Grassroots Lobbying Laws - A Growing Trend by Nikki Reeves and Terrence Burek

by King & Spalding
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People do not often associate the terms “lobbying” and “lobbyist” with actions such as posting a flyer, circulating a petition, or taking out a newspaper advertisement. In as many as thirty-six states,1 however, these types of activities (often referred to as “grassroots lobbying” or indirect lobbying) could potentially subject an individual or a business to lobbying registration and reporting requirements. These laws are not limited to direct communications with state officials, but instead apply more broadly to both direct and indirect communications. Members of all industries must be cognizant of state lobbying registration and reporting requirements when taking action related to a pending piece of legislation or a pending state agency action.

Grassroots lobbying occurs when an individual or an entity communicates with the general public in an attempt to influence legislation and/or an action of the state executive branch. While the specifics of each state’s laws vary, the laws are generally written broadly to potentially include any attempt to influence the relevant state action. Therefore, phone calls, mailings, advertisements, and other communications to the public all potentially fit within the scope of these laws. In-person conversations urging individuals to attempt to influence a government action could also potentially trigger the state lobbying laws. A minority (roughly 14 percent) of the states with laws regulating grassroots lobbying have more specific provisions that explicitly define either “indirect lobbying” or “grassroots lobbying” and which limit the scope of the provisions to more specific actions (e.g., organized events or a certain level of expenditures on specific communications/events in a defined period of time). In other states, companies must carefully evaluate whether their activities fit within the broad language of each state’s law.

Over the past several years, with spending on more traditional lobbying being more closely scrutinized and regulated, states have witnessed an increase in spending on grassroots lobbying efforts. For example, the New Jersey Election Law Enforcement Commission, the body responsible for tracking lobbying activities in the state, reported that spending on communications (mostly for grassroots lobbying) increased by 53 percent in 2008 to $6.1 million.2 By 2011, spending on communications had grown to $15.2 million.3 As social media and other communication outlets play a growing role in everyday life, it is likely that we will see this spending trend continue.

Unfortunately, state guidance regarding the applicability of the laws or how the requirements are enforced is relatively limited. Many of the states with specific grassroots lobbying law provisions have lobbying manuals that address grassroots lobbying and provide examples of activities that are subject to the provisions. Beyond these manuals, individuals and entities generally must rely on sporadic advisory opinions issued by state ethics commissions.

As companies continue to utilize indirect communications and increase spending on media in an effort to influence state legislation or state agency actions, an effort must be taken to track these communications and determine whether they trigger state lobbying registration and reporting requirements. States appear to be growing more aware of the indirect influence of industry members and we can anticipate increased scrutiny of grassroots lobbying efforts.

 

[1] We note that the remaining fourteen states and the District of Columbia all have laws requiring the registration and/or reporting of individuals or entities who engage in lobbying communications directly with state officials.

[2] New Jersey Election Law Enforcement Commission, “Spending For Lobbying Increases Amidst Calls for More Transparency,” New Jersey Municipalities, January 2011.

[3] New Jersey Election Law Enforcement Commission, News Release, March 7, 2012.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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