“The Anxiety of Influence: The Evolving Regulation of Lobbying”

Richard Briffault has posted this draft on SSRN.  Here is the abstract:

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, and since the 1950s the Supreme Court has recognized that lobbying consists of rights protected by the First Amendment. The law of lobbying has been structured by these two competing visions of lobbying, as it strives to hold together the differing and conflicting goals of protecting constitutional rights of speech and petition; controlling unfair and improper means of influencing government action; and promoting transparency of lobbying’s role in the political process.

This article examines the legal framework for the regulation of lobbying. It explores the values shaping lobbying regulation, the regulatory techniques, and the evolving judicial treatment of lobbying. It then addresses the principal issues on today’s regulatory agenda, particularly the interplay of lobbying with campaign finance and the application of lobbying laws to grassroots activities intended to influence government action.

 

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