These types of indirect efforts, also known as “grassroots lobbying,” encompass a wide variety of activities.  Sanctions, penalties, and fines arise when organizations fail to realize that their efforts to persuade the general population on various issues may possibly be considered lobbying.

The good news is that many states are explicit as to whether they consider grassroots efforts lobbying.  States like Arizona and Ohio define lobbying as direct communication with legislators, thereby excluding grassroots.  States that do regulate grassroots activity, for example, Mississippi and New Hampshire, use language such as soliciting others and indirect communication with legislators to indicate that grassroots efforts require registration.

Reporting grassroots activity is often more complicated than reporting direct lobbying expenditures.  In most states, reporting direct lobbying expenses is straightforward.  It is not difficult to determine what is an expenditure spent on an official.  Reporting grassroots costs becomes confusing because grassroots lobbying often consists of mass media campaigns, along with websites and e-mails.  It is difficult to tell exactly which costs are included in the registration and reporting thresholds.  For example, in the case of a website, do you include the salary of the person creating the website, the cost of web access, or the cost of any outsourced work?

As a result of the confusion over what is included when reporting grassroots costs, many state ethics commissions have released advisory opinions to provide guidance.   The Connecticut Office of State Ethics issued an opinion stating that in the case of a website, or an e-mail campaign, an organization should report the costs of the personnel and hardware it took to establish the site, as well as the cost of Internet access charges, and the rental cost of any office space.  The office of State Ethics does qualify this by stating additional costs do not need attributed to each e-mail, no matter how numerous, because they are essentially free once the account has been set up.

Many state reporting forms contain sections exclusively for grassroots expenditures, thereby making it easier for the public to see what has been spent directly on legislators versus was has been spent on encouraging public action.  In Kansas, the reporting form contains a section for the amount spent on communications to influence and a section for mass media communications.  Both of these sections are exclusively for grassroots efforts.  Television and radio ads are reported as mass media, while mailers are communications to influence.  None of these expenses need itemized; only a lump sum is reported.  This is in contrast to New York state lobbying reports, where each grassroots expense is listed and itemized by date, amount, and payee.

In conclusion, it is important for government affairs personnel to be aware that their organization’s activities in different states may fall within the scope of grassroots lobbying.  Each state handles grassroots lobbying differently, and some states are still developing how they plan to approach this growing area of the law.  Many state ethics commissions are also keeping close tabs on larger publicity campaigns, making it more important than ever to ensure that your organizations reports are not only filed timely, but also correctly.  If your organization has a state-wide media campaign, chances are someone in the ethics commission has seen it, and is awaiting the expenditure report.