Astroturf and Sunlight

Jacob Sullum
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Posted: Aug 19, 2009 12:01 AM

Two years ago, the Senate rejected an attempt to regulate "astroturf," professional political agitation aimed at stimulating (or simulating) grassroots activity. Recently, that measure's supporters have been saying, "I told you so," citing the debate over who is behind boisterous criticism of President Obama's health care agenda at congressional town hall meetings.

But if the problem is that special interests with deep pockets tend to dominate public policy debates, stricter limits on political speech will only make things worse. The pros are in a much better position to comply with complicated, demanding registration and reporting requirements, which expose ordinary citizens to legal risk and discourage them from speaking their minds.

Last week Public Citizen lobbyist Craig Holman, whose group supported the astroturf provision rejected by the Senate in 2007, complained to The Hill that the lack of disclosure about business groups' instigation of protests against health care reform makes it hard to know what's really going on. "This goes below the radar," he said. "We don't know who is behind it or who pays for it. We don't know how much of it is happening."

The difficulty is that Holman's right to know conflicts with other people's constitutional right to speak.

The regulations he favored would have required "grassroots lobbying firms" to register with the government and file quarterly reports on their activities. But the definition of such firms was broad enough to cover advocacy groups such as the National Rifle Association, the National Right to Life Committee and the American Civil Liberties Union.

The ACLU warned that the measure "imposes onerous reporting requirements that will chill constitutionally protected activity." It said a wide range of advocacy organizations, including "small, state grassroots organizations with no lobbying presence in Washington," "would now find their communications to the general public about policy matters redefined as lobbying." Since "failure to register and report could have severe civil and potentially criminal sanctions," the ACLU said, some groups "may well decide that silence is the best option."

A 2007 Institute for Justice study highlights the potential chilling effect of public disclosure requirements. Economist Jeffrey Milyo asked 255 college-educated subjects to fill out the paperwork required by three states (Colorado, California and Missouri) for groups that support or oppose ballot initiatives.

The subjects, who were paid for participating and received bonuses based on their performance, were given the official instructions and told to complete income and spending reports for a small group with a shoestring budget that supported an initiative raising the minimum wage. Although the scenario was straightforward, not a single subject properly complied with the relevant law -- their average score was 41 percent.

"In the real world," Milyo noted, "all 255 participants could be subject to legal penalties, including fines and litigation." Nine out of 10 subjects agreed that "red tape and the specter of legal penalties would deter citizens from engaging in political activity."

Before the experiment, the vast majority of Milyo's subjects did not even realize they had to register and file reports if they wanted to join with a few like-minded neighbors and take a stand on a ballot initiative. Neither did the residents of Park North, Colo., who in 2006 opposed their neighborhood's annexation by a nearby town. They found out after supporters of annexation sued them for neglecting to register as an "issue committee" and failing to report the money they had spent on lawn signs and flyers. A Colorado think tank, the Independence Institute, was hit by a similar lawsuit after it ran radio ads that criticized two 2005 tax referenda.

The benefits of regulations aimed at exposing astroturf are uncertain. After all, an argument against a particular public policy proposal, no matter who pays for it or what their motivation might be, is successful only if it persuades people. But there is a clear downside to mandatory disclosure: Because reporting requirements are burdensome and intimidating, efforts to make political speech more "transparent" can also make it inaudible.