Lobbying Against the Odds
HARVARD JOURNAL ON LEGISLATION (Forthcoming)
59 Pages Posted: 14 May 2018
Date Written: May 11, 2018
Conventional narratives maintain that groups that lack political power litigate because they cannot attain their goals politically. Yet lobbying by American Indians has increased over 600 percent since the late 1970s. And they are not alone. Other politically marginalized groups have also intensified their lobbying efforts over the past five decades. This raises an important question that scholars have yet to adequately answer: Why do some groups use legislative strategies to achieve their goals? This Article challenges the prevailing wisdom and demonstrates that groups sometimes lobby even when the odds are stacked against them. It considers the existing sociolegal framework for understanding why groups litigate, and suggests modifications based on insights from interest group studies, to provide a more complete explanation of when and why groups engage in various advocacy strategies. This modified sociolegal approach produces significant insights into how legal and political actors influence and are influenced by the institutions they turn to, but also enables us to see similar—and divergent—patterns across contexts. The Article presents original quantitative data to document the dramatic rise in American Indian lobbying from 1978 to 2012. Then it uses the modified sociolegal approach to explain how the relationships among courts, the political process, and groups facilitated American Indian legislative advocacy. It concludes by discussing the implications of the approach for studies of legal mobilization, interest groups, and federal Indian law.
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