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Friday, January 31, 2014

The Forgotten Law of Lobbying

The title of this post comes from this fascinating historical analysis by Professor Zephyr Teachout of the evolution of lobbying in the United States--once considered "presumptively against public policy" but today accepted by many as protected by the First Amendment. Here's the abstract:

For most of American history, until the 1950s, courts treated paid lobbying as a civic wrong, not a protected First Amendment right. Lobbying was presumptively against public policy, and lobbying contracts were not enforced. Paid lobbying threatened the integrity of individuals, legislators, lobbyists, and the integrity of society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying provision in its Constitution. Inasmuch as there was a personal right to either petition the government, or share views with officers of the government, this right was not something one could sell -- it was not, in the term used by one court, a “vendible” -- a sellable item. Line-drawing between illegitimate paid lobbying and legitimate legal services was not easy, but in general courts enforced contracts where the thing being sold was expertise to be shared in a public forum, while refusing to enforce contracts where the thing being sold was personal influence to be shared in private meetings. 

During the mid-20th century, the practice of not enforcing lobbying contracts fell away. This change came from two things: the growing sanctity of contract, and the professionalization of the lobbying industry. State laws regulated lobbying instead of banning it. At the same time, as a constitutional matter, the law of lobbying occupied something of a no-mans land for many years -- paid lobbying was neither explicitly protected by the First Amendment nor explicitly not protected. Supreme Court cases suggested, but did not hold, that paid lobbying was a First Amendment right. Only recently, and without much judicial discussion, has the legal-academic community presumed that there is a unique First Amendment right to pay someone to lobby, or be paid to lobby, grounded in the speech and/or petition clauses of the First Amendment. The scope of that right is unclear. 

This Article tells the history of the earlier approaches towards lobbying. It explores the lobbying cases of the 19th and early 20th century courts, looking at the logic underpinning them and how courts distinguished between illegitimate lobbying and legitimate hiring of professional lawyers. 

This Article is largely historical, but has doctrinal implications. First, it shows that as a matter of practice, there is no historical consensus on a First Amendment right to lobby. Second, the length and breadth of the treatment of lobbying as wrong -- not a right -- is indirect evidence that the First Amendment was not intended to protect paid lobbying. Third, the reasoning of the courts that invalidated lobbying contracts is still relevant to the degree of protection, and the kinds of activities that might be worthy of greater or lesser protection.

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