Mowing Down the Grassroots

Is there anything more quintessentially American than grassroots political activism? From colonial pamphleteers to abolitionists and suffragettes, through the civil-rights and anti-war movements and up to the modern day tea party rallies, Americans have vigorously exercised their rights to assembly, speech, and petition.

As first observed by Toqueville and later celebrated in Mr. Smith Goes to Washington, the spirit of American democracy is our willingness -- and ability -- to make our voices heard in an attempt to persuade others of the rightness of our political causes.

But nowadays, you need more than just the courage of your convictions and a soapbox to engage in public debate; in fact, in most states, you’ll need a good lawyer. That is because the lobbying laws of at least 36 states threaten to strangle grassroots efforts in red tape and regulation -- even if the speakers never contact an elected official, but merely talk to fellow citizens about issues of public importance.

In many states, if you dare to publicly discuss legislative or regulatory matters -- for example, by publishing an open letter, organizing a demonstration, speaking at a rally, distributing flyers, or displaying a yard sign (actions that are in no way directly lobbying an officeholder) -- you will likely fall under the legal definition of lobbying. If you urge other citizens to contact their representatives about a piece of legislation, that is enough to make you a lobbyist in most states. But in some states, any activity that is undertaken with the intent of influencing government action, even just talking to your friends and neighbors, can be enough to make you a lobbyist in the eyes of the government.

Lobbyists, even informal and amateur grassroots activists, are subject to a maze of regulations and legal restrictions. So-called “grassroots lobbyists” (those who are merely urging their neighbors into political action) must register with the state and file reports on their activities. Often this means itemizing expenditures or contributions, including donated items, and it may mean reporting the names and addresses of supporters. Such regulations set a legal trap for unsuspecting citizens: other than professional politicians and lobbyists, who would think to consult a lawyer and register with the state before speaking out on a public issue?

My research on grassroots lobbying laws reveals that these regulations are not written in a manner accessible to laypersons. So not only is it easy for people to run afoul of such laws, they may be intimidated by them. The first paragraph of Massachusetts’ new grassroots lobbying law, for example, scored 0.9 on a 100-point scale in a readability test. Going by such tests, it would take 34 years of formal education to understand that paragraph; not even a doctorate from MIT or Harvard would be enough.

Moreover, the red tape would‐be grassroots lobbyists must navigate to properly disclose activities and financial support is complex and burdensome. In previous research, ordinary citizens who tried to fill out similar forms correctly completed only about 40 percent of tasks.

Yet many states impose large fines and criminal penalties for violating grassroots lobbying regulations; for example, in Alabama, repeated violations could land you in prison for 20 years -- a punishment equivalent to that of kidnapping. Further, mandatory disclosure of contributors to grassroots political groups may deter some people from getting involved because of the loss of privacy and out of fear of retribution for supporting a controversial position.

In a country whose Constitution guarantees free speech and the right to petition the government, how did we get to the point where the act of discussing legislation with fellow citizens requires permission from and monitoring by the government?  Regulations on political speech are always appealing when we imagine them applied to others, and incumbent politicians will always exploit opportunities to stifle potential opposition. But in a free society, elected officials ought to listen to constituent concerns or debate ideas in the open, as the framers of the First Amendment intended, rather than mowing down the grassroots with regulation.