Indeed, H.R. 15 makes second-class citizens out of the voluntary organizations which publish "communications" or "soliciations" in their own newsletters or other house organs and out of the organizations' members. Publishers of newsletters of general circulation need not register and report, provided the publisher is not a voluntary membership organization as defined in the bill. But a voluntary organization which publishes a newsletter or magazine-even one of general circulation not restricted solely to the membership—would be subject to the provisions of these bills.

It should not be lost upon this Committee that the United States Court of Appeals, in the Buckley decision, cited previously, held unconstitutional a provision which drew a similar distinction. The Court of Appeals duly noted the irony of such an artificial distinction:

"How many of the Nation's great newspapers and magazines do not regularly endeavor and rightfully so-to exert influences precisely of those types ?" (Buckley, supra, Slip Opinion at 1553.)

The logic of this provision escapes us. If anything, it demonstrates that constitutional limitations effectively preclude the attainment of a utopian scheme of disclosure.

CHILLING EFFECT

Even assuming, arguendo, that reasonable specificity could be introduced into this proposal and that both "direct" and "indirect" lobbying could be subject to the "regulation" contemplated by its sponsors, the proposal would have an impermissible chilling effect upon the exercise of First Amendment rights by citizens.

We would direct the attention of this Committee, in the first instance, to the definition of a "lobbyist" contained in H.R. 15.

The necessary result of such a definition is not only to ensnare the corporate executive who occasionally visits Washington on company business, but also those individuals or groups who may either travel to Washington or remain at home and communicate with their elected officials, and may invite them to social functions, or in the course of some other wholly legitimate undertaking "trigger" the requirements of this bill. These occasional "lobbyists" would be subject to the same requirements as the retained, professional lobbyist whose principal purpose of employment is "direct" lobbying.

We submit that if these individuals were informed that they are "lobbyists" they would be shocked and appalled. Furthermore, if they were then informed that they must file a notice of registration, maintain records and file quarterly reports, they would, in all probability, decide to forego making legislative contacts.

The same considerations apply to communications to any Member of Congress by any of that Member's constituents, as well as nonconstituents.

In short, this legislation should be reported only if this Committee desires to limit the access of private citizens to their government, or the free flow of communication between Members of Congress and their constituents, or anyone else, on any "policy matter."

Some additional examples would further demonstrate the chilling effect this proposal will necessarily have on constitutional rights..

Much environmental legislation currently provides for the development of state, regional and local implementation plans. If concerned citizens within an air quality region, for example, meet with the local administrators of the Environmental Protection Agency to develop and perfect such a plan, the citizens may be subject to the requirements of this bill. It would be difficult, for example, to commission research work in this area which did not cost more than $250 per calendar quarter.

Indeed, H.R. 15 exempts from the definition of "lobbying" only testimony given to a Congressional committee or "appearance" before a Federal department or agency. Therefore, any "informal" meetings between citizens and agency officers or employees may trigger the requirements of this bill.

H.R. 15, furthermore, exempts only a "written statement . . . to any Federal executive department, agency, or entity at the request of such department, agency, or entity." (Emphasis added). Therefore, all oral statements and those written statements which are not in response to a request for testimony shall be deemed to be "lobbying" activities.

In addition, H.R. 15 requires each "lobbyist" to maintain records of (and, therefore, report and make public) his or her total income and that portion of income "attributable to lobbying."

To many individuals, the amount and source of income is confidential information. Indeed, the Internal Revenue Code imposes strict limitations upon access to information contained in tax returns and provides significant penalties for divulgence of such information by government employees.

In light of this tradition of confidential treatment of income-related data, H.R. 15 at the very least, borders on an intrusion into an individual's privacy. Even if its proponents could justify the making public of income related to the "lobbying activity" of individuals, total income statistics need not be revealed to further some vague and ill-defined "public interest."

Under this bill, however, even an individual who is no more than an incidental or occasional lobbyist is required to decide whether to surrender personal privacy in order to exercise a constitutionally guaranteed right. Such a trade-off constitutes an impermissible chill on the exercise of First Amendment rights.

Indeed, the touchstone of H.R. 15 is the ability to require trade-offs for individuals to exercise their constitutional rights. The implicit contract upon which this legislation is premised is the following: “If you want to petition the government with some degree of regularity, Citizen, then you must fill out the forms and keep the records which we prescribe."

The constitutional rights at issue here cannot be contingent upon adherence to some bureaucratic regulations. The issue is not self-censorship but whether the government can convert a constitutionally protected right into a licensed activity with unrealistic and unnecessarily burdensome requirements as the license fee.

REGISTRATION, RECORDKEEPING, AND REPORTING

I want to emphasize that the real concern of the business community is not with the concept of any reasonable disclosure per se, but rather with the complex, costly and time-consuming recordkeeping and reporting requirements. These requirements are compounded by the need for constant and intensive consideration of specific "communications", "solicitations" or other "activities" in order to determine whether or not they are covered by the proposed law, and, if so, how properly to account for the related expenditures or receipts.

Further, we urge the Committee to consider this critical point: Although the bill does not require persons to file notice of registration and reports until they have become "lobbyists," each person who may qualify as a "lobbyist" during a calendar quarter must retain records in anticipation of becoming a "lobbyist." Alternatively, that person will be required to reconstruct expenditures and recall "communications" or "solicitations" which may have occurred nearly three months previously.

There may be some for whom these requirements will not present a serious problem. But it should be recognized and clearly understood that the impact is not only on those who are clearly subject to these requirements.

Anyone who engages in any of the myriad activities within the scope of this bill will have to undertake the continuous logging of activities, virtually minute-byminute. A failure to identify a "trigger-point," or to account for some covered activity, will expose that person to sanctions.

Many knowledgeable business and organization executives, as well as professionals, academicians, and persons from all walks of life, whose views, information, or expertise is useful and valuable to the formulators of legislative or administrative policy, can be expected to be put under restraints by such requirements, and the accompanying potential need for far-reaching public accounting of their affairs.

As previously suggested, a great many of these people are compensated at a rate which would mean that a single covered act would make them lobbyists, with all of the attendant obligations. Under the terms of H.R. 15, any person who receives $250 or more per calendar quarter as income for "lobbying *** whether such income is the prorated portion of total income attributable to that lobbying, or is received specifically for the lobbying" must comply with the Act's requirements. In addition, the employer or client of such person must also register as a "lobbyist."

Even for the businessperson who is certain to qualify as a "lobbyist," however, these proposals present no small task. This problem would be compounded in the case of voluntary membership organizations subject to this bill. It would be a monumental and wastefully costly task for us to monitor every phase of the. activities of the organization and its employees, to collect, collate, evaluate, verify, determine cost data for each covered item, and deliver all the materials,

including copies of mailings to our membership, descriptions of various meetings of our members and lists of those in attendance, and a myriad of other information-all of which may arguably be required by the terms of H.R. 15. It is disheartening to contemplate such a wasteful undertaking which would be of little, if any, use to Members of Congress in evaluating the merits of any positions expressed by the Chamber. Logically, one would expect that the evaluation process would already have taken place in the consideration by Congress of the Chamber positions communicated to it.

The impact on other membership organizations would be similar, and would be especially hard on those smaller associations and state and local chambers of commerce that may be vital instrumentalities for the representation of and as spokesmen for their constituencies.

This Committee should take careful note that, in cataloging the registration, recordkeeping and reporting requirements, the authors have not limited the information which may be collected. Indeed, the Federal Election Commission, or other supervisory authority, is given virtual carte blanche to determine what information is necessary and appropriate. This proposal constitutes an open-ended, unrestricted and probably unprecedented authorization to demand information completely devoid of any protection under rights of privacy or protection of confidential or privileged data in an era when there has been widespread public concern about the dangers of governmental abuse of investigative authority. The authority contained in H.R. 15 may permit the subversion-if not the negation— of the right of privacy of individuals without the accrual of any concomitant benefit to the public.

It would be a short step from the present requirement that a "lobbyist" reveal all sources of income to requiring the filing of net worth statements both for the "lobbyist" and his or her immediate family. The ever-lurking prospect of being subjected to intensive investigations and audits covering one's personal affairs is little short of alarming. In brief, the opportunity for compounding the requirements and making them even more onerous is ever-present. An extraordinarily broad range of information might be required in the name of "sunshine." As we had suggested previously, many citizens, as a direct consequence of this legislation, will ask the key question: What is the benefit to me in attempting to maintain a dialogue with government officials when the condition for exercising this right is compliance with these requirements?

We urge this Committee to ask the converse of that question in reviewing each provision of this legislation: What is the benefit to be derived from this requirement in light of the potential burden and sanctions it places upon my constituents in the exercise of their constitutional rights? What is the value, for example, in requiring that "lobbyists" submit copies of all "written communciations used to solicit other persons to lobby" and placing these documents in a public

file?

The cost-benefit analysis which we urge this Committee to undertake should not be measured solely in dollar costs to those subject to the proposed Act and to the government for its administration. While these factors are of obvious importance, they would be too crass a yardstick for determining the value of this proposal.

At the "bottom line" is the cost in terms of constitutional rights. The Committee should-and, indeed, must-review the specific provisions in this context. To do less would be a disservice to the citizens of this Nation.

ADMINISTRATION

H.R. 15 would vest authority for administration of the proposed lobbying law in the Federal Election Commission. The powers which would be granted to the Commission would be both enormous and complex.

The National Chamber would not oppose granting administrative authority to the Federal Election Commission. We do urge the Committee to consider with due care the scope and nature of the responsibilities and authority which would be delegated and the importance of feasible and equitable standards and guidelines for the exercise of these functions. Too, there should be careful and thorough evaluation and appraisal of the manpower, physical facilities, and related needs essential to these functions.

H.R. 15 makes no reference whatever to the Administrative Procedure Act. This bill, if enacted, would leave it to the Commission to determine its practices and procedures without the benefit of any Congressional guidance.

The Federal Election Commission or other administrative body would have enormous power in regulating and adjudicating constitutional rights. At the very least, the Administrative Procedure Act should be applicable to the determinations and decision-making processes of any instrumentality delegated such broad authority.

"LOBBYING" IN THE PUBLIC INTEREST

The proponents have argued that H.R. 15 is necessary because the public does not know which individuals or special interests communicate regularly with their legislators and other Federal officials. If this is truly a matter of broad public need or concern, it is actually arguing for imposition of recordkeeping and reporting requirements upon "Federal officers and employees"-which includes Members of Congress. Indeed, some Members of Congress have commended this approach to the Committee.

At the same time, it is unlikely that Members of Congress or the Executive will hurry to the files of "lobbying" reports every time a "lobbyist" appears before or otherwise communicates with them. Rather, any responsible legislator or official could readily and would verify the credentials or the bona fides of anyone making representations to him as a spokesperson for any "lobby" group which was unfamiliar to the official being "lobbied."

The proponents point to the "sinister", "secretive" and "darker side" of lobbying as justifications for this proposal. Indeed, some proponents anticipate that the disclosure of $10 lunches and gifts of $20 tie clips will introduce a heightened measure of integrity into governmental processes.

I am astounded by the implicit assumption that a Federal officer or employee, elected or appointed, could be "bought" or in some way compromised by such token gratuities. I honestly do not believe that any individual would permit his or her integrity to be so easily and cheaply traded. And I do not believe that there are many in government who can be bought at any price.

At the same time, such legislation will not-and cannot-deter individuals whose intent is to corrupt by offering bribes or otherwise violating existing laws or anyone who might succumb to the temptation to sell himself or herself. Indeed, no proponent of H.R. 15 has demonstrated that the present prohibitions in the Criminal Code are inadequate to deter unlawful conduct. An individual intent upon committing such criminal acts will most certainly ignore this bill's requirements for recordkeeping and reporting.

The inevitable result of this legislation will be the creation of a crazy quilt of rules and regulations, subjective judgments and distinctions without real differences which would delight a medieval scholastie.

The First Amendment does not tolerate the creation of a lobbying law which will "cover" the corporate or organization executive but exempt the interested private citizen. The First Amendment does not permit the use of vague, ambiguous and ill-defined terms as a means of imposing a virtually unlimited range of sanctions applicable to free speech and petition. The First Amendment does not permit the promulgation of requirements that are so restrictive that they "chill" the exercise of First Amendment rights.

The proponents of this legislation have been among the first to acknowledge the positive role which lobbyists play in providing information and arguments in furtherance of the democratic process. H.R. 15 will have the inevitable effect of curtailing the effective operation of our government to the extent that citizen "lobbyists" are deterred from making their views known to members of the Legislative and Executive Branches.

In all sincerity, I can contemplate no result which would be more of a disservice to our society and our system.

Mr. Justice Jackson, in his dissenting opinion in Harriss, stated what should be the guiding precept of this Committee in its deliberations on these bills:

"The First Amendment forbids Congress to abridge the right of the people 'to petition the Government for a redress of grievances.' If this right is to have an interpretation consistent with that given to other First Amendment rights, it confers a large immunity upon activities of persons, organizations, groups and classes to obtain what they think is due them from government . . . but we may not forget that our constitutional system is to allow the greatest freedom or access to Congress, so that the people may press for their selfish interests, with Congress acting as arbiter of their demands and conflicts." 347 U.S. 635.

SUMMARY

The National Chamber urges this Committee to reject H.R. 15, or any other similar proposals, which violate fundamental constitutional rights, which inhibit the free and unfettered exercise of those rights, which create arbitrary and discriminatory classifications and categories and which impose administrative burdens disproportionate to any possible marginal public interest purpose. H.R. 15 does not affect solely those individuals, associations or other organizations which engage in wide-scale "lobbying activities" and expend large sums of money. Rather, H.R. 15 impacts upon an untold number of citizens in exercising their constitutional right to petition their government. In the final analysis, it converts a constitutional right into a privilege which may be exercised only at significant personal expense, unjustified inconvenience, and under the constant danger of criminal or civil prosecution for overlooking some of the myriad of recordkeeping and reporting requirements.

The CHAIRMAN. You may comment on your statement, make such additional statements or explanatory statements as you desire. We are glad to have you before us and we welcome you.

TESTIMONY OF STANLEY T. KALECZYC, JR., ASSOCIATE GENERAL COUNSEL, CHAMBER OF COMMERCE OF THE UNITED STATES, ACCOMPANIED BY FREDERICK J. KREBS, OFFICE OF THE GENERAL COUNSEL

Mr. KALECZYC. Thank you, Mr. Chairman.

For the record, my name is Stanley T. Kaleczyc, Jr., Associate General Counsel, Chamber of Commerce of the United States. Accompanying me today is Frederick J. Krebs, of the General Counsel's Office.

I would like to commend the members of the committee for their patience in sitting through a very long day of testimony. If any of your constituents say that Congressmen do not work hard, I think today is proof that they in fact do work very hard.

Before we begin our formal presentation, I would like to make a minor correction to the formal statement which we had transmitted to the committee earlier this week. By way of explanation, part of the statement dealing with H.R. 15 had originally been drafted by Milton A. Smith, our former General Counsel, who is now in private practice in Washington.

Mr. Swanner indicated to me before the afternoon session began that in fact he saw Mr. Smith's hand in the statement, and indeed he did. But since Mr. Smith is no longer with us, I would ask that there be deleted from our statement the first paragraph on page 19, the section that reads as follows:

I can speak from my personal experience of 30 years with the National Chamber when I state that.

Since neither Mr. Krebs nor myself individually has been on the face of the earth for 30 years, and collectively our experience at the National Chamber does not approach that figure either, I think it would be inappropriate to have that contained in the record.

The CHAIRMAN. Without objection, that deletion will be made, and if I may interrupt very briefly, let me correct a statement that I made in saying that your statement in full will be entered at this point. Let