First Amendment and Lobbying

17 Mar

Oregon Supreme Court (1998) defines lobbying as “influencing, or attempting to influence, legislative action through oral or written communication with legislative officials, solicitation of others to influence or attempt to influence legislative action or attempting to obtain the goodwill of legislative officials.” [see David Fidanque and Janet Arenz, Petitioners on Review, vs. State of Oregon ]

The proponents of lobbying argue that any law curtailing it impinges on two core First Amendment clauses – that Congress shall make no law abridging the right of the people “to petition the Government for a redress of grievances,” or curtailing “freedom of speech.” In return, states have argued that they have substantial interests in preventing actual corruption, and perception of corruption, and given lobbyist’s common perception of being dishonest, and a vast array of empirical evidence as to the actual incidence of corruption, they have interests in placing restrictions on lobbying.

Courts have for long upheld citizen’s rights to petition the government, taking note that the idea of democratic government implies in part a right of the citizen to petition (Capps, 2005). The “right to petition,” as numerous legal scholars have noted, predates the Bill of Rights and hence is sacrosanct. Furthermore, Courts have also for long upheld the idea that lobbying, in essence, is a way of petitioning one’s representatives. In Liberty Lobby, Inc. v. Pearson (390 F.2d 489, 491, 492 (D.C. Cir. 1967)) [For details on case citation], the Court of Appeals for the D.C. Circuit found that people involved in trying to affect congressional action by engaging in lobbying activities were exercising their right to petition.

However, the courts have long also recognized that while the right to petition is an essential one, it is also a limited one (Capps, 2005). Hence, the courts have ruled that there is no absolute right of a citizen to speak in person with public officials. In absence of absolute rights, and citing countervailing interests like state’s interest in preventing corruption given the likelihood that lobbying will “promote the temptation to use improper means to gain success”, and maintaining confidence in the public decision-making process, the courts have sided with the government in a host of cases to restrict contingency fee arrangements, impose registration and disclosure requirements on lobbyists, prohibit lobbyists from making political contributions when legislature is in session (N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 717-18 (4th Cir. 1999)), among others. Courts, while ruling in these decisions, have noted that barring such practices do not substantively curtain the right to petition as they don’t impose a significant (or merely unsubstantiated) burden on the petitioning process, and should a law do so, it may be grounds for it being invalid. For example, in the Oregon Supreme Court decision cited above in the definition of lobbying, the Court found that the biennial registration fee imposed by the state on the lobbyists to be in excess of costs of registration itself, and hence invalid.

The underlying strain in these cases has been the need to balance the needs of the citizenry to openly petition its representatives in line with the basic tenets of a representative government, and the needs of the executive and legislative branch to safeguard the system itself from threats of corruption. While deciding on these cases, the courts have always been keenly cognizant that in line with the constitution’s dictum of three equal and separate branches of the government, they have limited rights in imposing the standards of operation within each branch of governance, for as long as they do not violate the freedoms and rights guaranteed in the constitution. Simultaneously, the court has recognized in the past the merit of not only reducing the actual occurrence of corruption but also reducing the perception of corruption. In both Buckley v. Valeo (424 U.S. 1 (1976)), and McConnell v. FEC (540 U.S. 93 (2003) – brought after the enactment of McCain-Feingold or BCRA/Bipartisan Campaign Reform Act) the Court has recognized the need to mitigate perceptions of corruption and actual incidence of corruption, and congressional authority to pursue legislation towards that purpose. The Court’s arguments, offered on maintaining the sanctity of the election process of legislators, should theoretically apply to the legislative process as well.

The “freedom of speech” arguments for lobbying stand on less firm grounds. The right to “freedom of speech” is not and should not be seen as a law guaranteeing the “right to be heard.” Similarly, there is no law protecting the right of a citizen to have a private hearing with the legislator or more broadly speaking, private speech.

The Courts have sided with the government in a significant number of cases where the state has shown a plausible case for restricting lobbying based on corruption concerns, and wherever they have found that the restrictions don’t disadvantage some content over others. However, there are legitimate, important rationales that undergird the right to lobby (petition) and courts have been cognizant not to support legislation that is overly broad. The law, however, doesn’t provide guidance on voluntary disavowal of money from lobbyists for campaigning (without the “magic words” that breach express advertising standard), and nor does it restrict lawmakers from running on a platform that upfront states that the said candidate will not accept ‘favors’ (legal ones) from lobbyists, or will not join a lobbying firm if his or her reelection bid fails (close the “revolving door”). Congress and the Executive – both have significant leeway in enacting significant ethics reforms that will likely sharply curtail the power of “special interests,” and myriad options (including the one chosen by Edwards and Obama) remain open remain for lawmakers to not ‘choose’ to be influenced by ‘lobbyists.’ Combating the influence of special interest would, however, require more widespread measures – especially as public opinion polls become the key determinants of candidate policy positions and as lobbyists’ influence in manipulating opinion through media or ‘astroturfing’ increases. Fewer options exist to combat that except perhaps a more active citizenry.

Last thoughts: “Democratic Senator Max Baucus, the new chair of the tax-writing Senate Finance Committee, is offering special interests a chance to go skiing and snowmobiling with him — $2,000-dollars a head, or $5,000-dollars from a political action committee.” reports ABC 7.


“Gouging the Government”: Why a Federal Contingency Fee Lobbying Prohibition is Consistent With First Amendment Freedoms.” 58 Vanderbilt Law Review 1885. Meredith A. Capps. (2005)