Lobbying and the Petition Clause
75 Pages Posted: 11 Apr 2016 Last revised: 9 Jun 2016
Date Written: April 11, 2016
Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for future interpretation of the Petition Clause.
Following the Supreme Court’s direction, this Article examines the implications of the history of petitioning for lobbying and, drawing from recent empirical research on lobbying, argues that the way Congress engages with the public through our current lobbying system actually violates the right to petition. At the Founding, and for much of this Nation’s history, the right of petition protected a formal, transparent platform for individual — and, in particular, minority — voices to participate in the lawmaking process. Without regard to the number of signers or the political power of the petitioner, petitions received equal process and consideration. This platform allowed both the enfranchised and unenfranchised to gain access to lawmakers on equal footing. Women, African Americans, and Native Americans all engaged in petitioning activity, and Congress attended to each equally.
Moving beyond ahistorical, decontextualized interpretations of the Petition Clause, this Article posits that our current lobbying system — wherein access and procedure are informal, opaque, and based on political power — actually violates the right to petition, which provided access and formal procedure without respect to the political power of the petitioner. The history of petitioning teaches that affording access to the lawmaking process on the basis of an individual’s political power makes as little sense as affording access to courts on such a basis.
This history suggests the need for revisiting the Petition Clause doctrine. On the one hand, it argues for a stronger petition right, especially a right to consideration and response. On the other hand, it suggests a narrowed petition right that protects only practices that correspond with the traditional practice of petitioning. Fundamentally, this Article demonstrates that a contextualized understanding of the Petition Clause, grounded in an accurate historical frame, requires comprehensive reform of our lobbying system and a formalization of the petition process in order to preserve our republican form of government.
Final version of the article now available. This article is part of a much larger project on lobbying and petitioning, however, so feedback is still quite welcome: mmckinley (at) law (dot) harvard (dot) edu.
Keywords: legislation, lobbying, Petition Clause, First Amendment, minority representation, textualism, petitioning, election law, law of democracy, legal history
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