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I. Introduction
Mail carts are pushed down the
halls of Congress passing offices with televisions showing images of protestors
at a rally. Phones in those
congressional offices ring steadily from calls of individuals voicing their
opinions over the issue du jour. But are
the authors of the letters, the protestors on the televisions or the people on
the other end of the telephone conversations concerned citizens or are they paid
by an Astroturf organization – pawns of big business trying to pull the covers
over the eyes of Congress?
An Astroturf organization is a
“group that lends a veneer of moral legitimacy to a cause” which “allows a
group to present its position as a grass roots campaign, regardless of the
actual degree of public concern.” These
organizations are often “Washington-based campaigns that simulate grassroots
support but are in fact coordinate by ideological interest groups seeking
particular legislative outcomes.” The
purpose of creating such fake grassroots is to create a façade of widespread
support by acting as grassroots organizations to hide their underlying
motivation. Frequently Astroturf
organizations have large bank accounts but small membership rolls. The term “Astroturf,” has been attributed to
Democratic Senator and 1988 Vice-Presidential candidate Lloyd Bentsen who, in
1985, said “[a] fellow from Texas can tell the difference between grassroots
and Astroturf.”
Lobbying is big business inside the
beltway, but it is the effects lobbying can have on businesses across the
country that make lobbying so important.
How Important? If the money spent
by business on lobbying is any indication of how important lobbying is one can
conlude it is staggeringly important. This
year more than 275 million dollars have been spent on lobbying on health care
reform alone! From June until September
2009 nearly one million dollars a day was spent on health care reform
television advertising. With so much
money being spent influencing Congress, the question of whether and how to
regulate organizations that peddle such influence is a pressing one.
II. The Possible Downside of Astroturf Organizations
Exaggerating the number of people
who support or oppose a policy is, of course, not new. But the line between exaggeration and fraud
is, unfortunately, a narrowing one. For
example, the coal lobby was caught essentially “sending bogus letters to member
of congress.” Such activities crossed
the line from showing ones ideas in the best possible light to using smoke and
mirrors to lie to elected representatives.
Existing campaign finance laws require some disclosure but
[i]ndividual firms
may mask their activity by acting through a trade association, and that
association's members, objectives, and financial structure may be only
partially transparent . . . they need not quantify the in-house dollars
expended on lobbying, nor are the disclosure requirements sufficiently detailed
as to subject matter. Firms also need not disclose their efforts to generate
grassroots lobbying support.
In sum, existing laws are inadequate.
III. Should we Regulate Astroturf Lobbying
Organizations? If so, How?
A.
To Regulate or Not to Regulation?
The right of freedom of expression
is one held closely by Americans and it is one that has extended to spending
money. In fact, limiting the amount of
money people and business can spend to support candidates or causes received
backlash from Americans who thought such limitations unconstitutionally limited
speech. Even if one believes spending
limits are good, it is indisputable that such limits do not essentially limit
liberty and thus regulation should not be taken lightly.
On the other hand, Astroturf
organizations can distort the truth and make it more difficult for Congress to
respond to the real demands of the people.
Such speech can be seen as a hindrance to democracy. However, as opponents of regulation have
pointed out, our “political tradition is that voters judge the truthfulness and
relevance of campaign arguments.”
B. How to Regulate
Though Astroturf organizations are
different from political campaigns, there is a lesson to learn from limiting political
fundraising: unintended consequences can make regulation moot and can, in some
cases, provoke innovation that is contrary to the regulations original purpose. For example, the Bipartisan Campaign Reform
act of 2002 (BCRA), which limited the amount of money which could be donated to
political candidates led to the emergence of 527 political organizations. These organizations could raise unlimited
funds from citizens, corporations, or unions and have therefore played an
increasingly important role in our electoral system since 2002. The BCRA, which was intended to make money
less important in the electoral process, simply changed how money was raised
and spent. Arguably the BCRA led to
“less transparency, less accountability in who's financing what or whom than
ever before.” Clearly, if regulation is
a route worth pursuing it is worth pursuing with caution.
Just because past regulations of a similar
kind were unsuccessful or not as successful as supporters hoped they would be,
does not mean that no regulation is worth pursuing. If one learns the lessons of the past one
might create more effective solutions in the future.
C. Solutions that Work and Minimize
Unintended Consequences
Lobbyists influence is not solely
financial. “Control of information is as
central to lobbyists' power as control of money.” That is to say, only focusing on the
financial aspect of lobby will not stop lobbyists from affecting legislative
outcomes. Congress relies on lobbyists
for expertise. One solution which aims
to decrease the importance of lobbyists generally is “increasing the funding
for the Congressional Research Service and Government Accountability Office.” This funding increase would give Congress more
information free of lobbyist influence.
A second option is simply to
increase the transparency of Astroturf organizations. If Congress defines Astroturf organizations
as those with a funding to donor ratio of over a certain number, it could effectively
require greater disclosure of organizations that practice Astroturf lobbying. Congress could then require Astroturf
organizations to give more detailed and more frequent disclosures. New disclosure requirements create
disincentives to use Astroturf lobbying strategies and create transparency that
would help voters and politicians assess arguments and biases. This solution avoids the mistakes of the BCRA
and will not catalyze a new set of organizations that insulate politicians or
causes from the mudslinging of the political process.
IV. Conclusion
Astroturf lobbying organizations
pose a real threat to our democracy because they can distort the amount of
popular support behind a public policy.
These organizations make it more difficult for our Congress to truly act
as the people’s branch. However, past
attempts at regulating donations to political campaigns suggest that, in some
circumstances, the cure can be worse than the disease. Thus, any regulation of lobbying
organizations should be limited to increasing Congress’s access to unbiased
information and full and frequent disclosure of the sources of funding for such
organizations. Smart regulation can help
the political process without compromising people’s and business’ opportunities
to voice their opinion – regardless of popularity.
[1] Paul Dickson, Fresh
Legs and Idiot Sheets, Washingtonian,
Oct. 2005.
[2] David A. Hyman, Consumer
Protection in a Managed Care World: Should Consumer Call 911 43 Vill. L. Rev. 409, 422 n.49.
[3] Alan Wolfe, Does
Democracy Still Work? (Yale University Press 2007).
[4] Ryan Sager, Keep
Off the Astroturf, N.Y. Times,
Aug. 19, 2009, available at http://www.nytimes.com/2009/08/19/opinion/19sager.html.
[5] Jennifer Liberto, Health
Care Lobbying: Political Power Machine, CNNMoney.com,
September 13, 2009, http://money.cnn.com/2009/09/08/news/economy/health_care_lobbying/index.htm.
[6] Id.
[7] Jill E. Fisch, How
Do Corporations Play Politics?: The FedEx Story 58 Vand L. Rev. 1495, 1564 (2005).
[8] Id.
[9] Id.
[10] See, Robert Samuelson, So Much for Free Speech, Washington
Post, Aug. 25, 2004, available at
http://www.washingtonpost.com/wp-dyn/articles/A30280-2004Aug24.html.
[11] Id.
[12] Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-55, hereinafter
Bipartisan Campaign Reform Act.
[13] These organizations are called “527s” because they are
taxed under section 527 of the Internal Revenue Code. Eliza Newlin Carney, Heavy Bickering, Light Reforms, National
Journal, May 13, 2006.
[14] Jeffrey P. Geiger, Preparing
for 2006: A Constitutional Argument for Closing the 527 Soft Money Loophole
47 Wm and Mary L. Rev. 309, 311
(2005).
[15] Id.
[16] Bipartisan Campaign Reform Act, supra note 12.
[17] Steve Forbes, Fact
and Comment: Bursting the Bubble, Forbes,
Sept. 20, 2004.
[18] Lee Drutman, Three
Fixes for Our Lobbyist Problem, American
Prospect, June 5, 2008, http://www.prospect.org/cs/articles?article=three_fixes_for_our__lobbyist_problem.
[19] Id.
[20] Id.