THE RIGHT TO PETITION AS ACCESS AND INFORMATION.

• Author: Weingartner, Michael

INTRODUCTION 1237 I. ACCESS AND INFORMATION 1240 A. Allocating Government Access 1241 B. Lawmakers' Need for Information 1245 II. THE HISTORICAL RIGHT TO PETITION 1249 A. Historical Petitioning as Access 1249 B. Historical Petitioning as Information 1258 C. Petitioning's Decline and the Rise of Lobbying 1263 III. THE PETITION CLAUSE DOCTRINE 1268 A. The Petition Clause Doctrine as Access 1269 B. The Petition Clause Doctrine as Information 1274 IV. IMPLICATIONS. 1277 A. Implications for Institutional Reform 1278 1. Avenues for Institutional Change 1278 2. Objections 1281 B. Doctrinal Implications 1282 1. Distinguishing the Right to Petition from the Right to Free Speech 1283 2. New Rationales for Regulation 1285 CONCLUSION 1287 "[I]t is essential to liberty that the government in general, should have a common interest with the people; so it is particularly essential that... [Congress]... should have an immediate dependence on, [and] an intimate sympathy with the people." --James Madison (1) "We had a hierarchy in my office, in Congress. If you were a lobbyist who never gave us money, I didn't talk to you. If you were a lobbyist who gave us money, I might talk to you." --Mick Mulvaney, Former U.S. Representative. (2) INTRODUCTION

In politics, access is everything. Who gets access to lawmakers and who doesn't drives the legislative agenda, defines the parameters of the debate, and decides policy outcomes. (3) Over the last several decades, a widespread informal lobbying industry has emerged as a means of buying and selling access to lawmakers. This system has been criticized as a pay-for-play scheme that advances powerful interests at the expense of the public good, (4) if not a perverse form of "legalized bribery," (5) and has contributed to historically low public faith in Congress. (6) Attempts to regulate lobbying, however, raise fundamental questions under the First Amendment.

The First Amendment's Speech Clause prohibits laws "abridging the freedom of speech." (7) With this is mind, several commentators have assumed that when lobbyists meet with lawmakers, their activity constitutes a form of political speech protected by the First Amendment. (8) The Supreme Court, however, has yet to hold that this is the case. (9) Nevertheless, lower courts considering lobbying reform laws have tended to apply strict scrutiny, often fatally so, following the Court's recent campaign finance decisions. (10) But even if the speech of lobbyists is protected by the First Amendment, the issue is complicated by the fact that lobbying also involves the active participation of lawmakers who control access to themselves and make decisions about which political speech they will and will not listen to. (11) The Speech Clause is silent as to how these decisions should be made or whether individuals or lobbyists have any right to lawmaker access.

The First Amendment's Petition Clause, on the other hand, protects "the right... to petition the government for a redress of grievances." (12) On its face, this Clause protects both a form of political speech--petitions--and a particular process for communicating with the government. The precise nature and function of the Petition Clause, however, remains unclear. Compared to other First Amendment rights, the right to petition has received relatively little attention from scholars, (13) and the Supreme Court's limited petition jurisprudence has largely conflated the right to petition with the right to speech, having gone so far as to describe the two as "cut from the same cloth." (14) This view has contributed to claims that--like it or not--the First Amendment prohibits the government from regulating lobbying or access in any way. (15) This conflation, however, discounts the nearly eight-hundred-year history of the right to petition as it was exercised in England, in colonial governments, and in the United States Congress well into the twentieth century. In recent years, scholars have unearthed a wealth of historical evidence surrounding the right to petition. (16) This history reveals that the right to petition protected not only the speech contained within a petition but also an individual right to equal and meaningful participation in the lawmaking process. (17)

This Comment builds upon this recent scholarship by considering the history of petitioning from an institutional perspective. Historically, petitioning played a central role in structuring the lawmaking process and provided important benefits to both the governed and the government. (18) This history not only helps to distinguish petitioning from ordinary political speech, but it also reveals two distinct institutional interests that provide independent rationales for legislative efforts at lobbying reform.

First, petitioning provided a mechanism for allocating access to lawmakers. Unlike our current lobbying system, in which access to lawmakers is allocated informally, petitioning made use of formal and institutionalized processes to bring matters to the attention of lawmakers. (19) And while today access often goes disproportionately to the economically or politically powerful, the historical right to petition was far more egalitarian, extending to all people--even the unenfranchised--without regard for their wealth or political power. (20) Any individual or group could, simply by drafting and filing a formal petition, have their grievances heard and considered on equal footing. (21) Petitioning thus allocated government access--a highly scarce and valuable public resource--by providing a quasi-procedural right to be heard. (22)

Second, petitioning helped provide lawmakers with broad and inclusive information. (23) Historically, formal petitioning served as the primary means of information gathering in England, the colonies, and the early United States. (24) Petitions provided detailed information which lawmakers otherwise would have been unable to obtain, apprised lawmakers of the needs and desires of their constituents, and focused lawmaker attention on highly local or specialized issues they might otherwise have missed. (25) Today, however, lawmakers are faced with a deluge of information that is largely mediated by lobbyists and thus disproportionately reflects the interests of the politically powerful interests they represent. (26)

This Comment seeks to bring these two interests--access and information--to the foreground and argues that the right to petition is best viewed not only as an individual right, but also as a guide for structuring the government's engagement with the public. Part I begins by articulating what is at stake with respect to both access and information by identifying current challenges with each and discussing how our current lobbying system has proven insufficient. Next, Part II traces the history of the right to petition through the lenses of access and information. Part III then discusses how access and information have influenced the Supreme Court's Petition Clause doctrine. Part IV discusses implications for institutional reform and how a renewed focus on the Petition Clause offers new doctrinal rationales for lobbying regulation.

1. ACCESS AND INFORMATION

   In the Supreme Court's most recent Petition Clause Case, Borough of Duryea v. Guarnieri, the Court recognized that the right to petition is distinct from the right to free speech and that "some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition." (27) As the next Part illustrates, the history of petitioning reveals two vital interests that underly the right to petition: allocating access to lawmakers and providing lawmakers with broad and inclusive information. (28) As we will see, these interests drove the development of petitioning as a solution to the institutional challenges of democratic governance and later influenced the rise of our modern lobbying system as well. (29) Before turning to the history, however, it is worth pausing to examine these two interests--access and information--in today's context.

   This Part examines how access and information interests operate in the modern lawmaking process and under our current lobbying system. It begins by defining access in terms of the attention of lawmakers, a highly scarce resource that is necessary to achieve policy outcomes and discusses how that attention is allocated among competing groups. Next, it discusses the informational needs of lawmakers, the lack of institutional sources of information, and the reasons why lawmakers increasingly turn to expert but interested lobbyists for needed information.

   1. Allocating Government Access

      Public access to government is vital to representative democracy. Outside of formal elections, engagement with lawmakers is the primary means by which the public participates in the lawmaking process. Moreover, while elections decide who will govern and make policy, ongoing engagement with the public is necessary to ensure that the needs and desires of constituents--including political minorities and the unenfranchised--are represented. Demand for access, however, drastically exceeds supply, necessitating some system of allocation. But what does it mean to allocate access to government? What exactly is being allocated, what interests are implicated, and what method does the First Amendment favor?

      When we speak of government access, what we are really referring to is the attention of lawmakers and other officials. As avenues for speech have become cheap and the amount of available information has exploded, economists have increasingly focused on attention as an increasingly scarce and thus valuable resource. (30) Much has been written on the implications of attention scarcity for businesses and consumers, (31) and for public discourse at large. (32) The issue takes on a different character, however, when applied to lawmakers. A significant body of literature has developed to...