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Advisory Opinions

ADVISORY OPINION 1990-1
FACTS
A law firm inquires whether their client's activities would be considered lobbying. The client's activities are described in the inquiry as follows:
The client publishes newsletters which are mailed to readers throughout the U.S. The publication informs readers about local, state and national government issues of "common interest" and fosters communication among the recipients. If a law, ordinance or regulation of interest is proposed in a particular jurisdiction, readers are asked to express their views by writing or calling their elected representatives.

ISSUE
Whether the activity described above, the targeting of specific legislation by a campaign stimulating communications to elected officials, is considered indirect lobbying, subject to the Administrative Code of NYC, §3-211 to 3-223 (hereinafter referred to as the NYC Lobbying Law).

OPINION
1. Specific laws, ordinances, or regulations are targeted by the newsletter in its effort to cause its readers to write or call their elected representatives in response to these measures.

Communications disseminated to the public which address specific pending legislation and which create a campaign urging or exhorting the public to contact government officials with respect to such legislation are considered lobbying.
In the present case, an organization distributes a newsletter to its members requesting that they contact their elected representatives regarding a proposed "law, ordinance or regulation of interest." (Emphasis added.)

It appears from the descriptions of its activities in the query letter that the newsletter selects particular laws, ordinances or regulations and proceeds to promote reader response to this specific legislation. It also appears from this description that a special interest is being promoted since the newsletter addresses its concerns not to the general public, but to a special segment of the population, namely its readership. The specificity of the newsletter's readership makes the interests addressed in the newsletter specific.

In Young Americans for Freedom, Inc v. Gorton, 83 Wash .2d 728,522 P.2d 189, 190, the Supreme Court of Washington held that an organization's indirect attempts to influence government decision making was subject to the lobbying law where it involved specific legislation. The case involved a grass roots organization, the Young Americans for Freedom (YAF), which was engaged in various activities to make known its stand on divergent public issues. YAF's activities included publication of a magazine, distribution of position papers and letter writing campaigns by the public. Op. Cit., 190.

 In determining whether the letter campaigns were covered by the lobbying law of the state of Washington, the court found the "key" to be the specificity of the object legislation addressed. Op. Cit., 191.

The facts of the YAF case are similar to the facts at issue. They both involve an organization promoting a specific position on specific legislation through publications, position papers, and a letter campaign by its membership.

In Opinion No. 82-2 by the NY Temporary State Lobbying Commission, various communications urging the public to contact legislators regarding the bottle bill were found to constitute lobbying. The opinion held that communications to the public which "address specific pending legislation and which "urge or exhort" the public to contact decision makers constitute "lobbying activities."

The NY Temporary State Lobbying Commission opinion involved a letter campaign directed at the public specifically regarding the bottle bill. Similarly, in our inquiry, the newsletter reaches its members to create a letter campaign with respect to specific legislation.

2. The newsletter's activities involve the creation of an campain_to artificially stimulated letter campaign to elected officials, considered as direct contact with such decision makers.

Federal and state case law has found lobbying to include not only the direct contact of decision makers by a lobbyist, but indirect contact through an artificially stimulated letter campaign.

In US v. Harriss, 347 US 612, 616-17, lobbyists were hired to express certain views to Congress as to agricultural prices or to cause others to do so through an artificially stimulated letter campaign. The U.S. Supreme Court held that the Federal Lobbying Act was applicable when lobbyists exerted pressures on Congressmen (decision makers) by an artificially stimulated letter campaign. The court held that such a letter campaign qualified as a direct contact with decision makers. Op. Cit., 620.

In the inquiry at hand, the situation is similar. A newsletter is distributed to readers, causing them to engage in an artificially stimulated letter campaign in response to certain legislation of interest. It follows from the reasoning set forth in Harriss, supra, that this letter campaign qualifies as a direct contact with decision makers and constitutes lobbying.

In Minnesota State Ethical Practices v. NRA, 761 F. 2d 509, 511, the lobbying division of the NRA sent three letters and one mailgram from Washington to all members of the NRA in Minnesota, urging them to contact their state legislators in support of three pieces of pending legislation. The court held that these mailings constituted lobbying in that they constituted an extensive letter writing campaign for the purpose of influencing specific legislation. Op. Cit., 513. The court cited Harriss, supra, as its precedent that communication with lawmakers through an artificially stimulated letter campaign constitutes lobbying.

The inquiry at hand is similar to the NRA case. Both cases involve a communication to a given segment of the public urging them to contact their elected officials in regard to some specific legislation or other matter. In the inquiry at hand, the communication is a series of newsletters which inform their readership of certain legislation and serve as a means of organizing a letter campaign.

In Opinion No. 82-2, the NY Temporary State Lobbying Commission found that a letter campaign opposing the bottle bill constituted lobbying. The stimulus creating the campaign took the following forms: Soda bottles in supermarkets had attached "tear off" coupons which were specifically directed to the sponsor of the pending bill and contained check-off boxes showing opposition to the bill. Additionally, pamphlets containing cut-out coupons expressing opposition to specific proposed legislation and containing the names and addresses of legislators were placed in shopping bags at check-out counters in supermarkets. Finally, radio advertisements were aired containing "tag" messages opposing the pending bottle bill and urging individuals to contact their state legislators to oppose the legislation.

The facts in this NY Temporary State Commission on Lobbying opinion are similar to the facts in our inquiry. Both involve a communication to a specific segment of the public creating a letter campaign in response to specific legislation. The communication in the NY Temporary State Commission on Lobbying opinion consisted of radio announcements and coupons attached to bottles or placed in shopping bags. In our inquiry, the communication consisted of a newsletter sent to readers.

The NYC Lobbying Law was modeled upon the NYS Regulation of Lobbying Act, and we find the reasoning of Opinion 82-2 to be persuasive.

CONCLUSION
The publication of a newsletter directed to a specific segment of the public which seeks to create and stimulate a letter-writing campaign or telephone call campaign on the part of that readership directed toward their legislators in response to specific legislation targeted by the newsletter constitutes lobbying and is subject to the NYC Lobbying Law. Accordingly, registration with the City Clerk's office is required if the requisite threshold is met.

CARLOS CUEVAS City Clerk of the City of New York
KATHERINE E. TIMON Counsel
TIMOTHY MCFARLAND Assistant Counsel

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