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.