Lobbying

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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.

To lobby means generally “to try to persuade a government official . . . in an attempt to influence some action proposed to be taken.” 1 In its most basic form, lobbying is a form of petitioning the government,2 a right protected under the First Amendment.3

While the First Amendment protects the right to petition, the Supreme Court has determined that Congress may regulate individuals who are paid to lobby Congress. For example, Congress may require that lobbyists register, make specific disclosures, and submit reports to Congress. In United States v. Harriss, individuals charged with violating the Federal Regulation of Lobbying Act argued that the registration, reporting, and disclosure requirements of that statute violated their right to petition under the First Amendment.4 In upholding the Act, the Court recognized that “[p]resent-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected.” 5 According to the Court, it is important that elected representatives have the necessary information to be able to “evaluate such pressures.” 6 Rather than prohibiting lobbying, the Act merely required a “modicum of information” from those hired to influence Congress to make transparent “who is being hired, who is putting up the money, and how much.” 7 Requiring disclosures about lobbying activities was within Congress’s “power of self-protection,” for the purpose of maintaining “the integrity of a basic governmental process.” 8

Beyond regulating paid lobbyists, the Court has also held that Congress has no obligation to subsidize the lobbying activities of private entities. In Cammarano v. United States, the Court upheld a regulation that denied a tax deduction for business expenses spent on lobbying.9 The Court explained that the taxpayers were not being denied a tax deduction for engaging in constitutionally protected activities, rather, they were “simply being required to pay for those activities entirely out of their own pockets.” 10 Citing Cammarano, the Court subsequently upheld a statutory provision that similarly denied tax benefits for lobbying activities.11 In Regan v. Taxation With Representation of Washington, a nonprofit organization challenged the denial of its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code because a substantial part of its activities were lobbying related.12 The organization claimed, among other things, that the prohibition on lobbying activities under 501(c)(3) violated the First Amendment.13 In rejecting this argument, the Court determined that Congress had not infringed on or regulated any First Amendment activity, rather, it had “merely refused to pay for the lobbying our of public moneys.” 14

Although the Court has allowed Congress to regulate paid lobbyists and to decline to subsidize lobbying activity, it has refused to apply other laws when their application chills the underlying exercise of the right to petition the government. For example, the Noerr-Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.15 and United Mine Workers v. Pennington16 —provides limited immunity from antitrust liability for those “engaging in conduct . . . aimed at influencing decisionmaking by the government.” 17 Under this line of cases, competitors who work in concert to influences the government do not violate the Sherman Antitrust Act.18 The Court has reiterated that the Noerr-Pennington doctrine was crafted to “avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances.” 19 The right to petition extends to “all departments of the Government,” and includes access to administrative agencies and courts.20 The Noerr-Pennington doctrine shields efforts to influence public officials “regardless of intent or purpose.” 21 The Court, however, has recognized a “sham exception” to the doctrine, excluding conduct from immunity that is a “mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.” 22

1: Lobby, Black’s Law Dictionary (11th ed. 2019).
2: See Amdt1.10.1 Historical Background on Freedoms of Assembly and Petition.
3: See E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127, 137 (1961) (recognizing that “[i]n a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends on the ability of the people to make their wishes known to their representative” ).
4: United States v. Harriss, 347 U.S. 612, 617 (1954).
5: Id. at 625.
6: Id.
7: Id.
8: Id.
9: 358 U.S. 498, 513 (1959).
10: Id.; see also Textile Mills Sec. Corp. v. Comm’r of Internal Revenue, 314 U.S. 326 (1941) (holding that the Commissioner of Internal Revenue properly disallowed a tax deduction for an expense paid by a corporation to hire a publicist and two legal experts to help secure the passage of certain legislation).
11: Regan v. Taxation With Representation of Wash., 461 U.S. 540 (1983).
12: Id. at 542.
13: Id.
14: Id. at 545–46. See Amdt1.7.13.3 Conditions on Tax Exemptions.
15: 365 U.S. 127 (1961).
16: 381 U.S. 657 (1965).
17: Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 555–56 (2014).
18: Pennington, 381 U.S. at 669; see also City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 379–80 (1991) (reiterating that the “federal antitrust laws also do not regulate the conduct of private individuals in seeking anticompetitive action from the government” ); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) (declining to extend the Noerr-Pennington immunity to efforts to influence a private association).
19: Octane Fitness, LLC, 572 U.S. at 556 (citing Pro. Real Estate Investors, Inc. v. Columbia Pictures Indus. Inc., 508 U.S. 49, 56 (1993)).
20: Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).
21: Omni, 499 U.S. at 380 (citing Pennington, 381 U.S. at 670).
22: Octane Fitness, LLC, 572 U.S. at 556. For example, litigation can be considered a “sham” under this doctrine if it is (1) “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,” and if it conceals “'an attempt to interfere directly with the business relationships of a competitor,’ . . . through the ‘use [of] the government process—as opposed to the outcome of that process.’” Pro. Real Estate Invs., Inc., 508 U.S. at 60–61.