Well, we asked for bipartisanship. It seems to have arrived with a vengeance. It is rare to see Donald Trump, Sen. Elizabeth Warren, and Rep. Alexandria Ocasio-Cortez all campaigning on the same issue, but last night the former president added his voice to the call for a lifetime ban on former lawmakers (and cabinet members) working as lobbyists. This alliance is notable not only because it is uncommon but because it is pushing a reform that is likely unconstitutional.
I have been a long critic of the revolving door between Congress and lobbying firms. The promise of receiving windfall salaries from industry groups and lobby shops presents an obvious and powerful corrupting influence in Washington.
The question is how to combat it.
Last night, after announcing his candidacy for the presidency in 2024, Trump declared that he wants a lifetime ban on former lawmakers becoming lobbyists. It is clearly a popular call for someone who runs as an outsider pledging to “drain the swamp.”
The problem is that such a ban is presumptively unconstitutional.
The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The “right to petition the Government for a redress of grievances” is called lobbying. In United States v. Finance Committee to Re-Elect the President in 1974, the D.C. Circuit noted that “[l]obbying is of course a pejorative term…another name for it is petitioning for the redress of grievances. It is under the express protection of the First Amendment.”
As the Supreme Court has stressed, “implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). The Court has also held that lobbying is protected under First Amendment activity. F.T.C. v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 426 (1990) (“It is, of course, clear that the association’s efforts . . . to lobby District officials to enact favorable legislation . . . were activities that were fully protected by the First Amendment.”)
This has been tried before. In Brinkman v. Budish, a federal court reviewed an Ohio law barring members of the state legislature from doing any uncompensated lobbying for a year after leaving office. It found the law to be unconstitutional. That was a law that only imposed a one-year ban.
The fact is that such a law would not likely halt the corrupt use of jobs or contracts to influence legislation. Hunter Biden is an example of the more common tactic of giving windfall payments to the siblings or spouses or children of powerful politicians. It also does not impact staff members and executive branch officials who regularly take such jobs.
Moreover, if Congress could impose such a ban on members, how about other professions like judges or reporters? Where is the limiting principles for the power to ban citizens from certain jobs or constitutional activities?
While many of us have called for greater bipartisan efforts in Congress, this may not be the most promising start. Indeed, there are a host of other areas ripe for reforms, including the ability of members to hold investments in areas of legislative action.
As it stands, the bipartisan move could be as commendable as it is unconstitutional.