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Common Sense Media: Advocate or lobbyist?

September 10, 2010 |  5:47 pm

James Steyer The line between advocacy and lobbying is often blurry.

Take Common Sense Media. The San Francisco nonprofit runs a highly regarded website that gives parents and teachers advice on media and technology for kids.

But there's another aspect to the organization. Common Sense Media has been one of the most zealous voices when it comes to encouraging state legislation limiting the sale of ultra-violent games to minors. Its chief executive, James Steyer (pictured on the right), has penned numerous letters to state and federal officials, urging them to curb kids' access to "ultra-graphic violence" depicted in games.

At what point, then, does Common Sense pass the threshold from advocacy, which has virtuous connotations, to the shadow land of lobbying?

The question is being raised by some in the video game industry, who see Common Sense's activities falling into a grayer, if not distinctly black, area. The video game industry contends a California law that bans sale or rental of violent video games to minors and could have a deleterious effect on video game revenue if enforced, is a broad attack on the First Amendment right of free speech. Common Sense sponsored the bill.

The organization defined the difference between advocacy and lobbying chronologically, at least as far as the U.S. Internal Revenue Service is concerned. In its 2005 federal tax returns, Common Sense checked the "yes" box to the question of whether the organization had engaged in lobbying. But in all other years, the group claimed no lobbying, and checked the "no" box on its tax returns.

What follows is a breakdown of the group's activities, including responses from Common Sense as to whether they constituted lobbying or advocacy.

In 2005, Common Sense pushed hard for, and succeeded in getting passed, the controversial California law banning the sale or rental of violent video games to minors. It sponsored the bill, introduced by Democratic then-state assemblyman Leland Yee, now a state senator. (The law has yet to take effect because of ongoing legal challenges.)

It also worked on a federal level, appearing in a 2005 press conference with then-senators Hillary Clinton (D-N.Y.), Joseph Lieberman (D-Conn.) and Evan Bayh (D-Ind.) to support the Family Entertainment Protection Act, a bill that would have imposed fines against retailers who sold violent games to minors.

Common Sense said the activities constituted lobbying and were disclosed in its 2005 federal tax filing.

But on its California state tax return, Common Sense didn't indicate that it was engaged in lobbying that year. The group said that its tax preparer failed to check the appropriate box in 2005. The group said the error was mitigated by the fact that it included with its state filings a copy of the federal return, which did disclose lobbying.

The group's name also appears at the end of a 2005 press release from then-Illinois Gov. Rod Blagojevich, praising the governor for signing into law a bill similar to the California ban. Organizations are required to disclose all the states in which they engage in lobbying. Common Sense said it did not report activities in Illinois because a statement of support, particularly after the law is passed, is not considered lobbying.

Why not? The group takes a narrow view of lobbying. Here's an excerpt from a memo from Common Sense's attorneys at Morrison and Foerster:

Lobbying for IRS reporting purposes is fairly narrowly defined. Simply talking openly and publicly about an issue is not lobbying, and even talking to public officials about a general issue is not lobbying. Meeting with federal administration officials to discuss administrative policies or actions is not lobbying.

Direct lobbying is any attempt to influence legislation through direct communication with any member of a legislative body or any executive branch employee who may participate in the formulation of legislation.

Grassroots lobbying activities are those that attempt to influence legislation by influencing public opinion, such as newspaper advertising or television commercials. It must meet three requirements: it must refer to specific legislation, reflect a view on such legislation, and include a “call to action.”

In short, if it has to do with specific legislation, it's lobbying. If it doesn't, it's advocacy.

In that light, a statement that the group supplied to the U.S. Federal Communications Commission last year, when it indicated no lobbying efforts on its tax forms, regarding the Child Safe Viewing Act is not considered lobbying, according to Common Sense's president, Susan Sachs.

The reason: Its comments addressed a law that had already been passed in 2008, the group argued. "Meeting with federal administration officials to discuss administrative policies or actions is not lobbying," according to the group's lawyers. When a law is handed down to an agency, in this case the FCC, further work in enforcing the law is considered "policy" rather than legislation.

If that sounds like splitting hairs, consider the IRS' definition, which goes into excruciating detail here, here and here.

But there's nothing hair-splitting about Steyer's statement in response to questions raised by the video game industry about his organization's efforts, be they lobbying or advocacy.

Steyer said the issue amounted to "efforts to try to muzzle our voice for millions of parents and educators will only make our support stronger for California’s and other state's efforts to protect the best interests of children and families.”

-- Alex Pham

Photo: James Steyer, chief executive, Common Sense Media. Credit: Common Sense Media.

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