... but those classified as "registered lobbyists" will be deprived of their right to petition their government?And that is precisely the wording we have been looking for and—oh look!—a First Amendment context wrapped around it like honey-flavored cornmeal on a hot dog made of chicken and pork parts. Lobbying is not new, as asserted to in the title of this little essay. It is and has been, however, among the least reputable professions in the world. According to Wikipedia
Lobbying is the practice of influencing decisions made by government. It includes all attempts to influence legislators and officials, whether by other legislators, constituents or organized groups.[1][2] A lobbyist is a person who tries to influence legislation on behalf of a special interest or a member of a lobby.[3]Or more purely and simply, lobbying is the delivery of private messages on matters of public business. Lobbyists have what they call "access," which they rent to customers with points of view, as if it was something they owned with some degree of exclusivity and will serve up at their own discretion. "Access" is derived from the lobbyists willingness to hang around where they are likely to encounter elected and appointed and civil service officials of government, whom they hope and pay will do their bidding. In Washington, K Street is the home base of many lobbying individuals and firms ... oh, yes, lobbyists get together and share and develop access and other resources, an activity that tends to increase that degree of exclusivity they like to believe they have. Mr. Owen complains that as a "registered lobbyist" his right to petition government is being more or less unconstitutionally abridged. Nothing could be farther from the truth. If Mr. Owen has a matter of public policy or public resources or public responsibility to discuss, he can always petition like anyone else. To be clear on this point, perhaps a definition or two would be in order. "Petition" has two main meanings: the first and most common is a document or verbal address with a topic, typically a request of some sort that could be carried out by the competent authority to which it is addressed, and (if reduced to a document) signed by one, several, or literally thousands of people. This kind of petition is, necessarily a public message and could be addressed to anyone in government, not limited to the elected representatives of the signatory(ies). Mr. Owen may continue to sign (or even prepare) such public documents. No problem. Another, slightly more legalistic (term of art) meaning of petition is the more hazily defined kind of messaging, pleading, requesting, importuning, (blackmailing), expression of influence on a subject, project, or policy. The problem with these activities is that over the years since ancient Greece, ancient Rome, the John Adams administration, and ever since, they tend to become private, even intensely private, discussions of public matters in which (we cannot be sure of details except to notice how members of Congress are fed, transported hither and thither around the world or simply back and forth to their home states and districts) become wealthy more or less inadvertently while attending to national business. We also know about what is said in these private discussions from the laws passed by Congress and rules made by departmental and agency bureaucrats, since (it is well-known by now) lobbyists write or transmit the writing of special interests to Congress so that Congress members will not have to be bothered with the chore of figuring out how to say "deregulate my financial institution" or "build that interstate highway near, but not through my town," and so forth. Notice above that I made a point of saying "private messages" and "public business." This is the essential problem—the discrepancy of private and public for which we have long since established the essential rule: all public matters (everything except sensitive National Security matters ... another essay entirely!) shall be discussed openly in public. Let me explain with a couple examples. If you want your son or daughter to get an appointment to West Point or Annapolis (public institutions that consume public funds and produce persons eligible for presidential commissions in the public armed forces), something you would probably see as essentially your "private" business, you would contact your Representative or one of your two Senators and ask them if they will consider appointing your offspring. This is a kind of "petition." Because of the regularity and relative insignificance of these matters to the other 305,999,999 of us, the "privacy" accorded these petitions is actually a matter of "weight" rather than "confidentiality." It will eventually come out that you asked for the appointment when it is made, but in case it is not made the matter remains "insignificantly public" between your family and the offices of the aforementioned legislators. This process is not lobbying; it is petitioning. If you need personal help in getting a visa in a hurry to visit your dying great grandmother in Montevideo, Uruguay, you petition one of those three offices, and they do what they can with their "inside knowledge" of the State Department to facilitate the visa. This is not lobbying; it is private petitioning, for what is manifestly a private purpose involving some sub-paragraph of public policy. Your visa, when you get it, will be matter of public record, as is your passport. You can see from these quick examples how and why lobbyists like to cloak their activities under the color of private petition, even though there is really no such thing. There are private intentions and purposes, but once the public resource or policy has been identified, the matter is public. This leads us to an inevitable conclusion. To be moral and legal and to be in support of our democracy—rather than definitively obstructive of the principles and practices of a functioning democracy—all lobbying must be made public. No messaging, texting, speaking, conversation, editing, writing, influence peddling, meal or travel supporting, (and certainly no graymailing or blackmailing) must be allowed that does not become immediately part of the public record. To assure that the processes of our democracy are preserved, lobbying activities must be made part of the public record before a final vote or final ruling (within departments and agencies) can stand. Needless to say, Congress and federal departments and agencies will complain about the paperwork load this will cause. So be it! Put the burden on the lobbyist and make every syllable uttered, every point and argument THEIR responsibility to deliver completely documented to the officials they are attempting to influence. A doctrine for indexing can be easily established and opponents of matters so lobbied shall have the same rights in disclosure of evidence as defendants have in trial. We now live in an age where the burdens are easily transferred to the lobbyists and their clients, the expenses and liabilities established with them, and the system of providing "best advice" retained and, obviously, improved. JB
