[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





                     S. 1, THE SENATE APPROACH TO 
                            LOBBYING REFORM

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 1, 2007

                               __________

                            Serial No. 110-4

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

                                 ______


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York          LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California           JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]

              Perry Apelbaum, Staff Director-Chief Counsel
     Sean McLaughlin, Deputy Chief Minority Counsel/Staff Director
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. SCOTT, Virginia            JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel



                            C O N T E N T S

                              ----------                              

                             MARCH 1, 2007

                           OPENING STATEMENT

                                                                   Page
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     5
The Honorable Darrell Issa, a Representative in Congress from the 
  State of California, and Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     6
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................    10

                               WITNESSES

Mr. Kenneth A. Gross, Skadden, Arps, Slate, Meagher & Flom LLP
  Oral Testimony.................................................    12
  Prepared Statement.............................................    14
Ms. Sarah Dufendach, Chief of Legislative Affairs, Common Cause
  Oral Testimony.................................................    16
  Prepared Statement.............................................    18
Mr. Bradley A. Smith, Professor of Law, Capital University Law 
  School
  Oral Testimony.................................................    40
  Prepared Statement.............................................    41
Mr. Thomas E. Mann, The Brookings Institution
  Oral Testimony.................................................    51
  Prepared Statement.............................................    52

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Chairman, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................     2
Prepared Statement of the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Ranking Member, Subcommittee on the Constitution, Civil Rights, 
  and Civil Liberties............................................     4
Prepared Statement of the Honorable John Conyers, Jr. a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     6
Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     7
Prepared Statement of the Honorable Jim Jordan, a Representative 
  in Congress from the State of Ohio, and Member, Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties............     8

                                APPENDIX

Material Submitted for the Hearing Record........................    69

 
                     S. 1, THE SENATE APPROACH TO 
                            LOBBYING REFORM

                              ----------                              


                        THURSDAY, MARCH 1, 2007

                  House of Representatives,
                 Subcommittee on the Constitution, 
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Staff present: David Lachmann, Staff Director; Michelle 
Persaud, Counsel; Paul Taylor, Minority Counsel; and Susana 
Gutierrez, Clerk.
    Mr. Nadler. Good morning, ladies and gentlemen. This 
hearing of the Subcommittee on the Constitution, Civil Rights, 
and Civil Liberties will come to order.
    I would like to begin by welcoming everyone to the first 
hearing of this Subcommittee in the 110th Congress. In 
particular, I want to extend a warm welcome to the Ranking 
Member of the Subcommittee, Mr. Franks.
    I know that whatever disagreements we may have on 
particular matters of policy--and I am sure there will be 
some--we share a dedication to the important work of the 
Subcommittee.
    I also want to welcome the very distinguished Members of 
this panel, and especially to our new Members.
    We have an outstanding panel and I very much look forward 
to our working together.
    I will begin by making an opening statement, before I turn 
for an opening statement to Mr. Franks.
    Recent scandals--including criminal convictions, involving 
prominent lobbyists, Members of Congress, of the executive 
branch, and of their staffs--have heightened public awareness 
of the need to reform some of the ways in which Congress does 
its business.
    In keeping with our pledge to reform this institution, the 
Democratic leadership put forward, and the House adopted, 
changes to the House Rules in the first 100 hours of this 
Congress.
    Today, we begin consideration of proposed changes to the 
Lobby Disclosure Act. The Senate has already acted with the 
passage of S. 1. The House is now beginning its consideration 
of these issues.
    In addition to the Senate bill, we also have a number of 
proposals put forward by Members of this Committee, by other 
Members of the House and by various activists. These proposals 
merit careful consideration.
    It is my hope that this hearing will enlighten our efforts 
and that we will be able to work together on a bipartisan basis 
to advance a reform agenda.
    Some of these issues are very difficult but we have an 
obligation to deal with them and to deal with them right.
    The American people sent a clear message in November that 
they want their Government cleaned up. We would ignore that 
message at our peril. If the public loses confidence that the 
process of lawmaking is fair and open to all on an equal basis, 
then that can only undermine respect for the rule of law.
    I would just add that the whole question of lobbyists is 
only one part of the problem. The core issue is the pervasive 
influence of money in politics. So long as we have a political 
system in which office seekers must raise large sums of money 
from people with a direct interest in legislation, the 
regulation of lobbying by itself will not fully solve this 
problem. A lobbyist without a PAC has a hard time corrupting 
the process. We must ensure that a private citizen without a 
PAC gets at least the same consideration as the powerful 
moneyed interests. That is the ultimate goal of our work.
    So I want to welcome our witnesses today and thank them for 
their testimony and their assistance.
    [The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
Congress from the State of New York, and Chairman, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties
    Recent scandals, including criminal convictions, involving 
prominent lobbyists, Members of Congress, of the executive branch, and 
their staff, have heightened public awareness of the need to reform the 
way Congress does its business.
    In keeping with our pledge to reform this institution, the 
Democratic Leadership put forward, and we adopted, changes to the House 
Rules in the first 100 hours of this Congress.
    Today we begin consideration of proposed changes to the Lobby 
Disclosure Act. The Senate has already acted, with the passage of S. 1. 
The House is now beginning its consideration of these issues. In 
addition to the Senate bill, we also have a number of proposals put 
forward by members of this Committee, by other members of the House and 
by various activists. These proposals merit careful consideration.
    It is my hope that this hearing will enlighten our efforts, and 
that we will be able to work together, on a bi-partisan basis, to 
advance a reform agenda.
    Some of these issues are very difficult, but we have an obligation 
to deal with them, and to do it right. The American people sent a clear 
message in November that they want their government cleaned up. We 
ignore that message at our peril.
    If the public loses confidence that the process of lawmaking is 
fair and open to all on an equal basis, that can only undermine respect 
for the rule of law.
    I would just add that lobbyists are only one part of the problem. 
The core issue is the pervasive influence of money in politics.
    So long as we have a political system in which office seekers must 
raise large sums of money from people with a direct interest in 
legislation, the regulation of lobbying, by itself, will not fully 
solve the problem. A lobbyist without a PAC has a hard time corrupting 
the process.
    We must ensure that a private citizen without a PAC gets at least 
the same consideration as the powerful, moneyed interests. That is the 
ultimate goal of our work.
    So, I want to welcome our witnesses today, and thank them for their 
testimony and their assistance.

    Mr. Nadler. I would now recognize our distinguished Ranking 
minority Member, the gentleman from Arizona, Mr. Franks, for 
his opening statement.
    Mr. Franks. Well, thank you, Mr. Chairman, for those kind 
words. And they are reciprocated completely. I hope that all of 
us on this Committee can remind ourselves that we are here for 
such a brief time and that we are here to promote human dignity 
and human freedom. And I consider it a privilege to be here.
    Mr. Chairman, the introduction of this bill was preceded by 
high-profile ethics probes into actions by prominent officials, 
most notably in the Abramoff scandal.
    The public, and many of us here, called for decisive action 
to clean up Beltway politics and to curb the misdeeds of 
unscrupulous officials and lobbyists. This should be the 
objective of this bill.
    However, I am extremely disappointed to learn, through all 
three prepared statements of the Democrats' witnesses, that 
there is, indeed, a movement afoot to revive the blatantly 
unconstitutional grassroots lobbying provisions that were 
wisely stripped from the Senate version of this bill, because 
they had no connection with Washington's ethical scandals.
    Grassroots lobbying was defined in the original bill as 
``the voluntary efforts of members of the general public to 
communicate their own views on an issue to Federal officials or 
to encourage other members of the general public to do the 
same.''
    Just reading those words describing what speech could be 
criminalized under such provisions should chill the spine of 
anyone who supports a strong first amendment.
    Grassroots lobbying is the very lifeblood of a healthy 
democratic Government. Grassroots lobbyists are, perhaps, a 
preacher in Kansas, who encourages his congregation to voice 
their values, or a young activist blogger in Manhattan, who 
encourages her readers to take action to support the saving of 
the people in Darfur, or a non-profit in Scottsdale that 
encourages letter-writing campaigns to pressure for improved 
child health care, and I could go on.
    What grassroots lobbying provisions would do to such people 
is the question. It would require them to register with the 
Government and report completely and thoroughly each qualified 
communication that was made in their efforts.
    Failure to capture each piece of data required by the 
Government could result in 10 years in prison and hundreds of 
thousands of dollars in fines. That is 10 years in prison, 
hundreds of thousands of dollars in fines for free speech in 
America.
    Mr. Chairman, the Supreme Court has made clear that such 
efforts to regulate political activity beyond direct contact 
with Members of Congress is in ``serious constitutional 
doubt.''
    In Rumley v. the United States, the Supreme Court noted, 
``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.''
    Grassroots lobbying is largely responsible for the very 
formation of this country. Grassroots lobbying, through the 
publishing of the Federalist Papers, the famous essays written 
by James Madison and Alexander Hamilton, is largely responsible 
for the ratification of our Constitution.
    And grassroots lobbying, Mr. Chairman, protected each and 
every guarantee of that Constitution's first amendment: 
``Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press; or of the 
right of the people peaceably to assemble, and to petition the 
Government for a redress of grievances.''
    But for grassroots lobbying, there would be no American 
Revolution. There would be no abolition of slavery, no labor 
movement, no women's movement, no civil rights movement, 
because very few people would risk 10 years in prison and 
hundreds of thousands of dollars in fines for failing to 
perfectly capture every qualified instance of free speech made 
to spur their cause. How would Dr. Martin Luther King have 
fared under such a law?
    Subjecting to Federal regulation the voluntary efforts of 
members of the general public to communicate their views cuts 
to the very core of freedom of speech that has made this 
country the most vibrant, creative and free Nation on Earth.
    Grassroots lobbying regulation is unconstitutional, Mr. 
Chairman. It does nothing to even address the real ethical 
scandals in Government. And it has no place in this bill, now, 
or in the future.
    And with these concerns in mind, I look forward to hearing 
from all the witnesses today.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Franks follows:]
 Prepared Statement of the Honorable Trent Franks, a Representative in 
Congress from the State of Arizona, and Ranking Member, Subcommittee on 
          the Constitution, Civil Rights, and Civil Liberties
    The introduction of this bill was preceded by high-profile ethics 
probes into actions by prominent government officials, most notably in 
the Abramoff scandal. The public, and many of us here, called for 
decisive action to clean up Beltway politics and to curb the misdeeds 
of unscrupulous officials and lobbyists. This should be the objective 
of the bill, and I am 100% behind this effort.
    However, I am extremely disappointed to learn, through all 3 
prepared statements of the Democrats' witnesses, that there is indeed a 
movement afoot to revive the blatantly unconstitutional grassroots 
lobbying provisions that were wisely stripped from the Senate version 
of this bill because they had no connection with Washington's ethical 
problems.
    Grassroots lobbying was defined in the original bill as (quote) 
``the voluntary efforts of members of the general public to communicate 
their own views on an issue to federal officials or to encourage other 
members of the general public to do the same.'' (unquote). Just reading 
the words describing what speech would be criminalized under such 
provisions should chill the spine of anyone who supports a strong First 
Amendment.
    Grassroots lobbying is the VERY LIFEBLOOD of a healthy democratic 
government.
    Grassroots lobbyists are, perhaps, a preacher in Kansas who 
encourages his congregation to voice their values; or a young activist 
blogger in Manhattan who encourages her readers to take action to 
support the saving of the people in Darfur; or a nonprofit in 
Scottsdale that encourages letter writing campaigns to pressure for 
improved child health care, and I could go on.
    What would the grassroots lobbying provision do to such people? It 
would require them to register with the government and report 
completely and thoroughly each qualified communication that was made in 
their efforts. Failure to capture each piece of data required by the 
government could result in 10 years in prison and hundreds of thousands 
of dollars in fines! That's 10 years in prison; Hundreds of thousands 
in fines. For exercising free speech in America.
    Mr. Chairman, the Supreme Court has made clear that such efforts to 
regulate political activity beyond direct contact with Members of 
Congress is in--quote--``serious constitutional doubt.'' \1\ In Rumely 
v. United States, the Supreme Court noted:
---------------------------------------------------------------------------
    \1\ Rumely v. United States, 345 U.S. 41, 47 (1953).

        ``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. . . .''

    Grassroots lobbying is largely responsible for the very formation 
of this country. Grassroots lobbying through the publishing of The 
Federalist Papers, the famous essays written by James Madison and 
Alexander Hamilton, is largely responsible for the ratification of our 
Constitution. And grassroots lobbying is protected by each and every 
guarantee of that Constitution's First Amendment: (quote) ``Congress 
shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press, or the right of the people peaceably to 
assemble, and to petition the government for a redress of grievances.''
    But for grassroots lobbying, there would be no American Revolution, 
No Abolition of Slavery, No Labor Movement, No Women's Movement, and No 
Civil Rights Movement, because very few people would risk 10 years in 
prison and hundreds of thousands of dollars in fines for failing to 
perfectly capture every qualified instance of free speech made to spur 
their cause. How would Dr. Martin Luther King have fared under such a 
law?
    Subjecting to federal regulation the voluntary efforts of members 
of the general public to communicate their own views cuts to the core 
of the freedom of speech that has made this country the most vibrant, 
creative, and free nation on Earth.
    Grassroots lobbying regulation is unconstitutional, Mr. Chairman. 
It does nothing to even address the real ethical scandals in 
government, and it has no place in this bill now or in the future.
    With these concerns in mind, I look forward to hearing from all the 
witnesses today.

    Mr. Nadler. Thank you.
    We will now hear an opening statement from the 
distinguished Chair of the Committee, who has requested to make 
an opening statement.
    Mr. Conyers. Thank you, Chairman Nadler.
    I needed to just say a couple of things, because, in my 
mind, my approach here connects the subject matter today with 
the confidence that the American people have to have in the 
integrity of the ballot, the integrity of the voting process, 
and the lobbying reform that we are undertaking.
    And I commend you for doing this without the usual 
convenience of having a piece of legislation to discuss one way 
or the other. I think we have to take into consideration the 
unusual circumstances in which this hearing is taking place. I 
think it is something that must be done, because we have an 
obligation in the 110th to move forward on this.
    There are only three points that, to me, I would like to 
hear from the witnesses on: stronger revolving-door provisions, 
enhanced disclosure, and stronger enforcement. And it has 
already been remarked by all of you, how long should Members be 
delayed before they can lobby their former colleagues? I think 
this is a valid question that we all should entertain 
collectively.
    We need more disclosure from lobbyists about their clients 
and their contacts with Members of Congress. And so we need 
more sunlight on this part of the questions that we are 
examining.
    We want questions of gifts and pay travel to be very 
carefully parsed, so that we know that we are not just building 
a wall which can be gone around easily. And I think we should 
increase the penalties for non-compliance or violation of the 
lobbying disclosure act requirements.
    And so, with that said, I thank you for the opportunity to 
make an opening comment. And I look forward to this 
distinguished panel of witnesses.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    First, I believe there is a strong need for lobbying reform 
legislation. A public opinion poll taken in 1964 found that 76% of the 
American people trusted their government to do what is right most or 
all of the time. More than forty years later, the landscape is 
decidedly different, with the vast majority of the public having a 
strong lack of faith in Washington's decisions. A January 2006 CBS 
News/New York Times poll found that only 27% of Americans said they 
trust the Federal Government to do what's right ``most of the time'' 
and only 5% said that they trusted the Federal Government to do what's 
right ``just about always.''
    The public's skepticism is partially driven by recent scandals 
involving lobbyists and Members of Congress. We all know the details 
and there is no need to repeat them here. What is important about these 
scandals is that they have revealed systemic problems in the way the 
profession of lobbying is carried out and how lobbying activities are 
disclosed. We need to fix these problems.
    I believe that there are three essential ingredients to an 
effective lobbying reform measure:
Stronger Revolving Door Provisions.
    Current law only requires Members to wait one year after they leave 
the Congress before they can lobby their former colleagues. This has 
led to the unfortunate appearance that people simply run for Congress 
as a stepping stone to a lobbying career. There is also the unfortunate 
appearance that former friends and colleagues, advocating on behalf of 
well heeled special interests, are given greater access to elected 
officials than members of the public who argue for the public good. I 
believe we need greater restrictions on this ``revolving door'' from 
congress to lobbying and sometimes back and forth again.
Enhanced Disclosure.
    We also need more disclosure from lobbyists about their clients and 
their contacts with members of Congress. It has been said that sunlight 
is the best disinfectant. We should require lobbyists to file more 
detailed reports disclosing their contacts with Congress as well as 
certifications by the lobbyist that they did not give a gift or pay for 
travel in violation of the rules. These reports should be filed 
electronically, more frequently--quarterly, rather than semi-annually--
and they should be made available to the public for free over the 
internet.
Stronger Enforcement.
    Most significantly, an effective measure should increase the civil 
and criminal penalties for violation of or noncompliance with the 
Lobbying Disclosure Act requirements. This act alone will prove to be a 
great deterrent not only for corrupt activity, and also will signal the 
general importance of timely and accurate disclosures.
    I thank the panel for joining us and I believe that today's hearing 
will prove to be a positive step in the direction toward real and 
effective lobbying reform.

    Mr. Nadler. Thank you, Mr. Chairman.
    In the interest of proceeding to our witnesses, and mindful 
of our busy schedules, I would ask that other Members submit 
their statements for the record.
    Mr. Issa. Mr. Chairman, I have an opening statement.
    Mr. Nadler. Without objection, all Members will have 5 
days.
    Do you object?
    Mr. Issa. Yes, I do.
    Mr. Nadler. Very well. The objection is heard. Mr. Issa?
    Mr. Issa. Thank you.
    And I understand the shortness of time, and I will be 
brief. But I certainly think in order to have both sides be 
heard in the opening process, we need to try to have both sides 
heard.
    Mr. Chairman, I appreciate your holding this hearing. And 
I, too, would join with you in saying that there is a need for 
reform of many of the aspects of the existing campaign finance 
laws, not the least of which is the continued abuse by 527s of 
the clear intent of prior legislation.
    Additionally, though, I would like to bring note to the 
Chair's organizational letter on this hearing, in which, Mr. 
Chairman, you said the need for legislation--and the paragraph 
that concerns me the most for today is the one that says the 
need for further reform is highlighted by--during the 109th 
Congress, by scandals involving--and you go on to say Jack 
Abramoff. No problem there. You note Native American tribes.
    Of course, my only problem here is I neither see these 
Government entities from being covered under the Senate 
legislation, nor were they covered by the House rules, even 
though that was asked for, that we not give a pass to 
Government entities, which is exactly what Jack Abramoff took 
advantage of. So it is very clear that that is not a genuine 
statement of reform, either under the Senate bill or under 
Speaker Pelosi's reforms.
    But, additionally, I would like to take exception to the 
fact that all of the examples included only Republicans as 
scandalous. Additionally, not only did you not include Mr. 
William Jefferson's $90,000 of cash in his freezer, but you, in 
fact, included former Senator Conrad Burns, charged with 
nothing, and House Majority Leader Tom DeLay, whose only 
violation was a State law, which, to date, has not been 
adjudicated.
    So I think that to disparage two Republicans, and then to 
name two additional Republicans, both of whom have gone to 
jail, and gone to jail for existing laws, points up exactly the 
fallacy of the hearing here today.
    We are not talking about laws which are not in place, 
remedies that do not exist, just the opposite. What we are 
doing is showing examples of failure to act, when we already 
could have acted in the case of the Abramoff Government 
loophole. And, then, on a partisan-only basis naming Members of 
Congress--and former Members of Congress, I should say--two of 
whom would certainly not be covered by any or all of the 
proposed legislation. And the other two are in jail today for 
the crimes they committed.
    So, Mr. Chairman, I would hope that, in the spirit of 
bipartisan behavior, we would get to dealing with 527s, we 
would respect the constitutional right of free speech, and that 
we would move the legislation in a direction which was 
bipartisan and not one that starts off so overtly partisan.
    With that, I yield back.
    Mr. Nadler. Thank you.
    Without further objection, all other Members will have 5 
legislative days to submit opening statements for inclusion in 
the record.
    [The prepared statement of Mr. Cohen follows:]
 Prepared Statement of the Honorable Steve Cohen, a Representative in 
 Congress from the State of Tennessee, and Member, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties
    I look forward to hearing from the witnesses today regarding Senate 
Bill S.1, which enhances the transparency for interactions between 
Members of Congress and lobbyists. Too much of the important decision-
making in Washington is influenced by the power and influence exerted 
by lobbying activity which takes places far from public view. Such a 
situation can easily lead to abuses of the public trust, as evidenced 
by the high-profile scandals from the previous Congress. I hope to 
learn more not only about how S.1 increases transparency, but also 
about how we in the House of Representatives can further strengthen 
reform of the lobbying process.

    [The prepared statement of Mr. Jordan follows:]
  Prepared Statement of the Honorable Jim Jordan, a Representative in 
                    Congress from the State of Ohio
    Mr. Chairman, I wish to express my approval of Sen. Robert 
Bennett's (R-UT) actions in introducing S.AMDT. 20--passed in the 
Senate on January 18--which removed the grassroots lobbying 
requirements from the bill that is before us today.
    The Senate rejection of this grassroots lobbying provision is 
entirely appropriate. It would be counter to our purposes in increasing 
transparency and accountability in government to pass a provision that 
would greatly restrict the ability of our constituents to organize and 
petition us. Would we not have much less accountability if we silence 
the families and taxpayers that we serve?
    Mr. Chairman, it is obvious that restricting grassroots organizing 
would run counter to the First Amendment of the United States 
Constitution, which we swore to uphold. We are clearly forbidden from 
making any law that would restrict each citizen's right to assemble and 
petition government. Grassroots organizations play a valuable role in 
keeping their members up-to-date on legislative activities in Congress. 
Because of them, citizens are able to stay better informed on the 
issues most important to them and better able to cut through the 
confusing jargon we often use here.
    It is clear that placing grassroots groups under the same 
restrictions as professional lobbyists will greatly slow their 
activities at best and kill many of them off at worst. Many small 
grassroots organizations will have difficulty understanding and 
following the new requirements they would be expected to meet, and the 
risks of accidental failure to comply would intimidate them into 
shutting down their activities. Our nation and our constituents would 
then be the poorer for it. We would be slowing democratic discourse.
    Mr. Chairman, I want to express my continued concern and wish that 
this grassroots lobbying provision NOT reappear in this House in any 
form. Democracy demands that we vigilantly preserve the rights of our 
constituents and we must keep the lines of communication with them wide 
open.

    Mr. Nadler. Without objection, the Chair will be authorized 
to declare a recess of the hearings.
    We will be joined today by our colleague, the gentleman 
from Massachusetts, Mr. Meehan. Our colleague has been a leader 
on this issue for many years. Without objection, the gentleman 
from Massachusetts----
    Mr. Franks. Mr. Chairman?
    Mr. Nadler. One second--will be permitted to sit with the 
Subcommittee to ask questions of the witnesses for 5 minutes.
    Mr. Franks. Mr. Chairman, at the request of the Ranking 
Member Smith, I respectfully object to the participation of a 
non-Subcommittee Member.
    House rules provide for participation in hearings only by 
the Members of that Committee or Subcommittee. House Rule 11 
states each Committee shall apply the 5-minute rule during the 
questioning of witnesses in a hearing until such time as each 
Member of the Committee who so desires has had an opportunity 
to question each witness.
    The Committee rules only explicitly allow the participation 
of non-Members of a Subcommittee in one instance, and that is 
for the Chair and Ranking Member to participate as ex officio 
Members of any Subcommittee.
    Any exception to the rules must be granted under unanimous 
consent, and, as a general policy, we intend to object to the 
participation of non-Members.
    Ranking Member Smith believes this should be an across-the-
board policy at the Judiciary Committee.
    Put simply, membership on a Subcommittee should mean 
something. Subcommittee membership allows Members the privilege 
of participation.
    Also, setting a precedent that allows one non-Member of a 
Subcommittee to participate could lead to a situation where 10 
other Members might also want to do so.
    I want to stress that this objection has nothing to do with 
the Member in question or the subject matter at hand. Rather, 
we want to establish a general principle that being elected to 
a Subcommittee carries some real weight. Participation in a 
hearing should be the privilege of the Members of that 
Subcommittee.
    Thank you, Mr. Chairman.
    Mr. Nadler. I would remind my friend that under Mr. 
Chabot's chairmanship, when I was the Ranking minority Member 
for the last 6 years, this Subcommittee routinely extended the 
courtesy of allowing Members of the full Committee, and other 
Members, regardless of party, to participate in hearings of the 
Subcommittee.
    It was always our aim, despite the sometimes strenuous 
disagreements we had on policy, to conduct the business of the 
Subcommittee with dignity and comity. It is my hope that we 
will be able to continue to function in that collegial spirit.
    I would urge my friend to reconsider his objection and 
remind him that once people start objecting to routine 
courtesies, there is likely no end to it. I hope the Members 
will not drag the Subcommittee down that path.
    We have been sent here by the voters to do their business. 
I am determined to follow that mandate. And I hope we can 
continue, as we have in the past, to extend routine courtesies 
to other Members of the full Committee.
    Regardless, I remain committed to applying the rules in a 
fair and even-handed manner, but I would invite the gentleman 
to reconsider his objection, if he would.
    Mr. Franks. Mr. Chairman, at such time as the Ranking 
Member and the Chair of this Committee can have colloquy among 
themselves, I have to maintain my objection.
    Thank you, sir.
    Mr. Issa. Mr. Chairman, I would ask for a unanimous consent 
request.
    Mr. Nadler. The gentleman will state his unanimous consent 
request.
    Mr. Issa. My unanimous consent is, in the alternative to 
that proposal, that we divide our time equally, alternating 5 
minutes per side. If the majority would agree to a back and 
forth in perpetuity on a 5-minute-per-side, then we would be 
equally dividing the time, and it would be irrelevant who you 
chose to recognize on your side versus the Ranking Member on 
their side.
    Mr. Nadler. I am not sure I understand what you are 
proposing.
    Mr. Issa. For each hearing in which unanimous consent was 
granted. Mr. Chairman, on the floor, we normally divide time 
equally 30 minutes per side, 10 minutes per side. This allows 
for each side to control----
    Mr. Nadler. The rules provide that every Member or every 
person who sits here gets 5 minutes. Now, we have always 
followed the practice--and I don't know that anybody has ever 
kept count, and I certainly never have. I mean, sometimes it 
may happen to be, depending on attendance, more Republicans 
than Democrats or more Democrats than Republicans, and so be 
it. We have never said that, well, there are more Republicans 
here, so some Democrat will get 10 minutes. I mean, I don't 
think we want to go down that--every Member, 5 minutes, sir.
    Mr. Issa. Mr. Chairman, I offered the unanimous consent in 
order for the Chair of the full Committee and the Ranking 
Member to be able to work together in a collegial fashion to 
find an alternative that might be mutually accepted.
    Mr. Nadler. I am not sure--I am going to have to object at 
this time.
    Mr. Issa. That is fine.
    Mr. Nadler. Because I think we should continue to follow 
alternating 5 minutes, and we will let the full Committee Chair 
and the Ranking minority Member of the full Committee deal with 
this further.
    For what purpose does the gentleman from Tennessee seek 
recognition?
    Mr. Cohen. Mr. Chairman, if I could just make like a 
minute-and-a-half opener.
    Mr. Nadler. Without objection.
    Mr. Cohen. Thank you, Mr. Chairman.
    I am the freshman here and the new person. And I don't know 
about Republicans and Democrats and who did wrong. There has 
been wrong done by Democrats and there has been wrong done by 
Republicans.
    It was shown in the last election, though, that the people 
felt ethics was a major issue. And they didn't like a lot of 
the things they read about in Congress. And Congress went to 
its lowest point ever in the public's regard. It was like 30-
something percent. And they voted the Democrats in in record 
numbers. So the public spoke.
    But, regardless, if they were speaking about Democrats or 
Republicans, but they said they want better ethics laws. And we 
need to work together.
    If Mr. Meehan has expertise--when I was chairman of State 
and local, and we dealt with ethics laws, we encouraged people 
like that to come forward and help us draw a better law for the 
public's interest.
    I would hope we could have the best expertise, the best 
experience and institutional knowledge to be brought here for 
the public's issue.
    This isn't a Republican-Democrat thing. This is to make 
Congress better, to uplift all of us.
    And I am really amazed that somebody brings up Dr. Martin 
Luther King in terms of 527s when you are talking about speech. 
Dr. King changed this Nation by the force of his issue, by the 
people going to the streets, by what mankind should have done 
100 years earlier to pass civil rights laws, after 100 years of 
Jim Crow. And to invoke Dr. King's name on money and politics 
is the opposite of what Dr. King was about. He was about 
issues. He was about spirit. He was about soul. He wasn't about 
dollars. And I object to that as the congressperson from the 
district where he was unfortunately killed.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I would now like to introduce the distinguished members of 
our panel.
    We have Ken Gross. Our first witness is a leading expert in 
the law of lobbying and campaign finance. Ken Gross is a 
partner at the firm of Skadden, Arps, where he heads the 
political law group. He advises many Fortune 500 companies 
relating to the regulation of political activities.
    He appears frequently as a legal commentator on CNN, Fox 
and other networks. And his quotes appear regularly in the 
national newspapers. Formerly, he was associate attorney 
general at the Federal Election Commission, where he supervised 
the Office of the General Counsel Enforcement staff and oversaw 
the legal review of audits.
    He serves on the ABA Committee on Election Law and co-
chairs the Practicing Law Institute's seminar on ``Corporate 
Political Activities.'' Also, he co-chairs the BNA publication 
on Corporate Political Activities.
    We also have Sarah Dufendach, who is the chief of 
legislative affairs for Common Cause, an organization created 
by John Gardner in 1970 as one of the very first non-partisan, 
public-advocate, Government-watchdog groups.
    I would like to join my colleagues in welcoming Sarah back 
to the Hill. She served in the United States House of 
Representatives as a top aide for former Congressman and former 
Whip David Bonior for over 25 years.
    Sarah left the Hill to become the chief operating officer 
for the Vietnam Veterans of America Foundation, a $25 million 
NGO, providing health care for landmine victims in 24 countries 
over four continents. It received the Nobel Peace Prize for its 
work in the coalition, Campaign for a Landmine Free World. From 
there, she joined Common Cause.
    We then have Professor Smith, who returned to the Capital 
University campus faculty in 2005, after 5 years here in 
Washington, where he served as commissioner, vice chairman and 
chairman of the Federal Election Commission. As chairman, 
Professor Smith oversaw the implementation of the McCain-
Feingold campaign finance bill, and successfully fought to 
increase due process protections for defendants in FEC 
enforcement actions.
    As with our other witnesses, he has previously testified 
before Congress, and his writings have appeared in numerous 
academic journals and popular publications. He is the author of 
``Unfree Speech: The Folly of Campaign Finance Reform.'' 
Professor Smith is founder and chairman of the Center for 
Competitive Politics.
    And, finally, we have Thomas Mann, who is the W. Averell 
Harriman chair and senior fellow in Governance Studies at The 
Brookings Institution. Between 1987 and 1999, he was director 
of Governmental Studies at Brookings. Before that, he was 
executive director of the American Political Science 
Association.
    He earned his B.A. in political science at the University 
of Florida and his M.A. and Ph.D. at the University of 
Michigan. He first came to Washington in 1969 as a 
congressional fellow in the offices of Senator Philip Hart and 
Representative James O'Hara.
    Mr. Mann has taught at Princeton University, Johns Hopkins 
University, Georgetown, the University of Virginia and American 
University, and served as an expert witness in the 
constitutional defense of the McCain-Feingold campaign finance 
law.
    Gentlemen and ladies, each of your written statements will 
be made part of the record in its entirety. I would ask that 
you now summarize your testimony in 5 minutes or less.
    To help you stay within that time limit, there is a timing 
light at your table. I am sure you are aware of that. When 1 
minute remains, the light will switch from green to yellow, and 
then red, when the 5 minutes are up. Thank you very much.
    Mr. Gross?

  TESTIMONY OF KENNETH GROSS, SKADDEN, ARPS, SLATE, MEAGHER & 
                            FLOM LLP

    Mr. Gross. Good morning, Chairman Nadler, Ranking Member 
Franks and other Members of the Committee. Thank you for 
inviting me to testify.
    I support S. 1. I think it is a good bill, in general, with 
certain reservations, which I will note.
    It deals with a lot of provisions: gift provisions, lobby-
disclosure provisions, revolving-door provisions, et cetera.
    In terms of gifts, since the gift ban went into effect in 
the House on January 4th, it has actually, I think, worked 
fairly well.
    I wouldn't mind if there was a small de minimis exception. 
I don't know if the horse has left the barn on that, but I have 
dealt with more questions about tuna-fish sandwiches served 
during plant tours and fact-finding trips and a member visiting 
with an editorial board for a newspaper that may happen to have 
a lobbyist in their organization.
    And I think the executive branch 20-50 rule--20 per 
occasion and 50 for the year--just takes away a lot of small 
silly questions, so you don't have to throw a $10 bill on the 
table for a tuna-fish sandwich while you are touring around a 
plant or some other presentation that doesn't quite meet the 
widely attended exception.
    In terms of the lobby provisions, I support them. They have 
quarterly reporting, which is a good thing, more contracted 
periods for when the report has to be made on the public 
record. It has the gift disclosure on it. It cross references 
the FEC political information as well.
    I think that there are certain small provisions that should 
be blended, so the timing of the information on political 
contributions coincides with the FEC and that the threshold is 
over $200, not $200, which can create some problems with the 
way information is reported.
    In fact, I think it could be strengthened with some 
additional breakdown on the lobby report between in-house 
lobbying, outside lobbying and trade-association dues related 
to lobbying. That is all required on the current report, but it 
is one aggregate number. And I think if there was a breakdown 
of it, it would further compliance and be a more meaningful 
report.
    There is a part of the disclosure on the S. 1 proposal that 
does cause me some concern, and that has to do with the 
bundling provisions.
    What the law says is that if a lobbyist collects or 
arranges for contributions to be forwarded to a Member of 
Congress, a candidate, that that information has to be 
disclosed.
    I am having a lot of difficulty understanding what that 
provision is saying. I think I know what it means to collect, 
if you are actually gathering contributions and forwarding them 
to a candidate or even distributing coded envelopes, which is 
what is the law at the FEC right now. That is how they define 
bundling. But I do not know what it means to arrange for a 
contribution. I do not know what it means to have an informal 
agreement to forward contributions, solicit contributions, 
direct contributions, when you are not actually necessarily 
handling the contribution.
    If I serve on your national finance committee and I say I 
will raise $25,000 for you, and then I send an e-mail to 
everybody in the district who I think is likely to contribute 
to you, thousands of dollars are going to come in over the 
transom from those people, potentially, not because of my e-
mail, but I could claim credit for it.
    And we all know that when a contribution comes over the 
transom, it has got many claimants, you know, perhaps more 
claimants than Anna Nicole's baby has. And we are going to see 
multiple reporting of the same money coming over. I think there 
needs to be either an elimination of the arrangement provision.
    The other part of it is I have to report, as a lobbyist, 
any contributions that the Member has actual knowledge that I 
have solicited or raised. How am I supposed to know what actual 
knowledge the Member or the candidate has of contributions have 
been raised? And, as has been noted, you know, there are 
serious penalties in these bills. And I think that has to be 
looked at again before it becomes part of a House bill.
    In terms of the grassroots lobbying, I know that is a hot-
button issue. All I have really said about that is that I think 
that you could draft a grassroots-lobbying law that deals with, 
you know, sort of hired lobbying efforts over very high 
thresholds, and it would survive a facial challenge under the 
law. I mean, the 1954 decision on Harris does say that 
artificially stimulated letter-writing campaigns can be subject 
to disclosure.
    The only concern that I have in the area of grassroots is 
that it cannot interfere with associational rights of an 
organization, and it can set up a rubric for as-applied 
challenge. I think the grassroots provisions could be written 
to survive a facial challenge, but there probably would be a 
good bit of litigation over the application of it as to any 
particular group. And I have expressed some concerns about 
that, despite, I think, the ability of Congress to write a law 
that could survive an overall challenge.
    Finally, the revolving-door----
    Mr. Nadler. The 5 minutes has expired. Could you finish 
your statement?
    Mr. Gross. Sure.
    I think that the provision in the revolving-door section 
that requires Members of Congress not to participate behind the 
scenes goes too far. I think the 2-year restriction on making 
appearances works. But it is an infringement to extend it to 
behind-the-scenes activity. That is not where the undue 
influence is exercised. It is exercised when you are making an 
appearance or you are using the name of a Member in trying to 
get in the door.
    Thank you.
    [The prepared statement of Mr. Gross follows:]
                 Prepared Statement of Kenneth A. Gross

       (with the assistance of Matthew Bobys and Christine Kirk)
    Good morning Chairman Nadler, Ranking Member Franks, and Members of 
the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties. Thank you for the opportunity to appear before you today to 
discuss the merits of S. 1 and the Senate approach to lobbying reform.
    My name is Kenneth Gross. I am a partner at Skadden, Arps, Slate, 
Meagher & Flom LLP, where I head the firm's political law practice. I 
specialize in compliance with campaign finance, lobbying, and ethics 
laws. Prior to Skadden, I was head of enforcement in the General 
Counsel's Office of the Federal Election Commission.
    S. 1 is, overall, a constructive step toward positive reform of the 
federal lobbying law. By emphasizing increased disclosure, the bill 
succeeds in effecting practical change in the way lobbying activities 
are reported and monitored without infringing upon our First Amendment 
rights as citizens to petition our government for a redress of 
grievances.
    With regard to gifts, the House has already adopted strong gift 
rule provisions. However, I continue to believe that there is room for 
a de minimis provision. It does not have to be $50, the previous 
threshold which some believe was abused and often exceeded, but a small 
exemption for meals of $20 or less per occasion would take care of many 
situations that may arise during, for example, a plant visit or other 
meetings at which a meal is served but where the requirements for a 
widely attended event are not met.
    The bill undertakes to increase the transparency of lobbying by 
requiring more frequent disclosure with a shorter lag time (days 
between the end of a reporting period and the report's due date), and 
by requiring more substantive disclosure--for example, requiring lobby 
registrants and their lobbyists to disclose their federal political 
contributions and those made by their PACs; and requiring the reporting 
of certain gifts to Members and legislative staff made by lobby 
registrants, lobbyists, and their PACs. However, there should also be a 
breakdown of the aggregate amount currently disclosed on a corporate 
lobby report. The following should be separately itemized: (1) the 
value of in-house personnel, including overhead expenses for all 
employees (not just those who meet the 20% threshold); (2) outside 
lobbyist fees; (3) trade association dues related to lobbying; and (4) 
travel and entertainment expenses.
    S. 1 takes great steps to increase the transparency of governmental 
decision-making by making electronic filing the standard and requiring 
reports to be searchable, sortable, and posted quickly for the benefit 
of the public.
    Although the bill does not create an independent enforcement body, 
it does increase the penalties for violations of the lobbying law and 
the making of gifts and for the first time exposes donors of gifts to 
civil enforcement liability. I advocate a meaningful and measured 
enforcement of the law to ensure compliance with these reforms.
    There are three different areas of reform that I would like to 
address today: bundling, grassroots lobbying, and the revolving door.
                                bundling
    S. 1 requires lobby registrants and their lobbyists to disclose the 
recipients of contributions of $200 or more per year that they 
``collected or arranged'' and the aggregate amount of those 
contributions. ``Collected funds'' include those that a lobbyist 
forwards to a campaign. ``Arranged funds'' include (i) formal and 
informal agreements to ``credit'' contributions as being raised, 
solicited, or directed by a lobbyist or (ii) actual knowledge by the 
lobbyist that the candidate is aware that the lobbyist raised, 
solicited, or directed the contributions. A lobbyist must also disclose 
the aggregate amount or a good faith estimate of the amount of campaign 
contributions raised at a fundraiser that he or she hosted or 
sponsored.
    Regarding ``collected funds,'' under current federal election law, 
an individual who bundles contributions must file a conduit report with 
the Federal Election Commission. It is impermissible for an individual 
acting as a representative of a corporation, for example as a Vice 
President for Government Affairs, to collect and forward contributions. 
However, an individual who has a significant position in a campaign and 
has been authorized by the campaign to raise funds, is permitted to 
collect and forward contributions without disclosing this activity. 
Thus, depending on the circumstance, bundling contributions may be 
illegal, require special disclosure, or require no disclosure.
    What constitutes ``arranging'' contributions is even more difficult 
to define in application. It is typical that contributions received by 
a committee have more than one individual claiming credit for them; it 
is up to the committee to sort this out. This provision might have the 
effect of individuals claiming credit for contributions beyond those 
they are responsible for raising. For example, an individual could have 
an agreement with a campaign to raise a certain amount of money, and 
send out hundreds of e-mails soliciting contributions, and claim credit 
for all contributions made by the recipients of those e-mails, which 
would result in an inflated amount of contributions credited to the 
individual and campaign.
    Additionally, much of the money raised for federal campaigns (in 
particular, for presidential campaigns) is not raised by lobbyists but 
by friends of a candidate or by senior corporate executives who do not 
meet the definition of ``lobbyist.'' The bundling rules only apply to 
contributions collected or arranged by those defined as lobbyists. If 
Congress is interested in a more complete disclosure provision, it 
would have to apply to all individuals, not just lobbyists. 
Consequently, the bundling provision as written in S. 1 is vague and 
open to misapplication. It should be drafted so it is limited to 
contributions physically handled by a lobbyist or those forwarded to a 
campaign in coded envelopes, as is currently required under Federal 
Election Commission rules.
                          grassroots lobbying
    As you know, the Senate deleted the grassroots lobbying provision 
from S. 1. The concerns over the now-deleted provisions have been 
generally overstated, but it would be wrong to require disclosure of 
communications among members or employees of an organization. If the 
required disclosure is limited to information regarding the cost of 
artificially stimulated letter-writing or electronic communications, 
sometimes called ``astroturf lobbying,'' there are fewer constitutional 
concerns. In 1954, the Supreme Court specifically upheld the disclosure 
of artificially stimulated letter-writing campaigns, and I believe 
would do so again if legislation was narrowly drawn to address 
disclosure of astroturf lobbying with a specific call to action on 
legislation in the communication. However, an as-applied challenge may 
succeed if a particular group can demonstrate that disclosure would 
result in harassment or threats of reprisal against group members.
                             revolving door
    Any restrictions on prohibiting Members or certain staff from 
lobbying after they leave Congress must be narrowly and clearly drawn. 
Existing restrictions on appearances by Members and senior staff meet 
that standard. S. 1 contains a provision not previously seen at the 
federal level. It prohibits appearances as lobbyists and behind-the-
scenes lobbying activities of former Members for two years after 
leaving Congress. At the very least, the enforceability of such a 
provision may be difficult. At worst, it may constitute an improper 
infringement on an individual's right to engage in certain lobbying 
activities.
    The proposed changes that we are discussing today only address part 
of the puzzle; the regulation of lobbying activity is a delicate 
process. Lobbying is a protected core First Amendment right. Effective 
disclosure is the only viable method of regulation, and this bill 
addresses shortcomings in the current law. It is my sincere hope that 
with the changes proposed in S. 1 and the other issues under discussion 
here, it will start the process of restoring public confidence in the 
legislative process.

    Mr. Nadler. Thank you very much.
    Ms. Dufendach?

            TESTIMONY OF SARAH DUFENDACH, CHIEF OF 
               LEGISLATIVE AFFAIRS, COMMON CAUSE

    Ms. Dufendach. Good morning. My name is Sarah Dufendach. I 
am the chief of legislative affairs for Common Cause. I want to 
thank Chairman Nadler and Ranking Member Franks and the 
Subcommittee for holding this important hearing and for 
inviting Common Cause.
    For 37 years, Common Cause has worked for an open, 
accountable and ethical Congress. These issues matter greatly 
to our 300,000 members across the country.
    The Subcommittee has asked this panel to give our 
perspectives on S. 1, focusing on three particular issues and 
how we think the legislation could be made better.
    Common Cause strongly supports the bundling provisions of 
S. 1. Bundling is becoming so prevalent that many presidential 
candidates are feeling the public pressure to disclose their 
own bundling. When lobbyists disclose only how much they 
personally give to a Member's campaign, it may vastly 
underestimate the true efforts that that lobbyist could be 
making in soliciting substantially more money for that Member. 
The absence of this information gives an unrealistic picture of 
the role that lobbyists are playing in election fundraising.
    Common Cause also strongly supports the revolving-door 
provisions in S. 1. Changing the cooling-off period for Members 
of Congress from 1 year to one congressional session better 
reflects the realities of the legislative and election cycles.
    Lobbying is much more than just contacting Members. So the 
definition should be expanded to reflect the full range of 
knowledge and skills which make hiring former Members so 
attractive to wealthy and powerful special interests.
    The cooling-off period only affects staff making over 
$110,000. It is still just 1 year and only affects lobbying 
contacts, not activity. It does expand the staff lobbying 
prohibition from just their former Members and Committees to 
the entire body, to the whole House. But that better reflects 
the true reach that staff at that pay grade have.
    Common Cause believes Astroturf lobbying activities should 
be disclosed. For those who think we don't need this type of 
disclosure, I have got three words: Harry and Louise.
    According to media accounts, Health Insurance Association 
of America spent $17 million to pay for TV ads attacking the 
Clinton health-care plan. None of that multimillion-dollar 
campaign had to be publicly disclosed.
    The public and elected officials need to know who is 
sponsoring major campaigns seeking to turn public opinion. 
Otherwise, we can't understand the motivation and the true 
objectives behind that effort.
    S. 1 is, indeed, landmark ethics legislation. But most 
reform groups think it falls far short in one very important 
area, and that is enforcement of congressional ethics rules. 
Stricter rules mean little if they are not enforced. And the 
public has lost faith in the House to enforce its rules and 
discipline its own Members.
    In fact, the public, by 80 percent, supports establishing a 
permanent, independent commission to investigate and enforce 
ethics rules for Members of Congress and their staff.
    State legislatures in 23 States have adopted some form of 
independent ethics enforcement. The Kentucky legislative ethics 
commission was established 14 years ago. When surveyed, 97 
percent of its legislators responded that an independent ethics 
commission does a better job overseeing compliance with State 
ethics rules than committees of legislators, such as the House 
or Senate Ethics Committees. They felt the biggest contribution 
it had made is its ability to depoliticize ethics enforcement.
    Some critics say that independent ethics enforcement is 
unconstitutional. The Constitution gives the House and the 
Senate the power to punish its Members for disorderly behavior. 
But legal scholars widely believe that Congress has the power 
to delegate the receipt and investigation of complaints to an 
independent body, provided that each chamber retain its power 
to make the final decision about disciplining its Members.
    My time is running out, and so I will just note that 
Representative Michael Castle and Representative Todd Platts 
have introduced a bill, H.R. 97, to establish an independent 
ethics commission in the House, which has been referred to this 
Subcommittee.
    With that, I thank you for this opportunity to testify. And 
I look forward to your questions.
    [The prepared statement of Ms. Dufendach follows:]
                 Prepared Statement of Sarah Dufendach












































    Mr. Nadler. Thank you. And I congratulate you for coming in 
under the 5 minutes.
    Professor Smith?

     TESTIMONY OF BRADLEY SMITH, PROFESSOR OF LAW, CAPITAL 
                     UNIVERSITY LAW SCHOOL

    Mr. Smith. Thank you, Mr. Chairman, Ranking Member Franks 
and Members of the Committee. My name is Brad Smith. I am a 
professor at Capital Law School. I practice law with the firm 
of Vorys, Sater, Seymour and Pease.
    And I am here today in my capacity as chairman of the 
Center for Competitive Politics, which works to educate the 
public on the benefits of free and open political 
participation.
    The point I would leave for you, more than anything, is to, 
as you consider what approach to take, is to think about what 
exactly is the goal, what is the harm that you are trying to 
address, and how do the measures that you are considering 
address it.
    For example, S. 1 requires quite a bit of lobbying 
reporting. Now, I don't have a particular problem with that. I 
think it helps the public understand what lobbyists are doing 
in terms of contact with their legislators to help them 
understand what Government is doing.
    On the other hand, much of that reporting is simply 
duplicative of Federal Election Commission reporting. And much 
of that information that the Senate bill would require to be 
put into a database is already available through private 
databases, such as Political Money Line and Open Secrets and so 
on. And, as the law is drafted, it would seem to require a 
separate reporting date. So the people would have to report the 
same thing, but twice, to different folks on different 
timelines.
    So I would just urge you to think about these things. Is it 
really necessary or is this just kind of show to make the 
public feel good, like something is going on? There is a need 
for something to be done substantively. But let's make sure we 
don't mess it up by just kind of throwing in the kitchen sink.
    I have listed some various concerns in my prepared 
testimony. I share many of Mr. Gross's points about vagueness 
of some of the issues. I do think there are problems. And I 
think one reason there is some issue with the vagueness on some 
of these terms, which I have highlighted in my testimony, is 
that it is not entirely clear what is the harm you are trying 
to address. And so you end up with a provision that is fairly 
vague in trying to address it.
    In terms of an ethics committee, you know, I don't have any 
strong opinion as to whether you ought to have a separate 
ethics group or not. If you want a little police force that 
goes around and checks up on you, that is kind of your 
business.
    I do think that the public often has shown, and I think 
benefits, from being able to hold Members directly responsible 
for what they do, and I think they have shown that they can do 
that.
    I note that the list that is included in Ms. Dufendach's 
testimony, what States have ethics committees, that the most 
toughest ones are Kentucky. No scandals there with Governor--no 
scandals in Connecticut, another one of the toughest ones where 
the governor has had to resign not long ago.
    Whereas, among those States that don't have an independent 
ethics committee are such hotbeds of corruption as Iowa, Utah, 
Vermont, and a State called the best-governed State in the 
Nation by Governing Magazine, the State of Virginia. But, you 
know, you do what you want.
    I do want to address the grassroots lobbying provisions 
here. They are not in this bill, but, obviously, there are 
people who want them to be in this bill.
    Ms. Dufendach is a good advocate for her position, a 
skilled woman. I don't know her, but I am impressed by her 
background, and I note that she has spent her entire career in 
Washington.
    And Mr. Mann I have known for several years, and he is also 
going to urge you to regulate grassroots lobbying. He is a 
talented political scientist, one of the most respected opinion 
leaders in Washington. If you were to go around and try to come 
up with somebody you would give the title of Mr. Washington to, 
it might be Tom Mann, right?
    Now, I come from a little town in Ohio called Granville, 
Ohio. It has got 3,000 residents, and I will tell you that one 
thing people there don't care about at all and are not 
concerned about is that citizens are contacting Congress. That 
just doesn't worry these folks in the least, nor do they 
particularly care why they are contacting Congress.
    When a citizen hears about something, about an issue, and 
it moves that citizen to want to take action, it doesn't matter 
where that comes from. And the corrupting link that is supposed 
to be there between lobbyist and the Government is broken, 
because a citizen--a real person, not a fake person, not an 
Astroturf person--a phrase, frankly, I find insulting--a real 
voter, one of your constituents, has to decide to take action 
and call you up. And that breaks that link between the 
lobbyist.
    It doesn't matter whether the person hears this from a 
radio talk show. It doesn't matter whether they are misinformed 
from a New York Times editorial. The fact is a citizen has 
acted.
    So pay attention to what it is that you are trying to get 
at. And I think if you do that, you will recognize that 
grassroots lobbying is actually a check on the type of insider 
lobbying that created the kind of scandals that brought some of 
you in the majority into power with people such as Jack 
Abramoff.
    Thank you very much.
    [The prepared statement of Mr. Smith follows:]
                 Prepared Statement of Bradley A. Smith
    Mr. Chairman, Ranking Member Franks, and members of the Committee:
    Thank you for inviting me here to testify today on the important 
issue of lobbying reform. By way of introduction, I am currently 
Professor of Law at Capital University in Columbus, Ohio; founder and 
Chairman of the Center for Competitive Politics, and Of Counsel in the 
Columbus and Washington offices of the law firm of Vorys, Sater, 
Seymour & Pease. From 2000 to 2005 I served as Commissioner on the 
Federal Election Commission, including a term as Chairman in 2004. In 
this latter capacity, I was privileged to travel and speak throughout 
the country with ordinary Americans concerned about corruption in 
government and the perceived remoteness of Washington to their everyday 
concerns. Although Vorys, Sater, Seymour and Pease represents many 
clients before the government, I am not a registered lobbyist and do 
not lobby myself. I address the Committee today on my own behalf and 
that of the Center for Competitive Politics, and do not speak for the 
law firm of Vorys, Sater, Seymour & Pease or Capital University.
    The Center for Competitive Politics (``CCP'') is a non-profit 
educational organization operating under Section 501(c)(3) of the tax 
code, with offices in Arlington, Virginia. Through studies, reports, 
conferences, and assistance in litigation, CCP seeks to educate the 
public and lawmakers on the operation and effects of money in the 
political and legislative systems. In light of the comments to follow, 
I also note that neither CCP nor Vorys Sater or Capital University 
engage in what is called ``grassroots lobbying.''
    As the House considers lobbying reform, it is important to balance 
carefully targeted regulations that address real abuses, while 
minimizing the burden on the vast majority of lobbyists who are honest, 
dedicated individuals helping citizens to exercise their fundamental 
Constitutional Rights of Free Speech and the Right to Petition the 
Government for Redress of Grievances. These are among the most 
important rights guaranteed by our Constitution. Yet all too often in 
the past, we have allowed isolated incidents of improper behavior--
scandal--to stampede us to hastily conceived, ill-considered measures 
that restrict these important Constitutional rights while doing little 
to address the abuses that allegedly justify the restrictions. All of 
us here know that lobbyists can provide a valuable function, providing 
members with useful, important information on public opinion, and also 
with the information needed to craft wise, beneficial, effective 
legislation. We know that abuses exist, but that they are the 
exception, not the rule.
    We must also recognize that whatever steps Congress takes, there 
will be a substantial element of popular distrust of the government in 
general and Congress in particular. This is normal in every democracy--
around the world, even at the peaks of confidence in government in the 
societies most trustful of government, there is typically one-quarter 
to one-third of the electorate that believes that government cannot be 
trusted to pursue the public good. This is normal and indeed it can be 
healthy--it is this skepticism that enables the public to serve as a 
watchdog against government corruption, and as a guardian of its own 
rights against government overreach. There is no legislation you can 
pass, no magic wand you can wave, that will make all Americans trust 
their government, and it would be a mistake to try. Thus, it is 
important to pass serious, balanced legislation, that addresses 
specific and real problems, rather than to engage in populist 
grandstanding or pass measures merely because they ``send a message.''
    The problem, as I see it, based on my travels around the country 
and my conversations with lobbyists, officeholders, civic leaders, and 
ordinary citizens, is that lobbyists have access to information, and to 
legislators, that is not known to the general public. In a small number 
of isolated cases, lobbyists have used their access, outside of the 
public eye, to bribe or improperly influence members. More commonly, 
the simple lack of transparency, even absent any improprieties, has 
resulted in the public being closed out of decisions made by the 
government. I have never heard it expressed, however, that the problem 
is too much involvement by the American people, or that the people are 
contacting members of Congress, or that citizens and groups are 
attempting to provide information to the people at large. Thus, the 
Senate approach is quite right to focus on legislative transparency, 
and avoid the efforts by some to use lobbying reform to pursue other 
agendas that aim to limit, rather than enhance, popular checks on 
government.
    In particular, the Senate was quite correct in removing from the 
bill, as it was originally introduced, Section 220, pertaining to the 
regulation and in particular the disclosure of grassroots lobbying. As 
a matter of constitutional law, the Supreme Court has repeatedly 
recognized a right to engage in anonymous political speech. These cases 
include Thomas v. Collins, 323 U.S. 516 (1945) (striking down a statute 
requiring labor organizers to register and disclose to the government 
prior to speaking); NAACP v. Alabama, 357 U.S. 449 (1958) (guaranteeing 
the NAACP the right to protect the identities of its members and 
financial supporters); Talley v. California, 362 U.S. 60 (1960) 
(protecting anonymous speech to the public); McIntyre v. Ohio Elections 
Commission, 514 U.S. 334 (1995) (upholding the right to anonymous 
speech on political issues during the course of a campaign); and 
Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 
(2002) (striking down a statute requiring prior registration with 
government). Only in the narrow circumstances of political 
advertisements directly related to a candidate election and either 
expressly advocating the election or defeat of a candidate or involving 
substantial expenditures for broadcast ads mentioning a candidate 
within 60 days of an election has the Court ever upheld restrictions on 
anonymous speech. See Buckley v. Valeo, 424 U.S. 1 (1976); McConnell v. 
Federal Election Commission, 540 U.S. 93 (2003). Regulation of 
grassroots lobbying through mandatory disclosure of funding sources 
directly violates the Constitution, as repeatedly interpreted by the 
Supreme Court.
    Moreover, as a policy matter, regulation of grassroots lobbying 
makes little or no sense in addressing the problem of government 
corruption. 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 naive believe it will mean the end of the 
professional, inside-the-beltway lobbyist. Thus, grassroots voices 
remain a critical counterforce to lobbying abuse.
    Disclosure of the financing, planning, or timing of grassroots 
lobbying activities adds little, and will often be harmful, leading to 
exactly the type of favoritism and/or negative pressure that the public 
abhors. I want to stress that I have first hand experience with being 
on the receiving end of grassroots lobbying campaigns. As a 
Commissioner on the Federal Election Commission, I was the target of 
several such campaigns, one of which generated over 100,000 citizen 
communications. I found it helpful to hear from the public, even if in 
the form of mass generated campaigns. I know that these campaigns were 
easily detected and appropriately discounted (but not ignored or 
resented). No member of Congress even remotely in touch with his 
district will be unaware that a sudden volume of similar calls, 
letters, or emails coming from his or her district is possibly, if not 
probably, part of an orchestrated campaign to generate public support. 
But because the callers themselves are real, there is little to be 
gained by knowing who is funding the underlying information campaign 
that has caused these constituents to contact their Members. The 
constituent's views are what they are; the link between lobbyist and 
Congress is broken by the intercession of the citizen herself.
    Various Washington-based organizations, many of which employ 
registered lobbyists and many of which have no membership base, have 
attempted to denigrate this citizen activity by referring to it as 
``Astroturf'' lobbying, implying that it is somehow fake or fraudulent. 
But there is nothing fake about real citizens--that is, voters and 
constituents--having views on issues and calling their representatives 
in Washington. It simply does not matter if those views were stimulated 
by a newspaper editorial, a conversation with a friend, a speech at the 
local Rotary Club, or a paid communication. These are real people with 
real concerns, not ``fake'' or ``Astroturf'' constituents.
    Moreover, there are many valid reasons for preferring anonymity. 
Anonymous speech is not illegitimate in some way. Remember that the 
Federalist Papers were published anonymously, in order to force readers 
to deal with the arguments put forth rather than engaging in ad hominem 
attacks against the authors. As the Supreme Court put it in McIntyre, 
in an opinion written by Justice Stevens, ``[t]he decision to favor 
anonymity may be motivated by fear of economic or official retaliation, 
by concern about social ostracism, or merely by a desire to preserve as 
much of one's privacy as possible.'' 514 U.S. at 357.
    Many members of this Committee have expressed deep concern about 
what was called the ``K Street Project,'' in which it is believed that 
pressure was placed on organizations in Washington to hire lobbyists on 
the basis of partisan considerations. Of course, the identity of 
lobbyists is necessarily known, and the public can benefit from knowing 
who lobbyists are and with whom members are meeting. That is how the 
public can provide a check on undue influence exercised behind the 
scenes. But grassroots lobbying contacts do not pose the possibility of 
behind the scenes meetings or bribery or improper influence, because by 
definition grassroots lobbying relies on voters--constituents--to take 
action. Efforts to force disclosure of grassroots lobbying needlessly 
open up that field to K Street Project-type pressure. Such forced 
disclosure can make seasoned professionals reluctant to assist 
unpopular causes or those contrary to the current administration, 
resulting in a chilling effect that would deprive grassroots 
organizations of the services of talented consultants who make their 
livings, in part, on Capitol Hill. Indeed, those consultants most 
likely to abandon the field will often be those most motivated by 
ideology. Those motivated by pecuniary gain will have an added 
incentive to bear the cost of disclosure and carry on.
    Finally, let me note that I have heard, in ways that cause me to 
believe it to be true, that some members have said that ``disclosure'' 
is, ``not regulation.'' How absurd! If you honestly believe that, then 
I urge you to begin filling out the forms yourselves and imagine that 
you face civil and criminal penalties for any errors or late filings. 
Clearly, disclosure is regulation, and often the most intrusive 
regulation.
    In summary, the Senate wisely stripped regulation of grassroots 
lobbying from the bill, and this House would be wise to similarly 
reject opportunistic efforts by various Washington-based interest 
organizations to stifle citizen speech. As further explication of the 
points raised above, I have attached to this statement a copy of CCP's 
Policy Primer, ``Grassroots Lobbying Proposals Seem Not to Further 
Congress' Interest in Correcting Lobbying Abuses.''
    Let me now address just a few specifics of what was retained in 
Senate Bill 1. First, a Section 212 of S. 1 requires that registrants 
must file quarterly reports ``Not later than 45 days after the end of 
the quarterly period beginning on the 20th day of January, April, July 
and October of each year. . . .'' Accordingly, the quarterly reporting 
period for the first quarter of the year will be January 20th through 
April 19th--not January 1st through March 31st. Needless to say, using 
a different quarterly reporting period for Lobbying Disclosure Act 
purposes than is used for FEC reporting purposes will create 
unnecessarily burdensome accounting problems for separate segregated 
funds whose contributions now have to be reported to the FEC, the Clerk 
of the House and the Secretary of the Senate. I have been told that 
this was not intended, but it appears to be the law as passed out of 
the Senate. I urge you to bring this provision into harmony with FEC 
reporting dates.
    More substantively, Sec. 212 is one of the key sections of the 
Senate bill, requiring added disclosure of lobbyists political 
contributions. However, I would note that many of the terms in that 
section are vague and left undefined. For example, reporting is 
required whenever a ``fundraising event was hosted, co-hosted, or 
sponsored.'' The FEC has no definition of any of these terms. An 
individual might raise money for an event but not be listed as a 
``host'' or ``sponsor'' of the event; another person might be listed as 
a ``host'' but play no role in raising funds. Indeed, there is no clear 
definition even of what constitutes an ``event.'' What is an event? Any 
gathering? Must it be a physical gathering, or is a video or virtual 
gathering sufficient? If all that is targeted is ``events,'' will 
anything have been accomplished? If these terms are left vague, they 
subject honorable people to civil and even potential criminal penalties 
for honest efforts to engage in political activity, while at the same 
time they may not even address the issues you seek to address. I would 
urge you to make sure you know what the purpose this regulation is, and 
to see that it is appropriately targeted.
    Section 116 of S. 1 would deny COLA adjustments to members who vote 
against them. I am one of the few people--sometimes I think the only 
person--in the country willing to go on record and say that I believe 
members of Congress ought to be paid more--substantially more--than 
they are currently paid. During the last campaign, I spoke publicly 
against the tireless demagoguery about members ``voting themselves pay 
raises,'' a charge usually made by challengers who fully expected, if 
victorious, to receive the benefits of these past COLA adjustments. 
Nevertheless, I believe it very bad policy to hold a member's own 
income hostage to his voting in a particular way on any bill or 
resolution, and equally bad to create several classes of members 
receiving different levels of pay. Further, I do not see what this 
provision has to do with lobbying reform.
    I would urge you to reject the Senate approach of establishing a 
``Commission to Strengthen Confidence in Congress.'' The Commission's 
mission, as defined in S. 1, seems to suggest partisan retaliation for 
legislation in some cases long past. I believe it will be destructive 
of efforts to create genuine, nonpartisan ethics reform, or to increase 
public confidence in Congress, to inform the public that you have 
created another ``commission'' with a specific mission to focus on a 
few laws--some passed as long as 5 years before we can expect the 
Commission to meet--apparently chosen for partisan reasons. Some 
members will no doubt draw satisfaction from such an approach, but 
frankly it mocks the entire ethics and lobbying reform project.
    Let me conclude, generally, by urging moderation. Aim for real 
problems, not appearances. For example, Sec. 212 of S. 1 requires added 
disclosure of contributions arranged as small as $200. There is some 
logic here, as $200 is the threshold for full disclosure of 
contributions under the Federal Election Campaign Act. Yet I doubt that 
any of us in this room really believe that $200 in campaign 
contributions is going to corrupt anybody. Such low thresholds lead to 
voluminous reports that can actually make it harder to find larger 
volumes of money.
    Similarly, it is easy to dictate voluminous reporting requirements 
for members and staff. But be careful. Complying with formalistic 
reporting requirements should not become the major function of 
Congress. Congress must operate ethically, to be sure, but it must 
exist for reasons other than to comply with ethics rules as well.
    There are changes, such as earmark reform, that can and should be 
done, many of which are included in the Senate bill. But understand 
that nothing you do will eliminate or prevent every episode of 
corruption--there simply are some corrupt people in the world--and 
trying to do so burdens good, ethical people and can even hinder 
efficient, effective government. Similarly, it is normal and healthy 
that the public have some skepticism of what its government is doing--
nothing you can do can eliminate all such skepticism. Finally, remember 
that the problem is ``insider'' abuses, not participation by the public 
at large, and avoid those who, in pursuit of their own insider agendas, 
urge regulation of grassroots activities.
    Thank you.
                               __________

                               ATTACHMENT

   POLICY PRIMER: Grassroots Lobbying Proposals Seem Not to Further 
            Congress' Interest in Correcting Lobbying Abuses
                        By Stephen M. Hoersting
                          and Bradley A. Smith
                             (614) 236-6317

                                Abstract
    Of the several policy proposals circulating Capitol Hill to correct 
lobbying abuses, strengthen the relative voice of citizens, and add 
accountability to the earmarking process, one policy prescription seems 
oddly out of place. Proposals for so-called ``grassroots lobbying 
disclosure'' do nothing either to sever the link between lobbyist cash 
and lawmakers' pecuniary interests, or to strengthen the relative voice 
of citizens. Grassroots lobbying--encouraging or stimulating the 
general public to contact lawmakers about issues of general concern--is 
citizen-to-citizen communication that fosters citizen-to-lawmaker 
communication. It correspondingly weakens the relative strength of 
lobbyist-to-lawmaker communications, in furtherance of Congress' 
objective in seeking lobbying reform.
    Efforts to limit grassroots lobbying, require disclosure of donors, 
or compel lobbyists to register with the government to assist groups in 
contacting fellow citizens, strips donors and consultants of 
constitutionally guaranteed anonymity, and would deprive organizations 
championing unpopular causes of skilled representation. This anonymity, 
long recognized and protected by the Supreme Court, fosters political 
association, guards against unwarranted invasions of privacy, and 
protects the citizens who fund or assist groups such as Progress for 
America or People for the American Way from calumny, obloquy, and 
possible retribution--including retribution by public officials.
    Disclosure is not always a good thing. The rationale for requiring 
disclosure of contributions to candidate campaigns, and disclosure of 
direct lobbying activity, is the same for protecting anonymity in the 
discussion of policy issues: to protect citizens from retribution by 
abusive officeholders. History demonstrates that while such retribution 
may be uncommon, it is real. Indeed, even today we read of a Texas 
prosecutor who has subpoenaed donor records for a group after the group 
ran grassroots lobbying ads that took a position contrary to that of 
the prosecutor.
    The abuse of non-profit entities by a handful of lobbyists to host 
golf trips or entertain lawmakers with donations from lobbyist clients 
can be cured in other ways, without enacting disclosure measures too 
attenuated to the problem Congress seeks to correct, and that could 
damage or diminish America's system of information exchange for years 
to come.
                              introduction
    Senator Dianne Feinstein recently captured public sentiment when 
she said that there should ``be a wall'' between registered lobbyists 
and the pecuniary interests of Members of Congress.\1\ The problem is 
not the technical and professional information lobbyists provide 
lawmakers, nor is it information on the opinions of the American people 
that honorable and ethical lobbyists provide lawmakers everyday. 
Indeed, it is the relative voice of the average citizen that the 
Senator wants to strengthen. This is why Senator Feinstein and Senate 
Rules Committee Chairman Trent Lott have proposed bringing sunlight to 
the earmarking process and other measures that would weaken the link 
between lobbyist cash and lawmaker policy.\2\ Senators Lott and 
Feinstein are not alone. Other proposals include gift bans, travel 
restrictions, other types of earmark reform, revoking floor privileges 
of former lawmakers, slowing the ``revolving door,'' and limiting 
lobbyist donations to charities affiliated with Members, to name a few. 
What all of these proposals seek to do is to limit the direct pecuniary 
exchange between lobbyists and lawmakers.
    Circulating among these provisions, however, is another 
recommendation that is oddly out of place. It has little or nothing to 
do with reducing the coziness between lobbyists and lawmakers. These 
are the so-called ``grassroots lobbying disclosure'' provisions now 
under consideration in various quarters, which require organizations 
and associations to disclose in detail their efforts to run issue-
oriented advertising aimed at fellow citizens, and in some cases, to 
identify donors.
    In proposals to disclose grassroots lobbying, we are witnessing two 
canons of political law on an apparent collision course: that 
government corruption is cured by disclosure; and that the right of 
individuals to speak and associate freely depends upon their ability to 
do so anonymously. But the conflict is a false one--a byproduct of 
fuzzy thinking--because both canons achieve the same purpose when each 
is applied to its proper context. Both protect citizens from abusive 
officeholders. Disclosure regimes for campaign contributions protect 
citizens from officeholders who have free will and can confer benefits 
on large contributors (and pain on opponents) by passing future 
legislation. Disclosure regimes for true lobbying activities, that is, 
consultants engaged in face-to-face meetings with officeholders, 
protects citizens in a similar manner.
    Regimes that protect the right to speak anonymously with fellow 
citizens about issues, even issues of official action or pending 
legislation, also protect citizens from abusive officeholders by 
reducing an officeholder's ability to visit retribution on those who 
would oppose his policy preferences. Citizens learn much about the 
relative merits of a candidate by knowing who supports him. They learn 
about the legislative process by knowing who is paying consultants to 
meet with officeholders directly. But citizens learn little about the 
relative merits of a clearly presented policy issue by knowing who 
supports it. Grassroots lobbying registration and disclosure regimes 
that would provide honest citizens and abusive officeholders alike with 
knowledge of which groups and individuals support which issues, 
including the timing and intensity of that support, impose too high a 
cost for too little benefit in a constitutional democracy.
                    the value of grassroots lobbying
    Far from being part of the current problem, grassroots lobbying is 
part of the solution to restoring the people's faith in Congress. Polls 
show that Americans are fed up with what is increasingly seen as a 
corrupt Washington way of business. Ninety percent of Americans favor 
banning lobbyists from giving members of Congress anything of value. 
Two-thirds would ban lobbyists from making campaign contributions. More 
than half favor making it illegal for lobbyists to organize 
fundraisers.\3\ Seventy six percent believe that the White House should 
provide a list of all meetings White House officials have had with 
lobbyist Jack Abramoff.\4\ But there is no evidence whatsoever that the 
public views grassroots lobbying activity as a problem.
    Indeed, even the name grassroots ``lobbying'' (as opposed to 
``activism,'' ``communication,'' or other term) is in some sense a 
misnomer. ``Grassroots lobbying'' is merely the effort to encourage 
average citizens to contact their representatives about issues of 
public concern. It is not ``lobbying'' at all, as that phrase is 
normally used outside the beltway, meaning paid, full-time advocates of 
special interests meeting in person with members of Congress away from 
the public eye. What the public wants is what Senator Feinstein and 
others have recognized--they want to break the direct links between 
lobbyists and legislators, thus enhancing the voice and influence of 
ordinary citizens. They do not want restrictions on their own efforts 
to contact members of Congress, or on the information they receive 
about Congress.
    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 Abramoff scandals. It is ordinary 
citizens expressing themselves. That they are engaged or ``stimulated'' 
to do so by ``grassroots lobbying activities'' is irrelevant. These are 
still individual citizens motivated to express themselves to members of 
Congress.
    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 naive believe it will mean the end of the 
professional, inside-the-beltway lobbyist. Thus, grassroots voices 
remain a critical counterforce to lobbying abuse. Recently one member 
of Congress expressed his concern that Jack Abramoff's Indian Tribal 
clients were used to contact Christian Coalition members, ``to stir up 
opposition to a gambling bill.'' \5\ But it cannot be denied that the 
individuals who responded to that grassroots lobbying were ordinary 
citizens who were, in fact, opposed to a gambling bill. They are 
precisely the type of people that Congress ought to hear from, rather 
than or in addition to inside-the-beltway lobbyists. Regardless of how 
they learned about the issue, they had to make the decision that the 
issue was important to them, and take the time to call Congress.
    Disclosure of the financing, planning, or timing of grassroots 
lobbying activities adds little, and will often be harmful, leading to 
exactly the type of favoritism and/or negative pressure that the public 
abhors. No member of Congress even remotely in touch with his district 
will be unaware that a sudden volume of calls coming from his or her 
district is possibly, if not probably, part of an orchestrated campaign 
to generate public support. But because the callers themselves are 
real, there is little to be gained by knowing who is funding the 
underlying information campaign that has caused these constituents to 
contact their Members. The constituent's views are what they are; the 
link between lobbyist and Congress is broken by the intercession of the 
citizen herself.
    Disclosure, however, comes with a price. The most obvious is that 
it re-establishes the link between the lobbyist and the officeholder. 
When the source behind the grassroots campaign is anonymous--either a 
donor or consultant--the opportunity for favoritism, and for 
retaliation, is gone. Mandatory disclosure reintroduces that link. It 
is true that many financiers of grassroots lobbying campaigns are happy 
to be publicly identified--for example, George Soros and Steve Bing 
make no bones about their efforts to educate the public. Unions, and 
some trade associations, such as the Health Insurance Association of 
America (HIAA) in its 1994 ads urging citizens to oppose a national 
health plan, are more often than not open about their activities. But 
others prefer anonymity, and there are many reasons for wanting 
anonymity and for providing its protection.
    To use the example of HIAA, under the national health plan proposed 
by the Clinton Administration in 1994, private insurance companies were 
to have a major role in administering the plan. But it would be a role 
achieved through a bidding process. A company donating money or 
expertise to an HIAA ad campaign against adoption of the plan might 
sincerely believe that the plan was bad for America, but be prepared to 
bid to administer the plan had it passed. And even if the plan failed, 
companies in such a highly regulated industry might wish to avoid 
retaliation from disappointed lawmakers who had supported the plan. 
Such a company might therefore prefer anonymity. Anonymity would 
protect it and its lobbyists from retaliation, favoritism and 
government pressure--precisely the result that Congress is seeking to 
achieve in lobbying reform.
    Others will have other reasons for anonymity. A prominent Democrat 
may not want to be identified as having consulted on ads urging 
citizens to support the nomination of Samuel Alito to the Supreme 
Court; a prominent Republican consultant may not want to be identified 
as being on the other side. Some donors simply don't want to have their 
donations to grassroots lobbying known so that they will not be 
approached for added donations. In each case, anonymity not only 
protects the donor or consultant, it prevents favoritism, retaliation, 
and improper pressure by government officials.\6\ As Justice Stevens 
stated for the Supreme Court in McIntyre v. Ohio Elections Commission, 
anonymous speech, ``exemplifies the purpose behind the Bill of Rights 
and of the First Amendment in particular: to protect unpopular 
individuals from retaliation--and their ideas from suppression.'' \7\
    Anonymous speech aimed at rousing grassroots opinion is a long and 
honored tradition in American politics. Alexander Hamilton, James 
Madison, and John Jay authored the Federalist Papers anonymously. Most 
of the opposition to the ratification of the Constitution was also 
published anonymously by such distinguished Americans as Richard Henry 
Lee, then New York governor George Clinton, and New York Supreme Court 
Justice Robert Yates.\8\ Other famous Americans known to have engaged 
in anonymous ``grassroots lobbying'' include Thomas Jefferson, Abraham 
Lincoln, Winfield Scott, Benjamin Rush, and New Jersey Governor William 
Livingston.\9\
      grassroots lobbying disclosure provisions are unrelated to 
                     the purpose of lobbying reform
    Grassroots lobbying disclosure proposals amend the Lobbying 
Disclosure Act of 1995 to reach any employment of paid lobbyists to 
urge the general public to contact a Federal official about an issue of 
general concern. Proposals require ``grassroots lobbying firms'' (or 
organizations that employ lobbyists) to register with the Secretary of 
the Senate or Clerk of the House of Representatives not later than 
twenty days after being retained by a client. Most proposals require 
reporting of all amounts paid for grassroots lobbying activities, or 
amounts paid to ``stimulate'' grassroots lobbying, including separate 
disclosure for all paid advertising. This typically includes monies 
spent for preparation, planning, research, and background work, as well 
as monies spent coordinating lobbying activities with other 
organizations. One approach would expose nonmembers of an organization 
who donate above a certain level--typically $10,000--as a separate 
``client'' listed on the lobbying disclosure form. Such changes would 
dangerously expand the scope of an understandable reform effort into 
uncharted and unconstitutional territory. They would drive many 
publicly spirited persons on either side of an issue--those who care 
passionately about nothing more than the proper administration of 
justice, for example, in the case of the recent Samuel J. Alito 
confirmation hearings--out into the open, and perhaps, therefore, out 
of future debates altogether. They would make seasoned lobbyists 
reluctant to assist unpopular causes or causes contrary to the current 
administration. Compelled disclosure robs such donors or consultants of 
constitutionally protected anonymity, often subjecting them to calumny, 
obloquy and possible retribution by entrenched interests fighting on 
the other side, especially when the other side is the government 
itself. This would have a chilling effect on donors to issues 
organizations on both sides of the aisle, and deprive organizations of 
the services of talented consultants who make their livings, in part, 
on Capitol Hill. Indeed, those most likely to withdraw from the field 
will often be those motivated by ideology. Those motivated by pecuniary 
gain will have an added incentive to bear the cost of disclosure and 
carry on.
    To clean up the Abramoff mess there is no reason to smoke out the 
more generous donors to groups like Progress for America or Alliance 
for Justice, or to make consultants fearful to assist those 
organizations with controversial issues. Even if those groups hired 
lobbyists for any purpose, including as consultants who know best how 
to craft a message, donations to those groups for grassroots lobbying 
do not support direct lobbyist-to-lawmaker contact--the source of 
public concern. (Nobody cares if a lobbyist flies on a corporate jet--
what they object to is his giving rides to congressmen on a corporate 
jet!). Grassroots lobbying fosters citizen-to-citizen communication, 
and later, citizen-to-lawmaker communication. The message consists of 
information for citizens, and an appeal to those citizens to take part 
in a public discussion. Some citizens will get involved because they 
agree with the message and share its concern; others because they 
disagree; and still others will not get involved at all. With even the 
most effective grassroots lobbying, however, there is always an 
intervening decision made by the citizen to get involved or not to get 
involved, and to decide on which side of the issue to get involved, to 
what degree, and in what capacity. The aggregate of those individual 
decisions is itself critically important and valuable information to 
the lawmaker.
    Lawmakers are representatives of the people. No matter how citizens 
first hear of a pending legislative issue, when they engage they are 
engaging in citizen-to-lawmaker communication; the citizens making the 
calls are not registered lobbyists. With the decision to contact 
lawmakers, from whatever side of the debate, citizens reduce the 
relative power of lobbyist-to-lawmaker communication, which is 
precisely the power shift the public wants to see, and is the shift 
most needed in an era of unlit, undisclosed earmarking and lobbying 
scandal.
   grassroots lobbying disclosure provisions may be unconstitutional
    In addition to complex policy questions surrounding society and its 
information exchange, regulation of grassroots lobbying raises 
constitutional concerns. The Supreme Court has recognized that ``there 
is practically universal agreement that a major purpose of [the First] 
Amendment was to protect the free discussion of governmental affairs.'' 
\10\ In Buckley v. Valeo, the Supreme Court held that regulation of 
political speech and association is constitutionally justified only to 
prevent corruption or the appearance of corruption in government, by 
preventing the exchange of favors that flows from an inordinate 
connection or nexus between campaign donors and lawmakers.\11\ In 
McConnell v. FEC, the Supreme Court extended the rationale to guard 
against the appearance of corruption created by ``access'' to 
politicians.\12\ Neither grassroots lobbying aimed at citizens, nor any 
ensuing contact by citizens to members of Congress, creates the reality 
or appearance of corruption. And both work to alleviate the problem of 
unequal access noted in the McConnell decision.
    Anonymous grassroots lobbying has received unwavering First 
Amendment protection from the Supreme Court.\13\ As recently as 2002, 
the Supreme Court invalidated a ``village ordinance making it a 
misdemeanor to engage in door-to-door advocacy [with fellow citizens] 
without first registering with the mayor'' as a violation of ``the 
First Amendment protection afforded to anonymous . . . discourse.'' 
\14\ And there is no doubt that retribution is real. It is not hard to 
imagine, for example, why the State might have wanted to know the names 
of all members of the NAACP 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.'' 
\15\ It is also easy to imagine the leverage Alabama could have put on 
the NAACP, and the potential damper on the civil rights movement, if 
1950s Alabama knew about the NAACP what the twenty-first century 
Congress proposes to learn about grassroots organizations. What could 
Alabama have done had it known: when the NAACP engaged in preparation, 
planning, research, or background work; when it coordinated activities 
with like minded organizations; when the organization proposed to 
engage its fellow citizens with advertising and in what quantity; or 
knew the names of the consultants that would assist them in the effort?
    Nor are these merely episodes of the past. In what many consider a 
blatant attempt at intimidation, a Texas county prosecutor recently 
subpoenaed the donor records of a group called the Free Enterprise Fund 
after it ran grassroots lobbying ads critical of his behavior in 
office.\16\ It is easy to forget when rushing to correct lobbyist 
excess, even excess covered by current law, that citizens can be 
intimidated and harassed by officials. In McIntyre v. Ohio Elections 
Commission, Margaret McIntyre, a local anti-tax activist who 
distributed fliers opposing a school levy, was warned she was not 
properly identified on them. Nonetheless, she distributed fliers at the 
Middle School, where her children faced potential retaliation from 
school officials. An assistant schools superintendent who learned 
McIntyre's identity filed a complaint with the Ohio Elections 
Commission in what one Ohio Justice characterized as ``retribution 
against McIntyre for her opposition.'' \17\ The Supreme Court of United 
States invalidated the Ohio statute, stating that ``[t]he decision to 
favor anonymity may be motivated by fear of economic or official 
retaliation, by concern about social ostracism, or merely by a desire 
to preserve as much of one's privacy as possible.'' \18\
    Requiring even the most grizzled or politically connected lobbyists 
to register and report their attempts to solicit citizens on behalf of 
an organization is also suspect. In Thomas v. Collins, the Supreme 
Court struck down a Texas statute that required labor organizers--
defined as ``any person who for . . . financial consideration solicits 
[citizens] for membership in a labor union``--to register with the 
Secretary of State, provide his name and union affiliations, and wear a 
State-issued organizer's card before soliciting membership in a labor 
union.\19\ The State claimed the statute affected only the right to 
engage in business as a paid organizer. The Court, however, held there 
was a ``restriction upon the right [of the organizer] to speak and the 
rights of the workers to hear what he had to say,'' \20\ and stated 
that it is ``in our tradition to allow the widest room for discussion, 
and the narrowest range for its restriction, particularly when this 
right is exercised in conjunction with peaceable assembly.'' \21\
    The potential for elite firms and private consultants to avoid 
unpopular causes to protect their long-range economic interests, and, 
in turn, to deprive unpopular organizations of competent representation 
is not implausible. For example, in 2004, two radio jockeys in 
Washington State (who, by the nature of radio, lacked anonymity) 
stimulated grassroots activity by advocating the repeal of a newly 
passed 9.5 cents per-gallon increase in the Washington state gasoline 
tax.\22\ The jockeys were persuasive, and partly responsible for an 
anti-tax initiative making the ballot with the fourth-highest number of 
signatures of any measure in the history of Washington State. The 
cities of Auburn, Kent, and Seattle filed suit against the radio 
jockeys and their station five months before Washington's citizens 
would decide the fate of the tax repeal. Id. The cities claimed that 
the jockeys failed to report their commentary to the State as in-kind 
contributions to the anti-tax initiative,\23\ which, had it passed, 
would have cost the State of Washington $5.5 billion.\24\ Both parties 
to the litigation are being represented for free; the cities by Foster 
Pepper PLLC, one of the largest law firms in the Pacific Northwest, 
with over 130 attorneys, and the firm handling the State of 
Washington's bond issue for the gas tax increase. The radio jockeys 
found free representation in a non-profit, public-interest law firm, 
headquartered 3000 miles from Washington State.\25\
 lobbyist abuse of non-profit organizations can be addressed in other 
                                  ways
    Jack Abramoff allegedly abused non-profit organizations to cozy up 
to lawmakers, shelter income, bankroll golf junkets, or bolster the 
bank account of his Washington restaurant.\26\ Some cite this abuse of 
outside organizations as demonstrating a need to require disclosure of 
citizen donations to issue campaigns. But Congress may prevent 
lobbyists from hiding gifts or bribes, or financing golf trips to 
Scotland in more direct ways. Congress could require disclosure by 
lobbyists, or perhaps even by non-profit organizations themselves, when 
the non-profit makes direct contact with a lawmaker, that is, when a 
non-profit organization hosts or entertains lawmakers with donations 
from or directed by lobbyists, or when the non-profit accepts gifts 
from lobbyists with instructions to lavish a portion of it on 
lawmakers. But the passing of pecuniary interests from lobbyists to 
lawmakers through non-profit organizations is not a justification for 
requiring citizens who donate to issue campaigns, or the recipient 
organizations, to disclose the amount of those donations, the timing of 
those donations, or the name and home address of the donor.
                               conclusion
    Anonymous grassroots lobbying is a long and honored tradition, 
engaged in by many of the greatest Americans, including Lincoln and 
Jefferson. The United States Supreme Court has recognized that 
anonymous grassroots lobbying is entitled to the fullest protection of 
the First Amendment.
    The problem of lobbying abuses is one of lobbyist influence outside 
the light of scrutiny. It is not a problem of citizen influence. 
Grassroots lobbying encourages citizens to get involved, and the 
involvement of citizens breaks the link between lobbyists and 
lawmakers. Hence, grassroots lobbying should be encouraged in every way 
possible, not discouraged, as a way to restore the trust of the 
American people in Congress.

    Stephen M. Hoersting is the Executive Director of the Center for 
Competitive Politics and former General Counsel to the National 
Republican Senatorial Committee.
    Bradley A. Smith, former Chairman of the Federal Election 
Commission, is Senior Advisor to the Center for Competitive Politics, 
and Professor of Law at Capital University Law School in Columbus, 
Ohio.
    The Center for Competitive Politics seeks to educate the public on 
the benefits of free competition, fairness, and dynamic participation 
in the political process.
    Nothing in this primer should be construed as advocacy for or 
against any legislation.

------------
    \1\ Tory Newmeyer, Hill Eyes a Treasure Trove, Roll Call, Feb. 13, 
2006.
    \2\ Spotlight, Politics: Earmark Debate Starting to Focus on 
Transparency, not Reduction, Environmental and Energy Daily, Feb. 9, 
2006.
    \3\ ABC News Washington Post Poll, Majorities See Widespread 
Corruption, Want Tougher Lobbying Restrictions, Jan. 9, 2006, available 
at http://abcnews.go.com/Politics/PollVault/story?id=1487942.
    \4\ ABC News Washington Post Poll, Majorities Disapprove of Bush on 
Ethics, Favor Release of Abramoff Meeting Records, Jan. 27, 2006, 
available at http://abcnews.go.com/Politics/PollVault/story?id=1547685.
    \5\ Congressional Quarterly, Transcript of Hearing, Senate 
Committee for Homeland Security and Governmental Affairs, Jan. 25, 2006 
(comments of Senator Durbin).
    \6\ See e.g. James Nash, Political Ties Costs Law Firms, Columbus 
Dispatch, Feb. 15, 2006 at B1.
    \7\ McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 
(1995).
    \8\ Id. at 343.
    \9\ Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance 
Reform 7, 18 (2001); McIntyre, 514 U.S. at 361, 363 (Thomas, J., 
concurring in the judgment.)
    \10\ Mills v. Alabama, 384 U.S. 214, 218 (1966).
    \11\ Buckley v. Valeo, 424 U.S. 1 (1976).
    \12\ McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
    \13\ See McIntyre v. Ohio Elections Commission, 514 U.S. 334 
(1995); Talley v. California, 362 U.S. 60 (1960); NAACP v. Alabama ex 
rel. Patterson, 357 U.S. 449 (1956). See also First National Bank of 
Boston v. Bellotti, 435 U.S. 765 (1978) (non-anonymous corporate speech 
on public issues protected by First Amendment).
    \14\ Watchtower Bible v. Village of Stratton, 536 U.S. 150 at 153, 
160 (2002).
    \15\ NAACP v. Alabama, supra note 13, 357 U.S. at 462 (1956).
    \16\ Robert Novak, DeLay Prosecutor Subpoenas Critics, Human Events 
Online, Dec. 16, 2005. There was no dispute that the ads were 
unconnected to any election.
    \17\ Duane St. Clair, Campaign Pamphlets Must Bear Source, Court 
Says, Columbus Dispatch, Sep. 26, 1993 at 5B.
    \18\ McIntyre, supra note 7, 514 U.S at 341-342 (1995).
    \19\ Thomas v. Collins, 323 U.S. 516, 519, n1 (1945)
    \20\ Id. at 524
    \21\ Id. at 530.
    \22\ Neil Modie, ``Gas Tax Foes Are Fighting Back,'' The Seattle 
Post-Intelligencer, p. B1 (Aug. 10, 2005).
    \23\ Id.
    \24\ Editorial, ``Gas Tax Repeal: Pennies or Projects?'' The 
Seattle Post-Intelligencer, p. C2 (July 10, 2005).
    \25\ Modie, supra note 22.
    \26\ Chuck Neubauer and Richard B. Schmitt, Abramoff's Charity 
Began at Home, Los Angeles Times, Feb. 11, 2006, at A1.

    Mr. Nadler. Thank you, Professor, and I congratulate you 
also for being under the 5-minute limit.
    Mr. Mann?

                   TESTIMONY OF THOMAS MANN, 
                   THE BROOKINGS INSTITUTION

    Mr. Mann. Thank you, Mr. Chairman.
    I wish I could say, ``Oh, shucks, I am from a town of 300 
in Ohio.'' Instead, I have to admit I am from Milwaukee, 
Wisconsin, which is much, much bigger.
    I am delighted to be with you. Thank you for inviting me.
    As the Chair said, this process of lobbying and ethics 
reform has begun with the adoption of the House rules. There is 
a bipartisan task force at work looking into the possibility of 
building in some independent capacity into the ethics process. 
Your Subcommittee is appropriately dealing with a lobbying 
disclosure act and possible amendments to it.
    I believe, like others, S. 1 is an excellent point of 
departure for you. There are many sort of, I think, excellent 
and non-controversial provisions in this bill that has passed 
the Senate. And I urge you to use it as a basis.
    But, obviously, there are two elements that are 
controversial that are included in S. 1, and one that is not, 
that is even more controversial, as the statement from the 
Ranking Member, Mr. Franks, has indicted.
    Let me just say, on the matter of, if you will, making, 
arranging or collecting political contributions, I believe Mr. 
Nadler, the Chair's statement about money is absolutely 
correct. I believe, in this case, disclosure, transparency is 
the best alternative.
    And let me say, I don't view this as nefarious lobbyists 
trying to ply you with money and to gain special advantage from 
doing so. Frankly, I think you, as Members, individuals, as 
political parties and the like, frankly, are under too much 
temptation to ask for too much help from those who have 
business before you.
    And, in some respects, the best thing about transparency 
here is that, if you think it is legitimate, if it won't 
compromise your ability to make independent decisions on what 
those lobbyists want out of Congress, even though they are 
setting up fundraisers for you and arranging other 
contributions for you, then you should have no objection to 
having that information public. I think it is perfectly 
legitimate for you to make the case that it is legitimate, but, 
then, why can't the public know about it as well?
    Second provision has to do, of course, with the revolving-
door provision. Again, we have a problem here. More and more 
Members and staff are going to work immediately for lobbying 
firms. This does not exactly set the tone that one would like. 
There is just too much of a perception of private gain from 
public service.
    There is nothing wrong with lobbying, but if we could just 
put a little breathing room in there, so that Members who are 
leaving voluntarily or are defeated, and staffers, aren't sort 
of so immediately and constantly thinking about how they will 
build their lobbying business, it would be a healthy thing.
    Ken raised appropriate points about the language, but I 
think it is all--it is doable here, and I urge you to look hard 
at that recommendation.
    The third provision, final, is the grassroots lobbying.
    Mr. Franks, if I thought any language would be passed by 
this Subcommittee and Committee and full House that had the 
effect of restricting those people you talked about, I would 
strongly oppose it. So I am with you on the statement.
    But from what I understand, we are talking about no 
individuals, no lobbying organizations. We are talking about 
lobbying firms and firms that are engaged in providing paid 
advertising to influence specific legislative provisions with a 
$100,000-a-quarter provision. It doesn't require any new 
registration or reporting by individuals and existing 
organizations, except those that are simply in the business of 
doing--the reality is we are not talking about old-style, 
grassroots lobbying.
    We are talking about a very different set of activities, 
now, that is central to lobbying in Washington. There is a lot 
of research on this. It is a reality.
    I urge you, Mr. Franks, to approach this with an open mind, 
and if language can be found that achieves that broader 
objective of massively funded lobbying campaigns by paid media 
and exempts everything else, then maybe it is a good thing.
    Thank you.
    [The prepared statement of Mr. Mann follows:]
                Prepared Statement of Thomas E. Mann \1\
---------------------------------------------------------------------------
    \1\ The views expressed in this testimony are solely my own and 
should not be ascribed to the trustees, officers, or other staff 
members of The Brookings Institution. A brief resume is attached.
---------------------------------------------------------------------------
    Mr. Chairman and other members of the Subcommittee, thank for you 
inviting me to share my views of S. 1, the bill on lobbying reform 
passed by the Senate earlier this year. The prosecution and guilty 
pleas of lobbyist Jack Abramoff, Representatives Randy ``Duke'' 
Cunningham and Bob Ney, and several former congressional staff have 
understandably brought to public attention the adequacy of laws, 
congressional rules, and enforcement mechanisms regulating the 
interactions between lobbyists and Members of Congress and their 
staffs. These scandals, ongoing investigations of others, and the 
widespread public perception of a culture of corruption in Washington 
could provide the boost required to enact long-needed changes in that 
regulatory system.
    Lobbying has changed dramatically in recent years. The number of 
registered lobbyists has tripled. Budgets for Washington representation 
and grassroots lobbying have risen exponentially. Retiring or defeated 
Members are now more likely to stay in Washington and join their ranks. 
Congressional staff routinely move from Capitol Hill to lobbying shops 
around town. Some Members have been actively involved in placing their 
staff and those of their colleagues in key positions within the 
lobbying community. Many Members enlist lobbyists to help raise 
campaign funds for their re-election campaigns, leadership PACs, 
endangered colleagues, and political party committees. The escalating 
cost of campaigns has put intense pressure on Members, even those with 
safe seats, and lobbyists to raise and contribute substantial sums of 
money. At the same time, more opportunities exist for Members and their 
leaders to deliver benefits to lobbyists and their clients. These 
include earmarks, in appropriations and authorization bills; 
invitations to participate in informal mark-up sessions in party task 
forces, standing committees, and conference committees; amendments 
added late in the legislative process under the veil of secrecy; and 
letters and calls to executive branch officials. These conditions 
foster practices that risk conflicts of interest and unethical or 
illegal behavior.
    The House began the process of ethics and lobbying reform at the 
start of the 110th Congress by enacting in H. Res. 6 a number of rules 
changes governing gifts, privately-financed travel, and earmarks. A 
bipartisan task force has been commissioned to recommend ways of 
strengthening the ethics process in the House, including some role for 
an independent panel composed of former Members and others. What 
remains to be done is the enactment of changes in law, most importantly 
the Lobbying Disclosure Act of 1995 (P.L. 104-65), enhancing the 
transparency of interactions between Members of Congress and lobbyists.
    S. 1 is an excellent point of departure for your deliberations on 
this latter responsibility. That bill, for example, very constructively 
requires quarterly, instead of semiannual, filing of lobbying 
disclosure reports, which are then made available to the public in a 
timely and useable fashion on the Internet. It also increases the 
penalties for failure to comply with lobbying laws and provides for a 
GAO audit of lobbying reports.
    One of the most important provisions of S. 1, and also one of the 
most controversial, adds new language requiring lobbyists to disclose 
contributions they make, arrange, or collect for Members, candidates, 
leadership PACs, and political parties. These provisions, contained in 
Section 212 of the Senate bill, are identical to the language of H.R. 
633, introduced by Representatives Chris Van Hollen and Marty Meehan. 
Unlike the restrictions on gifts and travel by lobbyists to Members 
already contained in the House and Senate rules, the new language 
provides for transparency, not prohibition. While federal campaign 
finance law requires candidate and political committees to disclose the 
source and size of contributions of at least $200, including those from 
lobbyists, lobbying disclosure law is silent on contributions. Yet many 
lobbyists are actively involved in political fundraising for Members 
they seek to influence. In addition to direct contributions, these 
efforts include administering leadership PACs, hosting fundraising 
events, and soliciting contributions from others (commonly known as 
``bundling'').
    I believe public disclosure of these contributions from lobbyists 
to members and their political and party committees would serve the 
broad public interest without unduly invading the privacy rights of 
lobbyists or making unreasonable reporting demands on them. The 
language is carefully crafted to allow ``good faith estimate(s)'' of 
funds raised from events or solicitations when precise figures on such 
amounts are not available. To the extent Members believe such 
contributions are legitimate forms of political participation and do 
not compromise their ability to make independent decisions on 
legislative matters of interest to the lobbyists making the 
contributions, Members ought to be willing to make them transparent. 
The inclusion or exclusion of this provision in the legislation adopted 
by the House is likely to determine the seriousness of its response to 
the scandals associated with Jack Abramoff and the K Street Project.
    Another important and, therefore, controversial provision of S. 1 
deals with the ``revolving door'' problem. Current law (18 U.S. C. 207) 
provides for a one-year cooling off period before former Members can 
lobby the legislative branch; also, former senior congressional staff 
may not lobby their former employer, whether Member or committee, for 
the same amount of time. The Senate bill extends the cooling off period 
for Members from one to two years; the comparable period for senior 
congressional staff remains one year, but the prohibition on lobbying 
activity is extended to the entire Senate. In addition, the Senate bill 
expands the lobbying activities covered during the cooling off period 
from only direct contacts to include behind-the-scenes activities, 
advice, or consultations in support of lobbying contacts.
    Make no mistake, this is a very tough provision. It would make 
former members and senior congressional staff less marketable in the 
lobbying community upon their departure from Congress and reduce their 
immediate post-Congress career options. But it would likely have a 
healthy impact on the policy process and the state of American 
democracy. The newly-defined cooling off period would encourage more 
diverse career patterns among former Members and staff, diminish the 
payoff from privileged connections and enhance the benefits of genuine 
expertise, and begin to change a culture fostering the quest for 
private gains from public service. I urge you to retain this language 
in the House bill.
    The last item I would like to raise with you is one that is absent 
from the Senate bill, after a successful floor amendment to delete it 
from the underlying bill. Grassroots lobbying campaigns now constitute 
a major part of lobbying activities. Huge sums are spent on paid media, 
computerized phone banks, direct mail, and other forms of public 
communications to stimulate lobbying of Congress by citizens. Yet 
professional grassroots (``Astroturf'') lobbying organizations and 
lobbying firms are not required to report on the sums they spend on 
these campaigns. It makes little sense to exclude these activities 
whose costs may well exceed expenditures for direct lobbying.
    The trick is to define these organizations and activities in a way 
that does not restrict the free flow of information. New requirements 
must also be crafted to avoid placing new reporting burdens on 
organizations that spend relatively small sums on grassroots lobbying 
or that are communicating with their own members or with the general 
public to recruit new members. I understand efforts to amend the 
original Senate language to reflect these concerns are well underway in 
the House. I urge you to bring these negotiations to a successful 
conclusion and include a grassroots lobbying disclosure provision in 
the House bill.
    In sum, I recommend that you look favorably on S. 1, in particular 
its provisions regarding the disclosure of political contributions 
(including bundling) and the slowing of the revolving door between 
Congress and the lobbying community. I also recommend that you include 
in the House bill a provision to require the disclosure of sums spent 
on behalf of major grassroots lobbying campaigns. When combined with 
the new House rules adopted in January and a strengthened ethics review 
and enforcement process now being considered by a bipartisan task 
force, such a lobbying reform bill would go a long way in responding to 
scandals of recent Congresses and improving the ethical climate in 
Washington.

    Mr. Nadler. Thank you very much.
    The direct testimony of the witnesses has concluded.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority in the 
Subcommittee, alternating between majority and minority, 
provided that the Member is present when his or her turn 
arrives. Members who are not present when their term begins 
will be recognized after the other Members have had the 
opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late or only 
able to be with us for a short time, especially if there is a 
competing Committee meeting at the same time.
    I will begin by recognizing myself for 5 minutes.
    Mr. Gross, you said in your testimony that the bundling 
provision, as written in S. 1, is vague and open to 
misapplication. Can you give us an example of how you think 
this might be remedied?
    Mr. Gross. I think that if you eliminate the arranged-for 
part of the definition and define collecting as those checks 
that you physically handle and perhaps those that you forward 
in coded envelopes, you will narrow the ambiguity of the 
provision and it will coincide with the FEC definitions of what 
it means to be a conduit. So I think with those changes right 
there, you would go a long way toward improving the provision.
    Mr. Nadler. Thank you.
    Let me ask--starting with Mr. Gross--then comment on the 
other members of the panel--one of the concerns we hear about 
Astroturf lobbying--that is, the provision that didn't get into 
S. 1, but there are various suggestions about Astroturf 
lobbying--is that they sweep too broadly.
    Do the members have suggestions as to how to clarify the 
definition, if necessary, between so-called legitimate--well, I 
won't say ``illegitimate,'' but when you should face a 
disclosure requirement, when you shouldn't, if at all?
    Mr. Gross first, and then----
    Mr. Gross. Well, yes, and some of those points have been 
brought out already in the testimony. I think that you 
certainly don't want to do anything that is going to affect the 
associational rights within an organization or sort of 
homegrown grassroots, if you will.
    I think with dollar thresholds, as has been proposed in the 
S. 1 and some, I think, other drafts that are going around now, 
along with a specific situation where there has been an 
engagement for hired--call it Astroturf, call it what you 
want--a hired effort to artificially stimulate the community 
with either e-mails or letter-writing campaigns, in that 
situation, I think you can at least provide a law that has 
clarity and limited application that is not going to infringe 
somebody speaking on T.V.
    Also, I think you need a specific call to action. If you 
are going to define grassroots, it should be a specific 
communication to call your congressman and vote yes on H.R. 15, 
not some vague statement that, ``I don't like the Social 
Security laws out there.''
    Mr. Nadler. But, in other words--so let me see if I 
understand one of the distinctions you are making. If the Right 
to Life Committee or Common Cause or somebody spends $100,000 
on revving up the troops to write Congress, that should not be 
disclosable.
    Mr. Gross. Right----
    Mr. Nadler. But, if the Right to Life Committee or Common 
Cause hires ABC law firm to stimulate people to write to 
Congress, that should be disclosable, if it is over a certain 
amount?
    Mr. Gross. Yes. I think that would be something that could 
perhaps withstand challenge.
    Mr. Nadler. Yes.
    Ms. Dufendach, the same questions?
    Ms. Dufendach. With the exception that if that 
communication was to increase membership for Common Cause, it 
would not be included.
    I think Congressman Meehan is actually working on a 
proposal that is far narrower than the proposal that was 
defeated in the Senate. And, in fact, we are told that no 
organization at all would ever have to disclose under the new 
proposal.
    Even in the situation of Harry and Louise, the Health 
Insurance Association would not have had to disclose. Only the 
firm that actually did the campaign would have had to 
disclosure who their client was, what the issue was----
    Mr. Nadler. In other words, the firm that was paid by 
somebody else----
    Ms. Dufendach. Yes.
    Mr. Nadler. ABC Advertising Corp. would have had to 
disclosure that the American Medical Association, let's say--I 
have no idea who did it, but the American Hospital Association, 
whoever, hired them----
    Ms. Dufendach. Health insurance.
    Mr. Nadler. Whatever--hired them to gin up local letter 
writing to Congress or whatever.
    Ms. Dufendach. Yes.
    Mr. Nadler. Thank you.
    I am sorry that Mr. Meehan is not here to explain his 
proposal.
    Does anybody else want to comment on this question?
    Mr. Smith. I would. Thank you, Mr. Chairman.
    I would just disagree that the distinction really ought to 
be made.
    Mr. Nadler. Which distinction? I am sorry.
    Mr. Smith. Well, the distinction between what should be 
disclosed or what should not, or, some would say, what is 
illegitimate or legitimate.
    And I note that you began to say that and stopped. But I 
think--because that is what we hear all the time is a lot of 
these folks do think that some of the stuff is illegitimate, 
and we get used to talking in those terms.
    It is not illegitimate. It is not illegitimate for a group 
to spend money to try to get citizens to talk. And I would 
suggest that what is wrong with Harry and Louise?
    First, everybody knew who was behind Harry and Louise. This 
was not a big secret.
    Second, what is wrong with that? American citizens watched 
their televisions and they saw something----
    Mr. Nadler. We are running out of time.
    Mr. Mann, quickly?
    Mr. Mann. Thank you.
    Mr. Nadler. Do you have a comment on this?
    Mr. Mann. Nothing is wrong. And if nothing is wrong, what 
possible objection is there to the firms, not the 
organizations, being required to report this as lobbying 
activities? It is a reality. There is nothing wrong with it. It 
is perfectly legitimate. Let's disclose.
    Mr. Nadler. Thank you, Mr. Mann.
    My time has expired.
    Mr. Franks?
    Mr. Franks. Thank you, Mr. Chairman.
    Professor Smith, I almost hate to ask you a question 
because your testimony itself was so compelling in my mind.
    But, you know, the term ``grassroots lobbying'' encompasses 
a broad array of activities, such as simply encouraging other 
people to contact their Federal officials, regardless of their 
opinion on an issue.
    And I am wondering if you think that criminal penalties for 
failure to comply that include prison and large fines would 
stifle large amounts of legitimate speech, when people just 
refrain from speaking simply to avoid an overzealous 
prosecutor?
    Mr. Smith. Well, surely the threat of penalties discourages 
people from speaking. If people think they might be subject to 
penalties if they get the law wrong, they don't want to do it.
    The question comes up, ``Well, what is wrong with requiring 
disclosure? It is just disclosure, you know? I mean, what is 
wrong with that?''
    Well, you know, you don't see the letters we get from 
people at the FEC who were fined real money for trying to 
comply with disclosure laws and making mistakes. And we have to 
think about people.
    Would it be better--I mean, there are many unpopular causes 
out there, and there are many of the groups that are capable of 
running grassroots campaigns and stimulating citizen 
involvement in Government who are reliant on their reputations 
in Congress and working in Congress.
    You know, I know, Mr. Chairman, you have expressed a lot of 
concern about the K Street Project over the years. Well, what 
is grassroots lobbying disclosure, other than a way to 
implement another K Street Project? You find out, well, who is 
paying for this? What firms? And then you can pressure those 
firms. And you say, ``We don't like your clients. We don't like 
who you are hiring as lobbyists.''
    The wonderful thing about non-disclosure is that is not a 
threat, and there is not a threat to Government, again, because 
we have that voter who is choosing to take action.
    And voters are misinformed by all kinds of things. Like I 
said, a New York Times editorial will misinform any voter, you 
know? Voters get information from all kinds of sources, from 
talk radio, from grassroots campaigns, from Websites, from 
Rotary Club speeches.
    We want to encourage voters to get involved, and they are 
your real constituents, and you need to deal with it. And will 
this kind of disclosure chill speech? Sure it will. The Supreme 
Court has recognized that in case after case.
    I will be real quick here, but Mr. Gross mentioned that he 
thought the court would uphold this kind of disclosure under 
Harris. Well, a lot of water has gone under the bridge since 
Harris, a lot of first amendment water in the last 50 years, 
including, NAACP v. Alabama, Talley v. California.
    McIntyre v. Ohio, election commission specifically 
distinguished, in holding that you couldn't require disclosure, 
noted that Harris was different because it involved the 
activities of lobbyists who have direct access to elected 
representatives. And that is an opinion by Justice Stephens, 
giving a very narrow interpretation to Harris.
    I think that if you take this present court and the way it 
has gone on disclosure, it has consistently said that only in 
the narrow context of specific candidate elections can you 
uphold it. And they have done that because they recognize, Mr. 
Franks, that, yes, it has a chilling effect on speech.
    Mr. Franks. Well, thank you, Professor.
    Mr. Gross, the Federalist Papers were essays written by 
James Madison and Alexander Hamilton. They were defending the 
ratification of the Constitution that we live under today, and 
they were written anonymously and published in newspapers under 
pen names, pseudonyms, precisely because those Founding Fathers 
wanted to cause people to think about the substance of what 
they were saying, rather than who was saying it.
    And with sincere respect, to use your words, were they 
artificially stimulating pubic opinion when they did that?
    Mr. Gross. I don't know. In that situation, probably not. 
The words ``artificially stimulating'' come from the U.S. 
Supreme Court in the Harris case. And I guess, you know, it is 
a question of definition whether this is a hired effort in the 
modern-day, sophisticated effort to influence thinking.
    I certainly would distinguish any homegrown effort, such as 
the Federalist Papers, and there is some Supreme Court support 
for anonymity for that type of distribution in the McIntyre 
case, as Professor Smith has mentioned.
    But I do think that can be distinguished from the hiring of 
outside vendors to engage in certain types of--we call it 
Astroturf, call it what you will--communications with a call to 
action with dollar thresholds in it.
    It is a challenge. It is not the easiest thing in the world 
to do, I would admit that, but I think it can be done.
    Mr. Franks. Thank you, Mr. Chairman. I think it would be 
tough for me to get another question in.
    Mr. Nadler. Well, thank you.
    The distinguished Chair of the Committee, Mr. Conyers?
    Mr. Conyers. Thank you, Chairman Nadler.
    There are so many fine lines here, but I would like to 
begin with the question about independent ethics commission, 
because, as I understand it, Common Cause thinks this is a good 
idea, and ACLU does not--two of my friendly organizations.
    Could you begin a discussion with this, Ms. Dufendach?
    Ms. Dufendach. I am unaware that the ACLU has said that, 
but I can give you an idea about why Common Cause thinks that 
it is a good idea.
    I think perhaps the best way to say this is, at this point, 
the Ethics Committee in the House has so little credibility 
that it cannot even protect the innocent. It cannot even, with 
any credibility, dismiss a complaint that is completely 
frivolous, because no one has any faith in it.
    And the thing that might be the most benefit to Members 
right now is that an independent body could, in fact, do that, 
could do it quickly, swiftly and have penalties for people who 
purposefully file a frivolous complaint.
    At this point, the Ethics Committee can't--it has been 
proven that it doesn't hold the guilty to task, and it can't 
even really protect the innocent.
    If you have a specific question about constitutionality or 
anything like that, I could go forward with that. Otherwise, I 
will stop.
    Mr. Conyers. Well, we were hoping that the Ethics Committee 
had a new slate, now that they are in a new Congress with a 
great change in their membership. We don't want to have the 
problems of the past just hang over whoever joins the Committee 
from this point on. Goodness knows we wouldn't want that to 
happen to the Judiciary Committee.
    Ms. Dufendach. If I could just comment. Frequently, people 
say that if only the right people could get put on the Ethics 
Committee, it would function. But I think over the last 30 
years, at some place--who decides who are the right people? And 
over the last three decades, it has proven that it can't. It 
either----
    Mr. Conyers. You don't think there have been any----
    Ms. Dufendach [continuing]. Too much or doesn't do enough.
    Mr. Conyers. There have been some right people.
    Ms. Dufendach. Well, I think the idea of the institutions 
of a democracy are to set up systems and functions where, no 
matter who is in control, the system will allow the democratic 
process to move forward.
    Mr. Conyers. Ken Gross, do you think this is a stretch here 
that we should try to keep an independent ethics commission or 
that it might create constitutional problems?
    Mr. Gross. It is conceivable that you could set up an 
investigative body that wouldn't abridge constitutional 
concerns.
    I am kind of lukewarm on it. I think a lot of the problems 
that the Ethics Committee has had are procedural problems that 
only one Member can file a complaint at another Member. And 
people don't like firing lines assembled in the shape of a 
circle.
    And, you know, I think if there were complaints, credible 
complaints that could come in, and the Ethics Committee is 
staffed properly, that it could be handled within that 
mechanism without creating another entity, another process, 
which will have investigative powers only, which will, then, 
ultimately, have to refer, presumably, to an ethics commission. 
So I think with modification of some of the procedures that 
were in place, we don't have to go that route.
    Mr. Conyers. Professor Smith, I wasn't clear on why you 
thought calling Astroturf--using the term ``Astroturf'' 
lobbying is something that you consider distasteful. When I 
hear the term, I am thinking of the phenomenon of groups that 
are pretending that they are grassroots groups and they are 
really not at all. They are the product of some clever 
consultant. How do you view that?
    Mr. Smith. Yes, Mr. Chairman. Let me say here is what I 
would think of in my definition as an Astroturf lobbyist: There 
is a group that is pushing for this regulation that is an 
organization called Democracy 21. It is headed by a guy named 
Fred Wertheimer.
    They have no members. Fred Wertheimer is a registered 
lobbyist. His power comes because his wife is a prominent 
journalist, and he has direct access to the editorial pages of 
The New York Times, right?
    To me, he is an Astroturf lobbyist. He purports to come in 
and speak for the American people, but he speaks for himself. 
He doesn't have any members to account to or anything. It is 
funded by a few foundations.
    When a group, even if it is a business group or something, 
goes out and contacts your voters, they are contacting people 
who are real voters. They are members of what we call the 
grassroots. And if those people choose to contact you, they are 
still grassroots real voters, who are now contacting you.
    And so I think this idea that their opinions are somehow 
false, or Astroturf, because somebody was paid to contact them 
is very wrong. And I cannot understand the philosophy would 
say, ``There is absolutely nothing wrong with this, but we need 
to regulate it.''
    Mr. Conyers. Let me ask Ms. Dufendach if she agrees with 
the Wertheimer comparison, since he came out of--didn't he 
start Common Cause?
    Ms. Dufendach. No, no, no. John Gardner started Common 
Cause.
    Mr. Conyers. Very well. Okay.
    Mr. Nadler. The gentleman's time has expired, but I will 
permit Ms. Dufendach to answer the question.
    Ms. Dufendach. I think when asked what is the problem that 
we are trying to correct here, what it is is you have got $17 
million, $20 million worth of ad campaigns going on nationwide. 
Everybody is seeing them. It does make a difference who is the 
sponsor of them. It serves to put context to what is being 
said.
    No one is saying that they can't do it. Nobody is saying 
that they don't have the right to lobby, and lobby in this way.
    All we are saying is please let us know who is behind this, 
so we can judge for ourselves what the message is or the motive 
or the objective of this particular ad campaign is.
    Common Cause is a grassroots organization. If I thought 
that this was going to imperial our talking with our Members or 
in any way doing our grassroots, I would not be so in favor of 
it.
    I will also just say that the Sierra Club was opposed to 
the Senate version of this Astroturf. They now have seen the 
very narrow new proposal that is being crafted, and they are 
for it.
    Mr. Nadler. Thank you, Ms. Dufendach.
    The gentleman from Indiana?
    Mr. Pence. Thank you, Mr. Chairman. I appreciate you 
holding this hearing and the civility with which it is being 
conducted, and the thoughtful presentations of the panel.
    With regard to the independent ethics commission, I would 
observe that it is interesting. I find your comments 
provocative, Ms. Dufendach.
    But it does seem to me that the call for an independent 
ethics commission in Congress was a call for creating something 
similar to the Independent Counsel Act that there is broad 
bipartisan opinion in Washington that that has been a disaster, 
to create kind of an extra constitutional agency of Government.
    Whitewater investigations become investigations into lying 
about sex with interns. Investigations into classified leaks 
become prosecutions over perjury before grand juries. I would 
just observe that as a cautionary note with regard to that 
comparison for your consideration.
    Let me just say, I supported bipartisan legislation in the 
House in January for greater disclosure. I commend the majority 
for their leadership on ethics and earmarks. And so, to Mr. 
Mann's point, I am open to new ideas about how we create 
greater transparency and greater accountability.
    I am just really struggling with this grassroots provision, 
to be candid, and that has to do with my concern about the 
chilling effect.
    And I guess I would like to direct my questions, maybe 
first to Mr. Mann, and to the extent that--the panel, Mr. 
Gross, and Mr. Smith in particular.
    My question is, it seems to me that what has been talked 
about here--the dollar threshold or the rest--all of this 
activates, if, in fact--not if grassroots lobbying goes on to 
generate context to Congress, but if someone is hired to help 
do that.
    It does seem to me that I am perfectly free, if I was a 
private citizen, to go out and encourage people to write my 
congressman. But I get into a whole range of disclosures if I 
hire somebody who actually knows how to do that. So as long as 
I am kind of learning on my own how to do it and encouraging 
people, as opposed to hiring someone who professionally knows 
how to do it, that I am okay, under some of what has been 
discussed.
    And I hold the view Common Cause is a storied organization. 
Might be startled to know when I first ran for Congress 15 
years ago, I refused PAC money. I was the first Republican to 
do that. I have gotten over that. But Common Cause was harshly 
critical of me, even though I was advocating something they 
promoted at the time. But that was okay. My veteran father 
said, ``I can disagree with everything you say. But I will 
fight to the death for your right to say it.''
    So my question to the panel is is there any concern about a 
chilling effect? Would this encourage or discourage a diversity 
of views being expressed to Congress by the American people, if 
we essentially create a new hurdle, when people who are good at 
what they do, who are professional at what they do are engaged 
in assisting?
    I am beginning with you, Mr. Mann.
    Mr. Mann. Mr. Pence, I think that is very well-stated. I 
mean, that is the issue. And the key here is in adding any new 
disclosure provision that you don't have that chilling effect, 
that you don't discourage speech.
    My personal view is the more speech the better. That is why 
I am not in a related area, campaign finance. I am not in the 
business of eliminating money, reducing money. But I do 
believe, in the old days, if you will, one segment of the 
reform community said, ``Let's deregulate and disclose.'' Now, 
they are moving to deregulate and don't disclose.
    My view in this area is that you need to craft this 
provision in which no individual who hires professional help is 
going to have any reporting requirements at all. That is, you 
have to set this up so that what you are getting at is major or 
major paid communication campaigns to influence the general 
public to lobby Congress on a particular piece of legislation. 
And the only reporting requirement is from the firm that is 
taking in, say, $100,000 a quarter or more from a particular 
client.
    If you set the limits in that way, you are not going to 
touch any of the legitimate areas of concern that Mr. Franks 
and that Professor Smith have discussed, in my view.
    Mr. Nadler. Time has expired, but I see Mr. Gross----
    Mr. Pence. Thank you, Chairman.
    Mr. Gross. I don't think it is that far of a leap from what 
we are already requiring for direct lobbyists, that type of 
disclosure. And 31 States, based on the last survey that I did 
of States, actually has some form of grassroots disclosure 
right now.
    Mr. Nadler. Thank you. Does anybody else want to comment on 
that particular point?
    If not, the gentleman from Alabama?
    Mr. Davis. Thank you, Mr. Chairman.
    I know one of the purposes of this hearing is not so much 
to wade into the details of the legislation, but with four of 
you to talk about some of the theoretical underpinnings.
    Let me make two observations.
    I certainly take the concerns of my friend from Indiana, 
and I take the concerns, I take it, Professor Smith, that you 
have raised, but I don't understand the constitutional 
argument. I don't understand the argument that there is somehow 
a constitutional impediment on speech if we curtail lobbying 
activity in terms of more disclosures, in terms of more 
information being provided to the general public, for a very 
simple reason.
    The class of people or the class of entities who choose to 
lobby Congress or who choose to lobby Federal agencies is a 
self-selected group of folks. They decide to engage in a 
particular calling, that of lobbying. It is their right to do 
that.
    But it seems to me that the institution that is being the 
subject or the target of that speech, if you will, can put 
certain reasonable restrictions on time, place, or manner, can 
put certain reasonable restrictions on how that speech is 
received, how it is parceled out, and how it is disclosed. And 
without boring everybody here with 100 hypotheticals, that is a 
fairly bed-of-rock constitutional principle.
    So I don't understand the force of the argument that 
somehow we are curtailing the ability of individuals to engage 
in speech, because we limit how and when they can do it and who 
they have to tell about it.
    The second point that I want to make, again, going back to 
the broad atmospherics here. It is important. The status quo 
that we have is under attack. I agree with that. And there is a 
good reason it is under attack.
    Right now, I don't think anybody in this room disputes the 
obvious. Certain entities and certain individuals have more 
sway over this institution than others, and it is almost always 
a matter of resources and ability to mobilize. And, by the way, 
last time I checked, ability to mobilize is tied, first and 
foremost, to resources.
    All of us who have set in this institution the last several 
years have seen riders added to appropriation bills. We have 
seen votes on suspensions.
    Number one, several years ago, we were having a vote on 
something fairly innocuous involving whether foreign companies 
could sell parts to China that they could use as part of their 
missile program. And the thing was about to pass 
overwhelmingly, and Boeing discovered that it might somehow 
restrict some of their sales in some way, shape or form. And 
130 Members of the House went down to the well to change their 
vote on a suspension bill.
    Now, whether that was a meritorious decision or not, I 
don't think anybody can cite an example of a bill being on the 
floor and 130 Members going down to change their vote, because 
they discovered, all of a sudden, maybe this cuts the S-CHIP 
program more than we would like, or, ``Gee, maybe this affects 
funding for Medicaid in my State.'' I have never seen 130 
Members change their vote over that kind of thing.
    There is a reason for that world. There is a concentration 
of power and resources on one side.
    So I agree with some of the observations that have been 
made that some of this bill may sweep a little bit further than 
necessary. But there, frankly, may be a good reason that we 
have to do that, because the system now is so weighted and so 
imbalanced in one particular direction. So we may have to err 
on the side of regulation and disclosure to correct that 
imbalance.
    Any responses to any of those observations?
    Mr. Smith. As the one who has made the constitutional 
argument here on the panel, I guess I feel it is appropriate to 
respond, Mr. Davis.
    I would go back to the question of what is the harm that 
you are attempting to address? Where is the harm in citizens 
hearing about issues, even if it is from a paid campaign? Why 
is that harmful to them?
    Now, the only thing I have heard from harm is Ms. 
Dufendach, who has said several times, ``Well, we just have to 
know.''
    Mr. Mann keeps saying we have to know, but he doesn't even 
say why.
    Ms. Dufendach says, ``Because, otherwise, we can't judge 
the
----''
    Mr. Davis. Isn't the harm the imbalance, Professor Smith?
    Mr. Smith. Well, but here is where I want to get directly 
into your question, the imbalance is not something--the Supreme 
Court has rejected the notion that you can regulate speech of 
citizens in order to try to create equality.
    Furthermore, in Buckley v. Valeo, the Supreme Court 
rejected the notion that restrictions on money spending for 
speech can be viewed as time, place and manner restrictions, 
because they are aimed directly at the speech, not at the time, 
place and manner.
    And the court has consistently upheld the right of citizens 
to engage in anonymous speech. It has recognized only one 
constitutionally justifiable reason, and that is preventing 
quid pro quo corruption, and that corruption is not present 
where you are being contacted by voters----
    Mr. Davis. Hasn't the court said recently, in the Missouri 
case a few years ago, that the appearance of quid pro quo is 
also a constitutionally recognizable----
    Mr. Smith. Certainly, the appearance--yes, that is correct.
    Mr. Davis. And isn't all of this consistent with that 
Missouri ruling? Isn't it all aimed at appearance?
    Mr. Smith. I would say absolutely not because it still has 
to be the appearance of quid pro quo corruption. And, like I 
say, the one thing I don't----
    Mr. Davis. Wasn't that interpreted broadly in the Missouri 
case? That case dealt with campaign contribution.
    Mr. Smith. Well, but that is campaign contributions 
directly to candidates. And the view was that even though you 
were probably not corrupted when somebody gave you a $1,000 
contribution----
    Mr. Davis. Right.
    Mr. Smith [continuing]. Somebody might think you were.
    Mr. Davis. Right.
    Mr. Smith. But it dealt with specifically with 
contributions to your campaign.
    Mr. Davis. Doesn't the logic extend past contributions?
    Mr. Smith. No, it does not, because, in that case, you have 
a citizen who contacts your office. Are you corrupted when one 
of your constituents contacts your office? I don't believe you 
are.
    Mr. Nadler. The gentleman's time has expired.
    The gentleman from California?
    Mr. Issa. Thank you, Mr. Chairman.
    Professor Smith, I do want to follow up a little bit.
    First of all, my understanding is the Supreme Court held 
that privacy was a right. You know, we often argue over 
abortion up here on the dais, but isn't--just go through, sort 
of, an analysis.
    Isn't your ability to have a private vote, to go into a 
voting booth, although it is not as explicitly said in the 
Constitution, isn't there a general belief that you should have 
the privacy of the voting booth, that no one should know how 
you voted?
    Mr. Smith. Well, I think at least most people would agree 
with that, yes.
    Mr. Issa. Okay. Isn't it, every single place in the United 
States, if you vote for one of us up on the dais, you vote 
privately, that it is not open to the public in any way, shape 
or form?
    Mr. Smith. I believe that is true.
    Mr. Issa. Other than the tally. Okay. Well, following 
through on this, if, in fact, you have a private right of 
communication, then that private right of communication is 
abridged by this reporting.
    And we are talking about you didn't give a contribution. We 
already regulate contributions, but just the ability to 
communicate privately is abridged, by definition, if we tax it 
with these procedures.
    Mr. Smith. I think that is correct.
    Mr. Issa. Okay. Following the same line, though, we 
overtly, as a country, decided that poll taxes were wrong, 
didn't we?
    Mr. Smith. Yes.
    Mr. Issa. And that is a tax on or fee on executing your 
constitutional right, right?
    Mr. Smith. Correct.
    Mr. Issa. So if an individual or group of individuals want 
to exercise their constitutional right related to voting, we 
have asserted, constitutionally and through numerous court 
action, that you have a right to do these rights privately, and 
that you are not to be taxed or charged a fee unduly on them.
    SMITH; Well, I think that is correct. And I think it goes 
as well to the chilling effect that has been brought up by Mr. 
Pence and by the Ranking Member and that has been recognized by 
the court repeatedly.
    There is a chilling effect. The court has recognized it 
over and over. And I go back to it doesn't really matter why. 
As Justice Stephens said in McIntyre, he said, ``The decision 
to favor anonymity may be motivated by fear of economic or 
official retaliation, by concern about ostracism or merely by a 
desire to preserve as much of one's privacy as possible.'' I 
think that is exactly right.
    Mr. Issa. Now, I am a Californian, and there is a kind of 
an interesting thing in California. When you go to vote in 
California, we can't ask you for a driver's license or other 
proof of who you are. Did you know that?
    Mr. Smith. I was not specifically aware, I guess, of where 
we stood in California.
    Mr. Issa. Well, it is something that I have long wanted to 
change. This Committee has worked on trying to get reforms that 
would require that if you want to vote, you prove you have a 
right to vote. And the folks that are not presently on the 
other side of the aisle, but when they are present on the other 
side of the aisle, have pushed back on that. And one of the 
reasons is because that if we had the audacity to demand that 
you prove you have a right to vote that we would be pushing you 
away from the voting booth.
    Isn't reporting by grassroot groups, both a tax and an 
elimination of anonymity? And wouldn't it, at a minimum, have--
and I think you have already quoted once--a potential chilling 
effect? And isn't that what we are dealing with here today is 
that that--that potential exists every bit as much in this 
legislation as it exists in polling-place observation, polling-
place--if you put the Border Patrol at all the voting places in 
California, et cetera?
    Mr. Smith. If you make it hard for people to hire skilled 
consultants, because those consultants are afraid they are 
representing an unpopular cause, and they rely on the good will 
of folks here in Washington, it very definitely has that 
effect.
    And to elaborate briefly, you mentioned the tax thing, the 
cost of reporting can be very considerable. Many organizations, 
not big ones, spend $50,000, $60,000 a year or more----
    Mr. Issa. And last but not least, isn't the most 
influential group probably in the United States right now 
MoveOn.org, a 527, backed by hundreds of millions of dollars by 
just one person who wants to have huge influence, who does so--
or at least they are on the top 10?
    Mr. Smith. I will leave it as your characterization. They 
have been a very influential group and were started----
    Mr. Issa. Right.
    And last but not least, this legislation, wouldn't it also 
impact groups like EMILY's List? Because this, in fact, talks 
about bundling. If we are going to get into bundling, then 
wouldn't we envision that EMILY's List would be restricted to 
one contribution and not dozens and dozens only given to pro-
abortion Democrat women?
    Mr. Smith. Well, I don't know exactly enough of how EMILY's 
List works, but bundling can affect a lot of people. And it 
points up that this is not, as some have tried to make it, sort 
of a partisan issue. You have got the ACLU and a wide variety 
of groups on both sides of the spectrum are concerned about 
this.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Nadler. We have no more Democratic Members who wish to 
ask questions, so that the Ranking Member's fears were 
misplaced.
    We will be able, with one more Republican asking questions, 
to finish in time to get to the vote. So I recognize the 
gentleman from Ohio.
    Mr. Jordan. I appreciate there seems to be consensus 
developing on the definitions and the vagueness there, at least 
I heard from a couple of the panel. Appreciate that. And it 
certainly seems to be something that the Committee can work on.
    I want to just go back to the principle that--relative to 
the grassroots lobbying issue that Professor Smith has brought 
out, just this fundamental idea that citizens contact their 
Government and why that is a good thing.
    I mean, my guess is all the members of the panel and 
probably every Member of Congress is like our office. I have 
just been in office 2 months, but one of the things we take 
great pride in is how we respond back to the constituents who 
get a hold of us. So I actually do something each evening, 
because I can't get home to my family. We are here all week, 
and family is back in Ohio.
    I take 10 or 12 people who have contacted our office that 
day and call them back. And it is amazing how many times that--
you know, the first one, I say, ``This is Congressman Jordan 
calling,'' that they will say, ``Really?'' I mean, it is just 
amazing that they are talking to--you know--the guy that they 
may have voted for, but who at least represents them.
    So I guess I come back to this concept. Professor Smith has 
probably said it best. What is wrong with some organization, 
some entity motivating citizens to contact their 
representative?
    And to call it Astroturf, to call it artificial, to call it 
illegitimate doesn't make sense. It seems that is a good thing.
    In fact, I think the Chair, if I wrote his statement down 
correctly in his--or in his opening statement, talked about a 
private citizen without a PAC should get as much attention as a 
lobbyist with one. And this would seem to help that citizen 
have a better chance of talking to their representative, the 
representative responding back to them.
    So, again, just walk me through--and we have had--I looked 
at the testimony. I think Mr. Gross had talked about the 
concerns over the now-deleted provisions have been generally 
overstated. We have got that kind of general statement versus 
what Mr. Smith has said, that it is a chilling effect, that it 
is unconstitutional, that it is a terrible concept to pursue.
    Just elaborate a little bit more, if you could.
    Mr. Gross. Well, I think the road we are going down here is 
that there is something unholy or improper about a hired gun in 
a lobbying process, or at least there is some chilling effect 
if you hire somebody to lobby. And, now, we are even talking 
about maybe direct lobbying.
    You know, all we are talking about here is disclosure. It 
is true that disclosure--I mean, you have the right to address 
your Government. It is a first amendment-protected right. The 
disclosure of that, whether it is direct lobbying or indirect 
lobbying, is a minimal intrusion on that right.
    So the question is is it a justifiable intrusion? And--go 
ahead.
    Mr. Jordan. Right. It certainly is. I mean, I think about 
our campaign account. We have a lawyer, who is a CPA, who is--
He asks me--I mean, down the line--and it is still tough to get 
everything right to comply with campaign finance.
    Now, we are talking about the influence it is going to have 
on citizens or groups who may spend whatever the threshold 
amount winds up being. That certainly is a chilling effect.
    Mr. Gross. There is----
    Mr. Jordan [continuing]. For someone who hires, we hire a 
good person to do our stuff, because we want to get it right.
    Mr. Gross. And even requiring direct lobbying, which no 
one, I think, is disputing, the disclosure of direct lobbying 
is an intrusion as well. If you go out and hire a lobby firm 
and you gotta keep track of this and report it on your LDA form 
every quarter, there is an intrusion there as well.
    The court has said if there are large amounts of money 
spent to influence the process--campaign finance is one thing. 
That you can actually limit. But if it is a large amount of 
money to influence the process, and it is not interfering with 
associational rights, that that disclosure of the dollars spent 
on that is a minimal intrusion against the possible corrosive 
effect that undue amounts of money can have on the process, 
whether it is direct or indirect. That is the constitutional 
underpinning for the disclosure of any of this, which is an 
infringement. No question about it.
    I don't know how else to address it, except that I think if 
you narrowly draw that extension, just by hiring, just by 
requiring disclosure of a hired gun in certain situations is 
not an overwhelming, chilling effect for direct or indirect 
lobbying.
    Mr. Smith. Mr. Jordan, if I could briefly comment----
    Mr. Gross. In fact, it is----
    Mr. Smith [continuing]. I would say that one of the things 
that has been overlooked, too, is there is an effort to do this 
through members, and say, ``Well, we will exempt membership 
organizations.''
    In addition to the Chair's comment, why should you be 
limited if you don't have a PAC, why, if you haven't had the 
foresight to form a big membership organization 10 years in the 
past, should you now be limited in your ability----
    Mr. Jordan. Right. Good point.
    Mr. Smith [continuing]. To speak to the American people.
    Mr. Mann. The court has upheld disclosure in campaign 
finance. The Lobbying Disclosure Act is not, as far as I know, 
under challenge. Constitutionally, this is a fairly minor 
addition to it. All of the disclosure responsibility is not 
with individuals----
    Mr. Nadler. Thank you. Thank you.
    Mr. Mann [continuing]. With others.
    Mr. Nadler. Thank you.
    The gentleman's time has expired.
    We have less than 5 minutes on a vote.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as you can, so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    Without objection, I thank the Members of the panel. I 
thank the witnesses. I thank the Members of the Committee.
    With that, the hearing is adjourned.
    [Whereupon, at 11:37 a.m., the Subcommittee was adjourned.]


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