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Summary of Show 01 - Illegal to Advocate Political Change in NYS

1st Published on 03/16/07; Last Update: 11/12/07 12:23 pm

This Website provides the materials used or which had been gathered for use in Carl Person Shows produced at MNN, Manhattan Neighborhood Network (a community cable resource of Time-Warner Cable).

NOTICE PRODUCERS AND NYC RESIDENTS: Look at My New Website for Ballot Initiatives in NYC - and Learn How You Can Participate in Making New York City a Better Place to Live and Work

Anyone interested in making NYC a better place in which to live and work should look at my new website, entitled "NYC Ballot Initiatives - 50+ Needed Reforms for Direct Enactment by NYC Voters". Voters in NYC are allowed by New York law (part of the New York State Constitution) to enact local legislation through signatures on petitions, and vote of the people, if the petition is not accepted into law by the New York City Council. I have put together 29 or more petitions and have outlined about 20 more in my website, at Website for Voters Passing Statutes in NYC through Ballot Initiatives". Ballot initiatives at the local level of government (e.g., city, town, village, municipality) is where desired political changes can still be made, instead of at the top level of government, which has been bought off and too resistant to meaningful change.

Summary of Show 01 - "Illegal to Advocate Political Change in NYS"

In 1999, the New York Legislature enacted the New York State Lobbying Act. This Act is one of the worst attacks ever upon New Yorkers' First Amendment and related New York Constitutional rights to Freedom of Speech and right to petition their government for a redress of grievances. Just read all of page one of the 15-page statute provided as the first of my 5 documents below. This will show you the overbreadth of the New York Lobbying Act.

In 2003, Hip-Hop entrepreneur Russell Simmons, a very wealthy businessperson, and associate Benjamin Chavis (former Executive Director and CEO of the NAACP and an ordained minister in the United Church of Christ), decided to exercise their right to complain about the Draconian Rockefeller Drug Laws and, using their own money, rented a billboard to post a sign advocating that these laws be repealed.

What's wrong with that? Isn't it something you might do for that or some other cause if you had sufficient extra money to rent a billboard for a month or two?

The New York Temporary State Commission on Lobbying, without notice to Simmons or Chavis, fined them something like $60,000, for failing to register as a lobbyist under the Act and for failure to report their expenditure.

The New York Civil Liberties Union wrote a letter to the Commission stating that the Act was obviously unconstitutional as an infringement of New Yorkers' right to freedom of speech, and submitted an amicus brief to Manhattan federal Judge Loretta Preska, the federal judge assigned to handle Simmons' federal action seeking relief from the prosecutorial activities of the Commission.

Judge Preska enjoined the Commission from any further investigation during the pendency of a related state case in Albany to determine the Constitutionality of two sections in the statute that seemed to enable the Commission to fine violators of the Act without notice or due process.

The New York Supreme Court in Albany, New York held that the two challenged sections were unconstitutional.

The New York Times published an editorial claiming that the decision was a great victory for lobbyists.

The Appellate Division, Third Department, which handled the appeal by the Commission (and Eliot Spitzer, as the Commission's lawyer - functioning as New York Attorney General), in 2005 reversed the New York Supreme Court's decision and held that the statute was not unconstitutional.

The net result is that a statute passed by legislators in Albany in response to charges that they have been bought off time and time again by vested interests and their paid lobbyists have enacted a statute that makes it a crime for citizens to express their concerns to the legislators about any legislative matter or attempt to create or influence the creation of curative legislation in any way, whether in New York State or New York City.

New York City has a home-rule statute that permits New York City residents to initiate legislation (with 50,000 signatures gathered during no more than a consecutive 120-day period ending at least 60 days before a general election), with the initiative becoming a New York City statute if passed by a majority of the voters.

It is clear to me that the New York State Lobbying Act eliminates the value of the the democratic process of initiative because you have to register as a lobbyist under the New York State and report every penny you receive and every penny you spend, and be subjected (similar to Simmons and Chavis) with $50,000 fines and misdemeanor and felony criminal proceedings for failure to live up to the arcane reporting requirements.

A Summary of the Requirements, Fees, Fines, Penalties, Misdemeanors and Felonies Involved

What Speech Is Being Regulated (i.e., Suppressed) Regarding NYC Legislative Initiatives

From the standpoint of trying to advocate NYC legislation under the home-rule statute that permits enactment of NYC legislation through the "initiative" process (50,000 voter signatures to put on ballot; and a majority of the votes during the election), the New York State Lobbying Act specifically defines "lobbying" to include "any attempt to influence ... (vii) the passage or defeat of any local law, ordinance, resolution, or regulation by any municipality or subdivision thereof; ... (ix) the adoption or rejection of any rule, regulation, or resolution having the force and effect of a local law, ordinance, resolution, or regulation....

Clearly, this language includes efforts to pass a NYC statute as regulated "lobbying activities".

Expenses

"Expenses" are defined as "any expenditures incurred by or reimbursed to the lobbyist for lobbying but shall not include [election campaign expenses reported by Candidates and their Committees under Article 14 of the New York Election Law]. New York State publishes a 76-page booklet describing what candidates for office and their committees have to do to comply with the onerous NYS reporting requirements. Through the NYS Lobbying Act, onerous reporting requirements have been extended to persons who try to promote issues (rather than candidates) to New York voters.

Investigate Powers of the Commission including Subpoena Power(Documents and TestimonY)

The Commission has the "power and duty to ... conduct any investigation necessary to carry out the provisions of this Article [and] may administer oaths or affirmations, subpoena witnesses, compel their attendance and require the production of any books or records which it may deem relevant or material".

Registration Requirements

Every "lobbyist" is required to file annually (or biennially) with the Commission a "Statement of Registration" if in the calendar year he/she expends, incurs or receives in excess of $5,000 of "reportable compensation and expenses" (on a cumulative basis, as to all lobbying activities). This reporting shall be done within 15 days after realizing you are going to meet the minimum dollar requirement, or within 10 days after you actually meet the $5,000 minimum.

The Statement of Registration shall contain (i) the lobbyist's name, address and telephone number; (ii) the client's name, address and telephone number; (iii) a copy of any written lobbying agreement or a description of the substance of any oral lobbying agreement; (iv) any amendments; (v) a written authorization by the client that he/she has authorized the lobbyist to lobby on the client's behalf; and (vi) information about what the lobbyist is expect to lobby on, including a description of the general subjects; the legislative bill numbers; the numbers or subect matter of gubernatorial or municipal executive orders; Indian gambling matters; "the rule, regulation, and ratemaking numbers of any rules, regulations, [or] rates, or municipal ordinances and resolutions, or proposed rules, regulations, or rates [on which the lobbyist is lobbying or expects to lobby], or municipal ordinances and resolutions"; and

If the lobbyist is employed by more than one client, then a separate statement of registration has to be filed as to each client.

The first yearly registration fee is $200, plus an additional $200 for each additional registration filed by a lobbyist in any one year.

Late Fees - Registration Statement Filings

Fees for the late filing of a required registration are $25 per day of belated filing (or $10 per day if the late registration statement is the filer's initial registration statement).

Bi-Monthly Reporting Requirements

Lobbyists are required to file a bi-monthly written report by the 15th of the month following each of these 6 reporting periods: January-February, March-April, May-June, July-August, September-October and November-December, and shall contain, in addition to the same information required in the registration statement, include all expenses, and activities and the identities of the persons lobbied.

No Contingent-fee Agreements

It is a "Class A misdemeanor" to offer or accept a lobbying agreement providing any type of contingent fee based upon enactment or defeating of a state or municipal law, resolution, ordinance, etc.

Additional Penalties

1. Wilful failure to file a timely report or statement or gives illegal gift exceeding $75 value - class A misdemeanor and $25,000 "civil penalty, "to be assessed by the Commission"
2. wilful filing of false information or made illegal (+$75) gift within 5 years of earlier conviction - class E felony
3. Wilful filing of false statement - $50,000 civil penalty
4. Wilful violation of +$75 gift prohibition by client or lobbyist - up to $10,000 civil penalty, for initial violation
5. Subsequent violation within 4 years - $25,000 civil penalty
6. Engaging in lobbying when subject to debarment order - $50,000 civil penalty plus a civil penalty equal to any gift, compensation or benefit received in connection with the violation
7. Debar orders can be issued by the Commission
8. Wilful failure to retain records for 3 years - civil penalty of $2,000 per violation

   In view of these penalties and formidable reporting requirement, who would want to advocate improvement of government?

   The NYS Lobbying Act prohibits corrupt persons from bribing legislators and other government officials, but there is no evidence that the Act has stopped corruption. In fact, you could probably show that corruption has increased since the passage of the NYS Lobbying Act.

   The main problem with the Act is that it takes the lawful activities of rank and file citizens (to advocate change of laws) and makes such activities criminal by imposing onerous reporting requirements that small-time grassroots political organizations cannot meet, thereby effectively suppressing them.

   The Act has criminalized the purchase of advertising by a citizen, with his/her own money, to advocate a change of New York State or municipal law, as well as groups of citizens getting together to advocate change.

   The law should be rewritten to provide safe havens for grassroots organization as well as individuals so that it becomes clear that they are totally exempt from all provisions of the NYS Lobbying Act

   1. If they do not (directly or indirectly) make any gifts at all to any legislators or other governmental employees in connection with their lobbying activities; and

   2. If any communications with legislators or other governmental employees take place other than by personal meetings (such as by email, advertising, mail, express, messenger, telephone, wire, telegram, publicity, blogs, websites, and public address systems).

   The Solution - a Lawsuit to Declare the Substantive Provisions of the Act Unconstitutional

   Before citizens of New York State and New York City can gather together or even operate alone to advocate political change, either to legislative officials, government agencies or by trying to pass an initiative in New York City, the New York State Lobbying Act has to be declared unconstitutional, which probably can be done by a lawsuit commenced in any of the federal courts in New York State, as a declaratory judgment action.

   Materials for Carl Person Show No. 01 ("CPS01") - It's Illegal to Advocate Political Change

   1. NYS Lobbying Act of 1999

   2. NY Supreme Court Decision in Commission v. Simmons 040604 - Declaring 2 Sections UnConstitutional

   3. NY Times Editorial Saying Supreme Court Decision Was a Gift to the Lobbyists

   4. NYTimes Article Reporting Appellate Division, 3rd Dept. Reversed NY Supreme Court

   5. Examiner.com Online Article that Pelosi-Claybrook Bill Would Require Grassroots Political Groups (with 500+ Members) to Register as Lobbyists if They Communicated with Members of Commerce about Legislative Issues

   Additional CPS01 Materials for the Simmons/Chavis/Hip-Hop Case and Its History and Conclusion

   6. 10/01/03 NYCLU amicus curiae letter brief to Federal Judge Loretta A. Preska. The letter brief states in part:

      We conclude that the Commission’s investigation of the June 4 rally violates the First Amendment and that is so for four reasons: First, in Rumley v. United States, 345 U.S. 41 (1953) and United States v. Harriss, 347 U.S. 312 (1954), the Supreme Court essentially held that government investigations of lobbying and the imposition of disclosure obligations upon lobbyists can be found consistent with the First Amendment only if such investigations and disclosure obligations are limited to “direct communication” with legislators and other public officials. Public advocacy at a public demonstration cannot be regarded as “direct communication” within the meaning of Rumley and Harriss. Second, more generic First Amendment doctrine that has developed subsequent to the Rumley and Harriss cases makes clear that the regulatory efforts by the State Commission, at issue here, can be sustained only if “narrowly tailored” to the pursuit of “compelling interests” and no such showing can be made in this case with respect to the June 4 rally. Third, the New York statute upon which the Commission rests its authority, in this case, violates First Amendment vagueness principles. Fourth, the statute upon which the Commission relies violates First Amendment equality principles. Each of these matters will be addressed, in turn.

   7. 07/15/03 NYCLU letter to NYS Lobbying Commission concerning Commission's Investigation of Simmons and Chavis

   8. 10/02/03 press release by Simmons/HSAN.org "FEDERAL COURT ISSUES ORDER SUSPENDING NY LOBBYING COMMISSION INVESTIGATION OF RUSSELL SIMMONS AND THE HIP-HOP SUMMIT ACTION NETWORK

   9. 10/06/03 Global Black News Article describing rally with Tens of Thousands of People, the NYS Lobbying Act, and Its Political Use by AG Spitzer against Simmons

   10. 11/25/03 14-Page Decision of Federal Judge Loretta A. Preska Dismissing Simmons/Chavis' Action under the 1971 U.S. Supreme Court Younger v. Harris "Abstention Doctrine". Here is how the Younger Doctrine was applied and how it works: Because the matter started out in the State Courts (brought by the NYS Lobbying Commission in the State Supreme Court in Albany), the federal court has to let the matter go through the state courts until all possible state remedies have been exhausted. Only at that time, when all state appeals have failed, will the federal court Listen to the case. The same rule applys to the millions of criminal cases brought and ended in the state courts, without any possibility of federal relief (other than the largely unworkable 2254 habeas corpus action, which loses about 99.9% of the time), especially with the 97% rate of plea bargaining brought on by the excessive, unconstitutional prosecutorial powers and tax money used to convict anyone, whether rich or poor. Incidentally, it might interest you to know that the wealthiest persons in the world when charged with federal crimes in the U.S. wind up getting sentence about 5 to 7 times longer than if they had merely accepted a plea bargain. Their wealth unfortunately usually causes them to get 5 to 7 times as long a sentence because they thought, foolishly, that they could use their wealth to fight the outrageous, awesome and (upon inspection) in various instances illegal power of the prosecutor. Most find out that they can't. There are too many powers that the prosecutor has, starting off with the power (when desired) to pick the judge they want (by holding back on the prosecution until the desired judge is sitting in "Part 1", and then bringing on a RUSH-RUSH-RUSH order to show cause, which is then presented to that one judge, who then becomes the assigned judge on the case, even though there had been absolutely no need for any RUSH-RUSH-RUSH proceedings and especially no need to wait weeks or months to trot out the RUSH-RUSH-RUSH papers.

   11. 11/30/03 NYCLU's Summary of the 1st Amendment Issues and the NYCLU's Involvement in the Hip-Hop Lawsuit - highly recommended reading for persons wanting to understand the legal issues involved

   12. 04/14/04 AllHipHop.com Article "Russell Simmons Defies State Lobby Commission, Puts $100,000 Up For Rally" Interesting parts of the article include (but are not limited to):

       I wrote a $100,000 check in defiance of the lobbying commission," Simmons told AllHipHop.com. "It's seed money for the rally. They say you can't put more than $2,000 up." Last week, a state Supreme Court justice ruled that the state Lobbying Commission overstepped its bounds in a probe of Simmons' campaign against New York's Rockefeller drug laws.

       The justice said the coalition was a temporary, one-time entity formed to hold a rally and were not acting as lobbyists.

       The NYCLU sent a letter to the New York City Police Department on behalf of HSAN to hold the rally on 7th Avenue between 28th and 34th Streets from 2pm to 6pm on August 30.

       "We intend to raise public awareness by mobilizing tens of thousands of young people to register to vote and to speak out about the unfairness of the Rockefeller Drug Laws," Simmons said.

       Sean "P. Diddy" Combs, Nas, 50 Cent, Ludacris, Mariah Carey and Carly Simon are among those slated to attend the rally.

   13. 08/18/04 press release by Simmons/HSAN.org "STATE SUPREME COURT JUDGE RULES IN FAVOR OF HSAN AND DECLARES SECTIONS OF STATE LOBBYING LAWS UNCONSTITUTIONAL

   Materials Concerning the Pelosi-Overbrook Bill to Require Lobby Registration for Grass-Roots Groups of 500+ Voters Communicating with any Members of Congress

   Here are materials relating to the Pelosi-Overbrook Bill issue:

   1. Examiner.com Online Article that Pelosi-Claybrook Bill Would Require Grassroots Political Groups (with 500+ Members) to Register as Lobbyists if They Communicated with Members of Commerce about Legislative Issues

   2. WashingtonPost.com Article "Lobbyists Won't Like What Pelosi Has in Mind" or Please-Don't-Throw-Me-in-the-Briar-Patch Post Article to Ensure the Unconstitutional Statute Is Enacted

   3. 12/27/06 DownsizeDC.org Warning about Pelosi's "1-Minute Legislation" against Lobbyists that Would Wind Up Eliminating Grass Roots Lobbying and Leave the Professionals in a Stronger Position The article states in part:

      Her bill does not impose new regulations on the big special interest lobbying organizations. It exempts them.

      Instead . . .

      Pelosi's bill creates new regulatory burdens for the small grassroots organizations that have been the among the biggest critics of Congressional misconduct. These new reporting requirements will force small organizations to spend a large part of their income hiring lawyers and accountants to fill out government forms.

      These new costs will drive many groups out of business. Still others will never be started because the barriers to entry are too high. Of those that remain, like DownsizeDC.org, more of their limited budgets will be spent on compliance with government dictates, and less on public outreach designed to inspire grassroots communication with Congress.

      The result . . .

      * Congress will hear from fewer constituents less often
      * Taxpayer criticism of Congress will be muted
      * The special-interest gravy train will continue barreling down the tracks
      

   New York City's 2006 Lobbying Statute

   Here are materials relating to New York City's recent efforts to get into the business of suppressing voter protest:

   1. 05/25/06 NYC Statute Enacted to Limit Lobbyists Lobbyists will have to disclose more of their activities (such as spending $1.00 in a NYC pay toilet) and the names of their spouses, minor children and employees, something which everyone should be happy to do, together with $30,000 fines for willful violations and $20,000 fines for mere failure to submit a report on time, and to do time for the misdemeanors involved. In one of the articles I read, someone (and I'll look up and cite and reference) asked why we don't require legislators to report the offensive contacts instead of having citizens report their activities performed pursuant to exercise of their First Amendment rights. Why can't the statutes provide a safe haven for citizens such as Simmons and Chavis exercising their First Amendment Rights. The lobbying laws improperly and outrageously consider the costs of buying and getting on a soap box in Union Square (NYC) as reprehensible and worthy of preventing as a $100,000 cash contribution by secret political contributors carried by bagman Abramoff to an undisclosed office in the White House.

   New York Statute Permitting Initiatives for NYC Voters to Enact NYC Statutes; Article 78 Proceeding

   You can read a copy of Section 40 of the New York City Charter ("NYCC" or "N.Y.C.C."), a homerule statute, permitting NYC voters to put an "initiative" or proposed amendment to the N.Y.C.C. (also a "statute") on the ballot for voters to accept or reject by a majority vote, at NY City's Charter, Section 40 located at file p. 30 of 340 pages; or number "25" printed at the bottom of the page.

   The N.Y.C.C. provision in Section 40 has been on the books since the mid-1960's at least. The 1999 NYS Lobbying Act, however, seems to have pretty-much cancelled out the opportunity for citizens to use the Initiative statute because they would be unregistered lobbyists in violation of the New York State Lobbying Act, in the same way that citizens advocating impeachment of George Bush would be violating the Pelosi-Claybrook bill by advocating to members of Congress that the take action on a legislative matter (i.e., impeachment of a sitting President).

   A 1997 petition under Article 78 of the New York CPLR (Article 16 of the New York Election Law and 42 U.S.C.A. Section 1983 of the Civil Rights Act) to require a proposed initiative to be placed on the New York City ballot, prepared by top law firm Dewey Ballantine, at Form of Petition to Court to Request the State Court to Order the County Clerk to Put an Initiative on the New York City Ballot. Petitioners obtained more than 70,000 signatures and the County Clerk "determined" that more than 30,000 of them were improper, thus conveniently reducing the total to something below the required 50,000 signatures.

   Community Resources to Use

   Here are some interesting resources you should consider using when dealing with legislative change:

   1. USIRR.org, $1 annual fee (using PayPal), with opportunity to send an email letter to all newspapers in a 25-50 mile radius of your ZIP Code; and to develop or obtain information on a state-by-state basis; the website is new and you could get in on the ground floor for your own state. USIRR website for U.S. Initiative, Referendum and Recall Legislation to enable US voters to enact federal legislation.

   Call Me If You Have Any Questions or Want to Conduct an Interview

   The story is a big story because it is just another Patriot Act, taking away the rights of citizens without any necessity, to give them less power to oppose the activities that are taking away their jobs, incomes, standard of living, lives, and constitutionally-protected rights and freedoms.

   The public should be made aware of how they are losing their rights, security and standard of living.

   If you want to discuss this major issue, or have me appear at a meeting or for an interview, please give me a call, at my office 212-307-4444 or to my cell telephone 917-453-9376.

   Carl E. Person, carlpers@ix.netcom.com
   www.carlperson.com
   

   telephone 212-307-4444
   

   Cell No. 917-453-9376
   

   Copyright © 2007 by Carl E. Person