Government as Regulator of the Electoral Process: Lobbying.

Legislators may depend upon representations made to them and information supplied to them by interested parties, and therefore may desire to know what the real interests of those parties are, what groups or persons they represent, and other such information. But everyone is constitutionally entitled to write his congressman or his state legislator, to cause others to write or otherwise contact legislators, and to make speeches and publish articles designed to influence legislators. Conflict is inherent. In the Federal Regulation of Lobbying Act,954 Congress, by broadly phrased and ambiguous language, seemed to require detailed reporting and registration by all persons who solicited, received, or expended funds for purposes of lobbying; that is, to influence congressional action directly or indirectly. In United States v. Harriss,955 the Court, stating that it was construing the Act to avoid constitutional doubts,956 interpreted covered lobbying as meaning only direct attempts to influence legislation through direct communication with members of Congress.957 So construed, the Act was constitutional; Congress had “merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose,” and this was simply a measure of “self-protection.”958

Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation that would adversely affect one’s business.959 But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws that would have a detrimental effect upon competitors, even if the lobbying was conducted unethically.960 On the other hand, allegations that competitors combined to harass and deter others from having free and unlimited access to agencies and courts by resisting before those bodies all petitions of competitors for purposes of injury to competition are sufficient to implicate antitrust principles.961


60 Stat. 812, 839 (1946), 2 U.S.C. §§ 26170. [Back to text]
347 U.S. 612 (1954). [Back to text]
347 U.S. at 623. [Back to text]
347 U.S. at 617–24. [Back to text]
347 U.S. at 625. Justices Douglas, Black, and Jackson dissented. Id. at 628, 633. They thought the Court’s interpretation too narrow and would have struck the statute down as being too broad and too vague, but would not have denied Congress the power to enact narrow legislation to get at the substantial evils of the situation. See also United States v. Rumely, 345 U.S. 41 (1953). [Back to text]
Cammarano v. United States, 358 U.S. 498 (1959). [Back to text]
Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). See also UMW v. Pennington, 381 U.S. 657, 669–71 (1965). [Back to text]
California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Justices Stewart and Brennan thought that joining to induce administrative and judicial action was as protected as the concert in Noerr but concurred in the result because the complaint could be read as alleging that defendants had sought to forestall access to agencies and courts by plaintiffs. Id. at 516. [Back to text]