Andrea Bortoluzzi has posted this draft on BePress. Here is the abstract:
The intention of the Author is to examine all the rules that the Italian legal system imposes on lobbying, in part for the purpose of limiting certain lobbying practices and in part to promote access to public decision-makers by establishing the requirement for transparency and trustworthiness in the relations between the lobbyist and the decision-maker. Lobbying is heavily dependent on the opportunities for the lobbyist to access the public decision-maker. The issue of access, however, viewed in terms of lobbying, relates not to the right to know the content of administrative documents but to the right to provide information to the public decision-maker relating to its legislative or regulatory activity, where this may influence its decisions. The primary source of that power in the political system in Italy is the Constitutional Charter, within the limits that the power is recognised in the Charter. Taking a further look at the system of sources, in the absence of State laws regulating this issue, the only current law that, in regulating access, contains a definition of lobbying is the one issued by the Region of Abruzzo (Law 61 of 22 December 2011, in Bollettino Ufficiale della Regione Abruzzo no. 2 of 12 January 2011). While a review of the sources offers little food for thought on the discipline of lobbying, the review of legal formants is even more meagre. While case-law as a legal formant amounts to just a few sparse judgments of the Constitutional Court, the formant based on jurisprudence consists of only a few monographs on the subject. The essay puts under scrutiny the rules of lobbying in other legal systems and points out that whatever the legal systems may be, they react to the phenomenon of lobbying by pressure groups by treating them as an ineluctable feature of democratic systems. This leads to the issue of representation, in other words the legitimisation – in some cases explicit through written laws or case-law decisions, in other cases cryptic, by recourse to implicit models – of the fact that the sovereign interest of the people may be manifested and may seek satisfaction not only through elected political institutions but also through free associations.. And this principle, despite the tortuous paths inevitably taken in any legal system laying down the procedures for and limits of representation of interest groups, is common to all the legal systems considered in the essay. Two legal systems are subject to accurate analysis in the essay : the regulation of lobbying in United States and within the European Union. This regulation is compared to the Italian one. The Author ends up considering the criticalities of all the legal systems taken into consideration when they address the regulation of lobbying. This is true both of the systems that rely on custom alone and of those that have acted by enacting legislative measures and within which doctrine-based and jurisprudential formants are applied to the issue. It is in fact hard to reconcile the constitutional guarantees as to the exercise of fundamental rights and at the same time to ensure that the political scene is immune to groups aiming to preserve their rent-seeking positions to the detriment of the community.