Saturday, January 08, 2005
Lobbying by government is un-republican
Lots of criticism of Armstrong Williams for taking government money to promote No Child Left Behind without telling his audiences that he was being paid to take this position (however much he personally supports it). More serious than William's transgression, however, is the fact that lobbying by government--using the people's tax dollars to tell them what they should vote for--violates the fundamental principle of republican government: that it is the people who are master and government who is the slave. It is the people who tell the government, through their selection of representatives, what understanding of right and wrong is to be expressed in the laws. Government is not to tell the people what understanding of right they should vote for. (Good commentary on the dangers of government lobbying by James Joyner at Outside the Beltway.)
This issue came up during the Clinton administration when it was discovered that Carol Browner's EPA was providing funding and assistance to the Sierra Club and other environmental groups to lobby for environmentalist legislation. The EPA was also funding advocacy groups to sue the EPA. (See Landmark's investigation, and Fumento's Sidebar Three. These activities that continue to this day).
There is a federal ban on lobbying by government, but the law is rarely enforced. (The main federal law that bans lobbying activities by government employees is Title 18 from the U. S. Code collection, part I, chapter 93, section 1913.) During the Browner scandal, this lack of enforcement prompted Representative William Clinger (R-PA) and others tried to press for a more stringent "Federal Anti-lobbying Act," but Big Green [and other lobbying interests] managed to deflect this effort into the "Lobbying Disclosure Act of 1995," which only regulated ex-government employees, not current government employees. (Clinger's efforts can be traced by searching this page for the word "lobbying".)
Ideally, the Constitution's Article IV, section 4 guarantee to the states that they shall have a republican govern should be interpreted to (amongst other things) bar lobbying by government at the constitutional level. The states are under the federal government, so if the federal government is un-republican, that violates the guarantee that the states will have republican government. Constitutional protection for republicanism would greatly enhance the prohibition on lobbying by government. Congress cannot be counted on to restrain itself from trying to assert mastery over the electorate. It must be restrained by the Constitution.
The republican guarantee has so far been ruled non-justiciable by the Supreme Court, but not in principle. It is just that the cases the Court has so far considered have involved conflicts between the judicial and other powers that have rendered the guarantee non-justiciable in those cases. The Court's grounds for finding non-justiciability do, however, leave the door open for the republican guarantee to be adjudicated in the right case. For an example of such a case, and how it is justiciable according to Supreme Court precedent, see my suit against the State of California for requiring that candidates for sheriff be members of the law enforcement establishment. More specifically, since local residency is also required, candidates must be subordinates of the incumbent sheriff. This is like requiring that candidates for District Attorney be members of the prosecutor's office. It violates what Alexander Hamilton called “the true principle of republicanism”: “that the people should choose whom they please to govern them.” (2 Debates on the Federal Constitution, p.257, J. Elliot ed. 1876.)
I couldn't get my case taken seriously, but I worked out all the important points of the law, for anyone who is interested. Other ramifications also follow. For instance, the public monopoly on education is also un-republican, with government confiscating everyone's children and telling them what is right. It is a massive government funded lobbying effort, clearly unconstitutional if the republican guarantee is enforced. Williams' transgression is small potatoes compared to the violation committed by his government enablers, who themselves are the tiniest tip of a gigantic iceberg of republican violation.
UPDATE: Looking again at the 1913 law, I see that it doesn't apply in the Williams case. It only applies to the use of government money to lobby Congress itself (as occured in the Browner/EPA scandal). Government lobbying of the general public on its policy preferences is still a violation of the fundamental principle of republicanism, however, and should be barred under the guarantee clause. The difficulty is how to draw the line between legitimate efforts by the people's representatives to lead the nation and attempts to overturn the master slave relationship between the people and the government. The anti-payola law invokes one obvious criterion: government funded lobbying of the people cannot be hidden. The public monopoly on education is another obvious violation, since it goes beyond the leading of parental judgment to the usurping of parental judgment.
Even if no further discrimination were possible, it would not make this post a "never mind." Recognizing the payola restriction under the guarantee clause would change it from a statutory restriction, subject to Congressional discretion, to a constitutional restriction that Congress could not relax. Beyond this, further discrimination may well be possible. A plausible free-speech ideal would be for the different competing parties and views all to have their own media friends, willing to put their message before the electorate. Even if the existing media is hostile, a party can build its own media. There is no excuse for an incumbent regime to need to use large amounts of public money to get its message out. It only needs enough public money to be able to set its message clearly before the private media, where friends and enemies can treat it as they will.
This minimalist ideal cannot be found in the guarantee clause, but the plausibility of it might enable some limits to be placed on government lobbying. If the minimal-money ideal can be seen to work, that makes it hard to argue that big spending on government lobbying (spending that is large compared to private speech resources) is an important state interest, and if it is not an important state interest, then the damage that it does to the proper master slave relationship between the people and their representatives cannot be justified. (Another question is under what limited enumerated federal government power lobbying by the feds is authorized.) If the guarantee clause were to be adjudicated, the court would have to start exploring what restrictions on government lobbying it might imply, and they might well find some.
In addition to limiting government lobbying of the people, enforcement of the republican guarantee would also also invalidate most of our civil service laws. In a democracy (one of the requirements of a republic), the people are supposed to be able to choose who shall govern them. If they don't like their governors, they are supposed to be able to "throw the bums out." Our civil service laws, which keep the president from cleaning house, contravenes this fundamental principle. The people can only evict, through their choice of president, a tiny fraction of their governors. An earlier post of mind on this subject here.
UPDATE II: Tae Diggs at "La Shawn Barber, Exposed," thinks I was right the first time about the 1913 law (18USC1913), and this is certainly possible. While the object of prohibition is the spending money to influence the votes of Congressmen, not voters, the law is written very broadly. It reads in full (why can't they write laws this succintly anymore?):
A government funded lobbying campaign that influences Congress by influencing voters would seem to fit under the heading of government funded activities "intended or designed to influence in any manner a Member of Congress." Maybe I WAS right the first time. Thanks Diggs.
If this is the correct interpretation then Congress has adopted by statute what I call above "the minimalist ideal" of government funded lobbying. I think that is the right standard. As for whether it should properly seen as constitutionally required under a finally adjudicated guarantee clause, probably not, as the earlier analysis suggests. The executive needs to be able to communicate with the voters as much as with Congress (it needs to be able to lead) and while USC1913 specifies that communication with Congress is to be at the request of Congressmen, it is not obvious that this same limitation can be imposed on communication with the electorate.
We do know that imposing this limitation would not be crippling. The private press operates through voluntary relations so giving the message to private parties and having them get the word out would constitute communication "at the request" of the public. This is pretty much the system we have always used. It works fine, and we shouldn't mess with it, but it is important not to read more into the Constitution than is necessarily implied. While the minimalist approach to government funded lobbying may be the republican ideal, it is not obviously a republican requirement. I'm still thinking about it, but clearly the best thing would be to spell out the ideal as a requirement in the Constitution. While there is room for debate about the right standard, lobbying by government is definitely an area where SOME strong minimum standards need to be secured in the Constitution, since it has to do with restraining government from escaping its proper role as servant and becoming master. If government is to restrain itself, the courts need to be placed squarely in a restraining role.
Notice also that USC1913 does not restrain Congress from lobbying the people at all. It only restrains the executive branch. Our only protection from Congress authorizing lobbying that turns government from servant to master is the guarantee clause, and the articulations of it that we might add by amendment. Glenn Reynolds has a Tech Central Station column up with some historical examples of large-scale government lobbying, particularly in support of the income tax. With the guarantee clause not being adjudicated, we really have no protection against this now.
This issue came up during the Clinton administration when it was discovered that Carol Browner's EPA was providing funding and assistance to the Sierra Club and other environmental groups to lobby for environmentalist legislation. The EPA was also funding advocacy groups to sue the EPA. (See Landmark's investigation, and Fumento's Sidebar Three. These activities that continue to this day).
There is a federal ban on lobbying by government, but the law is rarely enforced. (The main federal law that bans lobbying activities by government employees is Title 18 from the U. S. Code collection, part I, chapter 93, section 1913.) During the Browner scandal, this lack of enforcement prompted Representative William Clinger (R-PA) and others tried to press for a more stringent "Federal Anti-lobbying Act," but Big Green [and other lobbying interests] managed to deflect this effort into the "Lobbying Disclosure Act of 1995," which only regulated ex-government employees, not current government employees. (Clinger's efforts can be traced by searching this page for the word "lobbying".)
Ideally, the Constitution's Article IV, section 4 guarantee to the states that they shall have a republican govern should be interpreted to (amongst other things) bar lobbying by government at the constitutional level. The states are under the federal government, so if the federal government is un-republican, that violates the guarantee that the states will have republican government. Constitutional protection for republicanism would greatly enhance the prohibition on lobbying by government. Congress cannot be counted on to restrain itself from trying to assert mastery over the electorate. It must be restrained by the Constitution.
The republican guarantee has so far been ruled non-justiciable by the Supreme Court, but not in principle. It is just that the cases the Court has so far considered have involved conflicts between the judicial and other powers that have rendered the guarantee non-justiciable in those cases. The Court's grounds for finding non-justiciability do, however, leave the door open for the republican guarantee to be adjudicated in the right case. For an example of such a case, and how it is justiciable according to Supreme Court precedent, see my suit against the State of California for requiring that candidates for sheriff be members of the law enforcement establishment. More specifically, since local residency is also required, candidates must be subordinates of the incumbent sheriff. This is like requiring that candidates for District Attorney be members of the prosecutor's office. It violates what Alexander Hamilton called “the true principle of republicanism”: “that the people should choose whom they please to govern them.” (2 Debates on the Federal Constitution, p.257, J. Elliot ed. 1876.)
I couldn't get my case taken seriously, but I worked out all the important points of the law, for anyone who is interested. Other ramifications also follow. For instance, the public monopoly on education is also un-republican, with government confiscating everyone's children and telling them what is right. It is a massive government funded lobbying effort, clearly unconstitutional if the republican guarantee is enforced. Williams' transgression is small potatoes compared to the violation committed by his government enablers, who themselves are the tiniest tip of a gigantic iceberg of republican violation.
UPDATE: Looking again at the 1913 law, I see that it doesn't apply in the Williams case. It only applies to the use of government money to lobby Congress itself (as occured in the Browner/EPA scandal). Government lobbying of the general public on its policy preferences is still a violation of the fundamental principle of republicanism, however, and should be barred under the guarantee clause. The difficulty is how to draw the line between legitimate efforts by the people's representatives to lead the nation and attempts to overturn the master slave relationship between the people and the government. The anti-payola law invokes one obvious criterion: government funded lobbying of the people cannot be hidden. The public monopoly on education is another obvious violation, since it goes beyond the leading of parental judgment to the usurping of parental judgment.
Even if no further discrimination were possible, it would not make this post a "never mind." Recognizing the payola restriction under the guarantee clause would change it from a statutory restriction, subject to Congressional discretion, to a constitutional restriction that Congress could not relax. Beyond this, further discrimination may well be possible. A plausible free-speech ideal would be for the different competing parties and views all to have their own media friends, willing to put their message before the electorate. Even if the existing media is hostile, a party can build its own media. There is no excuse for an incumbent regime to need to use large amounts of public money to get its message out. It only needs enough public money to be able to set its message clearly before the private media, where friends and enemies can treat it as they will.
This minimalist ideal cannot be found in the guarantee clause, but the plausibility of it might enable some limits to be placed on government lobbying. If the minimal-money ideal can be seen to work, that makes it hard to argue that big spending on government lobbying (spending that is large compared to private speech resources) is an important state interest, and if it is not an important state interest, then the damage that it does to the proper master slave relationship between the people and their representatives cannot be justified. (Another question is under what limited enumerated federal government power lobbying by the feds is authorized.) If the guarantee clause were to be adjudicated, the court would have to start exploring what restrictions on government lobbying it might imply, and they might well find some.
In addition to limiting government lobbying of the people, enforcement of the republican guarantee would also also invalidate most of our civil service laws. In a democracy (one of the requirements of a republic), the people are supposed to be able to choose who shall govern them. If they don't like their governors, they are supposed to be able to "throw the bums out." Our civil service laws, which keep the president from cleaning house, contravenes this fundamental principle. The people can only evict, through their choice of president, a tiny fraction of their governors. An earlier post of mind on this subject here.
UPDATE II: Tae Diggs at "La Shawn Barber, Exposed," thinks I was right the first time about the 1913 law (18USC1913), and this is certainly possible. While the object of prohibition is the spending money to influence the votes of Congressmen, not voters, the law is written very broadly. It reads in full (why can't they write laws this succintly anymore?):
No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction of any bill or resolution proposing such legislation or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business.
Whoever, being an officer or employee of the United States or of any department or agency thereof, violates or attempts to violate this section, shall be fined under this title or imprisoned not more than one year, or both; and after notice and hearing by the superior officer vested with the power of removing him, shall be removed from office or employment.
A government funded lobbying campaign that influences Congress by influencing voters would seem to fit under the heading of government funded activities "intended or designed to influence in any manner a Member of Congress." Maybe I WAS right the first time. Thanks Diggs.
If this is the correct interpretation then Congress has adopted by statute what I call above "the minimalist ideal" of government funded lobbying. I think that is the right standard. As for whether it should properly seen as constitutionally required under a finally adjudicated guarantee clause, probably not, as the earlier analysis suggests. The executive needs to be able to communicate with the voters as much as with Congress (it needs to be able to lead) and while USC1913 specifies that communication with Congress is to be at the request of Congressmen, it is not obvious that this same limitation can be imposed on communication with the electorate.
We do know that imposing this limitation would not be crippling. The private press operates through voluntary relations so giving the message to private parties and having them get the word out would constitute communication "at the request" of the public. This is pretty much the system we have always used. It works fine, and we shouldn't mess with it, but it is important not to read more into the Constitution than is necessarily implied. While the minimalist approach to government funded lobbying may be the republican ideal, it is not obviously a republican requirement. I'm still thinking about it, but clearly the best thing would be to spell out the ideal as a requirement in the Constitution. While there is room for debate about the right standard, lobbying by government is definitely an area where SOME strong minimum standards need to be secured in the Constitution, since it has to do with restraining government from escaping its proper role as servant and becoming master. If government is to restrain itself, the courts need to be placed squarely in a restraining role.
Notice also that USC1913 does not restrain Congress from lobbying the people at all. It only restrains the executive branch. Our only protection from Congress authorizing lobbying that turns government from servant to master is the guarantee clause, and the articulations of it that we might add by amendment. Glenn Reynolds has a Tech Central Station column up with some historical examples of large-scale government lobbying, particularly in support of the income tax. With the guarantee clause not being adjudicated, we really have no protection against this now.
