RALEIGH – North Carolinians have an ironclad, unambiguous right to lobby state government on their own behalf or on behalf of paying clients.
As a member of a coalition pressing for reform of the state’s laws regarding lobbying registration and disclosure, I occasionally worry that some fellow advocates of reform fail to state the matter this plainly, and indeed may actually believe that lobbyists are inherently engaged in suspect activity. On the other side, it seems that some North Carolina lobbyists fear recent reform legislation has infringed on their rights and those of their clients, perhaps even criminalizing lobbying itself. Neither proposition is correct.
First, the modern practice of lobbying combines several activities clearly protected by the state and federal constitutions. These include the freedom to speak, to print, to assemble, and to petition government for redress of grievance. While government may impose limited time, space, and manner restrictions on these activities if conducted in a public space – for the purposes of preventing one person from shouting down another, for example – it cannot simply prohibit them or regulate their content.
Don’t get sucked in by the silly argument that individuals enjoy these freedoms but “corporations” do not. Corporations are merely bundles of contracts among individuals. They are not fictitious persons or entities enjoying a separate legal status. If you have the right to speak, print, assemble, or petition, so does the CEO or lobbyist for any corporation. As long as the resources of the corporation are derived from voluntary trade, either in goods or shares, the corporation’s managers have every right to expend those dollars to express views they deem to be in the interest of their shareholders, customers, or employees.
While we are on the subject, it is important also to understand that media organizations, educational institutions, and public-interest groups have no more (or less) right to express themselves than does a broad range of for-profit corporations. If a newspaper has the right to state in an editorial that a bill imposing a windfall-profits tax is a good idea, an affected oil company has precisely the same right to state – in whatever form desired, including printed materials, advertising, or contract lobbying at the legislature – that the bill is a bad idea. Freedom of the press meant, and means, the freedom to print (and in the modern context to broadcast or distribute). It does not confer any special freedom on “the press,” meaning the media, though oddly many media folks seem to think it does.
The right to petition is worth special emphasis here. In its original meaning, it was not merely a restatement of the right to speak or print. Deriving from a right enshrined in the Magna Carta, it was a formal legislative process in which a citizen or group of citizens submitted a document stating a problem and asking for a solution. Lawmaking bodies typically accepted the document and referred it to a committee for deliberation and action, as if it were proposed legislation or a legal claim. In America, Massachusetts was the first state explicitly to recognize the right to petition, in 1642. North Carolina was one of six states protecting the right in colonial charters before the American Revolution.
In modern times, of course, the legislative process isn’t so wedded to paper and procedure. We can “petition” our elected officials in a variety of ways, including online opinion columns. But in its original meaning, petitioning for redress of grievance is not much different from today’s practice, which some find abhorrent, of lobbyists making direct requests of lawmakers to enact bills, and drafting legislative language that might be used to do so.
Lobbying, then, is a protected form of political activity. But no one has the right to give or accept a bribe. The crux of the matter is distinguishing between lobbying and bribery – and who gets to make that determination, based on what information.
Hood is president of the John Locke Foundation.
Tomorrow, what rules can state governments legitimately impose on the practice of lobbying.