The Questionable Authority

More on “astroturf” legislation.

Earlier today, I got an email from a gentlemanlawyer named Mark Fitzgibbons. Mr. Fitzgibbons had apparently just read one of my posts about the “astroturf lobbying” bill. (It’s encouraging to note that Mr. Fitzgibbons, who claims to be very concerned with the effect of this legislation on blogging, does such a good job of keeping up to date with what blogs are saying about the legislation.)

Since I wrote the original two posts on the topic, the senate (unfortunately) removed the language from their version of the bill., which is the organization that sent out the original inflammatory “Congress to send critics to jail,” press release, is concerned that the provision will make a comeback when similar legislation is taken up in the House. They are continuing their fight against the legislation, and that is probably why they are taking steps to contact bloggers who disagree with them. Mark Fitzgibbons, who is the author of the email I received, writes articles for, writes press releases for the Free Speech Coalition, and is general counsel for Richard Vigurie’s American Target Advertising. (Vigurie is founder and chairman of Oh, and Mr. Fitzgibbons, in his email to me, hastens to inform me that he is, “a constitutional lawyer, not astroturf.”

I know that I am not the only blogger Mr. Fitzgibbons contacted with his view of the legislation. I have a sneaking suspicion that he hopes that articles such as the one you are currently reading will be posted, and the issue kept alive in the blogosphere – to put it more bluntly, I suspect that he is engaging in a “paid effort to stimulate grassroots lobbying.” Ordinarily, I would pass on the opportunity to help him keep his cause alive, but in this case there are two separate reasons for a public response. The first is that I also think that this is an issue that should be kept alive. I think that the abuses of “grassroots” efforts by large interest groups have become so severe that there is an unfortunate need for this type of regulation. The second reason is that the logic that Mr. Fitzgibbons is using to justify his claim that the legislation will sweep up huge numbers of bloggers is so tortured that it passes asinine and heads straight for just plain nuts.

In his email, Mr. Fitzgibbons informed me that I, “did not read the existing law that would be amended,” by the proposed legislation, and that reading the bill in the context of the existing legislation would show me that I am actually wrong about what the proposed bill would do. I am, of course, grateful to Mr. Fitzgibbons for keeping himself informed about my personal, private reading list, as I’m not sure what I’d do without having him there to refresh my memory of what I have and have not read. In this instance, however, he is incorrect. Although I am a legal professional, I do know that when a proposed law contains phrases like, “X USC such-and-such is amended to read,” it’s a good idea to go back and look at what X USC such-and-such actually says.

Fitzgibbons’ argument relies entirely on a single piece of extraordinary creative reading comprehension. To be specific, it hinges on his interpretation of the meaning of the word, “paid:”

Section 220(a) would amend the definition of lobbying activities in DLA 1602(7) to include “paid efforts to stimulate grassroots lobbying.” “Paid” efforts is not defined by any dollar amount, but simply by only one qualifier, and that is the communications are directed at more than 500 members of the general public. Section 220(a), creating DLA 1602(18)(B). Clearly, then, here is where the bill defines “paid” as nothing more than speech and publication to the general public, with no harm of any sorts being targeted, and no dollar amount attached. [emphasis mine]

It seems that taking a look at Section 220(a) is in order here:

(a) Definitions- Section 3 of the Act (2 U.S.C. 1602) is amended–

(1) in paragraph (7), by adding at the end of the following: `Lobbying activities include paid efforts to stimulate grassroots lobbying, but do not include grassroots lobbying.’; and

(2) by adding at the end of the following:

`(17) GRASSROOTS LOBBYING- The term `grassroots lobbying’ means 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.


`(A) IN GENERAL- The term `paid efforts to stimulate grassroots lobbying’ means any paid attempt in support of lobbying contacts on behalf of a client to influence the general public or segments thereof to contact one or more covered legislative or executive branch officials (or Congress as a whole) to urge such officials (or Congress) to take specific action with respect to a matter described in section 3(8)(A), except that such term does not include any communications by an entity directed to its members, employees, officers, or shareholders.

`(B) PAID ATTEMPT TO INFLUENCE THE GENERAL PUBLIC OR SEGMENTS THEREOF- The term `paid attempt to influence the general public or segments thereof’ does not include an attempt to influence directed at less than 500 members of the general public.

`(19) GRASSROOTS LOBBYING FIRM- The term `grassroots lobbying firm’ means a person or entity that–

`(A) is retained by 1 or more clients to engage in paid efforts to stimulate grassroots lobbying on behalf of such clients; and

`(B) receives income of, or spends or agrees to spend, an aggregate of $25,000 or more for such efforts in any quarterly period.’.

Fitzgibbons apparently believes that 18(B) contains the entire definition of “paid,” because it specifically excludes certain actions from that section. That’s an absolutely stupid interpretation of the section. Read it. The section is clearly not attempting to define “paid;” it is attempting to define, “paid attempt to influence…” However, Fitzgibbons’ amazingly inane bit of obfuscatory reasoning allows him to construct the following chain of ‘logic:’

  1. Any attempt to communicate with more than 500 people is by definition a “paid” communication, regardless of whether any money changes hands.
  2. Many bloggers attempt to communicate with more than 500 people.
  3. Therefore, many bloggers will become subject to the registration and reporting requirements of this bill.

Frankly, I don’t know whether to be amused by this pitiful attempt at distortion or insulted that he presumes I’d be so stupid as to believe it.

Let’s take a look at a few things. First of all, let’s remember, as Stephen Bainbridge pointed out in a response to Fitzgibbons’ lunacy, that, “There is a basic canon of statutory construction that says “The legislature did not intend an absurd or manifestly unjust result.” With that in mind, let’s go back to the text of the legislation and look at the way that the bill defines, “grassroots lobbying:”

(17) GRASSROOTS LOBBYING- The term `grassroots lobbying’ means 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.

By Fitzgibbons’ reasoning, no effort of any kind – blogging, emailing, snail mailing, or standing on a street corner – that might reach more than 500 people would qualify as “grassroots lobbying,” even though that restriction is not spelled out in the section of the bill that talks about “grassroots lobbying.

Ignoring the definition of “grassroots lobbying” isn’t enough to save Fitzgibbons, though. Before we can accept his argument, we need to make additional stupid assumptions. We’d have to assume that the language of 18(b) (“The term `paid attempt to influence the general public or segments thereof’ does not include an attempt to influence directed at less than 500 members of the general public.”) does not actually exclude paid communications targeted at less than 500 people from the requirement, but instead includes all communications, whether or not they are paid, that are targeted at more than 500 people. That skipped over Professor Bainbridge’s “absurd result” without looking back and continued right on past “you’ve got to be kidding me” and “how stupid do you think we are?” with ease.

Now that I’m done, at least for now, with Fitzgibbons’ gibbering idiocy, I’d like to take a minute to talk about the reasons that we need the type of legislation that he is fighting so hard against. Astroturf groups – the “paid efforts to stimulate grassroots lobbying” that are targeted by this legislation – are hurting us all. At a time when we are faced with increasingly complex issues that we must deal with, and that can only be successfully managed through open and honest discourse, these groups move in like a squid, darkening the waters and providing concealment. These groups are the tools that interest groups – some for profit, some not-for-profit – use to influence the public to support or oppose specific positions on specific issues, while hiding their own involvement in the effort.

I suspect that we’ll be seeing this in the near future. Right now, there are bills in congress (HR 118, S. 273) that would modify the medicare part D drug program by allowing the government to negotiate bulk prices for prescription drugs. The initial legislation, in a shameless giveaway to the pharmaceutical lobby, specifically forbid this, even though other federal programs (such as the VA hospital system) use this common practice to help control the cost to the taxpayer.

I’ve seen a number of well-crafted television ads lately that seem to be trying to get people to start thinking about opposing this legislation. The issue ads I’m talking about discuss the issue in vague terms and general language. They point out that lots more seniors have drug coverage now than ever did before, and are using the general theme of, “it’s not broke, so don’t fix it.” These ads are openly paid for by pharmaceutical industry groups. As (if) this legislation progresses, though, I predict that we’ll start to see ads that are a little less general. These ads will operate on the theme of “these laws will result in thousands of seniors losing their coverage” and directly urge people to contact their Representatives in congress, and tell them to vote “no” on HR 118. These bills will not be paid for by the pharmaceutical industry groups. Instead, they’ll be paid for by advocacy groups that nobody has heard about before – groups with names like “Citizens for Responsible Action on Pharmaceuticals.”

These “Citizens for,” “Seniors for,” “Llamas for,” etc groups will all be amazingly similar when examined in detail. They will consist of a small number of paid employees (who are or have been paid employees of an amazing number of other issue advocacy groups). They will have a lot of money, most of which will come from the pharmaceutical industry in one form or another. We won’t know this for sure for a while, though, because the issue will be over with long before any IRS filings are due. They will spend this money on television and radio ads, and on direct mail (coincidentally enough, the very industry that employs Fitzgibbons and his boss).

Hiding behind nonprofit fronts is very helpful to the industries that do it. They can keep running their ads at the same time that the front group is playing the media, which creates a “sock puppet” effect – it looks like there is a lot more opposition out there than there really is. It also does a great job of hiding motive. People who pay attention to political issues are, in general, smart enough to recognize a vested interest when it walks up and slaps them in the face. People recognize that an industry that is faced with unfavorable legislation just might not be giving them the whole story in their ads. When the true source of the ad is hidden, it becomes much harder to figure that out, and much harder to determine how much weight to give the position.

There are a lot of people who oppose this type of legislation because of its effect on free speech. The list includes the ACLU, and I’m usually on their side when it comes to free speech issues. In this case, though, I think the effect on free speech is at most peripheral, and that it is more than offset by the need for full disclosure in these cases. The law, as it stands, does not restrict anybody’s right to say anything. It restricts the right to anonymous speech, but only in a certain very narrow set of circumstances – disclosure is required only if (a) the speech is intended to influence public opinion on a certain issue AND if the speaker is being paid to try and influence public opinion on the issue. It is important that people who speak truth to power be able to have the added security of keeping their anonymity, but it’s more important that we know who is paying to influence public opinion on certain issues. Without that, it becomes virtually impossible to reach fully informed opinions on the arguments.


  1. #1 John McKay
    February 20, 2007

    I’m another blogger who received his e-mail today. When I received Vigurie’s first letters last month I was tempted to write about it (being familiar with Vigurie), but you beat me to the punch and did a much more thorough job that I would have. Keep at ’em.

  2. #2 Metro
    February 21, 2007

    Let me see if I understand this:

    “Please help to stop congress from passing a law meaning that lawyers such as myself may not be able to make a living drumming up ‘grassroots’ resistance to legislation that may stop us from making a living drumming up …”

    Feh. Poisoning’s too good for ’em.

  3. #3 Kristjan Wager
    February 23, 2007

    One comment/question – I’m pretty sure

    Although I am a legal professional, I do know that when a proposed law contains phrases like, “X USC such-and-such is amended to read,” it’s a good idea to go back and look at what X USC such-and-such actually says.

    should be “not a legal professional”. Unless you are less that complete in your profile description of yourself.

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