Abstract
While there may be several practical concerns regarding the practice of corporate lobbying of government officials, there is the more basic question of a corporation’s moral right to do so. I argue that group agents such as corporations have no moral rights, and thereby cannot have the right to lobby. There may be a basis for some legal rights for corporations, but I argue that lobbying cannot be one of the legal rights, even by reference to the rights of the individuals that make up the corporation. I end the paper by a discussion of how this argument applies to all private organizations, including public interest organizations.
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Notes
Elections support and other forms of indirect financial support to candidates are closely related, and often discussed in tandem with lobbying activities. However, as I point out below, I find that the right to engage in each activity is justified on different grounds, and each activity may thereby be addressed separately.
An anonymous reviewer made this distinction.
For instance, Klüver (2011) has analyzed lobbying in the European Union and found different dynamics of influence, particularly a more even balance between public interest groups and corporate interests. I address some of the dynamics Klüver discusses in Section 4. Another example is the right given to associations of individuals in Article 17 of the Basic Law for the Federal Republic of Germany. The philosophical points made in this article will serve as a basis for some concern regarding the German legal framework.
This definition is generally operant in United States Federal Law under the term ‘lobbying contact’ and activities associated with preparation for such contacts. See Lobbying Disclosure Act (1995), 2 U.S.C. § 1602, 3(8). One minor exception to my definition exists in the law. This is that churches or associations of churches are excluded in the law (see 3(8)xvii), while my moral argument will apply to them. A similar definition could hold for lobbying at the state or local level, with adjustment of terms for associated administrative bodies at those levels. I will clarify and distinguish other author’s definitions where appropriate.
For instance, if a legislator invites the CEO of a company to testify to a legislative committee regarding the impact of legislation on employment in her company, the CEO’s suggestion or declaration that the bill will have a negative effect on jobs, and that she recommends not to pass the legislation, is not a form of lobbying.
To be sure, there are other forms of political activity that relate to lobbying or actively combine with lobbying efforts to ensure success of political aims. Some of what I have to say on the narrow construal may apply to these activities as well, but the direct force of my argument remains narrow.
Some scholars have held that the right to lobby can be grounded in other elements of the US Constitution, such as the free speech clause (Hager 1989; Ostas 2007; Thomas 1993). However, I do not see significant reasons for justifying lobbying on such grounds, as legal interpretation is mixed on this issue.
There is a long history of concern with the right to petition, including the Declaration of Independence and the English Parliament’s Bill of Rights, up to the Basic Law for the Federal Republic of Germany.
John Rawls (1985) does not consider his conception of justice as fairness to be an application of a more general moral conception, but a fundamentally political conception. Accordingly, moral rights may be construed to be political rights in this regard, although many philosophers conflate the two notions when discussing moral rights. On the other hand, political and legal rights may be easily conflated as well, and I will discuss legal rights below. For the purpose of clarity in this context, I will opt not to discuss the right to petition as a political right, but instead as a moral one, although Rawls’s point here is well taken.
For a detailed review of corporate lobbying in practice, see Stark (2010).
In addition to Hager (1989) here, see Horwitz (1992), 72–73. Horwitz points out that the demise of grant theory was due to the tendency for “legislative bribery” and other forms of favoritism associated with the legislative approval of incorporation. The movement toward “free incorporation” to eliminate such problems led to the decline of grant theory.
I discuss some of these inconsistencies below.
David Ozar (1985) maintains that corporations have no moral rights because they do not exhibit moral agency. They can only have ‘conventional’ rights. I do not contest the claim that corporations can be moral agents and thereby have moral responsibilities. But I do contest the claim that they can have moral rights.
The fact that attorney-client privilege is protected by the Fifth Amendment (i.e., lawyers cannot be forced to testify against their clients) here suggests that it is not merely the agent’s status as a representative of the group agent that underlies the lack of Fifth Amendment protections for their representatives. Rather, it is the fact that the corporation has no standing against self-incrimination.
List and Pettit (2011, 182) suggest this concentration problem, but do not flesh out the argument.
For instance, we might expect timely evaluation of torts in the legal system when an individual’s livelihood is affected.
As I argue below this view is also in agreement with the transfer theory of legal rights.
This point was brought up by an anonymous reviewer.
Although there were over 100,000 “Reports” in the United States for 2012 (i.e., lobbying contacts) by lobbyists to the legislative branch, there were at least 20,000 reported contacts with federal agencies (Center for Responsive Politics 2012).
Abramoff ultimately plead guilty to multiple corruption charges in 2006.
While the revolving door problem could in theory be eliminated by what Abramoff recommends as a complete barring of legislators or staff from working in an organization that lobbies the government, there are some practical difficulties in restricting a person’s behavior once she has served as a public official. The elimination of corporate lobbying would have a similar effect without restricting a public official’s employment post-public service.
The waiting period for registration as a lobbyist does not prevent the former public official from providing other services to a lobbying firm or in house lobbying entity.
This does not hold in cases where a citizen assists another in voting because of the latter’s physical inability. For example, absentee ballots may be filled out by a trusted guardian, but this is not a form of transference, and does not violate NTDP.
No doubt that, because of people’s social relations, there will be some who are well-connected to legislators in ways that allow for more effective power in the policy formation process. So long as the existence of these connections is not an institutional feature, they are not as problematic.
Hager’s concern has more to do with expression than with the right to petition. However, it seems plausible that he might take this view regarding lobbying.
There may be additional limitations on corporations in this regard, such as disclosure rules, or even regulation as commercial speech as opposed to political speech.
These quotes suggests that Hager might embrace NTDP and my view regarding lobbying. As mentioned above, he says little about lobbying specifically, but he does place a great amount of value in public interest organizations and their ability to affect policy. How direct he wants this ability to be is an open question.
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Acknowledgments
An earlier version of this paper as a dissertation chapter was supported by the Steve and Barbara Mendell Graduate Fellowship in Cultural Literacy at the University of California Santa Barbara. I wish to thank Christopher McMahon for his useful comments and support, and two anonymous reviewers for this journal for their comments and insights.
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Gee, Q. Corporations, Rights, and Lobbying. Ethic Theory Moral Prac 19, 397–408 (2016). https://doi.org/10.1007/s10677-015-9631-3
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DOI: https://doi.org/10.1007/s10677-015-9631-3