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                 U.S. SENATE REPUBLICAN POLICY COMMITTEE
                          Washington, DC  20510
                      Senator Don Nickles, Chairman
                     Kelly Johnston, Staff Director

         POLICY ANALYSIS.................October 5, 1994


               CONFERENCE REPORT LIKELY REQUIRES
             DISCLOSURE OF GRASSROOTS CONTRIBUTORS


EXECUTIVE SUMMARY

Concerns have been raised that paragraph 105(b)(5) of the
conference report on S. 349 will require organizations employing
lobbyists to disclose to the Federal Government their membership
and/or contributor lists.

Proponents of the conference report, led by Senator Carl Levin, say
the concerns are unfounded, and he cites a provision which was
added on the Senate Floor.  Senator Levin claims that the Senate
provision "would require only that if a lobbyist's bills are paid
by someone other than a client, the identity of the person who pays
the bills would have to be disclosed."   He also says that a "broad
requirement to disclose all coalition members would have serious
first amendment implications."

However, the Conference Committee changed the language that passed
the Senate.  The relevant Senate-passed language was limited to
lobbying firms, but the conference amended it to include "any
person other than the client who paid the registrant to lobby on
behalf of the client."

Background details on these changes are contained in this Policy
Analysis.

This analysis, by an RPC staff member, concludes that those who
believe that paragraph 105(b)(5) contains a threat of grassroots
registration have a valid point and a strong claim to the better
interpretation.

A floor statement by a bill's manager, or a colloquy between
Members, with respect to congressional intent may or may not be
accepted by a court.  Senators should expect the courts to look
primarily to the text itself, and not to the stated intentions of
the managers.







THE DEBATE OVER PARAGRAPH 105(B)(5)

     The conference report on the Lobby Reform Act (S. 349) soon
will be on the Senate floor.  It passed the House on September 29,
after narrowly surviving a vote on the rule and a motion to
recommit.

     House Republicans raised doubts about the conference report,
and many of those doubts have reappeared in the Senate.  One of the
more important is that raised by paragraph 105(b)(5).

     Opponents of the conference report say that paragraph
105(b)(5) will require organizations that have lobbyists to report
to the Federal Government the name, address, and principal place of
business of individuals who contribute money to the organization.
They say that paragraph 105(b)(5)'s registration requirement is
obnoxious and unconstitutional.  Defenders of the bill reply that
paragraph 105(b)(5) does not require such registration.

     After reviewing the text and background of paragraph 105(b)(5)
and the claims of leading spokesmen for both points of view, an
analysis by a member of the staff of the Republican Policy
Committee has concluded that those who believe that paragraph
105(b)(5) contains a threat of grassroots registration have a valid
point and a strong claim to the better interpretation.

     Those who discount the threat of grassroots registration tend
to focus on the intentions of the drafters rather than on the
actual text of the Act, and they do indeed have a stronger claim
when they appeal to intentions rather than to text.  We expect the
courts to look primarily to the text, however, and not primarily to
the intentions of the legislators, although courts will sometimes
look outside the text.

     When courts look outside of the statute itself they prefer to
appeal to the reports of the legislative committees.  Other
supplementary materials carry less weight.  For paragraph
105(b)(5), there are no reports from legislative committees because
the paragraph was written in conference.  (Paragraph 105(b)(5) is
based on an initiative that was added on the Senate Floor so that
even the underlying idea is not explained in a committee report.)
If committee reports are not available, courts will sometimes use
other extrinsic sources.  For example, a statement by a bill's
manager will sometimes be used, but such statements are suspect
because they may or may not represent the views of the legislature.
A manager surely speaks for himself, but no one can know if he
speaks for a majority of the body.


PARAGRAPH 105(B)(5) ITSELF

     Section 104 of the Act requires lobbyists to register with the
Office of Lobbying Registration and Public Disclosure, a new office
within the Executive Branch.  Subsection 105(a) requires lobbyists
to file semiannual reports on their lobbying activities.
Subsection 105(b) specifies that those reports will contain names
of lobbyists and clients, a list of lobbying activities, estimates
of income and expenses, and the information required by paragraph
(5), which is reprinted below.  Note that Congress specifies the
basic, required information, but the director of the Office of
Lobbying Registration is to specify by regulation the form of the
report.

        "(b) CONTENTS OF REPORT.-- Each semiannual report
    filed under subsection (a) shall be in such form
    as the Director shall prescribe by regulation and
    shall contain--

               "* * *

             "(5) the name, address, and principal
         place of business of any person or entity other
         than the client who paid the registrant to
         lobby on behalf of the client[.]"

                          Subsec. 105(b), H. Rept. No. 103-750
                           at 10 (conf. rept. to accompany S. 349,
                          ordered printed Sept. 26, 1994).


THE ARGUMENT AGAINST PARAGRAPH 105(B)(5)

     Opponents of S. 349 say the meaning of paragraph 105(b)(5) is
clear, namely that the required report must contain the name,
address, and business address of every person other than the client
who gives an organization money that is used to lobby for the
client.  When the lobbyist and the client are the same
organization, the act would work as illustrated in the following
hypothetical example:

     Americans for a Better Country (ABC, Inc.) has organized to
lobby Congress and the Executive Branch for various changes in
Federal law and policy.  The group has employees who work as
lobbyists.  Therefore, ABC, Inc. is both the client and the
lobbyist.  (This understanding is reinforced by the act itself
which provides in paragraph 103(2) that, "A person or entity whose
employees act as lobbyists on its own behalf is both a client and
an employer of such employees.")  When "the grassroots" send checks
to support ABC's lobbying work, those citizens are, in the words of
paragraph 5, "pa[ying] the registrant to lobby on behalf of the
client."  The grassroots citizens are third-party supporters of the
lobbying activities of ABC, and they must be reported to the
Federal Government.


THE DEFENSE OF PARAGRAPH 105(B)(5)

     Senator Levin is the majority manager of S. 349.  Last week,
he went to the Senate Floor and denied that paragraph 105(b)(5)
will require small contributors to be registered.  Senator Levin
said:

          "[A] suggestion has been made that section 105(b)(5)
   would require organizations employing lobbyists to
   disclose their membership lists.  This is untrue.
   This provision, which was added on the Senate Floor,
   requires paid professional lobbyists to disclose the name
   of any person or entity other than the client who paid
   the registrant to lobby on behalf of the client.  I
   explained when this provision was adopted by the Senate
   that it would require only that if a lobbyist's bills are
   paid by someone other than a client, the identity of the
   person who pays the bills would have to be disclosed.
   And I refer to the Congressional Record of May 5, 1993,
   page S 5492.

          "Indeed, the Senate report on the bill
   specifically states that `the Committee believes that a
   broad requirement to disclose all coalition members would
   have serious first amendment implications.'  And there I
   refer to the Senate Report 103-37, page 31.  The
   conference amendment contains the same provisions as the
   Senate bill in this regard."  140 Cong. Rec. S 13831-32
   (daily ed. Sept. 30, 1994).

Senator Levin has restated his defense in a "Dear Colleague" letter
of October 5, 1994.


IS THE DEFENSE PERSUASIVE?

     Senator Levin's defense appears slightly off base.  He defends
paragraph 105(b)(5) on the basis of the Senate provision, but the
Senate provision was limited to "lobbying firms," i.e. lobbyists
who lobby on behalf of others.  The Joint Explanatory Statement of
the conferees, which Senator Levin signed, makes this clear.  That
statement said:

          "Section 105(b) [of the conference report]: Contents
    of Reports.   Section 5(b) of the Senate bill would
    require that each lobbying report contain * * * (5) In the
    case of a lobbying firm, the name, address and principal
    place of business of any person other than the client who
    paid the registrant to lobby on behalf of the client.

          "* * *

          "[T]he conference amendment would adopt the
    Senate language with a clarifying amendment.  Under
    the conference amendment, all registrants (regardless
    whether they are lobbying firms or use in-house
    lobbyists) would be required to identify any person other
    than the client who paid the registrant to lobby on behalf
    of the client."  H. Rept. 103-750 at 52-53 (emphasis added).


     A review of the original Senate bill, whose terms are set out
in the footnote below, confirms that the conference report is
correct and Senator Levin is incorrect.[1]


---------------------------
FOOTNOTE:

         [1]  Subsection 5(b) of the Senate bill reads,
         "(b) CONTENTS OF REPORT.-- Each semiannual
         report filed under this section shall be in
         such form as the Director shall prescribe by
         regulation and shall contain * * * (5) in the
         case of a registrant described under paragraph
         (3), the name, address, and principal place of
         business of any person other than the client
         who paid the registrant to lobby on behalf of
         the client."  139 Cong. Rec. S. 5581 (daily ed.
         May 6, 1993) (para. 5(b)(5) of S. 349 as
         passed by the Senate) (emphasis added).

         Paragraph (3) which is cited in paragraph (5)
         says, "in the case of a registrant lobbying on
         behalf of a client other than the registrant,
         a good faith estimate of the total amount of all
         income from the client (including any payments
         to the registrant by any other person to lobby
         on behalf of  the client) during the semiannual
         period, other than income for matters that are
         unrelated to lobbying activities[.]"  Id.

         Senator Levin's remarks on the Senate Floor
         in 1993 do not seem helpful -- even after keeping
         in mind that they were not made about the language
         of the conference report.  He said:  "[T]his
         amendment would tighten certain provisions of the
         bill and ensure that lobbyists cannot evade
         disclosure.  First, if a lobbyist's bills are
         paid by somebody other than a client, the identity
         of the person who pays the bills would
         have to be disclosed under this amendment."
         139 Cong. Rec. S 5492 (daily ed. May 5, 1993).]


END FOOTNOTE
-----------------------------

     Paragraph 105(b)(5) of the conference report is indeed based
on the Senate provision, but the current text of paragraph
105(b)(5) was not "added on the Senate floor," as Senator Levin
says.  It was written by the conferees.  The relevant provision of
the Senate bill was limited to lobbying firms, and a reference to
the Senate provision cannot answer the questions raised by the
opponents of the conference report.

     Senator Levin's reference to the Senate committee report (No.
103-37) is fascinating, but of course a committee report cannot
explain amendments that are written and adopted after the report is
filed.  Since paragraph 105(b)(5) was written by the conferees in
September 1994, it is not surprising that the Senate report which
was written a year and one-half earlier cannot be useful with any
particularity.  The Senate report is, however, educational.

     As Senator Levin said in his recent statement, the committee
report did indeed question the constitutionality of a broad
disclosure requirement.  The report said:

          "[T]he Committee believes that a broad requirement
     to disclose all coalition members would have serious
     first amendment implications.  Several Supreme Court
     decisions establish that such a requirement may
     unconstitutionally infringe upon the first
     amendment right of free association, particularly
     in cases where such disclosure could lead to reprisal
     or harassment against the members of an organization."
     S. Rept. No. 103-37 at 31 (1993) (footnote citing
     NAACP v. Alabama, 357 U.S. 449 (1958), omitted).

     As explained, the Senate report cannot tell us what paragraph
105(b)(5) means; it can, however, help us see that if the paragraph
means what its opponents say it means then it probably is
unconstitutional.

     Opponents of S. 349 say that paragraph 105(b)(5) requires
grassroots registration, which is harmful and unconstitutional.
Senator Levin seems to be saying that the paragraph does not mean
grassroots registration because if it did, that would be
unconstitutional and possibly harmful, and the conferees would not
have intended such a result.  It is possible, of course, for a
statute to achieve a result which its sponsors say was not
intended.


CONCLUSION

     The conferees changed the Senate bill.  Their Joint
Explanatory Statement explains what they did.  The words in
paragraph 105(b)(5) of the conference report are not the words of
the Senate-passed bill, and that change in wording must be presumed
to imply a change in meaning.  If words still have meaning, the
words of paragraph 105(b)(5) mean something different and something
broader than the words of the Senate bill.

     Paragraph 105(b)(5) of the conference report is in the left
column, below.  The relevant text from the Senate bill is in the
right column, below.  Will any reader say that these two texts have
the same meaning?

Subsec. 105(b) of the conference report

     "Each semiannual report filed under subsection
     (a) shall be in such form as the Director shall
     prescribe by regulation and shall contain * * *
     (5) the name, address, and principal place of
     business of any person or entity other than
     the client who paid the registrant to lobby on
     behalf of the client[.]"


Subsec. 5(b) of the Senate-passed bill

     "Each semiannual report filed under this section
     shall be in such form as the Director shall
     prescribe by regulation and shall contain * * *
    (5) in the case of a registrant described under
     paragraph (3) [i.e., "a registrant lobbying on
     behalf of a client other than the registrant"],
     the name, address, and principal place of business of
     any person other than the client who paid the
     registrant to lobby on behalf of the client."


     When S. 349 was in the Senate Governmental Affairs Committee
and on the Senate Floor, the managers were sensitive to questions
about the wisdom and legality of grassroots reporting and
registration.  In the rush of conference activity, however, they
struck the restrictive language of the Senate bill and opened up
the conference report to the reasonable criticism that it is now
receiving.  That criticism is based on the plain text of the
conference report and its history, i.e., on the fact that the
conferees removed the restrictive Senate language.

     The language of the conference report and the history of that
language is inconsistent with the proponents' stated intentions,
and no one should be surprised if a court enforces the language of
the act and not the good intentions of the sponsors.



Staff contact: Lincoln Oliphant, 224-2946
.


