Christopher Havasy (George Washington University Law School) has posted Lobbying, Influence, and Political Equality on SSRN. Here is the abstract:
Public law has become acutely concerned with the relationship between economic and political inequality. One of the central ways in which citizens and organizations translate economic power into political influence is by spending $2 billion every year to lobby agency policymaking. Thus, courts, commentators, and citizens call interest group lobbying improper, unequal, and a threat to democracy.
However, a longstanding problem has frustrated reform. Scholars have been unable to determine when it is actually permissible for interest groups to hold influence in policymaking. This Article tackles this question head-on by examining when interest groups lobbying to influence policymaking in democratic governance is justifiable on political equality grounds. This analysis finds that three variables are central to the justifiability of interest group influence: (a) the type of influence, (b) the reason for influence, and (c) the resources of policy actors.
Perhaps surprisingly, this examination also finds that lobbying can actually improve democratic governance under certain conditions by creating forms of complementary representation to bolster the voice of citizens, groups, and identities in between electoral cycles. This relationship between participation, lobbying, and elections suggests that the public law subfields of administrative law, legislation, and law of democracy have strong underlying theoretical connections.
Nonetheless, reforming interest group lobbying in America presents challenges because our socioeconomic inequalities continue to grow and administrative law scarcely regulates lobbying. But all is not lost. This Article puts its normative findings into conversation with recent social science research to target the most problematic policy situations for reform.
Two methods of reform are proposed: federal courts repurposing recent Supreme Court administrative law caselaw to monitor interest group lobbying, and political institutions implementing institutional design mechanisms to dampen the influence of wealthy groups and uplift those who are often left out of policymaking. While this Article argues that institutional design reforms should be prioritized, the court-based approach presents a non-ideal, second-best method of reform when other institutions are unable or unwilling to improve the political equality of agency policymaking.
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