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The Law and Ethics of K Street: Lobbying, the First Amendment, and the Duty to Create Just Laws

Published online by Cambridge University Press:  23 January 2015

Daniel T. Ostas
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Abstract:

This article explores the law and ethics of lobbying. The legal discussion examines disclosure regulations, employment restrictions, bribery laws, and anti-fraud provisions as each applies to the lobbying context. The analysis demonstrates that given the social value placed on the First Amendment, federal law generally affords lobbyists wide latitude in determining who, what, when, where, and how to lobby.

This article explores the law and ethics of lobbying. The legal discussion examines disclosure regulations, employment restrictions, bribery laws, and anti-fraud provisions as each applies to the lobbying context. The analysis demonstrates that given the social value placed on the First Amendment, federal law generally affords lobbyists wide latitude in determining who, what, when, where, and how to lobby.

Type
Special Section on Commercial Speech
Information
Business Ethics Quarterly , Volume 17 , Issue 1 , January 2007 , pp. 33 - 63
Copyright
Copyright © Business Ethics Quarterly 2007

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References

Notes

1. See Lobbying Disclosure Act of 1995, 2 U.S.C. §1602 (1995) (defining lobbying in a manner consistent with the text). Reportedly the use of the term “lobbyist” begins with President Ulysses S. Grant. Grant's wife, Julia, did not like his drinking, so the president often drank at the Willard Hotel not far from the White House. Those seeking an audience learned that the best place to catch him was in the hotel lobby. Grant soon complained that these “lobbyists” were interfering with his afternoon toddy! See Ron, Smith, Compelled Cost Disclosure of Grass Roots Lobbying Expenses: Necessary Government Voyeurism Or Chilled Political Speech?, 6 Kan., J.L. & Pol'y, Pub.115,Google Scholar 119 n.34 (1996).

2. See Michelle, Grant, Legislative Lawyers and the Model Rules, 14 Legal Ethics, Geo. J. 823, 823–24Google Scholar (2001) (asserting that an effective legislative campaign requires the combined efforts of a professional, well-coordinated and specialized team).

3. See James, M. Demarco, Lobbying the Legislature in the Republic: Why Lobby Reform is Unimportant, 8 Notre, Dame J.Ethics, L. & Pol'y, Pub. 599, 613 (1994)Google Scholar (noting that term “contact person” is a term of art within the lobbying industry).

4. See Grant, supra note 2, at 823–24 (identifying the roles on a public relations team as that of “strategist, lobbyist, legislative lawyer, grassroots organizer, and media person” and then focussing on the role of the legislative lawyer); Demarco, supra note 3, at 614–15 (discussing grass-roots organizing and fund raising).

5. The enactment of federal lobbying disclosure laws in 1995 has made it easier to count. See generally infra part I.B. (discussing the new regulations). As of 1996, 15,000 lobbyists had registered under the new law. See BRUCE C. WOLPE & BERTRAM J. LEVINE, LOBBYING CONGRESS: HOW THE SYSTEM WORKS 7 (2d ed. 1996). Under the 1995 law, only the lobbyist as “contact person,” or his or her firm, must register. Registry then triggers a duty to report related “lobbying activities” performed by strategists, media professionals, grass roots organizers, and legislative lawyers. See generally Grant supra note 2 (discussing lobbying activities). Including these supporting people, Steve Forbes estimated that in 1996 Washington's lobbying industry employed 67,502 persons. Steve, Forbes, Lobbyists: Their Gain Is Our Loss, FORBES, July 15, 1996, at 23.Google Scholar Forbes notes that the total calculates to 125 per Congressperson, quadruple that of the 1960s. Id.

6. The term “K Street” refers to a street address in Washington. The influence of K Street firms in Washington's political arena is roughly analogous to that of Wall Street firms in New York's financial district.

7. See WOLPE & LEVINE, supra note 5, at 1.

8. See id. at 2–4.

9. A “public interest group” has been defined as an organization that does not “benefit selectively either the membership or activists of the organization.” Id. at 3 & n.2 (citing KAY SCHOLZMAN & John Tierney, Organized Interests and American Democracy 29 (1986)).

10. Id. at 3.

11. See Demarco, supra note 3, at 611–12 (noting that social legislation is often broadly stated with the details being provided through administrative rulings and orders).

12. Issues of Democracy: Advocacy in America, in 3 (no. 2) ELECTRONIC JOURNALS OF THE U.S. INFORMATION AGENCY 3 (June 1998) (quoting from 1956, prior to Kennedy's election as president).

13. See David, L. Boren, A Recipe for the Reform of Congress, 21 Okla. City U. L. Rev. 1, 1 (1996).Google Scholar The poll was conducted by the Center of Political Studies at the University of Michigan. The key question was: “Do you trust government to do the right thing (a) just about always, (b) most of the time, (c) only some of the time.” Id. at 1 n.1.

14. Id. at 1 n.1 (asking the same question in 1994).

15. Id. at 2.

16. See WOODSTOCK THEOLOGICAL CENTER, THE ETHICS OF LOBBYING: ORGANIZED INTERESTS, POLITICAL POWER, AND THE COMMON GOOD 2–13 (2002) [hereinafter WOODSTOCK STUDY]. The Woodstock Study is discussed in detail in part II.A infra.

17. The comments were gathered through a series of interviews and focus group sessions and quotes were published verbatim with the promise of anonymity. Id. at 1 (discussing the method used to collect the comments).

18. The quotes are given without editing; however, the authors provide headings to help organize the various comments. For example, eight quotes appear under the heading “Truth Telling,” id. at 34, three under “Conflicts of Interests,” id. at 6–7, and twenty-one under the heading “Professional Standards,” id. at 5–6. Individual comments often conflict. Under the topic of Truth Telling, one practitioner stated: “You can't lie; what you've basically got is your word and reputation” Id. at 3. By contrast, another said: “In my experience, both corporations and nonprofits can be untruthful in their lobbying efforts. And it isn't just about withholding damaging information. It's about actively presenting distorted or dishonest information. I worry that it has become appropriate in D.C. for lobbyists to flat-out lie.” Id. at 4.

19. See id. at 9–10.

20. Lobbying Disclosure Act of 1995, Pub. L. No. 104–65, 109 Stat. 691 (1995) (codified at 2 U.S.C. §§ 1601–12 (1995)).

21. Ethics Reform Act of 1989, Pub. L. 101–194, 103 Stat. 1760 (codified at 18 U.S.C. §§207–08 (1989)).

22. See infra part I.B.

23. See infra part I.C.

24. See infra part I.D.

25. See infra part I.D.

26. “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.” U.S. CONST. amend. I.

27. Although the Supreme Court has never directly stated that there is a constitutional right to lobby, established doctrines that protect business speech, both political and commercial, have much the same effect. See Andrew, P. Thomas, Easing the Pressure on Pressure Groups: Toward a Constitutional Right to Lobby, 16 Harv., J.L. & Pol'y, Pub. 149 (1993)Google Scholar (arguing that there is, or at least should be, a strong First Amendment right to lobby).

28. The scholarly literature addressing the constitutional issues surrounding commercial speech is quite large. For an particularly articulate and useful introduction see Arlen, W. Langvardt, The Incremental Strengthening of First Amendment Protection for Commercial Speech: Lessons from Greater New Orleans Broadcasting, 37 Am., Bus. L.J. 587 (2000)Google Scholar (tracing a twenty-five year history of commercial speech jurisprudence and exploring current trends).

29. The reference here is to the Supreme Court precedent that originally articulated the middle-ground test for commercial speech. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980). See generally Langvardt, supra note 28, at 598–602 (discussing the Central Hudson test).

30. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976) (establishing a First Amendment right to commercial speech); Cent. Hudson at 562–63 (1980) (articulating a rubric of “intermediate scrutiny” applicable in commercial speech cases); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (reaffirming and applying the Central Hudson framework).

31. See Daniel, G. Webber Jr.,, Proposed Revolving Door Restrictions: Limiting Lobbying by Ex-Lawmakers, 21 Okla. City U.L. Rev. 29, 36–44Google Scholar (1996) (discussing the appropriate standard, the necessary governmental interest, and the tailoring required to constitutionally justify a variety of lobbying restrictions).

32. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803 813 (2000); Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 540 (1980); see also Buckley v. Valeo, 424 U.S. 1 (1976) (per curium). Although commonly cited for the proposition that fighting corruption is a compelling interest and that certain campaign contribution limits can be sufficiently tailored to address the problem, Buckley also reaffirms the proposition that regulations restricting business political speech receive strict scrutiny.

33. 357 U.S. 449 (1958).

34. Id. at 460–61. Although NAACP v. Alabama did not directly discuss a lobbying statute, the case illustrates that association rights can activate strict scrutiny even in the absence of a speech claim.

35. See Julie, M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut from a Different Cloth, 21 Hastings Const. L.Q. 15, 26–34Google Scholar (1993).

36. See Stephen, A. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale, L.J. 142, 142–45Google Scholar (1986) (noting that the right of petition provided a means for citizens to control the legislative agenda).

37. See id. at 143 (attributing the demise of petitioning to a flood of abolitionist petitions and the unwillingness of an antebellum Congress to honor the petitioners’ rights to a legislative response).

38. See, e.g., McDonald v. Smith, 105 S. Ct. 2787, 2793 (1985) (petitioning right subsumed into free expression right) (Brennan J. concurring). See generally Annotation, The Supreme Court and the First Amendment Right to Petition the Government for a Redress of Grievances, 30 L. Ed. 2d 914–25 (providing a survey of case law).

39. 461 U.S. 540 (1983) (upholding a federal regulation that denied tax-exempt status to organizations that do a lot of lobbying and reasoning that the federal government does not have to subsidize free speech).

40. Id. at 552 (Blackman J. concurring).

41. Id. at 538.

42. See Steven, A. Browne, The Constitutionality of Lobby Reform: Implicating Associational Privacy and the Right to Petition the Government, 4 Wm. & Mary Bill Rts. J. 717, 729–37 (1995).Google Scholar

43. 347 U.S. 612 (1954) (addressing the constitutionality of the Federal Regulation of Lobbying Act of 1946).

44. Id. at 625–27.

45. Id.

46. Lobbying Disclosure Act of 1995, Pub. L. No. 104–65, 109 Stat. 691 (codified at 2 U.S.C. §§ 1601–12 (1995) [hereinafter LDA].

47. Id. at § 1601.

48. Foreign Agents Registration Act of 1938, 52 Stat. 631 (codified as amended at 22 U.S.C. §§ 611–21 (1990 & Supp. 1996)).

49. Federal Regulation of Lobbying Act of 1946, Pub. L. No. 79–601, 60 Stat. 839 (codified as amended at 2 U.S.C. §§ 261–70 (1994)). The senate report drafted in support of the LDA of 1995 lists two other federal disclosure statutes: the “Byrd Amendment” which requires disclosure of lobbying activities associated with federal grants and two sections of the HUD Reform Act. See S. Rep. No. 103–37, at 2 (1993).

50. See Mark, B. Baker, Updating the Foreign Agents Registration Act to Meet the Current Economic Threat to National Security, 25 Tex., Int'l L.J. 23, 24–25Google Scholar (1990) (noting that although FARA was initially focus on Nazi propaganda, it was used to monitor communist propaganda throughout the Cold War).

51. See Charles, Lawson, Shining the 'Spotlight of Pitiless Publicity’ on Foreign Lobbyists? Evaluating the Impact of the Lobbying Disclosure Act on the Foreign Agents Registration Act, 29 Vand., J.Transnat'l, L. 1151, 1162 (1996).Google Scholar

52. See S. Rep. No. 103–37, at 9 (1993).

53. Id. at 3–1. The director of the Joint Committee that drafted the Lobbying Act acknowledged that it was “less than precisely-drafted legislation.” Id. at 3 n.2. To avoid a Fourteenth Amendment vagueness challenge, the Supreme Court narrowly interpreted the Act. Id. at 3 (citing U.S. v. Harriss, 347 U.S. 612 (1954)). In essence, the Supreme Court interpreted lobbying to mean “direct communications with member of Congress on pending or proposed legislation.” Id. As such, there were significant “gaps” in the disclosure requirements. Id.

54. See Smith, supra note 1, at 116 n.4.

55. See Stacie, L. Fatka & Jason, Miles Levien, Note, Protecting the Right to Petition: Why a Lobbying Contingency Fee Prohibition Violates the Constitution, 35 On Legis, Harv. J. 559, 570 n.58 (1998) (tracing the estimate to Senator Levin). 43.Google Scholar

56. LDA, supra note 46, § 1602.

57. See generally supra notes 2–5 and accompanying text (discussing the distinction between contact activities and support activities).

58. See Fatka & Levien, supra note 55, at 571 n.63 (summarizing the LDA registration and reporting requirements).

59. Claybrook's comments were given at a forum on lobbying ethics sponsored by the Woodstock Theological Center, October 24, 2002. The comments are available on the world wide web at www.georgetown.edu/centers/woodstock/report7r.fea72.htm (accessed April 18, 2004) [hereinafter Woodstock Forum].

60. Id.

61. Id.

62. See supra notes 13–19 and accompanying text (discussing and documenting social concerns with lobbying).

63. See supra notes 42–45 and accompanying text.

64. Current registration requirements are fairly comprehensive, requiring paid lobbyists, including in-house employees as well as K Street specialists, to register, identify clients, and list government contacts. See Fatka and Levien, supra note 55, at 571 n. 63. Regulations do not require a citizen-lobbyist, such as a private individual who writes his or her Congressman, to register. This omission probably has less to do with concerns over the constitutionality of requiring registration of non-paid lobbyist than with the relative impracticality of requiring registration of such people and the relatively minimal nature of these lobbying activities as compared to those of Fortune 500 companies and other large organizations.

65. See Webber, supra note 31, at 34.

66. See Wendy, L Gerlach, Amendment of the Post-Government Employment Laws, 33 Ariz. L. Rev. 401, 412 (1991).Google Scholar

67. The primary focus of Ethics in Government Act was financial disclosure. Id. at 407. Section 207 of the act addresses post-employment lobbying restrictions. See Ethics in Government Act of 1978, Pub. L. No. 95–521, 92 Stat. 1824 (codified in 18 U.S.C. § 207 (1978)).

68. Ethics Reform Act of 1989, Pub. L. 101–94, 103 Stat. 1760 (codified at 18 U.S.C. §§ 207–08 (1989)).

69. See Gerlach, supra note 66, at 407 n.56.

70. 18 U.S.C. § 207(e)(1).

71. Id. § 207(e)(2).

72. Id. § 207(f), (c)(2)(ii).

73. See Webber, supra note 31, at 32–33 (citing several critics both inside and outside Congress).

74. Id. at 33.

75. Id. at 34.

76. Id. at 34 n. 26 (citing the Congressional Daily, Apr. 21, 1993, at 1).

77. Id. Adding fuel to the fire, a best-selling book published in 1990 explained how Japanese businesses influenced U.S. trade policy through the use of former U.S. government officials as lobbyists. Id. (referring to Agents of Influence by Pat Choate).

78. Id. The executive order specified a lifetime ban on lobbying on behalf of a foreign government and a five-year ban on lobbying before the appointee's former agency. Id.

79. See Boren, supra note 13, at 14–15 (discussing the proposed reforms).

80. Webber, supra note 31, at 30.

81. There are several “how-to” guides for lobbyists describing the daily practices of lobbying. See, e.g., DONALD E. DEKIEFFER, HOW TO LOBBY CONGRESS: A GUIDE FOR THE CITIZEN LOBBYIST (1981); WOLPE & LEVINE, supra note 5.

82. WOODSTOCK STUDY, supra note 16, at 42 (citing Senate Rule 35, cl. 1(b)).

83. Id. (citing House Rule 51).

84. Id.

85. Woodstock Forum, supra note 59, at 9 (reprinting comments by Joan B. Claybrook, president of Public Citizen).

86. WOODSTOCK STUDY, supra note 16, at 42. (citing 18 U.S.C. § 201(b)(1)).

87. 526 U.S. 398 (1999).

88. Id.

89. WOLPE & LEVINE, supra note 5, at 50–51.

90. Id.

91. See JANE P. MALLOR ET AL., BUSINESS LAW: THE ETHICAL, GLOBAL, AND E-COMMERCE ENVIRONMENT 160 (12th ed. 2004).

92. The quotes come from the WOODSTOCK STUDY, see supra notes 16–19 and accompanying text.

93. WOODSTOCK STUDY, supra note 16, at 3 (also quoted in note 18 supra).

94. Id. at 4.

95. 539 U.S. 654 (2003) (per curium) (dismissing a previously granted writ of certiorari as improvidently granted). The facts are rendered more fully in the opinion offered by the Supreme Court of California. See Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002).

96. 45 P.3d 243, at 248.

97. Id. at 247 (bringing the claim pursuant to the Californian Business and Professions Code that grants private citizens standing to sue). Kasky alleged that Nike had made false and misleading statements, including claims that workers were “paid on average double the local minimum wage … and that their working conditions [met local] regulations governing occupational health and safety.” Id. at 248.

98. Id.

99. Id. at 248–49.

100. Id. at 247.

101. 539 U.S. 654 (2003) (per curium) (declining to review on the technical grounds of standing, ripeness, and judicial efficiency).

102. See Adam, Liptak, Nike Move Ends Case Over Firms’ Free Speech, TIMES, N.Y., Sept. 13, 2003.Google Scholar

103. In 1997, Nike reported annual revenues of $9.2 billion, with advertising and marketing expenditures totaling almost $1 billion, approximately $2.7 million dollars per day. See 45 P.3d 243, at 247.

104. The Nike case garnered a lot of attention. Almost three dozen briefs (including thirty-one amicus briefs) were presented to the U.S. Supreme Court. Those speaking in support of Nike emphasized the chilling effect that the California Supreme Court decision could have on public discourse. One of Nike's lawyers noted that the case “genuinely frightens businesses because even innocent mistakes made in important public debates can get you sued.” See Liptak,, supra note 102 (quoting Thomas Goldstein).

105. For example, the American League of Lobbyists (ALL) maintains a web site complete with a “Lobbyists’ Code of Ethics.” The homepage notes that ALL was established in 1979 with a mission “to enhance the development of professionalism, competence and high ethical standards for advocates in the public policy arena, and to collectively address challenges affecting the first amendment right to ‘petition the government for redress of grievances.’” See www.alldc.org. (last visited May 25, 2004) [hereinafter ALL].

106. See WOODSTOCK STUDY, supra note 16.

107. Woodstock Senior Fellow Edward B. Arroyo, S.J., coordinated the research team responsible for the book. Other team members were James L. Conner, S.J., theologian; Robert W. Gardner, journalist; Philip A. Lacovara, lawyer-lobbyist; and Michael H. McCarthy, philosopher-ethicist. Id.

108. Id. at vii.

109. Id.

110. Id.

111. Id. at viii–ix (outlining the process).

112. Id. at 2–13 (collecting and printing scores of anonymous quotations from practitioners).

113. Id. at 23–37 (discussing lobbying in a historical and social context).

114. Id. at 17–19.

115. Id. at 84–89.

116. Id.

117. Id. at 88–89 (the subparts to Principle 6 list and briefly explain four taboo tactics).

118. Id. at 18.

119. Id. at 19.

120. Id. at 84.

121. Id.

122. Id. at 94.

123. See text accompanying note 1.

124. The relevance of the police force is not limited to criminal cases, but to civil cases too, as refusals to pay civil judgments lead to contempt citations that motivate police involvement.

125. For an introduction to natural law reasoning see JEFFRIE G. MURPHY & JULES C. COLEMAN, THE PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 13–22 (1984). See generally Manual, Valasqez & Neil Brady, F., Natural Law and Business Ethics, 7 Bus., Ethics Q. 83 (1997)Google Scholar (distinguishing and discussing four natural law traditions: historicist, proportionist, right reason, and traditionalist).

126. One difficulty with natural law philosophy is its inability to demonstrate that principles of right and wrong are clearly defined and universally held. See Steven, R. Salbu, Law and Conformity, Ethics and Conflict: The Trouble with Law-Based Conceptions of Ethics, 68 Ind. L.J. 101, 110 (1992)Google Scholar (commenting on an “inability of natural law to convince either that there is one truth or that we can know what that truth is”). This limitation does not mean that a justifying referent cannot be found. Beyond the formal moral reasoning of natural law, justifying referents might include custom, procedural or process values, and instrumental social objectives. See Daniel, T. Ostas, Deconstructing Corporate Social Responsibility: Insights from Legal and Economic Theory, 38 Am. Bus. L.J. 261, 264–77 (2001)Google Scholar (considering various justifications for law and legal force). Steven Pepper argues that a form of legal realism that denies that law has any basis other than power dominates legal education today. See Steven, L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 Yale, L.J. 1545, 1552–54 (1994–1995).Google Scholar Of course, the legal realism commented on by Pepper seeks to describe the law as it is, not as it should be, and the proposition in the text that most legal philosophers admit that law should have an external referent is no doubt correct.

127. See generally Symposium, The Revival of Pragmatism, 18 CARDOZO L. REV. 1 (1996) (collecting various distinct but complementary perspectives on legal pragmatism).

128. See RICHARD A. POSNER, OVERCOMING LAW 4–15 (1995) (describing a public “conversation” that encompasses both social ends and the appropriate legal means to achieve them).

129. See Steven, D. Smith, The Pursuit of Pragmatism, 100 Yale, L.J. 409, 444–49 (1990)Google Scholar (describing the pragmatic method as an “exhortation to skepticism” as to both the ends sought and the means used to achieve them).

130. WOODSTOCK STUDY, supra note 16, at 83–84.

131. See STEVEN BREYER, REGULATION AND ITS REFORM 1–11 (1982) (articulating the central tenets of the Public Interest Theory and outlining the implications of the theory for a number of regulatory settings).

132. For a collection and reprinting of fourteen oft-cited works addressing the topic see THE DUTY TO OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS (William A. Edmundson ed., 1999).

133. See Smith, M.B.E., Is there a Prima Facie Obligation to Obey Law?, in The Duty To Obey The Law: Selected Philosophical Readings 75, 77–93Google Scholar (William A Edmundson ed., 1999) (noting that philosophers have analyzed the moral duty to obey law with reference to social contract theory, utilitarianism, and a “natural duty to support just institutions”).

134. See John Rawls, A Theory of Justice 334–37, 350–62 (1971).

135. Woodstock Forum, supra note 59, at 7 (reprinting comments of Thomas M. Sus-man).

136. WOODSTOCK STUDY, supra note 16, at 11.

137. See ALL, supra note 105.

138. WOODSTOCK STUDY, supra note 16, at 85.

139. ALL, supra note 105, at 3.

140. See Steven, P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 31–32Google Scholar (1998) (discussing the “Pluralist Theory” of regulation).

141. Seminal works include MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965); and JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT (1965). See generally Croley, supra note 140, at 34–40 (providing citations to the recent literature).

142. Croley notes that Public Choice theorists reject Pluralist Theory. He writes: “[S]ome public choice theorists consider their main project to be exposing the naivete of pluralist political scientists and economists.” Croley, supra note 140, at 33.

143. See generally George, J. Stigler, The Theory of Economic Regulation, 2 Bell, J. Econ. & Mgmt. Sci. 3 (1971)Google Scholar (providing the seminal work).

144. See Richard, A. Posner, The Social Costs of Monopoly and Regulation, 83 Econ, J. Pol. 807 (1975)Google Scholar (explaining how regulations can create barriers to entry and generate anti-competitive returns).

145. See Donald, J. Kochan, “Public Use” and the Independent Judiciary: Condemnation in an Interest-Group Perspective, 3 Tex. L. Rev. & Pol. 49, 81 (1998)Google Scholar (arguing that lobbyists are particularly adept at controlling information when issues are complex).

146. See supra part I.C. (arguing that current regulations purporting to limit the practice are largely ineffective).

147. See Posner, supra note 144; see also Richard, A. Posner, Theories of Economic Regulation, 5 Bell J. Econ. & Mgmt. Sci. 335, 344 (1974).Google Scholar

148. See Grant, supra note 2, at 835–37.

149. See Kenneth, R. Button, The District of Columbia Conflict of Interest Rules and Lawyer-Lobbyists: A Troubled Marriage, 8 Legal Ethics, Geo. J. 961 (1995).Google Scholar

150. See Timothy, L. Fort, The First Man and the Company Man: The Common Good, Transcendence and Mediating Institutions, 36 Am., Bus. L.J. 391, 396–99Google Scholar (1999) (discussing the central tenets of the republican movement). See generally Cass, R. Sunstein, Beyond the Republican Revival, 97 Yale, L.J. 1539,Google Scholar 1541–67 (1988) (identifying four “republican commitments” to procedural fairness that reinforce the quest for the common good); Frank, Michelman, Law's Republic, 97 Yale, L.J. 1493, 1504–07 (1988)Google Scholar (arguing that common good can be arrived at by actual consensus through dialogue). But see Richard, A. Epstein, Modern Republicanism-Or the Flight From Substance, 97 Yale, L.J. 1633Google Scholar (1988) (arguing that purely procedural guarantees of equality and commitment to dialogues are insufficient to guarantee decisions and actions that support the common good).

151. See Fort, supra note 150, at 399–400 (offering this argument as part of a critique of the civic republican movement).

152. Id. at 400.

153. See generally Kevin, P. Quinn, Sandel's Communitarianism and Public Deliberations over Health Care Policy, 85 Geo., L.J. 2161, 2171–83 (1997)Google Scholar (exploring alternative conceptions of the common good); Daniel, P. Sulmasy, Four Basic Notions of the Common Good, 75 John's, St.Rev., L. 303, 303–08Google Scholar (2001) (same).

154. See Quinn, supra note 153, at 2174 (noting that for Bentham, “ there was no community … other than an aggregation” of individuals); Sulmasy, supra note 151, at 304 (associating Bentham and Mill with the idea of an “aggregative common good”).

155. See Sulmasy, supra note 153, at 307 (offering a similar observation). See generally JOHN RAWLS, A THEORY OF JUSTICE 22–27 (1971) (offering comments on classic utilitarianism).

156. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 85–91 (1980) (arguing that the “basic forms of good” include “life,” “play,” “aesthetic experience,” “friendship,” and “knowledge”).

157. See generally Gerald, B. Wetlaufer, The Limits of Integrative Bargaining, 84 Geo., L. Rev. 369, 373 (1996)Google Scholar (discussing several distinctive ways in which the term self-interest can be used); Lawrence E. Mitchell, WASH. & LEE L. REV. 1477, 1482–83 (1993) (exploring nuances incumbent in the term self-interest).

158. ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 9 (D.D. Raphael & A.L. Macfied eds., Oxford University Press 1976) (1759).

159. See Salmasy, supra note 153.