Distorting Access to Government: How Lobbying Disclosure Laws Breach a Core Value of the Petition Clause
Lobbying occupies a unique and indispensable role in our democracy. History and doctrine indicate that it is a form of political expression which should enjoy expansive First Amendment protection. However, lobbying has long been the target of federal regulation. This Note argues that the Lobbying Disclosure Act of 1995 (LDA), as amended in 2007, violates the Petition Clause of the First Amendment by distorting a lobbying client’s right to access the government. The distortion occurs when a lobbyist foregoes effective (and otherwise legal) petitioning strategies simply because they might spark public controversy when disclosed. The client is then forced to accept a distorted form of advocacy, which inhibits his petition from being properly heard. Because that outcome cuts closely against the value of public access to government, this Note proposes that “access distortion” is a provable and redressable constitutional injury under the Petition Clause. Fundamentally, it is an abridgment of agent-based expressive activity that is protected by the First Amendment.