Lobbying and the petition clause.

Author:McKinley, Maggie
Position::Continuation of II. The "Decontextualized" Petition Clause B. Our Muddled Petition Clause Doctrine through Conclusion, with footnotes, p. 1165-1205
  1. Origins

    Although the Supreme Court referenced the right to petition in dicta in two nineteenth-century opinions--once as a predicate to the right to associate (226) and another as a predicate to the right to interstate travel (227)--the Court's first opportunity for substantive analysis of the right to petition came in 1954. In an era of increasing political ferment, 1954 began the term that the Court decided Brown v. Board of Education (228) and that the world's leaders convened in Geneva in efforts to bring peace in Vietnam. Also in that same year, in United States v. Harriss, the Court reviewed a First Amendment challenge to the statute born of Senator Black's early handiwork and the first statute to provide comprehensive regulation of lobbyists: the Federal Regulation of Lobbying Act of 1946. (229)

    The sections of the Lobbying Act at issue in Harriss, sections 305, 307, and 308, mandated registration requirements for all individuals and groups who accepted money to influence "directly or indirectly" legislation in Congress and required quarterly reporting of all moneys received and expended, as well as the name of the legislation lobbied for or against (230) Application of the Lobbying Act was broad and the statute purported to regulate

    any person ... who by himself, or through any agent or employee or other persons in any manner whatsoever, directly or indirectly, solicits, collects, or receives money or any other thing of value to be used principally to aid, or the principal purpose of which person is to aid, in the accomplishment of any of the following purposes: (a) The passage or defeat of any legislation by the Congress of the United States.

    (b) To influence, directly or indirectly, the passage or defeat of any legislation by the Congress of the United States. (231)

    The Lobbying Act also built on Black's framework by adding the additional penalty of a three-year lobbying ban for any violations of the registration and disclosure requirements. (232)

    Despite the victory celebrated by reformers following passage of the Lobbying Act, the scheme suffered from serious flaws, not the least of which was hurried, compromised drafting throughout the Act. (233) In addition to clumsy drafting errors, the Act was also structurally unsound and lacked an enforcement mechanism outside of criminal penalties, which were presumably enforceable by the Department of Justice. (234) The Act's disclosure requirements were also unclear and treated contributions by lobbyists and contributions to lobbyists as functionally identical expenditures. (235) Not surprisingly, given the questionable enforcement measures, very few prosecutions were brought pursuant to the Lobbying Act, and it took eight years for a constitutional challenge to come before the Court. (236)

    On direct appeal to the Supreme Court under the Criminal Appeals Act, (237) the United States challenged the United States District Court for the District of Columbia's dismissal of an information against a number of associational and individual defendants. (238) Relying on National Ass'n of Manufacturers v. McGrath, (239) the lower court had held the statute unconstitutional and dismissed the ten-count information, (240) which charged multiple violations of the Lobbying Act. (241) The government appealed.

    In Harriss, Chief Justice Warren, writing for the Court, reversed the district court's dismissal and upheld the Lobbying Act as constitutional. In reaching this decision, the Court reviewed the constitutionality of four provisions of the Lobbying Act on vagueness and First Amendment grounds. (242) Because Harriss is so uniformly presumed as the case where the Supreme Court held definitively that Congress violates the Petition Clause by banning or heavily regulating lobbying, including a notable recent misreading by the Supreme Court in Citizens United v. FEC, (243) it is worthwhile to explore the case in depth to dispel this presumption.

    The Court began in Harriss with a vagueness challenge. With respect to the disclosure requirement, the Court avoided any accusations of vagueness by interpreting the requirements to apply to paid lobbyists only. (244) In analyzing section 307, the definition of lobbying, the Court drew on United States v. Rumely, a case that interpreted similar statutory language and legislative history, to clarify that the Act applied to "lobbying in its commonly accepted sense" only, (245) that is, "to direct communication with members of Congress on pending or proposed federal legislation." (246) Following this clarification of section 307, the Court held that its narrowed construction rendered the disclosure requirement sufficiently definite to survive constitutional scrutiny. (247)

    Turning next to the First Amendment, the Court addressed all clauses en masse and held in a summary fashion that the disclosure and registration requirements of the Lobbying Act, as construed, "d[id] not violate the freedoms guaranteed by the First Amendment--freedom to speak, publish, and petition the Government." (248) Its analysis was similarly general and held that the state interest in providing lawmakers and the public information on who was pressuring Congress and in "maintain[ing] the integrity of a basic governmental process" outweighed any potential chilling effect on the exercise of "First Amendment rights." (249) Although the Court did not specify the particular clause on which its determination rested, its analysis resembled its later compelled-speech doctrine developed to analyze similar disclosure regimes. (250)

    Finally, the Court addressed the challenge to section 310(b), the three-year lobbying ban as a penalty for failing to comply with the registration and disclosure requirements, as violative of the Petition Clause. (251) The challenge to section 310(b) on Petition Clause grounds presented the only clear right to petition challenge against the only clear prohibition on petitioning and lobbying activity in Harriss. The Court expressly declined to reach this issue. Explaining that section 310(b) was a penalty and, therefore, had not yet been applied to the defendants and might not ever apply if they were found innocent, the Court found it "unnecessary to pass on [the] contention" whether the lobbying ban in section 310(b) violated the Petition Clause. (252) Contrary to broad misconception, in reviewing the first comprehensive scheme regulating lobbying and the last lobbying regulatory scheme to come before it, the Court declined to address whether the Petition Clause prohibited Congress from regulating lobbying. (253)

  2. Applying the clause to "lobbying"

    To the extent that a law of public engagement with the lawmaking process exists, Hugo Black had an influential hand in crafting it. Seven years after Harriss, Justice Black spurred the development of what would become our modern Petition Clause doctrine. This early doctrine also bore Black's broad conception of the right and his "literalist" interpretation of the Petition Clause. In drafting Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., (254) Justice Black addressed the meaning of the Petition Clause for the first time in depth, introducing into the doctrine his literalist interpretation of the right to petition as encompassing any form of advocacy aimed at influencing government action, no matter the audience and no matter the form. Black's broad literalism, omitting all reference to the historical context that defined the scope of the right, would set the stage for a series of cases that articulate the petition right as it stands today.

    In Noerr, the Court reviewed a gaggle of antitrust claims under the Sherman and Clayton Acts that railroad and trucking operators had aimed at one another in the midst of a freight war. (255) The association for the trucking industry had initiated the suit, alleging that the association for the railroad industry had engaged in anticompetitive conduct with its publicity campaign against the truckers. (256) In particular, the truckers alleged that the railroads had conducted a public directed-advocacy campaign, using the "third-party technique," (257) whereby the railroad's public relations firm would foster fake "so-called 'independent' citizens groups" that would "circulate false and malicious propaganda" that aimed to stop the passage of legislation favorable to the truckers. (258) While a few allegations alluded to contact with government officials, the truckers' complaint largely focused on anticompetitive conduct directed at the public. (259) Rather than anything analogous with the historical petition right, the truckers' complaint fell quite squarely into the domain of the Free Speech Clause.

    In fact, the railroads in Noerr argued the case under the anonymous speech doctrine (260) and attempted to distinguish United States v. Harriss and others like it. (261) These earlier cases had balanced protections for anonymous speech with lawmakers' strong informational interest in knowing the identity of the speaker. (262) Distinguishing these cases on the ground that they dealt with direct participation in the lawmaking process, the railroads argued that this case was aimed at influencing public discourse and, thus, attempts to speak anonymously through "third-party" campaigns should incur heightened speech protections. (263) The Court was persuaded that the case raised First Amendment concerns, but rather than relying on the Free Speech Clause and the anonymous speech doctrine, the Court sua sponte analogized the railroads' conduct to petitioning. (264)

    Writing for the Court, Justice Black again invoked his understanding of petitioning as a practice that spanned broadly to encompass any form of legislative advocacy and communication, no matter the audience. (265) As Justice Black had known all too well from his days as a senator, "[i]n a representative democracy such as this, these branches of government act on behalf of the people and, to a very large...

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