Wouldn’t it be nice if lobbying were illegal?
It’s a tempting thought. But it seems impossible. Lobbying is a multi-billion dollar industry and an accepted—if hated—part of American politics. American courts have ruled that lobbying is constitutionally protected free speech, and lawyers and laymen alike generally accept this.
The same is true of more indirect lobbying, like the Citizens United Supreme Court ruling that allows businesses to spend unlimited sums of money on Super Pacs and advertisements for or against a candidate.
Yet from America’s founding through much of the 19th century, the legal system treated lobbying as a corrupt and illegitimate activity. Lobbying still happened, but a number of states made lobbying a criminal offense, and the federal government banned some forms of lobbying. This all happened without legal challenge, as the courts viewed lobbying as incompatible with the rights and responsibilities of citizenship.
This forgotten history of lobbying in America has been documented by Zephyr Teachout, an Elizabeth Warren-style academic turned activist-politician who believes that Americans—and American legal minds—have forgotten the long American tradition of treating lobbying as a violation of a citizen’s responsibility to represent only him or herself in the political process.
So how did we go from treating lobbying as illegitimate or illegal to protected free speech?