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79 U. Chi. L. Rev. Dialogue 1 (2012-2013)

handle is hein.journals/uchidial79 and id is 1 raw text is: Invisible Lawmaking Barak Orbacht INTRODUCTION Private lawmaking is an ordinary rent-seeking activity of interest groups: the pursuit of self-interest through regulation. Familiar ex- amples of private lawmakers include the National Rifle Association (NRA), the American Legislative Exchange Council (ALEC), and the National Motion Picture Association of America (MPAA). Mo- tivated private lawmakers take advantage of imperfections in the marketplace of ideas and utilize such imperfections to obscure their visibility. The US Supreme Court's marketplace of ideas theory' de- nies market imperfections and presumes prefect competition in the marketplace. This presumption rests on the Court's firm premise that the pursuit of self-interest necessarily serves the public. Resting on this unqualified confidence in the pursuit of self-interest, in Citi- zens United v Federal Election Commission2 the Supreme Court has empowered interest groups, strengthening their influence over public lawmakers. This Essay describes how the Supreme Court's confi- dence in the inherent value of the pursuit of self-interest has weak- ened democratic institutions, arming interest groups with effective means to draft the law of the land, while circumventing the public discourse and shortcutting open debates. I. WHO WRITES OUR LAWS? Our elected legislators debate and pass laws. They draft many bills but routinely also adopt bills that private parties write for them. Private lawmakers write many of our laws. In some instances, elected lawmakers (public lawmakers) revise these privately draft- ed bills, but in many instances, they are adopted verbatim. The influ- t Professor of Law, the University of Arizona College of Law. This Essay is part of a large project on regulation that includes several papers and a casebook, Regulation: Why and How the State Regulates (Foundation 2012). 1 See, for example, New York State Board of Elections v Lopez Torres, 552 US 196, 208 (2008); Hustler Magazine, Inc v Falwell, 485 US 46, 52 (1988); Red Lion Broadcasting Co v FCC, 395 US 367,390 (1969). 2 130 S Ct 876 (2010).

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