Laws in a civil society must apply to everyone equally—even bad laws, like New York’s vague and over-broad lobbying law.
According to the statute, anyone who spends more than $5,000 per year to influence legislation is considered a lobbyist and must register with the Joint Commission on Public Ethics (JCOPE), the commission created to enforce compliance by the Public Integrity Reform Act of 2011 (I know, hold your laughter). However, per the law, lobbying isn’t limited to gifts, fancy meals, or meetings for drinks and expensive cigars in dark-paneled rooms.
It also can be what JCOPE calls “grassroots” lobbying, including rallies, billboards, print ads, websites, and social media communications. The lobbying law, then, sweeps into its scope people and groups who may only think of themselves as public advocates—First Amendment be damned.
The lobbying law is so broad and vague that JCOPE has concluded that an individual can be a lobbyist who retains only themself as a client. And no, that sentence doesn’t make sense.
But, there’s an even more fundamental problem with the law. The entire premise of accountability is placed on the lobbyist, or at least the individual that JCOPE considers a lobbyist. Following the rules means registering with JCOPE, investing time completing periodic reports during the year concerning “lobbying” activity, and, of course, paying a fee.
However, there’s no easy means of catching anyone who doesn’t comply. What if a “lobbyist” doesn’t register with JCOPE? The Legislature (conveniently) has deemed individual legislator’s calendars outside the scope of the Freedom of Information Law—so New Yorkers cannot see who these elected officials are meeting with. There’s no check on what basically amounts to an honor system of lobbying enforcement.
The Empire Center is an educational, not lobbying entity, but several of my colleagues are registered with JCOPE, on the advice of legal counsel (remember JCOPE’s broad interpretation of a vague law). What’s always bothered me about this unfairness was made apparent last month during the Legislature’s hearings on the executive budget.
James Hanley, the Empire Center’s senior policy analyst for energy, was invited to provide oral testimony. Several of us tuned in for the hearing were surprised to learn of the casual working relationship that exists between legislators and certain witnesses. Naturally, all these witnesses would be registered with JCOPE, right?
Take, for example, Judith Enck, president of Beyond Plastics, a project of Bennington College. Enck does not appear on JCOPE’s online database as a registered lobbyist, nor does Beyond Plastics or Bennington College. [Note: this sentence was updated from an earlier version.]
Enck’s testimony focused on concerns with Governor Hochul’s proposed legislation for Extended Producer Responsibility (EPR), which would impose on packaging producers the responsibility to reacquire that packaging or finance programs for environment-friendly reuse or recycling.
So far so good. Testimony at a public hearing is an exception to lobbying—presumably because it’s public and transparent. But during her appearance Ms. Enck offered to meet with the Governor’s office and any interested legislators to address her concerns with the EPR provisions in the budget bill. That direct contact is lobbying, according to JCOPE.
In a webinar last year, Enck expressed her concerns with a different EPR bill. She said she’d be speaking to the sponsor about the bill’s priorities. According to Enck, the bill failed to do enough to promote “reduction, reuse, and re-filling.” She noted that the bill’s priorities were out of order.
Sure enough, a later version of the bill changed the legislative intent from promoting “recycling, reuse and recovery of covered material and products” to promoting “reduction, reuse, recovery, and recycling of covered materials and products,” just as Enck explained in her webinar.
Beyond Plastics has a website that’s a hive of grassroots lobbying activity. Site visitors can download a model bill and read instructions on getting the law passed locally. Beyond Plastics also has held regular grassroots training sessions in New York City.
Beyond Plastics tracks legislation, offers its position, instructs readers how to voice their support or opposition to the Legislature, and provides information for contacting state legislators.
To be sure, Enck and her Beyond Plastics project appear only to be trading in ideas. There’s no evidence of quid pro quo transactions. But the absence of trading favors and the presence of merely advocating ideas highlight the problem with the lobbying law. The law restricts free speech rights without promoting a compelling government purpose.
Vague and over-broad laws lead to arbitrary enforcement. If advocates like Enck do not volunteer to register as lobbyists, JCOPE must track them down. It’s absurd to think JCOPE employees should watch hours of legislative testimony to get clues that someone like Enck is having direct contacts with lawmakers to influence legislation. And the honor system of having advocates register as lobbyists cannot be expected to work when can be applied so broadly
If the state thinks it has a compelling interest in regulating marketplace of ideas, then it should find a less restrictive means to do so. The burden should not be on members of the public exercising their rights to free speech and to petition their government.
The burden should be on lawmakers, in the same way that it’s their responsibility to report under campaign finance laws any political contributions they receive. Lawmakers should be compelled to keep records of their meetings and to make their calendars public. Event guest lists should be kept and made public. Communications lawmakers receive relating to proposed or pending legislation should be posted online.
The lobbying law’s problematic form and scope is no excuse for applying it unequally. Advocates like Enck should be registering as lobbyists, paying the required fee, and filing the reports required by law. If broader compliance with the lobbying law creates an outcry over its undue burden, that may be just the impetus needed to get the law changed.
Update: Ms. Enck reached out to the Empire Center shortly after publication of this blog post claiming the post had a “mistake” and that she was in fact registered as a lobbyist with JCOPE. She made the same allegation on Twitter.
I immediately amended the 10th paragraph of this post to reflect that JCOPE’s online database didn’t list Ms. Enck, the Beyond Plastics project, or Bennington College. Further, we informed Ms. Enck that if she provided us with some proof that she had in fact been registered with JCOPE as a lobbyist, we would update the post. Ms. Enck did not provide proof that she was registered when this post was published.
JCOPE’s database now shows that Bennington College submitted its registration listing Ms. Enck as an individual lobbyist three days later, on March 13th. The signed lobbying agreement Bennington College submitted is dated March 12th.