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68 Stan. L. Rev. 1131 (2016)
Lobbying and the Petition Clause

handle is hein.journals/stflr68 and id is 1173 raw text is: ARTICLE Lobbying and the Petition Clause Maggie McKinley* Abstract. Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of lobbying, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for future interpretation of the Petition Clause. Following the Supreme Court's direction, this Article examines the implications of the history of petitioning for lobbying and, drawing from recent empirical research on lobbying, argues that the way Congress engages with the public through our current lobbying system actually violates the right to petition. At the Founding, and for much of this Nation's history, the right to petition protected a formal, transparent platform for individual-and, in particular, minority-voices to participate in the lawmaking process. Without regard to the number of signers or the political power of the petitioner, petitions received equal process and consideration. This platform allowed both the enfranchised and unenfranchised to gain access to lawmakers on equal footing. Women, African Americans, and Native Americans all engaged in petitioning activity, and Congress attended to each equally. Moving beyond ahistorical, decontextualized interpretations of the Petition Clause, this Article posits that our current lobbying system-wherein access and procedure are informal, opaque, and based on political power-actually violates the right to petition, (Fond du Lac Band, Lake Superior Ojibwe) Climenko Fellow and Lecturer on Law, Harvard Law School. For close, critical reads and sharp insights, my thanks to Floyd Abrams, Tabatha Abu El-Haj, Jack Balkin, Rabia Belt, Richard Briffault, Dan Carpenter, Megan Corrarino, Dan Deacon, Lee Drutman, Sandro Duranti, Einer Elhauge, Chai Feldblum, Noah Feldman, Charles Fried, Abbe Gluck, Lani Guinier, Rick Hasen, Jamey Harris, Olatunde Johnson, Heidi Kitrosser, Michael Klarman, Larry Norden, Vic Nourse, Michael McConnell, Martha Minow, Ellie Ochs, Tamara Piety, Christina Duffy Ponsa, Trevor Potter, David Pozen, Justin Richland, Jane Schacter, Wenona Singel, Joe Singer, Merav Shohet, Gerald Torres, Adrian Vermeule, and Andrew Yaphe. Workshops at Stanford, Yale, Harvard, AALS, and the Brennan Center helped to polish arguments and to build community around this project. Kerry Richards provided excellent research assistance. Chi-miigwech, Ned Blackhawk, g'zaagi'in. Belying this wealth of support, mistakes remain and remain my own. 1131

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