in government where the ad, on its

face, is devoid of any language the purpose of which is advocacy either for or

against a particular candidate for federal office.177

167. Wis. Right to Life, Inc. v. FEC, 2005 U.S. Dist. LEXIS 17226 (D.D.C. 2005); see FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2661 (2007).

168. Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006) (per curiam).

169. Wis. Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195, 210 (D.D.C. 2006).

170. 424 U.S. 1 (1976).

171. Wis. Right to Life, Inc., 466 F. Supp. 2d at 206.

172. Id. at 207.

173. Id.

174. Id. at 210.

175. Id. at 208.

176. Id.

177. Id. at 209 (emphasis added).





B. The Supreme Court Acknowledged the First Amendment’s Protection of

Grassroots Issue Advocacy in Wisconsin Right to Life

The Wisconsin Right to Life case presented the Supreme Court with theissue of “whether the speech at issue is the ‘functional equivalent’ of speech

expressly advocating the election or defeat of a candidate for federal office, or

instead a ‘genuine issue ad.’”178 The Court observed that, while “the distinction

between campaign advocacy and issue advocacy ‘may often dissolve in

practical application,’”179 such a line must be drawn because “the interests held

to justify the regulation of campaign speech and its ‘functional equivalent’

‘might not apply’ to the regulation of issue advocacy.”180 The Court stated,

“[i]n drawing that line, the First Amendment requires us to err on the side of

protecting political speech rather than suppressing it.”181

The Court framed the pertinent question as “whether it is consistent with

the First Amendment for BCRA § 203 to prohibit WRTL from running [its]

three ads.”182 The Court observed, “[b]ecause BCRA § 203 burdens political

speech, it is subject to strict scrutiny. Under strict scrutiny, the Government

must prove that applying BCRA to WRTL’s ads furthers a compelling interest

and is narrowly tailored to achieve that interest.”183 The Court noted that, in

McConnell, it had not adopted a standard to govern as-applied challenges to

BCRA § 203 for determining whether a particular advertisement is protected by

the First Amendment.184 The Court then explained:

[W]e decline to adopt a test for as-applied challenges turning on the

speaker’s intent to affect an election. The test to distinguish constitutionally

protected political speech from speech that BCRA may proscribe should

provide a safe harbor for those who wish to exercise First Amendment rights.

The test should also “reflect our ‘profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-

open.’” A test turning on the intent of the speaker does not remotely fit the bill.185

The Court observed:

Far from serving the values the First Amendment is meant to protect, an

intent-based test would chill core political speech by opening the door to a

trial on every ad within the terms of § 203, on the theory that the speaker

actually intended to affect an election, no matter how compelling the

178. FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2659 (2007) (Roberts, C.J., plurality) (quoting McConnell v. FEC, 540 U.S. 93, 206 & n.88 (2003)).

179. Id. (quoting Buckley v. Valeo, 424 U.S. 1, 42 (1976) (per curiam)).

180. Id. (quoting McConnell, 540 U.S. at 206 & n.88).

181. Id.

182. Id. at 2663.

183. Id. at 2664 (citations omitted).

184. Id. at 2664-65.

185. Id. at 2665 (citations omitted).





indications that the ad concerned a pending legislative or policy issue.186

In light of the First Amendment’s broad protection of grassroots issue

advocacy, the Court noted that the BCRA § 203 standard “must give the benefit

of any doubt to protecting rather than stifling speech.”187 The Court then held,“[i]n light of these considerations, a court should find that an ad is the

functional equivalent of express advocacy only if the ad is susceptible of no

reasonable interpretation other than as an appeal to vote for or against a specific

candidate.”188

The Court stated that the content of Wisconsin Right to Life’s ads “is

consistent with that of a genuine issue ad: The ads focus on a legislative issue,

take a position on the issue, exhort the public to adopt that position, and urge

the public to contact public officials with respect to the matter.”189 Moreover,

the ads “lack[] indicia of express advocacy: The ads do not mention an election,

candidacy, political party, or challenger; and they do not take a position on a

candidate’s character, qualifications, or fitness for office.”190 In other words,

Wisconsin Right to Life’s ads were not “the functional equivalent of expressadvocacy.”191

The Federal Election Commission took an exceedingly broad view of

BCRA § 203, arguing that “any ad covered by § 203 that includes ‘an appeal to

citizens to contact their elected representative’ is the ‘functional equivalent’ of

an ad saying defeat or elect that candidate.”192 The Court responded by stating:

We do not agree. To take just one example, during a blackout period the

House considered the proposed Universal National Service Act. See App. to

Brief for American Center for Law and Justice et al. as Amicus Curiae B-3.

There would be no reason to regard an ad supporting or opposing that Act, and

urging citizens to contact their Representative about it, as the equivalent of an

ad saying vote for or against the Representative. Issue advocacy conveys

information and educates. An issue ad’s impact on an election, if it exists at

all, will come only after the voters hear the information and choose— uninvited by the ad—to factor it into their voting decisions.193

The Court noted that the Federal Election Commission’s view of BCRA §

203 “would effectively eliminate First Amendment protection for genuine issue

ads.”194 The Court added: “Discussion of issues cannot be suppressed simply

because the issues may also be pertinent in an election. Where the First

186. Id. at 2665-66.


188. Id.

189. Id.

190. Id.

191. Id.

192. Id.

193. Id.

194. Id. at 2668.





Amendment is implicated, the tie goes to the speaker, not the censor.”195

The Universal National Service Act cited by Chief Justice Roberts was the

subject of just one of the one hundred and nine floor votes that occurred in the

House of Representatives during the sixty-day period prior to the 2004elections.196 The portion of the amicus curiae brief of the American Center for

Law and Justice and Focus on the Family to which Chief Justice Roberts cited

was a 260-page set of appendices that described in detail all of the public policy

issues that Congress and the President considered during the sixty-day periods

before the 2004 and 2006 general elections.197 To illustrate the broad chilling

effect that BCRA § 203 has on free speech and the right to petition the

government for a redress of grievances, the appendices included every action of

the President, Congressional floor vote, committee hearing, committee report,

and issue discussed on the floor of the House and Senate during the relevant

sixty-day periods.198 The brief explained:

An examination of the actions of the President and of the Congress during

these two sixty day blackout periods reveals both a broad scope of actions andan equally broad sweep of subjects of governance. Petty matters and vital,

each found themselves placed on the Nation’s center stage by executive or

legislative ipse dixit. But, because of the black-out period, the floor votes, the

nomination hearings and reports, the joint press conferences with foreign

leaders, and the remarks from the well of the House or Senate, are conducted

in a silence that is all the more profound because the voice silenced is the

petitioning voice of the People.199

After rejecting the Federal Election Commission’s broad reading of BCRA

§ 203, the Court then explained why application of BCRA § 203 to Wisconsin

Right to Life’s issue ads did not withstand strict scrutiny. The Court stated,

“[t]his Court has never recognized a compelling interest in regulating ads, like

WRTL’s, that are neither express advocacy nor its functional equivalent.”200

The Court observed, “[a] court applying strict scrutiny must ensure that acompelling interest supports each application of a statute restricting speech.

That a compelling interest justifies restrictions on express advocacy tells us

little about whether a compelling interest justifies restrictions on issue

advocacy . . . .”201

Importantly, the Court held that “the governmental interest in preventing

195. Id. at 2669.

196. Brief Amici Curiae of the American Center for Law and Justice and of Focus onthe Family in Support of Appellee at app. B, FEC v. Wis. Right to Life, Inc., 127 S. Ct.2652, 2659 (2007) (No. 06-969), available at http://www.aclj.org/media/pdf/AmiciBriefACLJandFOTF.pdf.

197. Id. at apps. A-E.198. Id.

199. Id. at 23-24.

200. Wis. Right to Life, Inc., 127 S. Ct. at 2671 (Roberts, C.J., plurality) (citationsomitted).

201. Id.





corruption and the appearance of corruption” that supports campaign

contribution limits does not justify restrictions on genuine grassroots issue

advocacy.202

[T]o justify regulation of WRTL’s ads, this interest must be stretched . . .to ads that are not the functional equivalent of express advocacy. Enough is

enough. Issue ads like WRTL’s are by no means equivalent to contributions,

and the quid-pro-quo corruption interest cannot justify regulating them. To

equate WRTL’s ads with contributions is to ignore their value as political

speech.203

The Court’s express rejection of the corruption rationale as a justification for

regulating grassroots issue advocacy should deter future attempts to regulate

this form of expression. The Court also noted that the government’s interest in

limiting the ability of corporations to use their wealth to influence the political

process did not extend beyond campaign speech.204

The Court commented on the large number of organizations that joined

amici curiae briefs in opposition to BCRA § 203’s regulation of grassroots

issue advocacy:

The importance of [this case] to speech and debate on public policy issues

is reflected in the number of diverse organizations that have joined in

supporting WRTL before this Court: the American Civil Liberties Union, the

National Rifle Association, the American Federation of Labor and Congress of

Industrial Organizations, the Chamber of Commerce of the United States of

America, Focus on the Family, the Coalition of Public Charities, the Cato

Institute, and many others.205

The Court concluded by noting,

[W]hen it comes to defining what speech qualifies as the functional

equivalent of express advocacy subject to . . . a ban . . . we give the benefit of

the doubt to speech, not censorship. The First Amendment’s command that

“Congress shall make no law . . . abridging the freedom of speech” demands atleast that.206

The Wisconsin Right to Life decision represents a significant victory for

non-profit groups and civil liberties organizations concerned about BCRA §

203’s criminalization of grassroots issue advocacy that takes place close to an

election. As Justice Scalia noted in his concurring opinion, “[i]f § 203 has had

any cultural impact, it has been to undermine the traditional and important role

of grassroots advocacy in American politics by burdening the ‘budget-strapped

nonprofit entities upon which many of our citizens rely for political

commentary and advocacy.’”207 The decision may increase the likelihood that

202. Id.

203. Id. (emphasis added).204. Id.

205. Id. at 2673-74.

206. Id. at 2674.

207. Id. at 2686 (Scalia, J., concurring) (quoting McConnell v. FEC, 540 U.S. 93, 340(2003) (opinion of Kennedy, J.)). Justice Scalia, joined by Justices Kennedy and Thomas,





future legislative attempts to prevent corruption or bolster public confidence in

the government will not include grassroots issue advocacy within their reach.

Since the regulation of grassroots issue advocacy does not further any

compelling government interest, the only way to craft more narrowly tailoredreform legislation that would pass strict scrutiny would be to exclude grassroots

issue advocacy from its coverage altogether.

CONCLUSION

In a democratic system of government, average members of the general

public are the ultimate power-brokers. While the right to vote is among the

most sacrosanct of those provided to the citizens of any free society, it is not

the exclusive means by which the Constitution ensures that government policy

is connected to public opinion. The First Amendment’s recognition of the

freedoms of speech and the press and the right to petition the government for

the redress of grievances serves an equally important role in allowing citizensto influence public policy. The voices of grassroots advocates serve as a

powerful reminder to public officials that their authority and legitimacy are

derived from the will of the people that vote them into office. Through

grassroots issue advocacy, average citizens—and the organizations that they

support—are able to inform public officials of their support for government

action that they believe will be beneficial and of their opposition to government

action that they believe will be detrimental.

Legislation designed to minimize corruption or improve the public’s

confidence in the government should encourage, not discourage, grassroots

issue advocacy. Informing the general public about important policy issues and

encouraging citizens to share their opinions with their elected representatives

bears no connection to corruption or the appearance of it. To the contrary,grassroots issue advocacy serves as a counter-balance to the efforts of those

whose policy positions are not shared by the American public. The First

Amendment’s protection of grassroots issue advocacy dictates that laws that

restrict the freedom of speech and the right to petition the government for a

redress of grievances are subject to strict scrutiny. Legislation like the

grassroots lobbying bills and BCRA § 203 does not advance any compelling

government interest, and is certainly not the least restrictive means of doing so.

Civil libertarians have reason to hope that the Supreme Court’s decision in

Wisconsin Right to Life may help to ensure that future legislative “reform”

efforts will be more tailored to achieve compelling interests and less inclusive

of grassroots issue advocacy.

argued that McConnell’s rejection of the facial challenge to BCRA § 203 was incorrect. Id. at 2684.

Weeding Them Out by the Roots - The Unconstitutionality of Regulation Grassroots Issue Advocacy

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