Counteractive Lobbying in the U.S. Supreme Court

• Author: Paul M. Collins,Lisa A. Solowiej
• DOI: 10.1177/1532673X08328674
• Published date: 01 July 2009
• Date: 01 July 2009
• Subject Matter: Articles

670

American Politics Research

Volume 37 Number 4

July 2009 670-699

© 2009 SAGE Publications

10.1177/1532673X08328674

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Authors’ Note: We thank Chris Nicholson for his excellent research assistance; Joseph

Kearney and Thomas Merrill for sharing their data with us; and Tom Brunell, Pam Corley, Matt

Eshbaugh-Soha, Tom Hansford, Wendy Martinek, Tetsuya Matsubayashi, Kirk Randazzo, the

editor, and the anonymous reviewers for their insightful comments on this and related research.

Collins thanks the National Science Foundation for its financial support under grant SES-

0350416. A previous version of this article was presented at the 2008 Annual Meeting of the

Southern Political Science Association. Naturally, we bear all responsibility for any remaining

errors. Please address correspondence to Paul M. Collins Jr., Department of Political Science,

University of North Texas, 125 Wooten Hall, 1155 Union Circle #305340, Denton, Texas

76203-5017; phone: 940-369-8892; fax: 940-565-4818; e-mail: pmcollins@unt.edu.

Counteractive Lobbying in

the U.S. Supreme Court

Lisa A. Solowiej

Paul M. Collins Jr.

University of North Texas, Denton

Theories of counteractive lobbying assert that interest groups lobby for the

purpose of neutralizing the advocacy efforts of their opponents. We examine

the applicability of counteractive lobbying to explain interest group amicus

curiae participation in the U.S. Supreme Court’s decisions on the merits.

Testing the counteractive lobbying hypotheses from 1953 to 2001, we

provide strong support for the contention that interest groups engage in

counteractive lobbying in the nation’s highest court. Our findings indicate

that, like the elected branches of government, the Supreme Court is properly

viewed as a battleground for public policy in which organized interests clash

in their attempts to etch their policy preferences into law.

Keywords: counteractive lobbying; interest groups; amicus curiae; U.S.

Supreme Court

Writing in 1908, Arthur Bentley was among the first social scientists

to recognize the significant roles organized interests play in American

government. According to Bentley, to understand the political system, it is

imperative to think in group terms. Any investigation into executive action,

congressional legislation, or judicial decision making must be attentive to the

roles of pressure groups, which use these venues in an attempt to etch their

policy preferences into law (Bentley, 1908). Although Bentley’s seminal—and

Solowiej, Collins / Counteractive Lobbying in the U.S. Supreme Court 671

radical—contribution to the study of politics initially fell largely on deaf

ears, the post–World War II era saw a rebirth of scholarship devoted to the

scientific study of interest group activity in American government (e.g.,

Bauer, Pool, & Dexter, 1963; Milbrath, 1963; Schattschneider, 1960;

Truman, 1951). We now know, for example, a great deal about the scope

and bias of the pressure group system (e.g., Schlozman, 1984), how groups

recruit and retain members (e.g., Salisbury, 1969), and the influence of

pressure groups across the political system (e.g., McCubbins & Schwartz,

1984; Vose, 1959; Wright, 2003). More recently, scholars have focused

their attention to systematically investigating interest group lobbying deci-

sions (e.g., Hansford, 2004; Hojnacki & Kimball, 1998; Holyoke, 2003;

Tauber, 1998), frequently through the application of counteractive lobbying

theory.

At its core, counteractive lobbying asserts that organizations will lobby for

the purpose of negating the advocacy efforts of their opponents.1 Theories of

counteractive lobbying, broadly defined, are ubiquitous in social science

scholarship and have been used to explain interest group formation (e.g.,

Epstein, 1985; Lowery, Gray, Wolak, Godwin, & Kilburn, 2005; Truman,

1951), why organizations lobby their legislative friends (Austen-Smith &

Wright, 1992, 1994, 1996; Baron, 2006; Baumgartner & Leech, 1996a,

1996b; Hojnacki & Kimball, 1998; Sloof, 1997), the decisions of organized

interests to lobby federal bureaucracies (e.g., Ando, 2001, 2003; McKay &

Yackee, 2007), groups’ strategic choices to target particular venues (e.g.,

Gormley & Cymrot, 2006; Holyoke, 2003), and patterns of industry campaign

contributions (e.g., Hansen & Mitchell, 2000; Leaver & Makris, 2006;

Mitchell, Hansen, & Jepsen, 1997).2 Our purpose here is to join this significant

line of inquiry by exploring the applicability of counteractive lobbying to

organizational amicus curiae3 activity in the U.S. Supreme Court’s decisions

on the merits.

Investigating counteractive lobbying in the Supreme Court is noteworthy

for a number of reasons. First, it is consistent with Bentley’s (1908) affirma-

tions regarding the import of viewing policy-making institutions with a

careful eye toward the role of interest groups.4 Scholars have long recog-

nized the Supreme Court as a national policy maker (e.g., Dahl, 1957) and

extant research confirms the reality that the Supreme Court acts as a battle-

ground for public policy in which organized interests marshal the language

of the law in their pursuit of favorable outcomes (e.g., Tamanaha, 2006).

Indeed, it is well established that organized interests play an important role

in shaping the Court’s agenda-setting decisions (e.g., Caldeira & Wright,