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.”
While not mentioning them, Trump joined earlier calls from Warren and AOC to enact this ban. Sen. Ted Cruz has also called for such a ban, even uttering the unprecedented words “I agree with AOC.”
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.
MAGA!
The case cited by the professor is about “uncompensated” lobbying. That is different from being paid to exploit connections. I would extend this ban to regulators seeking to work for companies of the kind they regulate. Like FDA public health officials going onto boards of pharmaceutical companies.
1 Timothy 6:10 is apropos ‘money is the root of all evil’. When you concentrate the power to appropriate Trillions of dollars taken by tax from others it will necessitate breeding contemptuous behavior.
Here’s a stat from http://www.usaspending.gov that enlightens, the Federal Government plans to spend $9.03 Trillion this year.
Money is not evil. You omitted the salient part:
For the love of money is the root of all evils, and some people in their desire for it have strayed from the faith and have pierced themselves with many pains.
https://bible.usccb.org/bible/1timothy/6
There were and still are many wonderful, holy, wealthy individuals in Christian circles who do a lot of good with their money.
Thanks for the edification.
“For the love of money . . .”
Which is even worse, because to love something is to understand and appreciate its value.
This is a worthy cause, but Trump is the worst part of the problem rather than the solution.
https://www.propublica.org/article/we-found-a-staggering-281-lobbyists-whove-worked-in-the-trump-administration
Constitutionally limiting lobbying is trivial.
No one can lobby the government with regard to powers it does not have.
Shutdown as much of government as humanly possible, then lobbyists have no incentive.
The government can not rent powers it does not have.
The reason so much money is spent on lobbying is because the government has too much money to spend and too much power over how others spend their money. Reducing either reduces the amount of lobbying.
If government was starving for money and power, no one would lobby it.
Anonymous claims that everything is about money.
That is false.
But it is true that often government ACTS through money.
The police get paid to exercise government power.
That is not corruption – but sometimes the excercise of that power is corrupt.
Governments go to war – that is POWER.
The tools of war – warships, tanks, ammunition soldiers require money.
That is not corruption – but sometimes the exercise of that power is corrupt.
You are corrupt that the less we spend the less corruption will be – but that is because often the exercise of power – corrupt or not, is facilitated by money.
It is not bribing the judge to send an innocent juvenile to a private boot camp that is corrupt.
It is the judge – for whatever reasons punishing an innocent person.
I think you are stretching the application of the first ammendment here. Just my opinion.
Require every contact between lobbyist and legislator (or family, or staff) to be in writing or recorded and available to the public.
You ‘could’ require that, but what would be the penalty for non-compliance and who’d investigate/enforce it? It’d be as meaningless as many current political ad requirements like, “I’m Candidate A and I approve this message.” Frankly, I don’t give two hoots if ‘they’ approve their own message, it’s not a persuasive argument to vote for A. Getting ‘off the record’ meetings between political types and lobbyists would be close to futile.
You’d have to create sn “honest” CIA to monitor everything that politicians and their relatives and associates do 24/7, to discover if illicit influence peddling is happening.
In other words, instead of we the lowly citizens, the ruling class should be the object of the surveillance state.
“sn”->”an”
People have the right to help any party that they want to help. The problem lies in the area of the law concerning full disclosure of were the money comes from and who is receiving the money. A tightening of the laws concerning full disclosure would be a good start. One provision should be that if a politician received campaign finances from a donor the politician could not be employed by the donor upon leaving office. Short of this it is just a big payback and payoff scam. See Obama net worth. https://wealthygorilla.com/barack-obama-net-worth/
Isn’t the heart of the issue whether Congress can limit PAID lobbying by former legislators as contrasted with unpaid lobbying by them. What about just prohibiting lobbying for 7 years say rather than a lifetime ban? My recollection is that Deputy Secretaries of the various federal departments cannot lawfully lobby their old department for a given period of time, They can lobby elsewhere. In other words, isn’t there a constitutional method to limit lobbying short of an outright ban for life that will withstand judicial scrutiny?
In case you were worried that Trump is sincere about banning lobbying by former government officials – here is him repealing his own rule in the executive branch just as it may start applying to people working for him.
https://www.cnn.com/2021/01/20/politics/trump-revokes-lobby-ban/index.html
Yes, I am frothing at the mouth because on his way out the door, Trump revoked and unconstitutional rule that only applied to new appointments.
You do understand that Trump’s revokation if legal only applied to incoming Biden staff.
Anyone who made the original committment to get a Trump admin job was still ethically bound to it.
They were never legally bound to it.
Go back and watch the whole speech again…He mentions making a constitutional amendment too and doesn’t describe what it would be about. It could be what he is referencing.
“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.'”
– Professor Turley
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While this “precedent” offers perspective, it has no teeth. Roe v. Wade was a corrupt and unconstitutional decision which stood as “precedent” for 50 years. Constitution deniers preposterously quote it to this day. It is imperative that “precedents” as stare decisis be ignored and novel adjudication be conducted to reveal obscure and inscrutable jurisprudential corruption and errors. The entire welfare state is unconstitutional and awaits fresh adjudication and abrogation. Through Article 1, Section 8, and the absolute right to private property, the Constitution severely limits and restricts government, while it provides maximal freedom to Americans, and does not enslave them to the communist principles of central planning, control of the means of production (i.e. regulation), redistribution of wealth and social engineering.
Having said that, once again and as usual, Professor Turley is absolutely, and obviously to all, correct. The illegal and unconstitutional effects and consequences of lobbying must be prosecuted, while the constitutional rights and freedoms of Americans, such as petitioning for the redress of grievances, are protected.
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“If it were to be asked, What is the most sacred duty and the greatest source of security in a Republic? the answer would be, An inviolable respect for the Constitution and Laws.”
– Alexander Hamilton, August 28, 1794
Trump and Fauxahantas? Come on, Kimo Sabe, you know…. the ‘Thing’! Now, how about a good game of “WAHOO” ?
Reforming lobbying efforts is a tale as old as time; what is of more interest to me is the individual reasons, and I highly doubt they align. All I see here is more blind partisanship with a seemingly common excuse. I personally don’t want what any of the three have in mind, but especially Air Head or Warren. As a lifelong Independent, I no longer listen to Democrats. Period. That said, I also wish Trump would get out of the way, too. He no longer has the standing to help much in the manner his ego demands.
Nevertheless, I wouldn’t make too much of this. For me, they may as well have all said, ‘Blah, blah, blah. Blah.’.
James,
It sounds like a good idea.
But the professor is right, it may be unconstitutional.
And I agree, I wish Trump would go like Clinton, Obama, and Bush and go play golf.
Nebraska is much nicer than DC.
Term limits might work by making it more difficult to have the same old faces around for decades and thereby almost institutionalizing the corruption. I would welcome a legal opinion on what is possibly legal. It will be difficult to get much of any other reform done without impairing the lobbyists and their bought politicians who never go home. A constitutional amendment might gather sufficient support (if it truly is bipartisan) to do both term limits and lobbyist limits but it would have to be done by the Convention of States route because I can see no congress placing limits on their gravy train, ever.
Their self policing efforts are usually partisan and abysmal.
GEB,
Well said.
That pesky Constitution. Just gets in the way.
Which is what it is supposed to do
so non-compete clauses for businesses are unconstitutional? What about Settlements paying people to be quiet and allowing thugs like Weinstein, Moonves, David Solomon(Goldman Sachs), Gov Murphy of NJ paying a rape victim by a powerful Democrat to be quiet etc to continue their criminal operations???
Re-read the article. “right to petition the Government for a redress of grievances” GOVERNMENT not private business.
Why is it so hard for people to understand that rights are something that can not be waived for you.
A law that infringes on a right is a forced waiver.
Singing a non-compete is a free choice.
What is the Constitutionality of Hunter Biden and the rest of the family being BAGMEN for Foreign Oligarchs to BUY Access to OUR Government?
Weird how Democrats like Biden, Reid, Kerry, Clintons, Pelosi, Gore, etc families sole family business is SELLING our Government?
Unconstitutional? Ok, a Better Way
Remove Power from DC so Lobbyists become worthless
-Cut 50% of Fed gov
-Move 75% of DC to Heartland
You don’t think lobbyists can fly to Nebraska?
if you SPREAD the power….and Reduce the Amount…then it isn’t worthwhile
You still believe the US government should be the sole power….distributing WEALTH to select few?
It will not change lobbiests. it will change government.