Table of Contents Introduction I. A Regime of Consultants A. Who Makes International Law? B. The Consultancy Structure 1. NGOs press for access to the United Nations 2. The Council sets access regulations 3. Consultants have access to lawmakers 4. The Council's rules as a blueprint C. The Rules Apply Oddly and Uneasily to Businesses 1. The consultancy rules exclude individual businesses 2. But they permit businesses to act through nonprofits II. Astroturf Activism A. Identifying the Phenomenon B. Modes of Access 1. Industry and trade associations 2. For-profit entities 3. Grassroots mimicry and capture C. Types of Harm 1. Opacity 2. Mission accountability 3. Gatekeeping 4. Access III. Accounting for Astroturfing A. History: Epochs of Engagement 1. Epoch One: League of Nations 2. Epoch Two: U.N. Charter 3. Epoch Three: 1990s-era reforms 4. Epoch Four: globalization of influence B. Function: An Efficiency Analysis C. Normative Theory: Pluralistic Equality D. Legal Reform 1. Principles 2. Implementation Conclusion Introduction
A newer kind of national business organization is the corporate front group which presents itself to the community as an NGO rather than a business organization.... These "astroturf' (as distinct from grass-roots) NGOs ... are the most sincere form of flattery the business community pays to the efficacy of social movement politics. (1) Citizens United v. FEC famously held that the First Amendment confers on corporations the right to express themselves through unlimited spending on political speech. (2) The holding allegedly unleashed a torrent of corporate political spending (3) and certainly sparked a vigorous public debate about corporate rights to participate in the U.S. lawmaking process. (4) The Citizens United debate has featured a sharp critique by President Obama, "a flurry" of proposed fixes in Congress, campaigns to amend the U.S. Constitution, and an avalanche of academic commentary and public protest. (5)
But the attention stops at the border. The scholarly and popular uproar is focused on corporate participation in U.S. domestic political processes; it does not extend to legal systems beyond U.S. borders. (6) The truth is that businesses also carry expressive rights in international legal processes. (7) In particular, businesses are able to secretly gain access to international officials by exploiting an obscure set of rules developed by the Economic and Social Council ("the Council" or ECOSOC), an organ of the United Nations. Businesses do this by creating or commandeering nonprofit associations, which in turn register as "consultants" with special rights to advise international officials. Businesses thus work covertly through nonprofit groups to exploit the special access those organizations enjoy. (8) I call this phenomenon "astroturf activism" in international law. (9)
Astroturf activism, facilitated by dysfunctional legal rules, obscures business influence in international lawmaking, casts suspicion on legitimate public interest organizations (often called "nongovernmental organizations" or NGOs), and blunts the power of international actors to effectively regulate corporate access. (10) It also sacrifices the expertise and efficiency benefits businesses might offer lawmakers in a well-regulated process. (11)
This Article offers an original study to uncover and describe the astroturf activism phenomenon in the context of international organizations such as the the Council and a theory of the legal failures that produce the phenomenon. The argument is this: astroturf activism is the product of archaic access rules that fail to accommodate drastically altered relationships between two sets of actors. Those actors are, on the one hand, national governments and their international lawmakers and, on the other, the business sector, which has exploded in size and global influence since the early twentieth century when the access rules were developed. The flaws in the law, I argue, are rooted in obsolescence.
This obsolescence yields perverse incentives toward covert behavior, forcing businesses to dissemble or lose out on access to officials and lawmakers. (12) The resulting harm stretches in two directions: In one direction, the law provides an incentive for business to infiltrate the NGO world in a way that attenuates accountability, mixes messages, and threatens the legitimacy of NGO participation in international lawmaking. (13) In the other direction, the law curbs the effectiveness of contributions businesses can make to lawmaking. (14) It forces businesses to aggregate into associations that may be poor fits for their expertise and agendas, provide lowest-common-denominator proposals, or capture the agendas of weaker public interest organizations. (15) The law also taxes the resources of gatekeepers--who have insufficient mechanisms to judge between different would-be participants in the international process--and institutional decisionmakers--who face an onslaught of input from often-veiled sources. (16)
This project is both descriptive and critical. Descriptively, this Article identifies the legal structure that creates the astroturf activism phenomenon and its effects. To do so, this Article uses a multisource approach to uncover forms of secret corporate access to lawmakers. (17) It shows that the phenomenon I describe as astroturf activism occurs in at least three modes: (1) businesses capture existing NGOs or form their own NGOs with nonprofit status and mission statements that obscure the company's true interests; (2) for-profit entities exploit gatekeeping weaknesses to gain access notwithstanding their noncompliance with eligibility rules; or (3) powerful businesses capture trade associations that purport to speak on behalf of a wider range of actors in a particular industry. (18)
What is the source of this covert mayhem? The astroturf activism practice arises as businesses try to take advantage of "consultancy" status at international organizations like the Council or the World Health Organization (WHO). The consultancy status offers special access to international officials and lawmakers. (19) Significantly, these consultative relationships are limited to nonprofit associations and exclude for-profit corporations and other business entities. (20) Rather than sit on the sidelines, however, businesses surreptitiously find access through creating or co-opting the traditional NGO format. (21) In fact, a business literature even guides businesses in how to effectively gain access by making use of the NGO form. (22)
Because much of this behavior is underground, little attention has been paid to its significance. (23) Yet, at the same time, a robust literature considers the role of NGOs as a whole in international governance. (24) While this literature sometimes cautions that NGO participation can lack accountability or legitimacy, (25) it often celebrates NGOs as "democratizers" that exercise moral authority and enhance the legitimacy of the international process. (26) Prominent international officials share this assessment: U.N. Secretary-General Boutros Boutros-Ghali called NGO activity a "basic form of popular representation in the present-day world" and "a guarantee of ... political legitimacy." (27) Later, U.N. Secretary-General Kofi Annan praised the rise of NGO consultants as a "revolution" and a "global people-power." (28) Finally, in a 2004 report on the consultancy program, U.N. officials continued to champion participation by civil society, asserting that "[t]he growing participation and influence of non-State actors is enhancing democracy and reshaping multilateralism." (29)
As this Article shows, the "people" advancing this global "revolution" are often corporations. And many of these "democratizing" NGOs are associations of business entities. Do they too proceed from moral authority and enhance the legitimacy of the international legal process? I argue that, in fact, sometimes business input can enhance procedural legitimacy and improve substantive outcomes. But legal reforms are needed to capture these benefits and guard against the harms business influence can cause. I offer a set of principles to guide these reforms in order to better regulate business contributions and more appropriately suit twenty-first-century relationships between international officials, public interest NGOs, and business actors.
This Article proceeds in three Parts. Part I begins by identifying the Council's consultancy law and exploring its perplexing application to business entities. Part II documents the astroturf activism phenomenon through an original study and a taxonomy, cataloging the results as problems of opacity, mission accountability, gatekeeping, and access. Part III constructs a critical analysis--rooted in a historical account but also drawing on functionalism and pluralistic theory--and develops a set of principles to guide legal reform.
A Regime of Consultants
The astroturf activism phenomenon in international law and governance is a product of the international legal rules that offer a special consultancy status to nonprofit entities but exclude businesses. This Part first frames the discussion by offering a vivid case study in astroturfing, then identifies the relevant legal rules and describes their operation.
Who Makes International Law?
During the course of the infamous mass tort litigation in the United States against Philip Morris and other tobacco companies, litigators accomplished a major strategic coup detat through the simple act of discovery. (30) The tobacco companies were forced to produce thousands of documents that drew the curtain on a vast and insidious array of strategies the companies used to resist tobacco control. (31)
Among the buried secrets was evidence that the industry had not confined itself to efforts to influence domestic regulation--rather, it had also launched an "elaborate, well financed, sophisticated, and...