From mwhart@earth Sat Oct 22 17:39:20 1994 Received: (from mwhart@localhost) by earth.execpc.com (8.6.9/8.6.9) id RAA06623; Sat, 22 Oct 1994 17:34:50 -0500 Date: Sat, 22 Oct 1994 17:34:50 -0500 From: Michael Hart Message-Id: <199410222234.RAA06623@earth.execpc.com> X-within-URL: gopher://ftp.senate.gov/00/committee/Repub-Policy/releases/grassroots To: mwhart@execpc.com Subject: grassroots Content-Type: text Content-Length: 16317 U.S. SENATE REPUBLICAN POLICY COMMITTEE Washington, DC 20510 Senator Don Nickles, Chairman Kelly Johnston, Staff Director POLICY ANALYSIS.................October 5, 1994 CONFERENCE REPORT LIKELY REQUIRES DISCLOSURE OF GRASSROOTS CONTRIBUTORS EXECUTIVE SUMMARY Concerns have been raised that paragraph 105(b)(5) of the conference report on S. 349 will require organizations employing lobbyists to disclose to the Federal Government their membership and/or contributor lists. Proponents of the conference report, led by Senator Carl Levin, say the concerns are unfounded, and he cites a provision which was added on the Senate Floor. Senator Levin claims that the Senate provision "would require only that if a lobbyist's bills are paid by someone other than a client, the identity of the person who pays the bills would have to be disclosed." He also says that a "broad requirement to disclose all coalition members would have serious first amendment implications." However, the Conference Committee changed the language that passed the Senate. The relevant Senate-passed language was limited to lobbying firms, but the conference amended it to include "any person other than the client who paid the registrant to lobby on behalf of the client." Background details on these changes are contained in this Policy Analysis. This analysis, by an RPC staff member, concludes that those who believe that paragraph 105(b)(5) contains a threat of grassroots registration have a valid point and a strong claim to the better interpretation. A floor statement by a bill's manager, or a colloquy between Members, with respect to congressional intent may or may not be accepted by a court. Senators should expect the courts to look primarily to the text itself, and not to the stated intentions of the managers. THE DEBATE OVER PARAGRAPH 105(B)(5) The conference report on the Lobby Reform Act (S. 349) soon will be on the Senate floor. It passed the House on September 29, after narrowly surviving a vote on the rule and a motion to recommit. House Republicans raised doubts about the conference report, and many of those doubts have reappeared in the Senate. One of the more important is that raised by paragraph 105(b)(5). Opponents of the conference report say that paragraph 105(b)(5) will require organizations that have lobbyists to report to the Federal Government the name, address, and principal place of business of individuals who contribute money to the organization. They say that paragraph 105(b)(5)'s registration requirement is obnoxious and unconstitutional. Defenders of the bill reply that paragraph 105(b)(5) does not require such registration. After reviewing the text and background of paragraph 105(b)(5) and the claims of leading spokesmen for both points of view, an analysis by a member of the staff of the Republican Policy Committee has concluded that those who believe that paragraph 105(b)(5) contains a threat of grassroots registration have a valid point and a strong claim to the better interpretation. Those who discount the threat of grassroots registration tend to focus on the intentions of the drafters rather than on the actual text of the Act, and they do indeed have a stronger claim when they appeal to intentions rather than to text. We expect the courts to look primarily to the text, however, and not primarily to the intentions of the legislators, although courts will sometimes look outside the text. When courts look outside of the statute itself they prefer to appeal to the reports of the legislative committees. Other supplementary materials carry less weight. For paragraph 105(b)(5), there are no reports from legislative committees because the paragraph was written in conference. (Paragraph 105(b)(5) is based on an initiative that was added on the Senate Floor so that even the underlying idea is not explained in a committee report.) If committee reports are not available, courts will sometimes use other extrinsic sources. For example, a statement by a bill's manager will sometimes be used, but such statements are suspect because they may or may not represent the views of the legislature. A manager surely speaks for himself, but no one can know if he speaks for a majority of the body. PARAGRAPH 105(B)(5) ITSELF Section 104 of the Act requires lobbyists to register with the Office of Lobbying Registration and Public Disclosure, a new office within the Executive Branch. Subsection 105(a) requires lobbyists to file semiannual reports on their lobbying activities. Subsection 105(b) specifies that those reports will contain names of lobbyists and clients, a list of lobbying activities, estimates of income and expenses, and the information required by paragraph (5), which is reprinted below. Note that Congress specifies the basic, required information, but the director of the Office of Lobbying Registration is to specify by regulation the form of the report. "(b) CONTENTS OF REPORT.-- Each semiannual report filed under subsection (a) shall be in such form as the Director shall prescribe by regulation and shall contain-- "* * * "(5) the name, address, and principal place of business of any person or entity other than the client who paid the registrant to lobby on behalf of the client[.]" Subsec. 105(b), H. Rept. No. 103-750 at 10 (conf. rept. to accompany S. 349, ordered printed Sept. 26, 1994). THE ARGUMENT AGAINST PARAGRAPH 105(B)(5) Opponents of S. 349 say the meaning of paragraph 105(b)(5) is clear, namely that the required report must contain the name, address, and business address of every person other than the client who gives an organization money that is used to lobby for the client. When the lobbyist and the client are the same organization, the act would work as illustrated in the following hypothetical example: Americans for a Better Country (ABC, Inc.) has organized to lobby Congress and the Executive Branch for various changes in Federal law and policy. The group has employees who work as lobbyists. Therefore, ABC, Inc. is both the client and the lobbyist. (This understanding is reinforced by the act itself which provides in paragraph 103(2) that, "A person or entity whose employees act as lobbyists on its own behalf is both a client and an employer of such employees.") When "the grassroots" send checks to support ABC's lobbying work, those citizens are, in the words of paragraph 5, "pa[ying] the registrant to lobby on behalf of the client." The grassroots citizens are third-party supporters of the lobbying activities of ABC, and they must be reported to the Federal Government. THE DEFENSE OF PARAGRAPH 105(B)(5) Senator Levin is the majority manager of S. 349. Last week, he went to the Senate Floor and denied that paragraph 105(b)(5) will require small contributors to be registered. Senator Levin said: "[A] suggestion has been made that section 105(b)(5) would require organizations employing lobbyists to disclose their membership lists. This is untrue. This provision, which was added on the Senate Floor, requires paid professional lobbyists to disclose the name of any person or entity other than the client who paid the registrant to lobby on behalf of the client. I explained when this provision was adopted by the Senate that it would require only that if a lobbyist's bills are paid by someone other than a client, the identity of the person who pays the bills would have to be disclosed. And I refer to the Congressional Record of May 5, 1993, page S 5492. "Indeed, the Senate report on the bill specifically states that `the Committee believes that a broad requirement to disclose all coalition members would have serious first amendment implications.' And there I refer to the Senate Report 103-37, page 31. The conference amendment contains the same provisions as the Senate bill in this regard." 140 Cong. Rec. S 13831-32 (daily ed. Sept. 30, 1994). Senator Levin has restated his defense in a "Dear Colleague" letter of October 5, 1994. IS THE DEFENSE PERSUASIVE? Senator Levin's defense appears slightly off base. He defends paragraph 105(b)(5) on the basis of the Senate provision, but the Senate provision was limited to "lobbying firms," i.e. lobbyists who lobby on behalf of others. The Joint Explanatory Statement of the conferees, which Senator Levin signed, makes this clear. That statement said: "Section 105(b) [of the conference report]: Contents of Reports. Section 5(b) of the Senate bill would require that each lobbying report contain * * * (5) In the case of a lobbying firm, the name, address and principal place of business of any person other than the client who paid the registrant to lobby on behalf of the client. "* * * "[T]he conference amendment would adopt the Senate language with a clarifying amendment. Under the conference amendment, all registrants (regardless whether they are lobbying firms or use in-house lobbyists) would be required to identify any person other than the client who paid the registrant to lobby on behalf of the client." H. Rept. 103-750 at 52-53 (emphasis added). A review of the original Senate bill, whose terms are set out in the footnote below, confirms that the conference report is correct and Senator Levin is incorrect.[1] --------------------------- FOOTNOTE: [1] Subsection 5(b) of the Senate bill reads, "(b) CONTENTS OF REPORT.-- Each semiannual report filed under this section shall be in such form as the Director shall prescribe by regulation and shall contain * * * (5) in the case of a registrant described under paragraph (3), the name, address, and principal place of business of any person other than the client who paid the registrant to lobby on behalf of the client." 139 Cong. Rec. S. 5581 (daily ed. May 6, 1993) (para. 5(b)(5) of S. 349 as passed by the Senate) (emphasis added). Paragraph (3) which is cited in paragraph (5) says, "in the case of a registrant lobbying on behalf of a client other than the registrant, a good faith estimate of the total amount of all income from the client (including any payments to the registrant by any other person to lobby on behalf of the client) during the semiannual period, other than income for matters that are unrelated to lobbying activities[.]" Id. Senator Levin's remarks on the Senate Floor in 1993 do not seem helpful -- even after keeping in mind that they were not made about the language of the conference report. He said: "[T]his amendment would tighten certain provisions of the bill and ensure that lobbyists cannot evade disclosure. First, if a lobbyist's bills are paid by somebody other than a client, the identity of the person who pays the bills would have to be disclosed under this amendment." 139 Cong. Rec. S 5492 (daily ed. May 5, 1993).] END FOOTNOTE ----------------------------- Paragraph 105(b)(5) of the conference report is indeed based on the Senate provision, but the current text of paragraph 105(b)(5) was not "added on the Senate floor," as Senator Levin says. It was written by the conferees. The relevant provision of the Senate bill was limited to lobbying firms, and a reference to the Senate provision cannot answer the questions raised by the opponents of the conference report. Senator Levin's reference to the Senate committee report (No. 103-37) is fascinating, but of course a committee report cannot explain amendments that are written and adopted after the report is filed. Since paragraph 105(b)(5) was written by the conferees in September 1994, it is not surprising that the Senate report which was written a year and one-half earlier cannot be useful with any particularity. The Senate report is, however, educational. As Senator Levin said in his recent statement, the committee report did indeed question the constitutionality of a broad disclosure requirement. The report said: "[T]he Committee believes that a broad requirement to disclose all coalition members would have serious first amendment implications. Several Supreme Court decisions establish that such a requirement may unconstitutionally infringe upon the first amendment right of free association, particularly in cases where such disclosure could lead to reprisal or harassment against the members of an organization." S. Rept. No. 103-37 at 31 (1993) (footnote citing NAACP v. Alabama, 357 U.S. 449 (1958), omitted). As explained, the Senate report cannot tell us what paragraph 105(b)(5) means; it can, however, help us see that if the paragraph means what its opponents say it means then it probably is unconstitutional. Opponents of S. 349 say that paragraph 105(b)(5) requires grassroots registration, which is harmful and unconstitutional. Senator Levin seems to be saying that the paragraph does not mean grassroots registration because if it did, that would be unconstitutional and possibly harmful, and the conferees would not have intended such a result. It is possible, of course, for a statute to achieve a result which its sponsors say was not intended. CONCLUSION The conferees changed the Senate bill. Their Joint Explanatory Statement explains what they did. The words in paragraph 105(b)(5) of the conference report are not the words of the Senate-passed bill, and that change in wording must be presumed to imply a change in meaning. If words still have meaning, the words of paragraph 105(b)(5) mean something different and something broader than the words of the Senate bill. Paragraph 105(b)(5) of the conference report is in the left column, below. The relevant text from the Senate bill is in the right column, below. Will any reader say that these two texts have the same meaning? Subsec. 105(b) of the conference report "Each semiannual report filed under subsection (a) shall be in such form as the Director shall prescribe by regulation and shall contain * * * (5) the name, address, and principal place of business of any person or entity other than the client who paid the registrant to lobby on behalf of the client[.]" Subsec. 5(b) of the Senate-passed bill "Each semiannual report filed under this section shall be in such form as the Director shall prescribe by regulation and shall contain * * * (5) in the case of a registrant described under paragraph (3) [i.e., "a registrant lobbying on behalf of a client other than the registrant"], the name, address, and principal place of business of any person other than the client who paid the registrant to lobby on behalf of the client." When S. 349 was in the Senate Governmental Affairs Committee and on the Senate Floor, the managers were sensitive to questions about the wisdom and legality of grassroots reporting and registration. In the rush of conference activity, however, they struck the restrictive language of the Senate bill and opened up the conference report to the reasonable criticism that it is now receiving. That criticism is based on the plain text of the conference report and its history, i.e., on the fact that the conferees removed the restrictive Senate language. The language of the conference report and the history of that language is inconsistent with the proponents' stated intentions, and no one should be surprised if a court enforces the language of the act and not the good intentions of the sponsors. Staff contact: Lincoln Oliphant, 224-2946 .