FINAL ADVISORY OPINION 98-04
Political Advertisements (Grassroots Lobbying)
Indiana Lobby Registration Commission
(Ratification vote taken at public meeting of June 2, 1998)
VOTES ON RATIFICATION:
Chairman Bepko - yes
Vice-Chairman Krahulik - yes
Commissioner Abbs - yes
Commissioner Hicks - yes
Questions and written comments may be directed to:
Indiana Lobby Registration Commission,
115 W. Washington, Suite 1375, Indianapolis, IN 46204
(317) 232-9860
Rationale:
The Commission voted that two newspaper advertisements purchased by a non-profit association was not lobbying under the Lobby Registration Act, given the following circumstances:
- The association is not a registered lobbyist.
- Advertisement #1 asked the general public to call the Governor and ask him to veto a bill. The advertisement appeared after being approved by both the House and Senate Conference Committees.
- Advertisement #2 was an open letter addressed to the Governor during the 1995 legislative session asking him to veto a bill. The advertisement appeared in the Indianapolis Star after the House passed the bill upon third reading but prior to the Senat e's concurrence.
Commissioners also agreed that if a lobbyist writes a letter to the Governor regarding a bill and sends a copy of the letter to members of the General Assembly while the bill still is before the General Assembly, then the lobbyist would be communicating with a legislator for the purpose of influencing legislative action under the Lobbying Act. Background
In a letter dated April 3, 1996, the Commission was asked for an advisory opinion on the following question:
Whether two advertisements, purchased by an association that is not a registered lobbyist, constitute lobbying under the Indiana Lobby Registration Act and requires the association to register as a lobbyist. One ad was addressed to the Governor, asking him to veto a bill, and one ad asked the general public to write the Governor and urge him to veto the bill.
A member of the association's board of directors appeared before the Commission and explained the national staff of the association had advised the local chapter to run Advertisement #2 early, to avoid a similar situation that had been encountered in Texas where the Governor signed a bill before anyone realized that the second house had passed it. The association member stated it was a coincidence that the advertisement appeared prior to the Senate taking action.
An advertisement addressed to the general public after the bill in question had been passed in Conference Committee by both the House and the Senate does not "communicate with any legislative official with the purpose of influencing any l egislative action" [see IC 2-7-1-9] and so does not constitute lobbying. Although the Governor's act of approving or vetoing a bill is legislative action under IC 2-7-1-7, neither the general public nor the Governor is a legislative official under IC 2-7- 1-8.
Rationale re: Advertisement #2
If advertisement #2 was directed only at the Governor, then it is not lobbying for the same reasons Advertisement #1 is not lobbying. However, because advertisement #2 was published on a day when the Senate took action on the bill, and so the bill could not have been in the hands of the Governor, the question presented is whether the advertisement was actually directed to members of the General Assembly (defined as legislative officials under IC 2-7-1-8) for the purpose of influencing leg islative action under IC 2-7-1-7, even though the advertisement was addressed to the Governor. Commission members expressed the following concerns prior to voting:
- The ad was clearly addressed to the Governor and so outside the Commission's jurisdiction. IC 2-7-1-9 defines lobbying as "communicating by any means . . . with any legislative official." IC 2-7-1-8 defines legislative official as "a member of the ge neral assembly . . . ." and does not relate to the Governor.
- The U.S. Supreme Court has held several times that regulating lobbying activities implicates the First Amendment. While there is a strong state interest in the public disclosure of lobbying activities and, therefore, some regulation is constitutional , the regulations must be narrowly drawn to serve the interest. An openly addressed attempt to influence legislation (such as a newspaper advertisement) seems either to fall outside or severely dilute the state's legitimate interest in disclosure; it is m ore like any group of concerned citizens that purchases ad space to voice its position about an issue. The state's interest that ordinarily justifies lobbying regulation isn't present in such a case and, therefore, probably would not be present in the que stion before the Commission.
- Although there may be first amendment concerns, the Commission isn't trying to regulate what views lobbyists' express in their advertisements or in what manner they advertise such views. However, the Commission is charged with providing the public wi th information about how lobbyists express their views and how lobbyists spend their money related to legislators. The intent of the statute is to provide the public with access to information about a lobbyist' financial activities as related to legislato rs.
- The State's interest in requiring a party to register and report a newspaper advertisement may be hard to justify on the basis of an interest in disclosure. An advertisement run in a newspaper discloses the party's position on a legislative issue--th eir position appears in print for all interested parties to read. If an advertisement also identifies the party who purchased the ad and identifies the persons the ad is intended to influence, then the public already receives the information collected und er the lobbying regulations, except the cost of purchasing the advertisement, which is readily obtainable by calling the newspaper. Advertisement #2 clearly discloses the identity of the party running the ad and their position on an issue. The question is whether the ad discloses the persons it intended to influence.
- Although the ad was addressed to the Governor, a person familiar with the legislative process would have known the bill would be in the General Assembly for a few days. It may not be fair to impute knowledge and understanding of the legislative proce ss to all lobbyists; nonetheless, the Commission should focus on more than the language contained in an advertisement when deciding whether it has the purpose of influencing legislative action. The Commission should also examine the ad's intent and effec t and the overall situation.
- Regardless to whom the advertisement was addressed, the final passage of a bill does not occur until the conference committee report is approved by both Houses and, therefore, whether the association intended so or not, running an advertisement durin g that particular time period assured it of being read by legislative officials and thereby of influencing legislative action under IC 2-7-1-6. Many bills die in conference committee after having been passed by both houses. A lobbyist is probably aware th at a bill in conference committee can die any place along the line. The bill was still in a win-or-lose situation and so subject to lobbying influence.
- The case of advertisement #2 is borderline. Because of the question of intent, if the association runs an advertisement next year during a similar time frame the Commission would want to take another look at the issue.