International Lobbying Law.

• Author: Durkee, Melissa J.

ARTICLE CONTENTS INTRODUCTION 1746 I. THE INTERNATIONAL ACCESS RULES 1753 A. Introducing the Access Rules 1754 B. Theorizing the Rules 1758 1. The Descriptive Dimension: Can Consultation Confer Legitimacy? 1758 a. Strong Legitimacy Optimism 1759 b. Moderate Legitimacy Optimism 1760 c. Legitimacy Pessimism 1762 2. The Normative Dimension: Strong Legitimacy Optimism as Reform Principle 1764 II. WHY STRONG LEGITIMACY OPTIMISM FAILS 1766 A. Explanatory Faults: The Question of Business 1766 1. Overt Business Access 1767 2. Covert Business Access 1769 3. The Significance of Business Access 1770 4. The Poverty of Access 1771 B. Practical Faults: Persistent Regulatory Defects 1775 C. Why the Critique Matters 1776 1. Highlights an Underappreciated Site of Business Influence 1776 2. Confronts a Reform Standstill 1779 3. Implicates Expressive Rights of International 1781 Business III. A THEORY OF INTERNATIONAL LOBBYING LAW 1784 A. The Lobbying Framework Offers a Helpful Descriptive Analogy 1785 B. The Lobbying Framework Invites Meaningful Reforms 1787 C. The Lobbying Framework Identifies Pertinent Regulatory Tools 1788 1. International Guidelines on Lobbying Regulation 1788 2. U.S. Lobbying Law 1791 3. Applying the Lobbying Regulatory Analogy 1796 D. Caveats and Limitations 1797 IV. INTERNATIONAL LOBBYING LAW: A TYPOLOGY 1800 A. The Lobbying Rules Map 1800 1. The ECOSOC Structure and Its Progeny Are Moderate Classics 1803 2. Reforms Have Produced More Specialist Structures 1806 3. Outliers Exist 1812 4. The New Multistakeholder Institutions Are Specialist Innovators 1818 B. Payoffs and Open Questions 1821 CONCLUSION 1825 INTRODUCTION

In national jurisdictions like the United States, laws governing lobbying activity are well developed ( (1)) and subject to robust analysis and critique. (2) Internationally, however, the regulatory environment for lobbying activity is highly idiosyncratic and undertheorized. In fact, legal rules that govern lobbying activity at the international level have not yet been recognized as a body of lobbying law. Rather, the patchwork of legal regimes is cast as a variety of "consultation" rules (3) that allow individuals and groups to "democratize" international institutions by offering to lawmakers and policymakers the diverse perspectives of a global polity. (4) This input is said to be a "basic form of popular representation in the present-day world" and "a guarantee of...political legitimacy." (5) I call this conventional account "strong legitimacy optimism."

The lofty goals of this conventional account belie the quotidian reality of international lobbying. The truth is that the rules vary from institution to institution, with frameworks that appear to be driven principally by historical accident, rather than coherent theory or principled design. Many of the international "consultants" are now industry and trade lobbyist associations like the World Coal Association. These associations play a two-level game, lobbying both national and international officials. (6) They are neither democratic representatives of a mythical "global public," nor are they offered the meaningful quantum of access that the strong legitimacy optimist model suggests. Yet private-sector actors can possess valuable expertise and innovative perspectives that are sometimes suppressed by obsolete access rules or drowned out in the melee of an unstructured process.

Thus, the facts show that the strong legitimacy optimist theory is descriptively flawed and normatively limited. The result, as this Article argues, is a set of legal regimes at the international level that both under- and overregulate international lobbying activities. On the one hand, these regimes can sacrifice transparency, administrability, or effectiveness; on the other hand, they can unnecessarily expose international officials and lawmakers to capture. (7) This matters to both international and national law, as international legal rules can be implemented within national jurisdictions and shape choices by domestic regulators. (8) In contemporary parlance, when it comes to regulating global business lobbying, there is plenty of room to make "[e]verything that's working...better," to fix what is not working, and to do away with obsolete rules. (9)

The Article develops a theory of international lobbying law. The theory begins with a critique, challenging the well-established but mistaken assumption in international law that consultation with nonstate actors is, as a formal matter, a means of democratizing international institutions. While the strong form of this theory has fallen out of vogue in the legal scholarship, it still serves as the theoretical foundation on which many of the access structures in international organizations were built. The critique this Article develops is that strong legitimacy optimism is both descriptively inaccurate and unhelpful as a reform principle. In short, it obstructs (1) regulation that would prevent undue influence and capture, as well as (2) development of multistakeholder institutions that would incorporate meaningful private-sector input.

The lobbying framework offered in this Article better describes the actors involved (diverse, often corporate) ; reflects the kinds of access that the rules afford (limited) ; and offers promising regulatory responses borrowed from national lobbying theory and jurisprudence, such as registration and disclosure. At the same time, by illustrating that international lobbying access is currently quite limited in scope, the theory also invites lawmakers to develop new non-lobbying structures when those structures would better suit institutional purposes. Thus, the lobbying theory facilitates more coherent regulation of lobbying activity, and, at the same time, reveals the need for truly participatory public-private partnership structures when those will better respond to pressing global problems. Finally, the Article maps these payoffs onto an original typology that organizes lobbying rules across a diverse set of international institutions.

The Article thus contributes to, and simultaneously attempts to reframe, the growing literature on the participation of nonstate actors in shaping the development of international law. (10) In particular, this project contributes to incipient literatures that seek to understand the ways one influential land of nonstate actor--the business entity--is involved in the formal processes of intergovernmental development of law and policy. (11) Notable contributions in this arena analyze business lobbying in the context of individual treaties--such as climate treaties--and the adoption of private standards into public agreements. (12) However, the literature that evaluates nonstate participation in lawmaking under the auspices of "consultation" at international institutions has principally focused on NGOs, (13) and downplayed or underrecognized any business presence in this group. (14)

Here, I show that business involvement as "consultants" or "observers" in institutions across the UN is a broad phenomenon. (15) It is also an area that is currently facing a significant degree of controversy and change, as exemplified by reform proposals recently lodged at the World Health Organization (WHO) and the United Nations Commission on International Trade (UNCITRAL). (16) The reform proposals respond to the ambivalent nature of business contributions. On the one hand, welcoming and facilitating business input is essential in many instances, when business entities offer expertise, develop technical standards, facilitate politically neutral solutions, offer funding for important global projects, or serve as essential stakeholders whose acceptance will be necessary to a rule's success. On the other hand, fears of undue business influence, capture, and other forms of subversion of regulatory processes are justified when profit-seeking motives conflict with public regulatory agendas. Perhaps as a result of that essential ambivalence, there is no consistent regulatory response to business lobbying across international institutions, either within or outside of the UN.

The current international legal context is further muddied by the instability of settled law and institutions, as exemplified by unfolding phenomena like Brexit, (17) the threat of African withdrawals from the International Criminal Court, (18) and announcements by the current U.S. executive and other populist leaders of bold reformist agendas that include proposals to exit major international agreements. (19) The potential retreat from globalism challenges the post-World War II consensus, and a rise of geopolitical multipolarity threatens to disrupt the success of hallowed international institutions. (20) But uncertainty and change also present opportunities to reconsider key features of the current order. How do nonstate actors participate in the process of international lawmaking, and how should they? What is the theory that justifies opening or closing the doors to these actors? What structures might best regulate nonstate participation, and, in particular, business lobbying? This Article offers a theory capable of producing new answers to these questions. It focuses reforms on developing the means to capture important informational and practical contributions of all nonstate participants--whether they are classic public-interest NGOs, industry or trade associations, business entities, or others--while restraining the risk of capture.

The Article proceeds as follows. Parts I and II review the structure of the access rules and existing scholarly accounts of them, highlighting a persistent dilemma about whether, and if so to what extent, nonstate actor participation contributes to the legitimacy or democratization of international organizations and the rules they produce. The argument of Part I is that the conventional, though contested, "legitimacy optimist" position is evident in the...