Lobbying and the petition clause.

Author:McKinley, Maggie
Position:Introduction into II. The "Decontextualized" Petition Clause B. Our Muddled Petition Clause Doctrine, p. 1131-1165

Table of Contents Table of Contents Introduction I. Contextualizing the Petition Clause A. Contextualizing Petitioning B. Contextualizing the Text C. Contextualizing Lobbying II. The "Decontextualized" Petition Clause A. Our Lobbying Regulatory Framework B. Our Muddled Petition Clause Doctrine 1. Origins 2. Applying the clause to "lobbying" 3. Expanding the clause to courts and the executive 4. Conflating the clause into speech 5. An historic revival III. Implications for the Doctrine A. Contours of a Contextualized Right to Petition B. Implications for the Doctrine 1. Making sense of contingency fee contracts 2. Lobbying is not the new campaign finance IV. Contextualizing Our Current Lobbying System A. Our Current Lobbying System B. Implications of the Petition Right for Our Lobbying System 1. Remedies 2. Objections Conclusion Introduction

Imagine that when you filed a complaint in a court, the judge first reviewed the document to count the number of signatures or to determine whether any of the signers had contributed to the judge's campaign. If the judge identified enough signatures or identified the signature of a contributor, the judge might accept your filing; otherwise, she might refuse to accept the complaint and decline to hear the case entirely. Even if she allowed the case to proceed, the judge might hold the proceedings in secret, meeting informally with parties and individuals unrelated to your action, and refuse to make public any of the filings in the action. If the judge held a close relationship with a powerful individual interested in the case, she might allow that third party to send her instructions by text message that would guide her questions and actions during trial. The judge might also afford you entirely different process than other litigants: if she thought that you were politically powerful, she might provide you comprehensive hearings and a trial. Otherwise, she might allow you a five-minute phone conference without ever reading your submissions. She might also provide you no process at all, abandoning your complaint to a wastepaper basket. There is little doubt that this scenario would offend deeply our notions of the right to due process in the context of courts because we believe that the right means equal, formal, and public process. That we accept less when we, as members of the public, engage with Congress appears more historical accident than anything grounded in reason.

Congress's engagement with the public outside of the vote inevitably presents challenging regulatory and constitutional questions. On the one hand, lawmakers have a strong need to gather information about the public to facilitate the lawmaking process, and the public is often the only source. The Constitution also protects explicitly "the right ... to petition," or the right to engage directly with government, "for a redress of grievances." (1) On the other hand, our informal and largely unregulated lobbying system is prone to abuse, risks disruption and distortion of our lawmaking process, and has contributed to an alarming loss of public faith in Congress. (2) The minimal scholarly debate to engage with the puzzle of lobbying conflates lobbying and petitioning and assumes away the question whether the First Amendment protects our current lobbying system. (3) Likely because of this assumption, few scholars have considered whether lobbying and petitioning are coextensive and, if not, how Congress ought to engage with the public in order to comport with the petition right. The literature instead focuses narrowly on whether our current lobbying system should or could be regulated (4)--or potentially even subsidized (5)--in accordance with the Constitution. Little scholarly work has been done to examine the contours of the right to petition in the context of our current lobbying system and to answer the question of how a legislature of republican design ought to engage with the public during the lawmaking process, if at all. (6) Despite presenting important questions regarding the institutional design of our legislatures, the little attention these questions have received by legal scholars and the courts has fostered only deeper confusion.

To resolve decades of confusion in a single article is a chimera. Rather, this Article aims to reshape the dialogue regarding public engagement with Congress. First, this Article seeks to unsettle the presumption that the Supreme Court has resolved definitively that lobbying is protected by the First Amendment. Second, this Article aims to clarify the reach and meaning of the Petition Clause by charting the little-known history of the petition process and the history of lobbying and by addressing the Petition Clause doctrine comprehensively for the first time. Finally, the Article puts forth the heterodox argument that our current lobbying system (7) actually violates the right to petition.

Although the Supreme Court often alludes in dicta to presumed constitutional limitations on Congress's ability to regulate our current lobbying system, (8) the Court has yet to resolve the issue. The two cases generally cited for the principle that lobbying is protected under the Petition Clause (9) fail to support that claim. In the most often cited case, United States v. Harriss, the Court actually declined explicitly to reach the issue whether the statute's penalty of a three-year lobbying ban violated the Petition Clause. (10) The Court's first in-depth discussion of lobbying and the Petition Clause, Noerr of the Noerr-Pennington doctrine, interpreted lobbying activity as an exception to the Sherman Act in order to shield it from allegations of anticompetitive conduct, citing Petition Clause concerns in part. (11) As later cases have highlighted, however, it is unclear whether the Court rested the Noerr-Pennington lobbying exception on the Petition Clause or on simple statutory interpretation and the legislative history of the Act. (12) The majority of case law interpreting the Petition Clause focuses not on lobbying or even legislative petitioning but on access to courts and formal agency proceedings. (13) Belying the nearly ubiquitous consensus that any and all forms of lobbying activity are coextensive to petitioning and, therefore, are protected under the Petition Clause, the constitutional protections for our current lobbying system remain a very open question.

Looking to the historical record to clarify the reach and meaning of the Petition Clause reveals that our lobbying system and the system protected by the petition right are wholly distinct. At the Founding, and for much of this Nation's history, the right protected a form of access to Congress that more closely resembled the formal process afforded in courts than the informal tool of mass politics that lobbying and petitioning have become today. (14) Individuals submitted over six hundred petitions to the first Congress--each a formal document that included a statement of grievance and a signatory list--which members of Congress read aloud on the floor, referred to a committee or another branch for consideration, and afforded a formal response. (15) Women, African Americans, and Native Americans had all engaged with colonial and state governments through the petition process as a matter of course, (16) and these unenfranchised and politically powerless communities transitioned smoothly to petitioning Congress after the Founding. (17) Members did not afford more process or consideration to petitions with more signatures and did not require a minimum level of electoral power, or signature count, in order to provide formal process to a petition. (18) Much like a complaint filed with a court, Congress treated each petition on equal footing--no matter the petition's source and without regard to the political power of the petitioner (19)--and consideration was a public, transparent process. (20)

By contrast, the lobbying market functioned (and still functions) as the antithesis of the formal petition process. Historically, the lobbying market auctioned informal access to lawmakers--access acquired through bribes, personal connections, threats, and electoral pressure. (21) Lobbyists cultivated relationships with members of Congress in order to offer their clients more access and more comprehensive process than those individuals who engaged in the formal petition process. (22) Professional lobbyists might themselves engage in petitioning, and petitioners might, on occasion, employ lobbyists to represent them in the formal petition process. (23) The lobbying industry, however, was largely distinct from the formal petition process and inspired incredible public resentment at the fact that lobbyists circumvented and undermined the legitimate system of public engagement--namely, petitioning. (24) State governments criminalized lobbying, and courts were quick to void contracts for lobbying services as violative of public policy because they saw the sale of one's own personal, informal access as a corruption of petitioning. (25) In most cases, the courts were clear that engaging in the formal petition process or hiring a representative to engage in the formal petition process on your behalf would not raise the same concerns; (26) such contracts might even obtain constitutional protection. (27) It was only in contracting for "lobbying" services--specifically, the sale of a lobbyist's ability to circumvent the formal petition process--that public policy was offended. (28)

The historical process of petitioning bears little resemblance to the way that Congress engages with the public today. Today, Congress affords individuals access to lawmakers and the lawmaking process only on an informal basis and provides preferential access, consideration, and procedure to the politically powerful. (29) Gone is the public process whereby petitions were read into the congressional record, and in its place is a process closed to public...

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