On April 15, the Institute for Justice (IJ) filed a lawsuit on behalf of two volunteer groups challenging part of Washington State’s grassroots lobbying disclosure law as a violation of their First Amendment rights to free speech, assembly, and petition. In Many Cultures, One Message v. Clements, the groups claim that having to register as grassroots lobbying organizations is burdensome, and revealing information about their financial supporters could leave donors open to threats from opponents.

The groups challenging the law are Many Cultures, One Message, which opposes the use of eminent domain for redevelopment in southeast Seattle, and Conservative Enthusiasts, a 501(c)(3) nonprofit volunteer organization that promotes small government and opposes taxes. According to IJ, “Each face the dilemma of registering with the government or halting their efforts to urge their fellow Washingtonians into political action.”

The defendants in the lawsuit are Jim Clements, chairman of the state’s Public Disclosure Commission, and several other members of the commission. The commission enforces disclosure and campaign finance laws.

Grassroots lobbying activities seek to encourage the public to take specific positions on legislative matters or public policies and typically feature forms of communication that request the recipients to contact their lawmakers regarding a specific issue. These communications are directed at the general public or at selected groups on organization mailing lists. Currently, federal law does not require the registration of people or groups that solely engage in grassroots lobbying, nor does it require disclosure of such activities.

The State of Washington is one of 36 states that have some sort of law addressing disclosure of grassroots lobbying. [According to the IJ report, "Mowing Down the Grassroots," those include Western states: Colorado, Idaho, Montana, New Mexico and Wyoming. See the embedded report above. - WC]

In Washington, the law requires that any person or entity that spends more than $500 in one month or $1,000 in three months making grassroots lobbying expenditures must file with the state’s Public Disclosure Commission and disclose his or her/its name, address, business, and occupation. The law also requires disclosure of the names and addresses of anyone or any group such a person or entity is working with, as well as anyone who contributes more than $25 to the group’s grassroots lobbying efforts.

Many Cultures, One Message and Conservative Enthusiasts sought an exemption from the law in December 2009. In March 2010, the Public Disclosure Commission ruled that the groups would still have to file disclosure reports as grassroots lobbying organizations if they made expenditures exceeding the amounts specified in the law. The commission’s response letter to IJ stated, “These statutes enable the voters to ‘follow the money’ in lobbying and campaigns, including grassroots lobbying.” The letter asserted that the citizens of Washington State passed the law by initiative in 1972 to “maintain openness and transparency in lobbying and financial efforts to affect legislation.”

The groups’ lawsuit claims that the state law creates “expensive, complex, and time-consuming administrative requirements that interfere with, and chill Plaintiffs’ ability to exercise, their right to engage in political speech and association.” In addition, the registration and reporting rules are vague, and prohibit them from “exercising their right to engage in anonymous political speech,” according to the suit. They further argue that grassroots lobbying disclosure laws and the cost for violating them may discourage small groups from becoming active in politics and public policy. In Washington State, the maximum penalty is $10,000 per violation.

An IJ press release on the case announced, “Washingtonians from both sides of the political spectrum filed a lawsuit today [April 15] to stop their state from monitoring, collecting and publicly disseminating information about the political activities of private citizens who do nothing more than urge their fellow citizens to take political action.”

IJ’s lawsuit cites the recent U.S. Supreme Court decision in Citizens United v. Federal Election Commission as support for the finding that onerous rules can amount to a ban on speech. The Associated Press quoted IJ executive director Bill Maurer as being “encouraged” with the Court’s “less regulatory direction regarding campaign finance laws.” However, in Citizens United, disclosure laws were upheld as constitutional, and the decision stated that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

The lawsuit also reveals the groups’ concern with the state gathering personal information and making it available on the Internet, which they charge may leave donors and others vulnerable to harassment. A case that will soon face the U.S. Supreme Court addresses similar issues.

In John Doe No. 1 v. Reed, petition signers challenged the constitutionality of Washington’s Public Records Act, which requires state and local governments to make public the identities of those who sign a referendum or initiative petition. Those challenging the law argue that petition signing is political speech subject to First Amendment protections, while Washington Secretary of State Sam Reed asserts that signing a referendum or initiative petition is a legislative act and that petitions to add measures to the ballot are public records. The Ninth Circuit has ruled that disclosure of such signatures serves an important government interest and promotes government accountability.

A Congressional Research Service (CRS) report notes that grassroots lobbying disclosure regulations have been deemed constitutional in the past. A 2008 report points out that the “Supreme Court of the State of Washington in 1974, for example, upheld very detailed lobbying disclosure provisions of State law concerning ‘grassroots’ lobbying activities in Young Americans for Freedom, Inc. v. Gorton.” In that case, the court held, “To strike down this portion of the initiative would leave a loophole for indirect lobbying without allowing or providing the public with information and knowledge re the sponsorship of the lobbying and its financial magnitude.”

A further suggestion in the CRS report hypothesizes that a law that only requires disclosure and reporting, only covers paid grassroots lobbying, and does not prohibit any activity, would stand up against court challenges. Such a law would exclude “volunteer organizations, volunteers, and individuals who engage in such activities on their own accord out of the coverage and sweep of the provisions.” The law would have to be “drafted in such a manner so as not to be susceptible to an overly broad sweep bringing in groups, organizations and other citizens who do no more than advocate, analyze and discuss public policy issues and/or legislation.”

Several key requirements of the Open Government Directive are due on April 7, turning the day into a critical moment for government transparency. The main materials being released are specialized Open Government Plans that federal agencies are mandated to produce based on stakeholder input. There will also be a document to address federal spending transparency, as well as a review of policies that impede open government efforts.

The plans will state the individual agency’s strategy for improving transparency, public participation, and collaboration. Meanwhile, open government groups are gearing up to evaluate the strategies. Expectations are that the plans will be quite substantive, both in scope of issues addressed and goals being set, at least for the major agencies. At the same time, it is also widely expected that there will be wide variations in the plans, with some being in an advanced state of implementation and others in very early stages. Numerous independent agencies are also developing Open Government Plans, though their obligation to do so under the directive is unclear.

Agencies across the federal government have been collecting input and ideas from the public for weeks through online discussions on their newly launched open government webpages, also required under the directive. The process has elicited hundreds of ideas from the public, with thousands of votes to help agencies prioritize the proposals. Many agencies have described their online discussions around open government as huge successes and announced intentions to keep the dialogue going beyond the launch of the agencies’ plans on April 7.

Chief Information Officer Vivek Kundra recently elaborated on the additional content of the upcoming plans during a Senate hearing on government secrecy. In his testimony, Kundra stated that the plans would include details of “internal controls implemented over information quality, including system and process changes, and the integration of these controls within the agency’s existing infrastructure.” Although the spirit of the directive is to make information useful to the public widely accessible, Kundra noted that information controls would also need to exist to protect personally identifiable and security-related information.

Open government organizations are poised to assess the plans as soon as they come out. Working together under the OpenTheGovernment.org coalition, these organizations are auditing individual agency plans based on preset criteria through a Google Wiki. The criteria for this initial assessment are basic and based on the Open Government Directive requirements, but also allow for additional points to be awarded for agencies that go above and beyond the call of duty.

The Office of Information and Regulatory Affairs (OIRA) will also produce materials from a review regarding policy impediments to open government. The Open Government Directive required that OIRA, along with the Federal Chief Information Officer and Federal Chief Technology Officer, review existing policies of the Office of Management and Budget (OMB). The overall purpose of this process is to create an improved policy framework that enables open government. The OIRA policy materials are expected to identify impediments to open government and either propose revisions to eliminate the impediments or clarify interpretation to reduce confusion.

Open government advocates have been calling for policy changes in several areas that would increase government transparency. Many of these recommendations are included in a November 2008 report, Moving Toward a 21st Century Right-to-Know Agenda. Such problems include the lack of resources and accountability for implementation.

Additionally, OMB’s Deputy Director for Management is required to release a long-term comprehensive strategy for federal spending transparency that includes requirements from the Federal Funding Accountability Transparency Act (FFATA) and the American Recovery and Reinvestment Act. The plan will require quarterly reports from agencies on their progress toward improving the quality of federal spending information.

Finally, the Open Government Dashboard on the White House website is also expected to be updated in the near future to include access to all agency Open Government Plans. Currently, the dashboard is only an assessment of whether an agency has completed a task required under the Open Government Directive, and that is likely to remain the case in this update. Ultimately, however, this dashboard is expected to be revised to include aggregate statistics and visualizations that provide an assessment of the state of openness within the federal government.

On March 3, the Project on Scientific Knowledge and Public Policy (SKAPP) released the results of a two-year research effort to explore the working environment of federal scientists in the public health and environmental fields. The results showed that not only is there political interference in their work, but that scientists also faced a series of obstacles that delay the study and dissemination of scientific information that affects the public every day.

SKAPP is a project of the George Washington University’s School of Public Health and Health Services. The researchers at SKAPP interviewed 37 scientists representing 13 federal agencies from May 2008 through January 2009 to discern the issues of most importance to scientists. SKAPP then conducted an online follow-up survey in July and August 2009 to see what effects, if any, the Obama administration had on agencies’ work environments.

The report, Strengthening Science in Government: Advancing Science in the Public Interest, contains recommendations in eight topic areas plus one overarching recommendation. The study describes details of many agencies’ policies and practices regarding how scientists get approval for research topics and communicate among themselves and with the public, as well as the extent of political interference by executive branch employees and members of Congress.

The recommendations address topics such as improving the management of science within agencies, opportunities for scientists to provide feedback on policies, interagency data sharing and communication, and opportunities for professional development. Many recommendations focus on two broad issues: bureaucratic delay in approving proposed research studies, and disseminating research results through cumbersome approval processes.

For example, the authors of the report note, “Many of the scientists interviewed felt that the time and effort required to obtain agency approval for research projects is excessive—and these resources could be better spent on conducting the research, rather than writing lengthy research proposals.”

In addition to internal agency processes, the need for White House Office of Management and Budget (OMB) approval also delays research. Scientists who want to survey the public must have their information collection requests approved by OMB’s Office of Information and Regulatory Affairs (OIRA) under the Paperwork Reduction Act. Many scientists in the study considered this step to be “excessively burdensome.” This criticism of OMB’s information collection review process is consistent with other scientists’ experiences. OMB’s review can require scientists to revise and resubmit their research proposals, causing further delay.

The report recommends both agencies and OMB streamline their respective approval processes so that research can be conducted in a more timely manner.

Once research is completed, scientists are often frustrated by the processes for clearing the results for publication or other dissemination methods. “Some scientists suggested that their agencies have used the clearance process to delay or even prevent the publication of findings that could ignite controversy,” according to SKAPP’s report. Many agencies have written policies that outline procedures for information dissemination, but the scientists participating in this study often said that there was a difference in what those policies required and what actually happens within an agency. Managerial, procedural, and political considerations can affect not just when but whether some research results are released.

OMB also can play a role in hindering the release of scientific information. Agencies were required to establish information quality guidelines under the 2001 Data Quality Act. OMB added to this requirement additional scientific peer review requirements (even if the research may have already been peer reviewed) for “influential” and “highly influential” scientific assessments. According to the SKAPP report, “When the OMB regulations were first developed, many agencies were concerned that they introduced additional, time-consuming layers of review. In addition to the bureaucratic requirements, these regulations were potentially a means to challenge or delay findings that had regulatory implications.”

The recommendations about disseminating scientific work call for an end to using the clearance process to slow or stop the dissemination of scientific information, for consistent and timely application of the review policies, and for agencies to “have processes for expedited clearance of time-sensitive materials.”