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I've had discussions about making PAID lobbying illegal with a few people and the consensus I receive back is, "It's a form of free speech. They're protected by the first amendment"

I don't understand why PAID lobbying is considered free speech, or how it could be protected by the 1st amendment.

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    Frame the question in the opposite direction: Can you think of a reason why it wouldn't be considered a form of free speech? – GGMG Nov 2 '17 at 20:09
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    Perhaps you are conflating lobbying with bribery? – user9389 Nov 2 '17 at 20:40
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    @JustinBeagley: That's pretty much the definition of it. A lobbyist is just someone who is paid to speak to politicians about laws, whether existing or new ones. – NotMe Nov 3 '17 at 1:14
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    You might be confusing "free as in beer" with "free as in speech"? – barrycarter Nov 3 '17 at 16:52
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    @barrycarter not sure what social circles you guys are in... but among most people i come across - when the word 'lobbying' is brought up, what is usually inferred is that we're talking about donors who fund campaigns of politicians in order to receive favors during legislation or government contracts. Asking a politician to support a legislation is one thing. Writing a bill yourself, then paying a politician to vote yes on it is quite another entirely. – Justin Beagley Dec 1 '17 at 20:21
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Let's have a look at the text of the First Amendment:

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.

emphasis added

Notice there is an explicitly enumerated right to petition the Government. This is what lobbyists do -- they petition the Government for changes in the law. Political speech aimed at politicians is how you ask the government to change.

The Supreme Court has also held, in the much maligned Citizens United case, that lobbying is a form of political speech. At its heart, lobbying is talking to politicians about politics. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

It's important to understand what the Citizens United case was actually about. Citizens United wanted to air a film about Hillary Clinton around the time of the Democratic primary election in which she was running. Federal law purported to consider this electioneering and prohibited it. That is, in the United States, the Federal Election Commission was claiming that it was illegal to show a film critical of Hillary Clinton because she was running for office. Think about that for a minute.

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    I would like to point out, with no ax to grind whatsoever, that the right to "petition the government for a redress of grievances" is not the same as the "right to petition the government," full stop. And most changes in law are not made or requested for purposes of redressing grievances. Just saying. – Wildcard Nov 10 '17 at 6:07
  • @Wildcard I guess you could make that argument, but courts have interpreted the right to petition to include almost any time you want to ask the government to do something or to change policies. I personally find this argument completely convincing. I don't see how you can say that some serious requests for changes in the law constitute a redress of a grievance and some don't. If you don't like a law, that's a grievance. Changing it would be redress. – David Schwartz Nov 10 '17 at 6:18
  • Agreed. And I upvoted your answer. I support the right to petition for practically anything. – Wildcard Nov 10 '17 at 6:26
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    @aaaaaa How is that different from what David Schwartz said. The timeframe (within 60 days of an election) is what David Schwartz said "because she was running for offce". The film was what was considered an ad. The corporation was, I assume, provided funding for the film because it costs money to make a film. "Freedom of the press" is meaningless if you aren't allowed to buy a press. And a corporation is an assembly of people. – Readin Feb 17 '18 at 18:37
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How isn't it?

What do you think lobbying is?

I go to a politician and tell them that I want such and such a policy. If they don't vote my way, I won't vote for them the next time they run.

Maybe that's not lobbying in your mind. Perhaps you only want paid lobbying. So I own some stock. Those companies can pay lobbyists. Those lobbyists then contact politicians to advocate for policies that favor that company. How do they do that? By talking to the politicians. And if talking is not free speech, then what is?

Perhaps it's the payment that is problematic. So let's assume that we ban paid lobbying. I am paid by my employer. If I advocate for a position on my free time, am I breaking the law? It seems obviously no if I'm lobbying for something unrelated to my employer. But what if I work for Tesla and am advocating for subsidies for electric cars?

If my official title is website developer, is it all right for me to lobby the government? When does it become illegal then? What if we hire Paul Manafort as a website developer? Can he then lobby?

How about a CEO? Or a director of marketing?

What if I work for another company that does work for Tesla? Can I be director of marketing for another company and advocate for Tesla?

Either you are preventing me from sharing my opinion with the government, even though I'm not what any reasonable person would consider a lobbyist. Or you are allowing Paul Manafort to lobby, as a "website developer" working for a contractor providing services to a company.

How is this not a free speech issue?

Maybe you would be happy with some really complicated set of rules that bans Paul Manafort but not me. But it's still going to be a free speech issue in the same way that yelling fire in a crowded theater is a free speech issue. It may not win as free speech. But it will still be criticized on the basis of violating it.

  • What about lobbists that offer monetary campaign support? Or any other form of monetary support to the politician? Lobbying in the general sense seems completely fine, but when money influences the politician decision, it does look more like bribery. I don't know much about american politics though, so I might probably have misunderstood something – Sebastianb Nov 9 '17 at 17:58
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    The last paragraph here doesn't make any sense to me. Yelling fire in a crowded theater doesn't have anything to do with free speech. What is "it" that may not "win" (win what?) as free speech? And what is "it" that will still be criticized for violating "it"? – Wildcard Nov 10 '17 at 6:10
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Because the only difference between paid lobbying and unpaid lobbying is that you're hiring a professional to do a better job of lobbying than you can do yourself (hopefully).

In other words, It is 100% same as hiring a lawyer to do legal work for you instead of doing it yourself; or hiring a speechwriter to make a better speech.

As such, paid lobbying is or isn't as much free speech as unpaid lobbying (whether either one is or isn't free speech is a separate question, but the way your phrased your post seems to indicate you consider unpaid lobbying free speech without reservations).


Now, you may quibble that specific activities being engaged in during paid lobbying are Not Good (e.g. offering to write pieces of legislation, or offering what seems like quid pro quo). Which may or may not be a correct view; but has very little to do with whether the lobbying person engaging in them was the interested party themselves, or a professional hired and paid to represent said interested party.

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    I think the last sentence is the best response the thinking behind the question, but I would expand why letting a lobbyist writing laws is dangerous and I wouldn't shorten quid pro quo, as anyone not familiar with it has little chance of figuring it out. – user9389 Nov 3 '17 at 14:54
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It's a form of free speech. They're protected by the first amendment

This is a relatively recent ruling by the Supreme Court in 2010; until then, there was a federal ban on corporate expenditure dating back to the 1907 Tillman Act. The Citizens United ruling in 2010 overturned that citing the First Amendment on free speech; however it's important to note that the ruling was close and controversial, with 5 for and 4 against.

Justice Stevens read part of his 90 page dissent from the bench, arguing that the ruling

threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He added: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold

He also argued that Legal entities were not "We the People" for whom the Constitution was established; and hence, they should not be given speech protections under the First Amendment which protects individual self-expression, self-realization and the communication of ideas and that corporate spending was the "furthest from the core of political expression" protected by the Constitution, and such spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making.

He attacked the majority's central argument, that the ruling would guard free speech and allow the public to receive all available information, arguing that corporations "unfairly influence" the electoral process with vast sums of money that few individuals can match, which distorted the public debate by outspending others, and by pushing others out of prime broadcasting spots come to dominate the "marketplace of ideas". This process, he argued, puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support. Thus, this process marginalizes the speech of other individuals and groups.

  • "there was a federal ban on corporate expenditure" The 1907 ban was on corporation donations to political campaigns. The ban on electioneering (what Citizens United overturned) is newer, from McCain Feingold. And regardless, neither of those ever tried to ban lobbying. As such, this doesn't address this question ("Why is paid lobbying a form of free speech?") at all. This is arguing that Citizens United sucked, which is largely irrelevant. – Brythan Nov 3 '17 at 3:23
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    @Brythan: it addresses a key point in the main text of the question:"It's a form of free speech. They're protected by the first amendment"; lobbying can take many forms, including campaign donations, direct expenditure on electioneering broadcasts as well as lobbying directly with those with political power. – Mozibur Ullah Nov 3 '17 at 4:05
  • Brythan: and the OP also asks "why is PAID lobbying is considered free speech?"; I don't see the dissenting opinion on Citizens United here being at all irrelevant, but spot on; I think you need to think again... – Mozibur Ullah Nov 3 '17 at 4:08
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If one wants to be exact, lobbying is not free speech. It costs an arm and a leg to hire an influential lobbyist.

Lobbyists facilitate groups of citizens making their voices heard to politicians, or at least that's what the SC indicated in their Citizens United decision. In reality, it also facilitates corporations or very wealthy people making their desires known, but you can't really restrict the one form of lobbying, without also restricting the other.

In general, lobbyists are people who stay in touch with politicians, and know how to make the most out of the limited time they can get with politicians. They are pros at getting a message conveyed. It is still up to the politician to put whatever message the lobbyist delivers in the context of what best benefits their constituents.

How well politicians do that, is a matter of opinion.

  • I hope you meant the first sentence as a joke. The "free" in "free speech" doesn't refer to cost, it refers to freedom. "Freedom" is the word that appears in the First Amendment. – Barmar Sep 1 '18 at 13:33

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