Reforming Lobbying
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Description
Few would deny that the principle of equal participation in government is a cornerstone of American democracy. Even fewer would deny that American democracy has lost that cornerstone. Yet building political will toward reform that would ensure equal participation, while passing constitutional muster, has proved a chimera. Historically, two distinct, but complementary mechanisms aimed to facilitate equal participation in the lawmaking process: the mechanism of the vote and the mechanism of the petition. On the one hand, the electoral process provided the means by which a majority would select the membership of our lawmaking institutions. On the other, the petition process provided the means by which individuals and minorities could participate equally, publicly, and formally in the lawmaking process. Both of these mechanisms are in need of reform. However, while most reform proposals focus on campaign finance reform to protect the electoral process, very few proposals focus on how we regulate access to and participation in the lawmaking process. This chapter sketches a preliminary two-step reform proposal to ensure equal access to participation in the lawmaking process. As I will show, fundamental reform of our lobbying system would allow us, under our current free speech doctrine, to reform our campaign finance system fundamentally as well. Most relevant to this discussion, regulating and formalizing the way that we access lawmakers and the lawmaking process could allow us to reform campaign finance in innovative ways, including by severing the tie between our current lobbying system and our campaign finance system. Part I of this chapter charts the recent movement to reform campaign finance by reforming lobbying and identifies a critical flaw in these efforts. Part II then outlines a two-step reform proposal that avoids this earlier flaw. Step one proposes that we institutionalize a formal petition process that would largely displace our current lobbying system as the primary means by which the public would engage with Congress. Step two then proposes to regulate campaign finance activities that disrupt that formal petition process—similar to regulations upheld by the Court protecting legislative ethics provisions, legislative procedures, and the mechanics of the voting process. Finally, in Part III, I describe how the two-step reform proposal would pass constitutional muster under our current First Amendment doctrine.
Source Publication
Democracy by the People: Reforming Campaign Finance in America
Source Editors/Authors
Eugene D. Mazo, Timothy K. Kuhner
Publication Date
2018
Recommended Citation
Blackhawk, Maggie, "Reforming Lobbying" (2018). Faculty Chapters. 244.
https://gretchen.law.nyu.edu/fac-chapt/244
