DENVER–In late December, Secretary of State (SOS) Jenna Griswold issued new lobbying rules that may put private citizens at risk of being legally sanctioned if they don’t follow the complex regulations, with one former SOS staffer calling the rules potentially unconstitutional.
Lobbying roughly means communicating or asking others to communicate with a wide range of state public officials including the Governor, any member of the state legislature and others involved in creating legislation.
It covers virtually any communication with those officials “whether or not the general assembly is in session” that involves any “bill, resolution, amendment, nomination, appointment, or report, whether or not in writing, pending or proposed for consideration by either house of the general assembly or committee thereof.”
The statutory definition of lobbying has been on the books for a long time, but it has traditionally only applied to professional lobbyists who are paid to discuss such matters with officials and their client’s employees.
The rules Griswold issued are found in the Colorado Code of Regulations (CCR), have the force of law and can be changed by the SOS without legislative action. But they also are subject to state law found in the Colorado Revised Statutes (CRS).
The regulations often refer to the statutes for definitions and other details. These recursive references can make interpreting rules quite complex. The way regulations are drafted and issued can lead to conflicts with the statutes and even the Constitutions, both state and federal.
Traditionally, private individuals who discussed legislation with officials on their own behalf, say over a cup of coffee in their district, were exempt from the definition of “lobbying” in the rules.
The previous rules explicitly excluded “a political committee, volunteer, lobbyist, or citizen who lobbies on his or her behalf” from the definition of lobbying for the purposes of regulation by the SOS.
This meant that such conversations were not subject to complaints of illegal lobbying being filed with the SOS
The new rules repeal that language and create two new categories exempt from the definition of lobbying.
The rules exclude people who testify at or are called before a committee who “clearly identify themselves and the interest for whom they are testifying or providing information,” but there is no clear exemption for private citizens who contact officials about legislation outside of committee hearings like the previous language did.
The first new category is called “grass roots lobbying.” It applies to “employees of an organization” not “paid solely to lobby.”
The language appears to say that employees of an organization like the Sierra Club or the National Rifle Association can talk with only one legislator only once per year.
Violating that rule opens the organization and the individual up to complaints, investigations and enforcement actions by the SOS that triggers wide powers of investigation, including the power to subpoena financial records and documents like donor lists from the organization.
In a 2017 case under the old rules, the SOS sent an advisory letter to the paid director of an education reform advocacy group about a complaint that he had been seen speaking with legislators on numerous occasions outside of the presence of the organization’s registered lobbyist. The letter from the SOS advised the director he should register as a professional lobbyist if he intended to speak with legislators alone.
The other category is “volunteer lobbyist,” defined as “any individual who engages in lobbying” who gets nothing more than reimbursement for expenses.
That ambiguous definition of volunteer lobbyist as “any person” could sweep private individuals within the rules merely for meeting with their district representative in an informal setting to discuss their concerns and potential language for future bills, which former Deputy Secretary of State Suzanne Staiert suggests is unconstitutional.
Staiert told Complete Colorado that lobbyist regulation has always been limited to paid lobbying.
“I think the only lobbying that [the state] can regulate under the First Amendment is paid lobbying,” Staiert said. “Otherwise the definition of lobbying would be so expansive that it would capture anybody’s conversation or communication with their own legislator over issues that are personal to them; you’re right to political speech, your right to advocate for yourself, your neighborhood, your children.”