Chilling Sunshine and the definition of "lobbying"

By Chris Smith of Portland, Oregon who describes himself as "a citizen activist focusing on transportation, neighborhood issues and civic engagement."

Candidate for Portland City Council Sam Adams made a campaign promise to require registration for lobbyists. So earlier this month, now Commissioner Adams put an ordinance on the City Council agenda to implement a lobbyist registration system in the city. Being a firm believer in sunshine, transparency and good government, I circled the date on my calendar and prepared to go testify in support.

Then I read the ordinance ... and discovered that I was a lobbyist.

Unlike the language at Metro, which defines a lobbyist as someone who is either employed or compensated, the Portland language includes “Any individual ... who provides personal services as a representative of a corporation, association, organization or other group, for the purpose of lobbying." As I regularly get in the face of Commissioners, their staffs and city officials on behalf of my neighborhood, City Club and other organizations, there is a pretty good chance I will surpass the 16 hour quarterly exempted limit. Even more concerning is that the 16 hour limit also applies to organizations, and once the organization has passed the limit, any individual lobbying for that organization has to register, no matter how little time they spend.

So I found myself at City Council telling them that this ordinance might well chill the citizen participation that Portland is so famous for. To Sam's credit, he has pulled the language back into his office for a further look, and has already hosted one meeting in which a number of activists (including myself) asked him what he could possibly be thinking!

Sam was not without some valid responses:

1. The Portland language is similar to the State language in not requiring compensation (although the State has a 24 hour threshold and does not aggregate this for an organization).

But I believe that far fewer volunteers tramp down to Salem than do to City Hall, and the number who would spend more than 24 hours per quarter is very limited.

2. Is it not in the interests of all citizens to know which individuals and organizations are spending effort lobbying for specific issues? There are well organized and powerful interests that mainly use volunteers. Why should their influence fly under the radar? Even organizations that contract lobbyists or use staff to lobby could shift to have volunteer board members do some of their lobbying to disguise it.

But at the same time, I think many citizens would be likely to stay home if they thought that they might even remotely be required to register to enjoy their right to petition government. Also, many activists that I know bristle at the very thought that they might be labeled as a lobbyist.

Sam has challenged those of us with concerns to weigh the policy considerations and help him shape the language. So I want to put some questions to BlueOregon for help:

1. Is it ever OK to make a volunteer, even one representing an organization, register as a lobbyist?

2. If we give individual volunteers a pass from registering, should we perhaps shift the burden to the organizations they represent to register at the organizational level?

3. Are there certain organizations that should have blanket exemptions? The language already exempts City-appointed commissions, advisory committees, and the like from counting as time spent lobbying on the theory that these are invited input and occur in public, so are already transparent. Should this exemption apply to neighborhood associations since they are a recognized (and partially City-funded) structure for citizen input?

4. If you won't give neighborhood associations a pass on that theory, would you do so based on the fact that they are required (by contract with the City) to operate under open meetings law, so their interests are open and transparent already? Would you give a similar exemption to ANY organization that was required (or perhaps volunteered) to operate under open meetings law?

5. The ordinance exempts public testimony from counting towards lobbying time. Should that exemption hold if someone is being paid to testify? Or perhaps should people being paid to testify be required to disclose that in their testimony?

6. The definition of lobbying in the ordinance includes not just 'influencing', but also 'solicitation of others to influence', which would appear to count time (and money) spent doing grass-roots organizing as lobbying. Should this be so?

Inquiring policy wonks want to know.

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    in response to your specific questions:

    1. Is it ever okay to make volunteers register? Probably. If someone is volunteering more than some large number of hours to represent causes that do not impact them personally, it might be reasonable to require registration. Anything less, though, seems chilling, as you say.
    2. While I think most volunteers should be given a pass, I do think that any organization that is organizing lobbying efforts (volunteer or not) should register, so long as this does not pose an undue burden on, for example, neighborhood associations and other community groups.
    3. I'm not sure I'd give neighborhood associations a pass - just a break. They represent a particular set of interests. They should register, but it should be made very easy for them.
    4. I would not give a pass on the basis of compliance with open-meeting laws. Interested parties would not even know which organizations to examine if those organizations did not register. Open-meeting compliant organizations might, however, get a break on their registration fees (thus accomplishing the above goals of supporting community organizations, while encouraging corporations to adopt a more open stance).
    5. People being paid to testify should be required to disclose that in their testimony. People being organized to testify should do so as well.
    6. I like the idea of defining the qualifying activities to include the solicitation of others to participate in other qualifying activities, except as noted above for issues personally impacting the alleged lobbyist. Thus, saying "write to city council about my kid" does not qualify, while saying "write to city council about that bill because, though it doesn't hurt me, it will hurt you," does qualify. Note though that in the first case, the solicited letter-writers would be required to register (if they exceed the time-limit), while in the second case it is the soliciting individual who should register.
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    A clarification: there are no registration fees, and the intent is to make registration and reporting (i.e., reporting how much money you spend in your lobbying) web-based and easy for everyone.

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    One other matter: The discussion about exempting organizations like Portland Copwatch needs to be dropped. It came up during the Council discussion, and if we're going to adopt lobbyist registration, we can't start picking and choosing what sorts of organizations have to play and which ones don't. Too much potential for playing politics with that.

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    I like the idea of making registration easy for everyone. I still think it would be good policy to provide some benefit to organizations that hold open meetings, and an even greater benefit to those that are officially recognized and/or at all funded. Links to their websites, for example.

    I fully agree that the Council should not pick and choose organizations to exempt, except (as I say above) by identifying broad classes of organizations that should be treated differently. I would not advocate for any organization to not have to register. There should be a signle known place to find out who is impacting the policies of our city. (It might be nice to have C&Es vailable right beside the lobbying registrations, and cross-referenced...)

  • Amanda (unverified)
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    One of the problems I have with the proposal is that it doesn't tell me much I don't already know, while threatening to make citizen interactions with elected officials more difficult. So it will require OHSU and its spokespeople to register as lobbyists on South Waterfront. How does that make the process more transparent? I want to know how long each lobbyist is talking with Council members and their staff, and what about.

    Similarly, registering me and/or my Neighborhood Association as sometimes-lobbyists on a wide range of issues doesn't increase knowledge about what I'm talking to Council about each time, or which particular commissioners I'm talking to, or how many of us are lobbying for how long. Under the current proposal, it would be simple to sign up everyone in an organization as lobbyists, listing multiple possible topics, thus effectively disguising who is actually talking to Council and the specifics of the conversations.

    I think the system should require recording by city employees, rather than registration by lobbyists. Have Council members and their staff track and publish reports of who they talk with, for how long, and the general topic of each meeting/phone call/e-mail. This system is used in land use reviews by planning staff, and works well. It not only records who lobbied, but tells the lobbyists and the public what the staff person heard in the interaction. A recording requirement would allow the public to know more surely who is doing what behind the scenes.

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    I like the idea of requiring recording by city employees, because it makes it easier for neighborhood folks to go to city hall and talk with our electeds or their staff. I dislike it because it places additional burdens on the people who are working to make life better for us all.

    If we place a content-reporting burden on the city, there should be a progressive registration fee for paid lobbyists and all lobbying organizations. No cost for the official input structures of the city, (whose minutes could be included as notes on what was talked about, perhaps?). Minimal cost for open-meeting-compliant groups. Maximum cost for those with the most secrecy and the most income, liquidity, and/or assets. The cost structure should be set up to generate slightly more money than the anticipated cost of reporting, with the excess going into rainy-day or emergency funds. (The latter of which could be used in case of, for example, the reporting emergency created by an organization or group of organizations bombarding city hall with lobbyists.)

  • ron ledbury (unverified)
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    The City of Portland police department would not need to maintain dossiers on activist's activities, and the value of their participation, if it was the protestor's affirmative duty, under penalty of criminal sanction, to maintain their own list on themselves and present it to the entire public for examination.

    You guys are so humorous in your disregard for free speech that it is not even funny. So who's speech is considered unpalatable, and thus not amenable to an exception? This turns the free speech analysis on its' head because free speech has absolutely no purpose other than protecting disfavored speech.

    The lobbyists that need to register are the public attorney representatives of local government that use their legal power to intentionally obscure their own pensions for their own personal benefit, and that of their allies. The local DA (Michael Schrunk) could and should go attack the budgeting mismatch in the Portland Public School District, which alone has a 51 million dollar strategically planned deficit for next school year. The March 14, 2005, PPS decision to not seek a Local Option Levy is a decision that under any and all rationale analysis must trigger the reopening of the seemingly closed bargaining by the district and the Portland Association of Teachers. Can any qualitative lobbying ordinance distinguish between the parties and interests involved here versus my my prancing back and forth in front of the Multnomah County courthouse handing out fliers demanding a DA investigation or even a review by the Tax Supervising and Conservation Commission?

    Heck, I can call these folks thieves, which I do, and they won't dare tell me to shut up nor dare even haul me into court, civilly or criminally. They can ignore me only because the current propaganda organ, The Oregonian, is on the same page as the local officials and reaches a larger audience.

    How about it Mr. Schrunk? Will you delve into the illegality of the labor deal between PPS and PAT and the manufactured, and planned, shortfall of 51 million dollars that will result in diminished educational services and the continued redirection of education dollars toward the OIC's pool of play money to do things like make offers to buy PGE?

    Any lobbying bill, ordinance, or resolution is nothing more than a tool of attack on speech.

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    Ron, I think that the purpose of this thread is to gain a better understanding of the important issues at play in guaranteeing the right of the public to know what our government is doing, as well as to better understand how best to balance those issues.

    The need to allow for individuals to present issues that impact them directly and personally is a large part of the reason I specifically recommend against requiring registration for people lobbying regarding that class of issues. See my point #1, above.

    I'm curious, though, if this addresses your concerns, or if I have misunderstood them.

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    To Ron's point I would also say that the ordinance specifically exempts public testimony (and therefore I would assume public protests as well). The intent of the measure it to shed light on PRIVATE communication with commissioners, their staff, and senior bureau leaders.

  • ron ledbury (unverified)
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    Executive sessions are communications too. Are lawyers a different breed of cat?

    If I were representing an association, it would make no difference. Go read NAACP v. Patterson, 357 U.S. 449 (an Alabama case).

    I just won't accept tax deductible donations. That way I can tell the DA and the AG to stick a cotton ball in their ear if they don't like what I say, unless I get a court to tell them they have an affirmative duty that they need to act upon, against a public official.

    Gavin, the balance has already been struck. I can speak at will short of threats of violence. The balance you seek is articulated in hundreds of court cases already. There are ample time place and manner restrictions but a compulsory registration for speech is idiotic . . . idiotic in the sense that it dissipates disenchantment with government via an illusory solution that does more harm than good.

    As I have said in other contexts I am a process freak. Just start playing what if -- swapping one group of government insiders for another and one group of outsiders for another – and you will find some combination that does not suit your fancy. The common ground is the process for election and then some regime of accountability. The restraints on speech are like a mental shell game that involves redirecting the focus away from accountability and to ascribe some inherent goodness to an official or group. It is an inherently absurd proposition to me.

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    Ron,

    You seem to claim that transparency in government would somehow hinder the free exchange of ideas. I think we can have both. Lobbyists should register. Unpaid individuals speaking on their own behalf should not. The question at hand is, when does the latter become the former?

    We clearly agree that this line cannot be drawn on the basis of the content of these people's speech. I think we also agree that the line can — and should — be drawn on the basis of the relationship between the subject-matter of the speech and the individual speaking. Further, we seem to agree that there is no justifiable basis for exempting any group from registration.

    What am I missing?

  • ron ledbury (unverified)
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    Judicial review of government action has been turned on its' head. A judge, in deference to elected officials, will not reach the merits of a complaint of official misconduct. The laws, at least the words committed to the rule books, frequently delegate some decision-making power (discretion) to one or another arm of government. There is omitted from such rules any standard by which a judge could apply to confine that discretion or even impose some sort of judicially crafted obstacle to wholesale graft (providing perhaps just one more hoop to jump through).

    Transparency in the lobbying does not lead to a greater right to challenge excess use of discretionary power. The entire City Council could wear a 24 /7 live wire connected to the internet and it would not enhance the ability of a judge to provide a remedy for a complainant. The only remedy would be a subsequent election and the ballot box where everybody could poke fun at what our elected leaders babbled about. (So . . . he/she is a thief but he/she is my thief so its' OK.) The transparency is thus about as useless as perhaps having a separate penalty for a bank robber that wears a hood and one who's identity is revealed to the bank camera's with a big grin. If you smile for the camera is there no crime?

    I want to see the limits on excessive use of power. Watching graft with crystal clear audio and video would make great sport for a late night comedian, but that's about it.

    Did you know that our State Treasurer can appropriate money, rather than the legislature as provided in the Oregon Constitution, so long as it is just a mandatory bond payment to be made in future years (with first priority over other demands on appropriations lest the bond rating goes down the tubes)? It is, I suppose, just good “public policy” to evade any and all forms of accountability in court, in the interest of efficiency (an inverse concept to the built-in clumsy inefficiency that is the hallmark of a healthy democracy). The problem is not really one of the elected officials, it is, as I have noted elsewhere, one of the hands-off approach of the judiciary. So really, my points here in this thread, in this forum, really is just like pissing into the wind.

    Pick your favorite topic; mine right now is the labor agreement that supposedly binds the PPS to 50 million dollars it does not have, that was not in their budget, was contingent upon a Local Option Levy being brought before the public AND approved. The only thing off the table for culling is the two year PAT agreement, and a few hundred teachers (new young cheaper ones) will be handed their walking papers at either the beginning or the end of the summer. Certain classes will have double the number of students, at Marshal at least. Now if I could get a judge to look at the merits and find something wrong it would be a miracle because the terms have already been blasted out into the papers for all to see. Transparency has not and will not add one bit of aid to me in my present little whining venture. Cajoling the DA, Michael Schrunk, really is my only avenue for possible resolution. His staff is on PERS too, many on tier-one PERS, and thus has a conflict of interest that should actually work in my favor . . . to avoid the appearance of a conflict of interest that here is an actual conflict of interest (and for which I have made the OSB amply aware, which is my longer-term target for jestering.) The conflict has to do with representing, or rather not representing, the interests of tier-three workers for any PERS participating employer in the state, particularly when they are represented by an exclusive agent on legal matters.

    The Oregon State Bar is an association that wears two hats. One is that of an association that is formed for the mutual benefit of its members and the other hat is as a collection of folks that are the official officers of the court system itself. They exert a tremendous level of authority, effective political authority, in private discussions between the association's members and it is that communication that must be brought to light. Public attorney's can sometimes forget that their first priority is to the public interest (whatever that is), the second is to the court and then to the elected officials as third in line.

    My job, if one can call it a job, is to find the best Gordian Knot of conflict's of interest for the good folks at the OSB to ponder, so as to demonstrate the skill and judgment that is expected of a lawyer. If I can do some real good in the process, all the better. That is what you are missing. And yes, free speech is the issue, or rather the core interest to which free speech is targeted, protecting the integrity of the political process. The lobbying registration thing is a wholly illusory solution to a problem that has been misidentified.

    If I was billing for my time at the rate an opponent of say . . . SAIF might charge, then I would surely be a lobbyist in anyone's book (unless I was just a lawyer offering advice to a PAC client). Would it matter if I did this wearing the hat of an agent of a labor union representing tier-three public employees, like the soon to be fired teachers in the Portland Public School District? Would it make any difference if I did it as an agent of a non-profit that was designed to call the Portland Schools Foundation and Stand For Children a bunch of liars when they claim to be representing kids because they are merely pawns of tier-one and tier-two PERS members of the Oregon Education Association? If they sue me I'll get my opportunity to reach the merits of my argument that I can't seem to get any other way, which is also why they won't and is why the remedy to free speech is just more speech. Would my chosen opponents also be characterized as lobbyists, for stuff that they get inserted free into The Oregonian rather than presented in a private discussion?

    There is a certain someone from whom I once took a course that could simply tell Mr. Sam Adams “the proposed lobby registration law is bad policy” and it would simply vanish from further discussion. His advice would be taken as gospel and he would not have to dilly dally around with reasoning as to why, or perhaps he could simply say it much more sussinctly. Perhaps he already has, in private, but I'll never know.

  • ron ledbury (unverified)
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    Someone can lobby the City Council without ever setting foot in City Hall.

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    Ron, it really looks like you are arguing for this sort of registration requirement, rather than against. Given the amount of time and energy you claim to spend on influencing our city government, I think folks ought to be able to know that you're doing it. Just like we should be able to find out about lobbyists for or against SAIF, PERS, public schools, or development.

    The accountability you seek regarding abuse of power is a separate issue, but certainly one worth pursuing. Of course, without transparency such as we are contemplating here, that accountability would be for naught.

    In your bank-robber metaphor, you say we're talking about letting a smiling thief go free, but we're really just talking about making everyone take off their masks when they walk into the bank.

  • ron ledbury (unverified)
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    I give up.

    Gavin, I suggest you pick up a copy of a book by Harry Kalven, Jr., titled “A Worthy Tradition: Freedom of Speech in America.” The author is really the dad of the named author, but where the son has finished the work for his deceased father. The author(s) assembled, read and analyzed the full list of US Supreme Court cases pertaining to free speech in preparation for the book. The book presents lots of little nuggets of wisdom.

    I don't much care for a government that can use someone's desire for involvement and engagement with (or against) elected officials as a way to mandate that they disclose any of their current or former participation in associations. If the electorate votes in a guy who says fry the Communists or fry the Capitalists, or fry [insert enemy name], then we have abandoned free speech. If the electorate, through the initiative process, passed an ordinance to accomplish the same result then the present set of elected leaders would be irrelevant to such an expression of the public will. It is the public, either directly or through their representatives, that is prohibited from going on some kind of political witch hunt.

    Before you approach the microphone please hand the clerk your completed form, listing all of the associations to which you have ever been a member. There is a separate form for listing those associations to which you were not a member but where you merely share a common ideology, or harbor sympathies toward. Thank you. Now, what is it that you wish to present to the Council? . . . .

    Transparency to you can be renamed something else entirely . . . like a little mini inquisition where everyone is suspected of disloyalty.

    Would there be some sort of crime, misdemeanor or felony, for failure to list a particular association or belief? Would someone merely be prohibited from speaking in the future?

    Five minutes of involvement or 16 hours or 200 hours, it makes no difference.

    Gavin, you might have noble desires but we have been down this road before, and the placement of the First Amendment . . . as the First . . . was not an accident.

    I admit to nothing but that I believe in free speech.

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    I am simply suggesting that, when a lobbyist for Enron addresses city council, he (or she) identify that particular interest. I agree with you that we should not have to identify all of our associations. It would have been absurd, when I was lobbying the Lottery Commission on Friday, for me to deliver a summary of my political resume (during my two-minute testimony), after saying "I represent myself". What I want is for people to identify those associations and/or associates that caused them to be present then. The boundary I would suggest would be this:

    • if you were paid to be here
    • if you were authorized by some organization to speak on their behalf
    • if some organization with which you are affiliated has a direct interest (of the sort that might create a conflict of interest) in the issue at hand
    • if you organized or paid others to be here
    then you have the duty to report those things. The claim that this is a witch-hunt is a slippery-slope argument. You can draw the line. I just suggested one possible place to do so. Are you suggesting that the line should not be drawn? If you are not, where should it be, and why?

    Don't give up — this is interesting.

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