Zephyr Teachout on Lobbying

Zephyr Teachout, a Duke Law professor, has this interesting and timely piece on lobbying reform in Democracy, A Journal of Ideas (free registration required).  Some excerpts:

Lobbying distorts American democracy by introducing a pay-to-play scale to the public’s ability to petition the government. It turns our government from a fundamentally public-facing entity to a private-facing one. If we do not radically change the role of the lobbying industry in decision-making, laws will increasingly tend towards complex mechanisms that redistribute power away from the people and toward the clients of the most effective lobbyists. 

Congress has become dependent on federal lobbyists to provide information about the impact of proposed legislation, even as that information is carefully selected to favor certain kinds of decisions. The problem with lobbying, therefore, isn’t lying or unlawfulness. Rather, when it dominates Congressional processes as it does, it systematically distorts decision making in the most undemocratic of ways, to the most undemocratic of ends. 

Professional lobbying didn’t exist at the time of the founding, and it remained almost nonexistent for over a century in the federal government. Through the late 1800s, courts refused to enforce contracts for helping procure government grants or lobbying. The 1877 Georgia Constitution declared lobbying a crime. Even the Supreme Court opposed it: In the 1874 case Trist v. Child, it refused to enforce a contract between a lawyer and an elderly client he represented in Congress, who could not have traveled to Washington on his own. The court held that anything other than directly petitioning the government was an abrogation and corruption of a citizen’s civic responsibility: “There is a…duty resting upon the citizen. In his intercourse with those in authority, whether executive or legislative, touching the performance of their functions, he is bound to exhibit truth, frankness, and integrity. Any departure from the line of rectitude in such cases, is not only bad in morals, but involves a public wrong.” 

 We could place caps on campaign spending, for instance (though, given Buckley v. Valeo, in which the Supreme Court made mandatory caps on campaign spending unconstitutional, we would need a Constitutional amendment to allow them). Likewise, we could pass an amendment allowing states and the federal government to experiment with banning lobbying altogether, something first tried by many states in the late 1800s. For example, one state might restrict their members of Congress from meeting with lobbyists from any company over a certain capitalization; another might only allow paid lobbying of membership organizations of a certain size; a third might experiment with creating limitations on what organizations with limited liability are allowed to do. And, instead of raising the salary of members of Congress and staff so they are not tempted by the revolving door, we might cap the salaries and benefits of federally licensed and regulated lobbyists.

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