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Time to give our first freedom as much respect as the second

November 11, 2014

A handful of elected officials in the Arizona Legislature have repeatedly tried to intimidate and silence Goldwater Institute analysts out of giving testimony in support of or in opposition to legislation this year. In one case, an elected official forced a Goldwater Institute attorney, who asked to speak on behalf of the Institute, to refrain from speaking because she was not a registered lobbyist for the Institute. Although the attorney was later allowed to testify after signing in as representing only herself, the instance demonstrates that certain Arizona legislators want citizens to curtail their First Amendment rights before daring to talk or write about public policy with their representatives.

Apparently legislators have more respect for Second Amendment rights. Arizonans have the right to bear arms nearly everywhere in this state without having to register anyone or anything with the government. Likewise, as mighty as the pen might be, no one should be forced to register themselves (or their pen) before communicating with elected officials about legislative reform. Yet, Arizona has done just that through its overreaching lobbying laws.

Arizona does not define “lobbying” as lurking in the lobbies of the Legislature and trying to peddle laws that would financially benefit a principal. It does not define lobbying as trading an expensive steak dinner for an opportunity to bend a legislator’s ear. Instead, Arizona law defines lobbying as “attempting to influence the passage or defeat of any legislation by directly communicating with any legislator.”

In effect, in Arizona any form of direct communication with elected officials that expresses an opinion about legislation amounts to lobbying. It does not matter whether the effort to “influence” legislation consists only of facts, law and logic at a public hearing without a dime being spent to benefit a legislator. It does not matter whether the communication addresses only potential reforms — Arizona’s definition of “legislation” includes both pending and proposed legislation. It does not matter whether the communication is meant only to advance the public interest without any desire for monetary gain from the defeat or passage of a law. Even a newspaper that directly emails a link to its latest opinion editorial to a legislator is lobbying if the email dares to express an opinion on a pending or proposed bill or legislative reform.

Although dozens of curious definitions and vaguely worded exemptions appear to limit the reach of Arizona’s lobbying regulations, the reality is that no one can freely talk to elected officials in Arizona about legislative reform without being threatened by the government. Anyone doing so without registering as a lobbyist risks a class 1 misdemeanor, which includes the possibility of up to six months in jail. The threat of jail time means there is no truly unfettered communication about public policy between citizens and legislators in Arizona — at least, not for anyone with common sense.

Before daring to influence government action, any careful citizen will bite his tongue, contact an attorney, and navigate either complicated registration and reporting requirements or exemption prerequisites before opening his mouth. No one can reasonably ignore Arizona’s lobbying regulations and just talk to elected officials about legislative reform.

But even if citizens and citizen groups meticulously follow the law and invoke exemptions to avoid the need to register as lobbyists, as the Goldwater Institute has for its analysts, the past legislative session shows that elected officials will still try to silence or impede public testimony as supposedly impermissible lobbying. This is because Arizona’s complex and lengthy lobbying laws encourage elected officials to believe citizens and citizen groups lack legal authority to speak freely on public policy. In effect, Arizona’s lobbying laws have reversed the First Amendment’s presumption of freedom of speech in the minds of Arizona politicians. Citizens are now presumed to have no inherent right to communicate with their representatives to influence legislation. This is an incredibly dangerous development.

Citizen participation in the legislative process is essential to ensuring our freedom. Keeping government in line and on task requires more than voting every two or four years. Laws affecting our lives and freedoms in fundamental ways are considered, made or expanded every day when the Legislature is in session. Especially during legislative sessions, reformers must speak truth to power to stop bad laws and advance good ones. This requires responsible citizens and citizen groups to engage in direct, blunt and continuous communication with our elected representatives.

To preserve self-government, the government must not create a regulatory environment in which the political class presumes citizens have no right to freely engage the legislative process. In a free society, no politician should think even for a moment that he can require citizens and public interest groups to get the government’s permission to talk to the government. A wall of opaque lobbying regulations must not even appear to stop citizens or groups of citizens from trying to influence public policy.

Unfortunately, the behavior of elected officials this past session proves that Arizona’s lobbying laws threaten these foundational requirements of our representative republic. For that reason, it is time to reform Arizona’s lobbying laws to more fully protect our First Amendment rights, just as we have reformed Arizona’s gun laws to more robustly protect our Second Amendment rights.

Our first freedom should get at least as much respect as our second.

Originally published in the Arizona Capitol Times.



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