Proposed Rule Changes May Mean YOU Must Register as a Lobbyist

Regular and effective communications is one of the eight key management areas for nonprofits.  This includes actively engaging a range of key stakeholders and other audiences. The Joint Commission on Public Ethics (JCOPE), the government body that regulates and monitors lobbying has proposed broadening the definition of what’s considered lobbying activity to also include all advocacy communications.  Below is the opinion of the Lawyers Alliance for New York on the subject.  We encourage you to weigh in. What do you think of the JCOPE proposal?

Encouraging Civic Engagement Should Not Count as Reportable Lobbying

Laura Abel-027-RET-flat

By Laura Abel, Senior Policy Counsel, Lawyers Alliance for New York

Nonprofits have an opportunity to weigh in against a surprising new definition of lobbying that could sweep in nonprofits’ civic engagement activities.  Under the proposal by the NY State Joint Commission on Public Ethics (“JCOPE”), a person or organization would be considered a grassroots lobbyist if it “controls the content and delivery of a message or communication that solicits the public at large, or a segment or portion of the public at large, to engage in activity covered by … the Lobbying Act with a public official….”  This could cover a webpage or poster urging people to “get involved, tell the legislature how you feel about rent regulation,” even if the communication did not specify whether people should weigh in for or against.  Spending $5,000 or more on such activity would trigger a requirement to register and report as a lobbyist.

This proposed definition is much broader than the federal definition of grassroots lobbying, which covers a communication only if it:

  1. Refers to specific legislation;
  2. Reflects a view on such legislation; and
  3. Encourages the recipient of the communication to take action with respect to such legislation (i.e., it includes a “call to action”).  To qualify as a “call to action,” a communication must suggest a specific action, such as contacting a specific legislator.

All three criteria are completely absent from JCOPE’s proposed definition.

And that’s not all.  JCOPE’s expansive definition of “controls” would include “participation in the formation of the communication or some influence over reviewing or editing the communication.”  This could sweep in editorial or graphic design services or legal advice regarding a communication to the public.  I often suggest edits to my clients’ issue campaign mailings to ensure they are not considered election-related speech by the IRS and Board of Elections.  That activity should not be considered lobbying.  Indeed, requiring its disclosure could potentially violate attorney-client privilege.

There are serious First Amendment problems with JCOPE’s proposed definitions.  Yes, the government may require disclosure of speech when the government’s interest is strong enough.  But JCOPE’s apparent goal is to require certain communications consultants to register as lobbyists.  It is entirely unnecessary to also cover a general call for civic participation, or a person who merely suggests edits to a grassroots communication.

JCOPE is seeking comments on its proposed definition through June 26.  You can find the proposal, and information about how to comment, here.


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