Fair equality of opportunity in the right to petition

Making the world safe for lobbying, or fair equality of opportunity in the right to petition Benedict Rumbold My subject in this essay is the moral permissibility of lobbying, understood here as those political activities by which citizens, who are not public officials, attempts to create, support or resist legislation, regulation, or other policy by actively engaging with public officials, outside open forums in public proceedings. Cf. Gee, Quentin. "Corporations, Rights, and Lobbying." Ethical Theory and Moral Practice 19,2 (2016): 397-408. There are reasons why we might think lobbying ought to be encouraged. Such mechanisms can appear to present an important means by which citizens might raise on-going concerns with state decision-makers, thereby contributing to more ‘associative’ and ‘participatory’ models of democracy. Famously, see Dahl, who takes the willingness of citizens to form pressure groups and to engage in political activity as a central element in the flourishing of what he calls a ‘polyarchy’, that is, a representative system in which there is widespread popular influence in matters of public policy (Dahl, Robert A. Democracy and Its Critics. New Haven: Yale University Press). On a similar themes, see also, e.g., Saurugger, S., Interest Groups and Democracy in the European Union. West European Politics, 31:6 (2008), 1274-1291 Hirst, Paul. Associative Democracy. New Forms of Economic and Social Governance. London, Polity Press, 1994; Cohen, Joshua, and Joel Rogers. Secondary Association and Democratic Governance. In Joshua Cohen, and Joel Rogers (eds), Associations and Democracy. The Real Utopias Project. London: Verso, 1995, 7–98; Mansbridge, J. J. (1992). A Deliberative Theory of Interest Representation. In Mark Petracca (ed.), The Politics of Interest. Boulder, CO: Westview Press, 32–57; Truman, David (1951). The Governmental Process. New York: Knopf; Jordan, G. and Maloney, W., (2007). Democracy and Interest Groups. Enhancing Participation. Houndmills: Palgrave. Lobbying might also be seen to occupy a central position in Madisonian models of government, wherein ‘mischiefs of faction’ may be ameliorated through competition between opposing groups, each acting as a match or check on the others. Madison, James. The Federalist Papers. No. 10, at 56. Edited by Jacob E. Cooke (Middletown, Conn., Wesleyan University Press, 1961); see also Krishnakumar, Anita S. "Towards a Madisonian, Interest-Group-Based, Approach to Lobbying Regulation." Alabama Law Review. 58 (2006): 513. Yet, lobbying also presents certain problems for the political theorist. Two stand out. First, lobbying can seem to pose a direct threat to political equality – on one view: the requirement that democratic institutions should provide citizens with equal procedural opportunities to influence political decisions. For such a conception see e.g., Pateman, Carole, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970, 73; Rawls, John. A Theory of Justice. Cambridge: Cambridge University Press, 1971. 221; Lively, Jack. Democracy. Oxford: Oxford University Press, 1971, 8, 16, 49-50; Miller, David. Democracy and Social Justice. British Journal of Political Science. 8. 1981, 3. Gutman, Amy. Liberal Equality. Cambridge University Press, 1980. 180-1. Mansbridge, Jane. Beyond Adversary Democracy. New York: Basic Books, 1980, 17-18, 30-31. Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986, 178. For criticisms see Beitz, Charles. Political Equality: An Essay in Democractic Theory. Princeton University Press: 1989. In effect, principles of political equality look to maintain politics as a level playing field: each is to count for one and none for more than one. Yet, lobbying looks deeply inegalitarian. Certain lobbyists may enjoy greater opportunities over others by dint of their political connections, their number of supporters, the resources at their disposal (including those with which they might hire professionals advocates to lobby on their behalf), even the political attractiveness or emotiveness of their cause. Thus, there is a Rawlsian worry: permitting lobbying looks apt to undercut the value of the very liberties upon which it depends. Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 198. Joshua Cohen harbours similar concerns: ‘Equal opportunity for political influence (the requirement I endorse here)… [condemns] inequalities in chances to influence decisions made by formal political institutions. Thus, it condemns conditions in which citizens have equal chances to influence the outcome of elections, but unequal chances to form or join groups that influence the outcome of legislative decisions.’ Cohen, Joshua. “Money, Politics, Political Equality” In Fact and Value: Essays on Ethics and Metaphysics for Judith Jarvis Thomson. Edited by Alex Byrne, Robert C. Stalnaker and Ralph Wedgwood. MIT Press, 2001. 54. Second, lobbying is sometimes cast as antidemocratic in a more direct sense. See, e.g., Gee: ‘Allowing professional lobbyists who are paid to represent the interests of any group, be it for the purported public benefit or for an implied private benefit, creates an inequality of consideration in the policy formation process. Lobbyists who can devote all of their time to coordinate and manage a campaign for a cause can effectively allow the interests of a small number of people to weigh more than the interests of a larger number of people who might disagree. While it might be well intentioned and perhaps an improvement over the status quo, giving large public interest organizations special privileges with which individuals must compete is antidemocratic.’ Gee, Quentin. "Corporations, Rights, and Lobbying." Ethical Theory and Moral Practice 19,2 (2016): 397-408. When the lobbyist persuades policy makers to make a change to legislation, regulation or other policy, there is the suspicion that, in some sense, the democratic will has been thwarted; that lobbying circumvents or by-passes, even supplants, democratically-sanctioned programmes of government – that it is public policy ‘through the back door’. Typically, opponents of lobbying use these arguments as way of discouraging us from further encouraging these kinds of activities. However, in particularly trenchant hands, they can be used to claim lobbying is morally impermissible. In this paper, I want to argue that that claim, at least, is false. My argument will not be that lobbying is always permissible. But rather that it is not necessarily morally impermissible: that there is a feasible political world in which lobbying would be permissible, one we might think is not so hard to reach from where we are now, and one which – partly for the reasons gestured to above – we might think is somewhat attractive. To make progress here, however, we first need a better grip on what kinds of activities fall under the umbrella of lobbying; what the content of, say, a right to lobby might be (e.g. what duties would it engender on the part of the state?); and, why we should think anyone might have a right to lobby to begin with. These I address in the first part of this paper (sections 1 to 3). In the second part of the paper (sections 4 and 5), I then address the argument against lobbying from political equality. To address this challenge, I argue, we first need to clarify the kind of equality principles of political equality are trying to protect. Building on work by Cohen, Scanlon and Rawls, I argue political equality is satisfied where citizens’ likelihood of securing a fair hearing is not impeded by various factors already established as ‘unfair’. I then explain how, given such an understanding of political equality, and assuming certain structural safeguards are put in place, the political egalitarian does not necessarily have anything to fear from the lobbyist (hence the call for ‘fair equality of opportunity in the right to petition in the title). Finally, in the third part of the paper (sections 6 and 7), I consider the argument that lobbying is antidemocratic. Here I argue that, even if it can be shown that decisions-made-via-lobbying are undemocratic, following arguments from Christiano, we still have reasons to think that they are legitimate, and permissible for that reason. I conclude in Section 8. A last, brief proviso before we begin: as should be clear from above, my interest in this essay is with citizen lobbying, or lobbying done by individual citizens or public interest groups, rather than corporate lobbying, or lobbying done by corporations. In large part, this is because it seems - to me, at least - that lobbying by citizens or public interest groups poses a more complicated set of philosophical puzzles for the political theorist than does corporate lobbying. But it is also because, while the extent of corporate lobbies appears to have remained fairly static for a few decades now, we do seem to be on the cusp of a new era of citizen lobbying. As Rosanvallon puts it persuasively: Citizens are no longer content to make their voices heard sporadically at the ballot box. They exert an increasingly active power of oversight and control. They assert themselves not just as diffuse opinion but as active minorities and communities of shared ordeals in order to pressure those who govern them and express their expectations and exasperations. The very vigour of their criticism of the representative system demonstrates their determination to keep the democratic ideal alive. This is a characteristic of our times.’ Rosanvallon, Pierre. The Society of Equals. Translated by Arthur Goldhammer. Cambridge, Mass. Harvard University Press. 2013. 1. Defining Lobbying As intimated in the introduction, in what follows I adopt a relatively broad definition of lobbying, one originally indebted to Gee, according to which ‘lobbying’ includes any political activity by which a citizen, who is not a public official, attempts to create, support or resist legislation, regulation or other policy by active engagement with public officials outside of open forums in public proceedings. Gee, Quentin. "Corporations, Rights, and Lobbying." Ethical Theory and Moral Practice 19,2 (2016): 397-408. Such a definition differs from how lobbying is often understood in law. In many polities, the question of what constitutes lobbying is made relevant in light of law-makers’ increasing efforts to make whatever lobbying activities are taking place transparent to the public. In the United States, for example, lobbyists are subject to the 1995 Lobbying Disclosure Act, which requires them both to register as lobbyists and submit regular reports to the Secretary of the Senate and the Clerk of the House of Representatives on the lobbying activities undertaken during each semiannual period. Lobbying Disclosure Act of 1995. Available at https://www.senate.gov/reference/resources/pdf/contacting10465.pdf - last accessed 12/10/2017. Similar registration acts now exist in the UK Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. Available at http://www.legislation.gov.uk/ukpga/2014/4/contents/enacted - last accessed 12/10/2017. and France Law No. 2016-1691 of December 9, 2016, Regarding Transparency, the Fight against Corruption, and Modernization of Economic Life. Available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000033558528 &categorieLien=id – last accessed 12/10/2017., with the EU operating a voluntary Transparency Register and consulting on a mandatory one. European Commission Website. 2018. Transparency register. Available at https://ec.europa.eu/info/about-european-commission/service-standards-and-principles/transparency/transparency-register_en - last accessed 01/02/2018. One feature of such legislation, however, is that it is typically restricts what counts as lobbying to paid lobbying, or lobbying undertaken by a professional advocate under contract from a third party. Moreover, although such legislation often understands what constitutes a ‘lobbying activity’ in a similar way to our definition above, it is also keen to stress a number of exemptions. For example, the US 1995 Lobbying Disclosure Act, takes the term ‘lobbying contact’ to exclude, among other things, communication that is made ‘in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, cable television, or other medium of mass communication’; that is ‘a petition for agency action made in writing and required to be a matter of public record pursuant to established agency procedures’; and communication ‘made by a church, its integrated auxiliary, or a convention or association of churches’. Lobbying Disclosure Act of 1995. Available at https://www.senate.gov/reference/resources/pdf/contacting10465.pdf - last accessed 12/10/2017. The definition of lobbying I employ here is broader than this in the following ways. First, as I understand it, a lobbying activity does not have to be paid, or done by a professional advocate in order for it to constitute lobbying. Rather, as I understand it, lobbying includes any effort by a private citizen or group to affect public policy through active engagement with a public official, whether it be undertaken by a professional advocate, paid to act on an agent’s behalf, or done by the agent themselves. Second, I take the definition of lobbying to include many of the kinds of political activities that would be excluded by, for example, the Lobbying Disclosure Act. As I see it, then, lobbying includes all those acts by which an individual or group seeks to engage with an official to effect a change in public policy, regardless of the setting in which it takes place or the medium through which it is communicated. A British citizen, therefore, might still be considered to be engaged in a kind of ‘lobbying’, whether they are looking to engage legislators by addressing them in a speech in Westminster Square, delivering a petition to the House of Commons, or discussing the matter in private in the office of a Member of Parliament. Third, there is no qualification on my definition of lobbying with respect to who the lobbying is done by or on behalf of. On my account then, the mere fact that the lobbying is ‘made by a church’, or any other individual, group or organization, does not mean it is not lobbying. Each of these moves is motivated by what I take to be the main ethical questions about lobbying. That is, I take it that what we are first interested in, when we are interested in lobbying from an ethical perspective, is the permissibility of a certain kind of political activity: namely, those in which, in Rosanvallon’s words, citizens seek to ‘make their voice heard’ outside their actions at the ballot box – specifically by engaging with those decision makers responsible for decisions about the matter at hand. In this way, I take it that whether citizens seek to achieve these ends by undertaking certain actions themselves or by employing someone to act on their behalf; or whether they address public officials one-to-one or through the media; or, indeed, whether they do so as members of this or that group, or representatives of this or that institution, while interesting, are largely tangential to what we might think is our central ethical concern. This, then, is reflected in the first, relatively open-ended, part of our definition of lobbying: namely, that it includes ‘any political activity in which an agent who is not a public official attempts to create, support or resist legislation, regulation or other policy by active engagement with public officials’. One proviso here: by ‘any political activity’, I mean, any activity within the law. By politically-motivated lobbying activity outside the law, I understand various kinds of civil disobedience, the moral permissibility of which I take to be a separate subject. For more on the latter see, e.g. Scheuerman, William E. Civil Disobedience. London: John Wiley & Sons, 2018. Having said that, however, I also take it that we want to split questions about the ethical permissibility of lobbying away from a related discussion about the desirability, or otherwise, of other practices by which citizens and the government may generate new policy. For example, one set of practices we might think are helpfully differentiated from lobbying activities are public ‘consultations’, that is, various measures by which the state might invite the public to participate in the formation of policy. Cf. Robert Goodin’s analysis of ‘consultative politics’ and ‘consultative democracies’. See Goodin, Robert E. Reflective Democracy. Oxford. Oxford University Press, 2003. Ch 8. Again, as I understand it, insofar as we are interested in lobbying, we are not interested in cases in which public officials actively seek or solicit the input of citizens, groups or organisations in the formation of public policy; when, as Olsen puts it, there is attempt by governments to ‘sound out’ relevant stakeholders. Olsen, Johan P. Voting, “Sounding Out” and the Governance of Modern Organisations, Acta Sociologica, 1972, 15: 267–83; Olsen, Johan P. Organized Democracy: Political Institutions in a Welfare State—the Case of Norway. Oslo: Universitetsforlage, 1983t. 112–15 What we are looking for, rather, are cases in which citizens attempt to influence policy, as it were, from the outside; by spontaneously – or absent invitation – demanding change, rather than having a menu of possible changes presented to them. This qualification, then, is taken care of – at least in my reading of it – by the second part of our definition, namely that lobbying excludes engagements with public officials that occur during ‘open forums in public proceedings’ – that is, those forums to which the public may have been invited. Gee, Quentin. "Corporations, Rights, and Lobbying." Ethical Theory and Moral Practice 19,2 (2016): 397-408. The content of the right to lobby So defined, what would it mean to possess a right to lobby? And, what duties might such a right entail on the part of the state? One interpretation might be to read such a right as a ‘privilege’ or ‘liberty’ right, one in virtue of which any citizen is free to engage in precisely those activities gestured to above. Cf. Hohfeld, W., 1919, Fundamental Legal Conceptions, W. Cook (ed.), New Haven: Yale University Press. On this line of thinking, then, citizens have the right to try and ‘engage’ with public officials ‘outside of open forums in public proceedings’, in order that they might ‘create, support or resist legislation, regulation or other policy’, precisely because they have no duty not to perform such activities. Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 313. To a certain extent, this appears to be the way Rawls understands the right to lobby, citing ‘the freedom to take part in public affairs and to influence by constitutional means the course of legislation’ as among our ‘political liberties’. Interpreted thus, the right to lobby might be imagined as in a similar stable to, for example, citizens’ rights to freedom of speech. Such a reading would also be contiguous with the right’s political history. In the UK, for example, one of the earliest concerns of those we might now recognise as ‘proto-lobbyists’ was simply their right to express their displeasure at government, and correspondingly the government’s duty neither to interfere with such expressions or exact any kind of retribution as a result of them. Thus, one of the key clauses of Magna Carta is the right only to ‘declare’ transgressions against charter’s ‘articles of peace’ to the King, and to ‘claim immediate redress’. Magna Carta, 1215. English Translation available at https://www.bl.uk/magna-carta/articles/magna-carta-english-translation - last accessed 16/07/2017. For early efforts to restrict the right to petition and silence would-be lobbyists see, for example, various moves made against so-called ‘Tumultuous Petitioning’, during the Restoration, discussed in: Knights, Mark. London's ‘monster’ petition of 1680. The Historical Journal, 1993, 36(1): 39-67. However, there seems good reason to think that the right to lobby extends beyond those privileges we usually associate with freedom of speech. Most notably, what the lobbyist really wants is not merely to voice a particular grievance but also have their voices heard, which is to say, for relevant actors to listen to their demands and offer some sort of response in light of those grievances. In other words, p’s right to lobby might be taken to ground a duty on relevant decision-makers that p be granted an audience. This might be seen to follow from the very definition of lobbying. As above, on our definition, lobbying involves an attempt to engage with public officials. Yet to engage with another is, at the very least, to occupy their attention – to entertain the possibility that they might become willing participants in a kind of joint enterprise. Lobbying fails where that invitation is spurned. Yet it is rendered incoherent where such cooperation is never on the cards to begin with. (One can express oneself freely by screaming into the void. But the void cannot be lobbied). The idea that one of the duties engendered by a right to lobby is that lobbyists be granted an audience is also something that has been long emphasised by prospective lobbyists. One of the first cases of political petitioning in the UK, for example, were petitions made by officers and soldiers in the New Model Army for a redress of ‘grievances’ during the English Civil War. Yet, even then it was already recognised that if such petitions were to have any real meaning, it was not enough that soldiers were granted the right to issue a petition, such petitions must also be received. Thus, when those in positions of authority, both in the Army and Parliament, refused to engage with such appeals, there was outrage, one soldier writing: Sure there is a right of petitioning for us, as well as there was a Petition of Right once for the Parliament...For Souldiers to represent their grievances to their Generall, is a liberty which the Law of nature and Nations will not deny. Letter from Saffron Walden the General’s head quarters, 1647. In Mr Rushworth's Historical Collections abridg'd and improved: From April 1646 To January 1648. Volume 6. Nabu Press, 2011. 99 – my italics. For further discussion on the development of the right to petition during the Civil War, which was in no way restricted to the army, see, e.g. Zaret, David. ‘Petitions and the “Invention” of Public Opinion in the English Revolution.’ American Journal of Sociology 101, no. 6 (1996): 1497-555. Similarly, in what might be seen as the heyday of the right to petition in colonial America, it was considered part of the duty of colonial governments not only to receive petitions but to refer them to committees for consideration, and act upon any recommendations that ultimately emerged. Indeed, so well-engrained was this process that it originated more bills in pre-constitutional America than any other source of legislation. Higginson, Stephen A. A Short History of the Right to Petition Government for the Redress of Grievances. Yale Law Journal 96 (1986) 142-166. 144. In this way, then, we might think of the right to lobby in the Hohfeldian sense as a complex right-molecule, containing both privileges and claims. To have a right to lobby is to be granted the privilege to engage in lobbying activities – and engender a duty on relevant parties not interfere with rights-holders in their lobbying. However, it is also to ground a claim on relevant parties that they allocate some resource to engaging with and responding to the rights-holder’s entreaties when they arise. Of course, recognition of this latter set of duties raises a new set of questions. Even if we accept that citizens’ rights to lobby are sufficient to hold states under a duty to respond to any lobbying they receive, what kinds of procedures would states need to put in place such that they might be said to be fulfilling such obligations? Some action looks necessary. However, it seems possible for a state to respect citizens’ right to lobby without ever actually acceding to any lobbyist’s demands. As Rawls writes with respect to his own ‘principle of participation’: ‘The principle of participation compels those in authority to be responsive to the felt interests of the electorate’; however, ‘[r]epresentatives are not, to be sure, mere agents of their constituents, since they have a certain discretion and they are expected to exercise their judgement in enacting legislation.’ Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 199-200. The right to lobby appears to entail a duty that certain arguments, or sets of facts, are considered by those in authority, that they are given what might be called a ‘fair hearing’. But it also seems to fall short of necessitating that those in authority make the change that is being requested. Clearly more needs to be said here on what might constitute a fair hearing, and what sorts of considerations might make a hearing fair. I some progress on these questions in what follows. However, for the most part, my interest in this essay lies elsewhere. For the moment, then, it is enough to register that if there is a right to lobby, then it is a right that engenders duties upon the relevant duty-bearers both to refrain from interfering with prospective lobbyists in their lobbying activities but also to grant those lobbyists a ‘fair hearing’. Our next question, is why we should think that anyone has such a right in the first place. And it is to this that we turn in the next section. Justifying the right to lobby In one sense, the preceding analysis makes justifying a right to lobby much harder. Were we to take the right to lobby as just one branch of citizens’ rights to free speech, we might think that it would be protected by any theory according citizens that privilege. See, e.g., Mill, J. S. On Liberty. London: Penguin, 2003. Ch 2, ‘Of the Liberty of Thought and Discussion’. However, now we need an argument not only capable of justifying citizen’s rights to express their grievances but also to be given a fair hearing. How, then, might these claims be justified? One promising starting point are those interests Rawls takes to ground his right of political participation. Needless to say, Rawls’s account has been contested. Indeed, some question whether we are even right to take rights to political participation as grounded upon some set of interests in the first place. Unfortunately there is not the space to enter into this discussion here. But for a recent sceptical discussion, see, e.g., Peter, Fabienne. The human right to political participation. Journal of Ethics and Social Philosophy, 2013, 7 (2): 1-16. For Rawls, rights to political participation emerge from in individuals’ interest in the outcome of collective decisions that may be coercive and, in any case, are likely to have a strong bearing on their future prospects. Thus, according to his ‘principle of (equal) participation’, all citizens ‘have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply’. Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 194. The justification for this principle builds from and is contiguous with, all those concerns that initially motivated the Original Position. Thus, on Rawls’s account, for all the reasons we thought it was appropriate to ensure that each person worked from a position of equality and that each was fairly represented when settling the common principles of justice as fairness, we might similarly think it is appropriate to that similar standards are also adhered to with respect to matters of legislation, regulation and public policy. As he puts it, If the state is to exercise a final and coercive authority over a certain territory, and if it is in this way to affect permanently men’s prospects in life, then the constitutional process should preserve the equal representation of the original position to the degree that it is practicable. Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 195. In sketch form, then, we might argue that the right to lobby is justified by citizens’ on-going interests in matters of public policy – understood, in Rawlsian terms, as citizens’ interests in the outcome of collective decisions that may be coercive and, in any case, are likely to have a strong bearing on their future prospects. And such interests are sufficient to engender duties on the state both to refrain from interfering with citizens when they seek to air their grievances, and to give any such airings ‘a fair hearing’. There are, however, a few objections we might raise with this kind of argument. First, we might wonder why, if this is the interest that lobbying serves, it is not already provided for by citizens’ right to vote. In a world of regular elections and universal suffrage, for example, why think that citizens also need a right to lobby? The response here is two-fold. First, we might think that elections are simply too infrequent to provide citizens with an effective means of redress on matters of public policy, especially for issues that are time sensitive. For strident disagreement, see, e.g. Schumpeter, who famously warns against political action between elections, arguing that, to ensure stability, citizens must refrain from ‘back-seat driving’. Schumpeter, J. A., Capitalism, Socialism and Democracy. London: Allen and Unwin, 1954. 295. For example, when, in the UK in 1972, campaigners sought proper compensation for on-going health problems caused by the prescription of Thalidomide, it seems reasonable to think that their cause ‘couldn’t wait’ until the next general election. For information: Thalidomide, sold under the brand name Immunoprin, among others, is an immunomodulatory drug and the prototype of the thalidomide class of drugs. Primarily prescribed as a sedative or hypnotic, thalidomide also claimed to cure ‘anxiety, insomnia, gastritis, and tension’. Afterwards, it was used against nausea and to alleviate morning sickness in pregnant women. Shortly after the drug began to be sold in West Germany, however, between 5,000 and 7,000 infants were born with phocomelia (malformation of the limbs). Only 40% of these children survived. Throughout the world, about 10,000 cases were reported of infants with phocomelia due to thalidomide; only 50% of the 10,000 survived. In 1972, The Sunday Times sought to highlight the plight of the 370 known victims of the drug in the UK. The UK distributor of the drug, Distillers, had offered the victims total compensation of £3.25m. The Sunday Times campaign helped prompt Commons action and a shareholder revolt at Distillers. A new compensation deal worth £32.5m was eventually agreed. Second, elections and the vote appear far too blunt to register public disquiet on any one concern. When an election is held, voters not only vote on a range of issues but are also understood to be doing so. Thus, even if a small group of citizens were minded to use their vote solely to signal their displeasure at the government’s handling of, say, a public health scandal, it would be near impossible for the relevant candidates to pick up that signal within the cacophony of a general election. On a related note, Rawls also worries that, where political parties are privately financed, even universal suffrage cannot ensure the concerns of individual voters are given an adequate hearing, for even in that case political forums are likely to be controlled by ‘dominant interests’. Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 199. Universal suffrage and regular elections, then, look insufficient to ensure the comprehensive protection of the kinds of interests underlying a right of political participation. And, indeed, it is on this basis that many writers – including Rawls – interpret the rights of political participation as a broad right to ‘take part’ in political decisions, not simply as a right to vote. Such a distinction is also mirrored in international human rights law. Article 21 of the Universal Declaration of Human Rights, for example, states: ‘(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’ (Universal Declaration of Human Rights, 1948. Art 21. Available at: http://www.un.org/en/universal-declaration-human-rights/ - last accessed 04/03/2017). The International Covenant on Civil and Political Rights is, perhaps, even more demanding, stating ‘Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasona ble restrictions: 1. To take part in the conduct of public affairs, directly or through freely chosen representatives; 2. to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; 3. To have access, on general terms of equality, to public service in his country.’ (The International Covenant on Civil and Political Rights, Art 25. Available at: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx - last accessed 04/03/2017.) This, though, raises another question. For if the kinds of interests underlying a right of political participation are best understood as grounding a right to ‘take part’ in government, why think that such participation needs to be in the form of lobbying? Why not think that the state can meet all its obligations with respect to its citizens’ interests in these respects through what we referred to earlier as ‘consultative’ policy formation; that is, by regularly conferring with the public, inviting them to contribute to the formulation of policy, providing them with managed fora in which they might voice their concerns, and so on? The issue here, I take it, is that these sorts of activities have one significant shortcoming, insofar as they always remain dependent on the wishes and consent of government. When public officials invite input from citizens and interest groups on matters of state, invited parties gain one mechanism by which they might influence governmental policy. Yet, discretion as to whose input is requested, what the terms of the relevant consultation will be and even which policy decisions are opened up to public participation always remain with the state. Another way one might motivate this argument, perhaps, is by considering the shortcomings of all those polities in which states make some effort to consult with citizens and yet fail to recognise a right to lobby. For example, one of the features of the political system in modern-day China – at least, according to its leaders – is its enthusiastic endorsement of what it calls a ‘consultative democracy’, that is, one wherein the state undertakes various exercises designed to elicit citizens’ views on matters of public policy. However, where such efforts at political engagement are not partnered with recognition of a right to lobby – as would seem to be the case in China – we might think that they fall short of an adequate right of public participation. And this is because in such a system, although citizens are accorded certain avenues of influencing public policy on those matters the state invites their input on, they do not have the ability to influence any matters of public policy the state does not seek their input on. For China’s endorsement of a consultative democracy see, e.g. General Secretary Xi Jinping’s claims that ‘consultative democracy’ forms the essence of ‘people’s democracy’: ‘To reach consensus on the wishes and needs of the whole society is the essence of people’s democracy. On matters that concern the people’s interests, deliberations should be held with the people. Without deliberation or with insufficient deliberation, it is difficult to handle these matters well. We should always hold deliberations when we raise and address issues; the more numerous and in-depth, the better.’ General Secretary Xi Jinping’s report to 19th CPC National Congress. Quoted in China Today Website. Available at: http://www.chinatoday.com.cn/ctenglish/2018/zdtj/201803/t20180301_800118954.html - last accessed 06/09/2017. By contrast, we might think that citizens’ interests in public policy grant the right to influence government policy even when their input has not been solicited, when it is not at a time the state favours, or when it is on a matter the state has not previously deemed open to public discussion. One possible counter to this might be to question that these sorts of activities always remain dependent on the wishes and consent of government. That is, why might we not fix certain constraints on the consultation, such that state discretion is eliminated? (thanks to Han van Wietmarschen for pressing me on this). However, there is an ambiguity here about what establishes these constraints. If the thought is that we might establish such constraints as a matter of law, or policy, it is not clear that we have escaped the problem that such activities always rest on the wishes and consent of the government – for, of course, the government might simply change the policy or law. If on the other hand, the thought is that such constraints ought to stand as a matter of justice, I am unclear why that might be. To be clear: the argument above is not necessarily that state-dependent consultations are necessarily wrong. Rather it is simply that they do not fully satisfy citizens’ interest in matters of public policy. I take it that these counters effectively respond the accusation that citizen’s interest in public policy proves too little to ground a right to lobby. However, we might also worry that such interests prove too much. Suppose, for example, we accept that citizens’ on-going interest in public policy grounds their right to lobby. Why not think that the same interests could not also give rise to a duty for the state to act as prospective lobbyists demand, rather than simply securing a duty to listen, or to grant lobbyists a ‘fair hearing’? Part of the response here draws on one of the presuppositions of this analysis. That is, it has been and is one of the assumptions of this piece that, when we are considering whether citizens enjoy a right to lobby, what we are really considering is whether they enjoy such a right within a functioning representative democracy. (Again, this is motivated by what I take to be the most useful context in which the moral permissibility of these kinds of political activity is explored). And, in this kind of context, it seems clear enough that the claims engendered by the right to lobby will necessarily always be limited by representatives’(or their proxies’) prior duties to their political communities. Such priority is not absolute. It does not close down the possibility of entertaining a lobbyist. But it does foreclose the any duty a state agent might have to act simply as the lobbyist demands. Instead, a compromise is reached, wherein lobbyists are granted the freedom to voice their grievances, and elected representatives are duty bound to grant those grievances a fair hearing, while there is no expectation on either part that decision-makers will necessarily agree with the lobbyists’ argument. Of course, here it might be asked, ‘What about citizens’ rights to lobby in states lacking a functioning representative democracy? Might decision-makers there have some sort of obligation, given citizens’ interests in matters of public policy, to act as lobbyists demand?’ However, to give a meaningful answer to this question we really need to know what democratic mechanisms exist other than lobbying – and this draws us into a series of possibilities that really distract from the main substance of this paper. See further discussion in Section 7, however, for why the right to lobby might depend on some sort of arbitrator, capable of exercising independent judgement, whether a democratic representative or otherwise. In summary, we might defend the right to lobby through something like the following argument: If a political mechanism provides an effective means of meeting citizens’ interest in matters of public policy (one that is not satisfied by other mechanisms), citizens have a right to that mechanism. Lobbying provides an effective means of meeting citizens’ interest in matters of public policy, one that is not satisfied by other mechanisms. At present, I leave this premise unargued for. However, literature from political science suggests that, in general, lobbying does provide a means of effecting the outcome of collective decisions – in other words, that the work of the lobbyist is not entirely in vain (see, for example, Warleigh, Alex. ‘The hustle: citizenship practice, NGOs and 'policy coalitions' in the European Union - the cases of Auto Oil, drinking water and unit pricing’ Journal of European Public Policy, 2000 7 (2)). However, as I note in the conclusion, I recognise that there is further work here that needs to be done to establish when and where lobbying is at its most effective. But further investigation on that point is not my primary interest here. Therefore, C. Citizens have a right to lobby. The argument from political equality. From the preceding sections then, we gain a sense of the kinds of activities covered by lobbying, what the content of a right to lobby might be and why we might think that citizens have a right to lobby. However, the thought that we ought to permit or even encourage wide-scale lobbying faces significant challenge. One popular counter might be called the argument from political equality. The objection here can be stated simply enough: Lobbying is an exercise in persuasion. Lobbyists cannot force public officials to change public policy. Rather, their activities are designed to persuade them to. However, some citizens may find them better placed to convince officials of the merits of their cause than others. Some of these advantages may be natural. Prospective lobbyists may differ in intelligence, or confidence, or an ability to articulate their position to others. Other advantages may be social. Some lobbyists may be better educated; or from advantaged socio-economic groups, or sexes, or genders, or ethnicities; or they may be advantaged simply by virtue of their pre-existing political connections. Because the person the lobbyist is seeking to persuade is often a political appointee (or someone who answers to one), some advantages may also be political. Those lobbyists, for example, who are able to attract a large number of supporters, or who’s cause is politically attractive, or emotive, may find it easier to press for change than those who’s number of supporters is low, or who’s cause affects less ‘media friendly’ individuals. Finally, some prospective lobbyists may enjoy an economic advantage. Most notably, some may have the resources at their disposal to hire professional advocates to lobby on their behalf, thereby rendering certain other disadvantages they suffer defunct. For a compelling account of how these inequalities became imbedded in the demos of the United States, from ‘the wide, if by no means perfectly equal dispersion of political resources among the demos in the agrarian order’, see Dahl, Robert A. ‘On Removing Certain Impediments to Democracy in the United States.’ Political Science Quarterly, 1977, 92(1): 1-20. Each of these factors, working together or in isolation, makes affecting change through lobbying easier for some citizens and groups than others. And there seems good reason to think that we ought to find this kind of inequality worrying. That is, it is widely held that, as a matter of political fairness, democratic institutions should be set up in such a way that citizens enjoy equal procedural opportunities to influence political decisions. Citizen should have the opportunity to affect the way a state is governed, or the policies pursued by the government – principles of political participation secure that. But no citizen should have any greater say than any other. This, then, is the demand of political equality. At its most trenchant, we might summarise this principle in the following terms: Preservation of Political Equality (PPE): Constitutional processes are wrong – and consequently to be discouraged or avoided – if they accord greater procedural opportunities to influence decisions to some citizens than others. The argument against lobbying from political equality, then, goes: If a constitutional process accords greater procedural opportunities to influence decisions to some citizens than others, they are morally impermissible. (this is PPE) Allowing citizens to secure changes to public policy through lobbying accords greater procedural opportunities to influence decisions to some citizens than others (this seems clear from empirical evidence about lobbying activities to date) Therefore, Allowing citizens to secure changes to public policy through lobbying is morally impermissible. Preserving political equality. How to respond to the argument from political equality? The most obvious point of weakness perhaps, is the minor premise – premise two. Is it really true that, merely by allowing citizens to change public policy through lobbying, we accord greater procedural opportunities to some citizens over others? Might we not imagine, for example, some set of safeguards that would ensure all citizens the same opportunity for influence? As will become clear, I think there is a lot this response gets right. However, it also leaps ahead of our order of analysis. That is, if we want to design some set of lobbying mechanisms that are able to abide by PPE – and to test their feasibility – we first need a better understanding of the kind of political equality PPE is trying to protect. One option here is to read PPE as attempting to ensure that all citizens the same likelihood of success to attain their ends. Those mechanisms, then, that give some citizens a greater likelihood of success in attaining their ends than others are ruled out, and those maintain strict equality in citizens’ likelihood of success in attaining their ends are permitted. For Joshua Cohen and Scanlon, this is Rawls’s reading of political fairness. As we shall see in a moment, I think there are other ways we might read Rawls here. Scanlon, T. M., Why Does Inequality Matter? However, regardless of whether Rawls held the position, following Cohen and Scanlon, there seems good reason to think that this can’t be the kind of equality PPE is interested in preserving. Cohen, Joshua. “Money, Politics, Political Equality” In Fact and Value: Essays on Ethics and Metaphysics for Judith Jarvis Thomson. Edited by Alex Byrne, Robert C. Stalnaker and Ralph Wedgwood. MIT Press, 2001. 51. After all, one of the reasons some citizens may enjoy a better likelihood of success in influencing public policy over others may be because they make better arguments – both in discussion with decision-makers and in recruiting fellow citizens to their cause. Yet, as Scanlon puts it, ‘[n]o lack of the fairness of political procedures is involved if we fail to persuade our fellow citizens to support us, because of the poor quality of our arguments.’ Scanlon, T. M., Why Does Inequality Matter? A more promising possibility, suggested by Cohen, is to interpret PPE as defending equal access to the means of influencing policy. The thought here, then, is that what makes the advantages some citizens enjoy with respect to lobbying over others objectionable, where it is objectionable, is that they enjoy greater access to the means of influencing policy than their fellow citizens. An obvious case in point here is the ability of wealthy citizens (or groups of citizens) to employ professional lobbyists to lobby on their behalf. Such access does not necessarily ensure prospective lobbyists enjoy any greater likelihood of success. If their arguments are poor, decision-makers may well ignore them. Yet we might still think their access is unfair, insofar as disadvantages those who, all other things being equal, have just as or more persuasive arguments, yet, for various reasons, are less able to access the mechanisms by which political changes could be instituted. Ultimately, Scanlon also rejects this position. To my mind, though, his argument here moves a little quick. The principal reason Scanlon objects to this reading of equal opportunity for political influence is on the grounds of feasibility. Scanlon reads the position as one that seeks to secure the same ‘amount’ of access to the means of influencing policy for all citizens. In a town hall meeting, where each person is given the same amount of time at a microphone, Scanlon argues, this makes perfect sense. Yet, in large societies, ‘[t]here is no feasible and defensible way to give each citizen access for the same length of time to the attention of all the others, or even of important officials.’ Scanlon, T. M., Why Does Inequality Matter? Equal access to the means for influencing policy thus rejected. However, it is less clear to me that what is at stake in this conception is anything like an ‘amount’ of access. An unfair advantage in influencing public policy may be secured in a matter of moments – say, by a lobbyist identifying themselves as a member of a privileged elite. (‘Guys, look, I’m one of you…’). Even if all citizens were able to enjoy the same time to influence decision-makers, then, it seems defenders of this conception of political equality might still argue that something had gone amiss. Instead, I think Cohen’s position seems better read in light of the Rawlsian ideas by which it appears to have been motivated. On Rawls’s original account, the ‘fair value’ of political liberties is achieved when ‘citizens similarly gifted and motivated have roughly an equal chance of influencing the government’s policy and of attaining positions of authority irrespective of their economic and social class.’ Rawls, John. Justice as Fairness: A Restatement. Cambridge, Mass: The Belknap Press of Harvard University Press, 2001. 46. Now, as above, it is true that Rawls can seem to muddy the waters here a little insofar as, in this extract, it can appear seem like he thinks political equality is satisfied when a constitution accords citizens the same likelihood of success in attaining their ends (‘equal chance of influencing the government’s policy’). However, in light of the clear parallels Rawls seems to want to draw here between the fair value of political liberties and his defence of fair equality of economic opportunity, I think his – and Cohen’s – position might be better understood as one which suggests that political equality is satisfied where citizens’ likelihood of securing a fair hearing is not impeded by various factors already established as ‘unfair’. In this we find a better fit with the kind of equality of opportunity demanded by PPE. Securing a fair hearing does not necessarily make it more likely that one’s grievances will be met. And no measurement of the ‘amount’ of access a citizen enjoyed could tell you whether the condition has been satisfied. What matters is: what are the factors that determine one’s chances to secure a fair hearing, and are any of them those which we would normally consider unfair were they to determine one’s chances to secure a fair hearing? Note: I take this position to be broadly in keeping with Kolodny’s discussion of equal opportunities to influence political decisions (and their bearing on social equality) in Kolodny, Niko. "Rule over none II: social equality and the justification of democracy." Philosophy & Public Affairs 42.4 (2014): 287-336. From here, our analysis quickly moves to an account of which factors we would normally consider unfair, were they to determine one’s chances to secure a fair hearing. Here it seems fairly plain that one of the things PPE might be trying to preserve, then, is a formal equality of opportunity in citizens’ ability to secure a fair hearing. Access to a fair hearing should be ‘open to all’ in the same way that we might think public offices and social positions ought to be; that is, absent any legal or quasi-legal barriers around race, or gender, or sexual orientation, or religious affiliation, or hereditary prerogative and so on. The assertion of formal equality of opportunity as a principle of justice has a long and distinguished history. One might find it, for example, in Kant, (see e.g. Kant, I. On the Proverb: That May be True in Theory But is of No Practical Use, where he argues: ‘Every member of the commonwealth must be permitted to attain any degree of status…to which his talent, his industry, and his luck may bring him; and his fellow subjects may not block his way by [appealing to] hereditary prerogatives’. It also finds enthusiastic support in Classical Liberal theorists, most notably Friedman and Smith. See, e.g. Friedman ***CHECK REF***, Smith ***CHECK REF*** However, again drawing on Rawls, we might also read PPE as looking to guard against any further factors it would be unfair, were they to influence one’s probability of securing a fair hearing. See, e.g., Rawls, John. Justice as Fairness: A Restatement. Cambridge, Mass: The Belknap Press of Harvard University Press, 2001. 43-4. That is, to preserve a fair equality of opportunity in citizens’ ability to secure a fair hearing. The thought here, then, is that, insofar as it is interested in citizens’ relative opportunities to influence decisions, PPE is best read as follows: PPE (expanded version): Constitutional processes are wrong – and consequently to be discouraged or avoided – if they accord some citizens a greater likelihood of securing a fair hearing than others on the grounds of factors previously established as ‘unfair’ were they to accord certain citizens a greater likelihood of securing a fair hearing than others. Returning to the argument from political equality, then, we might now see that if one wants to argue that lobbying is morally impermissible on the grounds of PPE (properly understood), one must show that these kinds of mechanisms necessarily lead to some citizens enjoying a greater likelihood of securing a fair hearing than others by virtue of factors already established as unfair. Let us now turn, then, to that stock of factors which, according to proponents of the argument from political equality, tend to affect prospective lobbyists’ chances securing of a fair hearing and which, if their argument is to go through, ought not: namely, natural factors (intelligence, confidence, an ability to articulate their position to others, etc.); social factors (level of education; membership of advantaged socio-economic groups, sexes, genders, ethnicities; pre-existing political connections, etc.); political factors (number of supporters; political attractiveness of the cause, etc.); and economic factors (wealth, disposable income, etc.). To what extent are these factors we would consider it unfair, were they to affect one’s chance of securing these kinds of goods? In many cases, the argument from political equality looks in good standing here. In particular, here is clear precedent for considering the kind of social and economic factors listed above as unfair, were they to affect one’s abilities to secure a fair hearing. Here we need only look to Rawls’s parallel discussion of access to public offices, where he makes a compelling case that determinants like one’s social class of origin and economic wealth are factors which it would be unfair, were they to influence one’s chances of securing such positions. Rawls, John. Justice as Fairness: A Restatement. Cambridge, Mass: The Belknap Press of Harvard University Press, 2001. 43-4. However, there are some factors listed above that may give us pause. For example, one might question whether it is really a concern of political justice if lobbyists find themselves more or less able to secure a fair hearing on the grounds of their number of their supporters. After all, one reason why lobbyists might enjoy widespread support for their cause is because they have a compelling case. Similarly, one might argue that no injustice is done if prospective lobbyists fail to persuade their fellow citizens of the import of their cause. Cohen makes something like this argument when he writes: Differences of influence that trace to such differences in values and choices seem unobjectionable… if a person is more influential because her views are widely shared, or her judgment widely trusted…[then] the differences of influence trace to the distribution of political values and commitments in the population, not to the organization of the structure of collective choice. Cohen, Joshua. “Money, Politics, Political Equality” In Fact and Value: Essays on Ethics and Metaphysics for Judith Jarvis Thomson. Edited by Alex Byrne, Robert C. Stalnaker and Ralph Wedgwood. MIT Press, 2001. 51. I am less sanguine. One worry I have is that it, as detailed in Section 3, it seems part of the justification of a right to lobby that it provides an outlet for those who might otherwise find their grievances ‘lost’ in the rough and tumble of democratic politics. Moreover, it seems to me that it is not always the case that prospective lobbyists fail to secure widespread support because of differences in the electorate’s values and choices. For the moment, then, we might compromise by saying that where someone is able to gain an advantage in their ability to secure a fair hearing simply by virtue of the distribution of political values and commitments in the population, there is no injustice in the advantage they enjoy. Yet where that advantage is not ‘traceable’ to such values and commitments, it may not be. This, then, leaves open the possibility that some lobbyists may find themselves unfairly disadvantaged merely by their dint of their failure to secure sufficient support for their cause, where that lack of support is not reflective simply of their community’s values and choices. In any case, to move this discussion forward, let us grant advocates of the argument from political equality that the factors gestured to above do tend to advantage some citizens over others and that they ought not. In this way, PPE would appear to counsel against constitutional mechanisms like lobbying. It is at this point, though, that we finally get back to premise two. As above, here, if the advocate of the argument from political equality is to prove their case, they need to show that lobbying accords certain advantages to some citizens over others. Of course, it is unlikely that such advocates would advance this as a necessary truth – that, lobbying necessarily accords certain advantages to certain citizens over others. As such, the debate around premise two quickly becomes about the propensity of lobbying to accord certain advantages to some citizens over others – and feasibility of our putting the necessary safeguards in place to prevent this tendency. Here, the advocate of the argument from political equality remains firmly pessimistic. Yet the grounds for such pessimism seem unclear. That is, it seems easy to imagine a range of institutional safeguards we could put in place to mitigate those factors which might otherwise unfairly favour some citizens over others. For example, one way in which we might control for various natural factors like intelligence and articulacy – as well as social factors like levels of education, political factors like numbers of supporters, and economic factors like disposal income – might be to set up a publicly funded lobbying service. Such a service would be tasked with identifying underrepresented causes within the general population, collaborating with affected citizens as to the nature and content of their cause/grievance, and making their case to elected officials. I am far from the first to suggest this. See for example Dahl’s call in 1977 for political scientists ‘to begin a serious and systematic re-examination of the constitutional system much beyond anything done up to now’, including ‘establishing an office of advocacy to represent interests not otherwise adequately represented in or before Congress and the administrative agencies, including future generations’. Dahl, Robert A. ‘On Removing Certain Impediments to Democracy in the United States.’ Political Science Quarterly, 1977, 92(1): 1-20, 17. Such a service does not appear utopian, or unfeasible. At present the Common Cause Education Fund – a charity in the USA – finances, among other things, programmes designed to increase public understanding of the democratic process and promote citizens effective participation in all aspects of the democratic process at the local, state and federal levels. Common Cause Education Fund website. 2019. Available at: https://www.commoncause.org/education-fund/about-us/ To be sure, to secure widespread coverage, such services would need significant investment. However, to put this into perspective, it may be worth remembering that, in seeking to justify the ‘excessive concentrations of property and wealth’ that appear the inevitable result of free-market economy, Rawls advocates the creation of a host of political and legal institutions, not least such services that are able to ensure ‘equal opportunities of education for all, regardless of family income’. See, e.g., Rawls, John. Justice as Fairness: A Restatement. Cambridge, Mass: The Belknap Press of Harvard University Press, 2001. 44. In the fiscal year ending March 2020, the UK spent £91.8 billion on education, just over 4% of GDP. It is hard to imagine a ‘national lobbying service’ would be as expensive. Still, it may be argued that, however much was spent on such services – or indeed, any other political or legal institutions we might posit to mitigate against these factors (equal opportunity of education and so on) – in the vast majority of cases, some unfair inequalities in citizens’ likelihood of securing a fair hearing would still remain. Here it is also important to remember that, as Cohen emphasises what we are aiming for is a situation of equality between citizens (or, as I might put it, fair equality of opportunity between citizens) – it is not enough to ensure a certain threshold level of opportunity - a principle of sufficiency or adequacy of opportunity. Cohen, Joshua. “Money, Politics, Political Equality” In Fact and Value: Essays on Ethics and Metaphysics for Judith Jarvis Thomson. Edited by Alex Byrne, Robert C. Stalnaker and Ralph Wedgwood. MIT Press, 2001. 53. Part of Cohen’s reasoning here is that, unlike parallel cases in resource inequality (which are justified precisely on the basis that they take place against a background of moral equality), in the case of one’s political influence, ‘if inequalities of opportunity extend to the political system itself, as the authoritative system for making collective decisions, then the public basis of mutual respect is less secure.’ What, then, to do about this ‘rump’ of unfair inequality? Assuming it is ineliminable given normal feasibility constraints, should we conclude that lobbying is thereby morally impermissible? Again, I think not. Rather, to make another Rawlsian move, it still looks possible to justify such remaining unfairness on the grounds that it benefits the worst off. See here Rawls’s famous defence of the unfair advantages we enjoy by virtue of our natural endowments, on the grounds they benefit the worse off (Rawls, John. A Theory of Justice: Revised Edition. Oxford: Oxford University Press, 1999. 87). For Rawls, of course, this move is defended on the grounds of the difference principle. However, for those who worry that this draws us away from the original impetus behind principles of political equality, it is worth noting that there are those who claim that the proper motivation for such principles is to be found precisely in these kinds of contractualist arguments. For example, on Beitz’s ‘complex pluralism’, political equality amounts to the claim that: ‘Institutions for participation should be justifiable to each citizen, taking into account the interests that arise from both aspects of citizenship. We should be able to regard the terms of participation as the object of an agreement that it would be reasonable to expect every citizen to accept. Institutions that satisfy this condition can be said to be egalitarian in the deepest sense: being equally justifiable to each of their members, they recognize each person’s status as an equal citizen.’ (Beitz, Charles. Political Equality: An Essay in Democractic Theory. Princeton University Press: 1989, 99). The thought here then, is that, having catered as far as we can for any factor that might give citizens an ‘unfair chance’ of securing a fair hearing over others (‘national lobbying services’ and the rest), we can still justify any lingering unfairness created by constitutional mechanisms like lobbying precisely on the grounds that those who are left worst off, benefit from their creation compared with worlds in which no such mechanisms existed. How might such an argument go? The principle thought here is that even those disadvantaged by lobbying benefit from such mechanisms insofar as they ensure that government and public policy generally is more responsive to grievances felt within the electorate. Even if I am left disadvantaged by the difficulties I face in securing a fair hearing (those that have nothing to do with the strength of my arguments, or the values and opinions of fellow citizens), it still benefits me to live in a polity where it is possible for at least some citizens to secure a fair hearing, that their voices are not lost. As established in Section 3, I have an interest in matters of public policy, a set of interests that are sufficient to engender duties on the state to grant me a ‘fair hearing’ in those cases where I have a legitimate grievance. However, it is precisely in virtue of these interests that I also have an interest in ensuring that you are granted a ‘fair hearing’ in those cases where you have a legitimate grievance. I do better in those polities where legitimate grievances receive a proper airing – irrespective of who is making them. It is important to note that this argument is put forward against the background of a well-functioning representative democracy. Weale raises the important point that there might be cases where decision-making is so poor, and the threat to my interests of you having your (bad and wrong) way sufficiently great, that ‘all would be better off if none participated’ – or rather, no such participation was allowed. Weale, Albert. Democracy. 2nd edition. Palgrave:Macmillan, 2007. 128. However, I take it that in a well-functioning democracy, where there are sufficient safeguards to ensure that decisions are (generally) made on reasonable grounds, I benefit from your ability to secure a fair hearing. One further point that is brought out by this discussion, which helps puts it into some kind of context, is that we should not lose sight of the fact that, where we worry about bad political decisions being made as a result of the fact others are able to enjoy greater influence over public policy than we are, often our concern is not necessarily in the inequality of the process by which the decision was made but the decision itself. As Scanlon emphasises, in such cases, ‘the primary basis’ of our criticism ‘is the responsiveness of legislators to the relevant reasons’, not ‘the ability of voters to influence them’ Scanlon, T. M., Why Does Inequality Matter? Another possible concern we might have about this system is given by Cohen. As he puts it, one might attempt to defend inequalities of political opportunity on the grounds they are to the benefit of all. But when citizens ‘lack assured equal standing’ – as they would under the proposed system – that explanation may ‘provoke suspicion’, leading to an undermining of what he terms ‘the public basis of mutual respect’. Cohen, Joshua. “Money, Politics, Political Equality” In Fact and Value: Essays on Ethics and Metaphysics for Judith Jarvis Thomson. Edited by Alex Byrne, Robert C. Stalnaker and Ralph Wedgwood. MIT Press, 2001. 53. I am not convinced. That is, it seems to me that, in the kind of world we are envisaging – one of universal suffrage, representational democracy, equal opportunities of education, and public investment in independent ‘national lobbying services’ – citizens could be pretty assured of their equal standing, and the recognition of such by the state. No ‘suspicion’ need be provoked. Indeed, it is precisely in virtue of the state’s recognition of their equal standing that arguments as to how these arrangements benefit the worst off would need to be given, otherwise there would be no case to answer. To sum: once PPE is properly read – in this context at least – as attempting to preserve a fair equality of opportunity in citizens’ ability to secure a fair hearing, the argument against lobbying from political equality is rendered unsound on two counts. First, it is not always true that allowing citizens to secure changes to public policy through lobbying accords greater procedural opportunities to influence decisions to some citizens than others (premise 2). Rather, there are institutional safeguards we can put in place in certain cases to mitigate such advantages. Second, it is not always true that if a constitutional process accords greater procedural opportunities to influence decisions to some citizens than others they are morally impermissible (premise 1). Rather some inequalities in procedural opportunities may be permissible provided: i) any institutional safeguards it is feasible to put in place to mitigate against unfair inequalities citizens may experience in their likelihood of securing a fair hearing have been put in place; and ii), any remaining unfair inequalities work to the benefit of the worse off. Plausibly, lobbying can satisfy i) and ii). Therefore allowing citizens to lobby is not morally impermissible. The argument from democracy Next, I want to consider another argument writers have offered against lobbying: namely, that it is antidemocratic and morally dubious for that reason. Again, the objection here can be stated simply enough. As above, one way we might define lobbying is an activity by which citizens, who are not public officials, attempts to create, support or resist legislation, regulation, or other policy by actively engaging with public officials. Cf. Gee, Quentin. "Corporations, Rights, and Lobbying." Ethical Theory and Moral Practice 19,2 (2016): 397-408. However, if we operate on the assumption – as we have been throughout this analysis – that such activities take place against the backdrop of a representative democracy, we might worry about whether this is a legitimate means by which legislation, regulation, or other policy can be created, supported or resisted. Two principles might give rise to such doubts. First, we might hold: Preservation of Democratically-instituted Policy (PDP): outcomes or decisions that derive from democratic procedures are amended permissibly if and only if such amendments are made via a legitimate process. We might then also hold: Exclusion of Undemocratic Processes (EUP): no processes for amending outcomes or decisions that derive from democratic procedures are legitimate except those that are themselves democratic. Together, PDP and EUP establish democracy as a closed shop. Decisions made democratically are not permissibly overturned except through processes that are themselves democratic. It is here that we run into a tension with lobbying. For there seems good reason to think that when public officials make changes to legislation, regulation, or other policy as a result of having been lobbied to do so, outcomes or decisions that derive from democratic procedures are being amended through processes that are not themselves democratic. This is because to be democratic, a decision-making process needs to be collective. On one plausible definition: democracy just is a particular form of group decision-making, characterised by a kind of equality among the participants at an essential stage of the decision making process. Christiano, Tom, "Democracy", The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2018/entries/democracy/>. Yet, the thought here is that in these kinds of situations - where public officials amend democratically-made public policy as the result of having been lobbied to do so – no group is making a decision; or certainly not the relevant group. Rather, some set of public officials are making a decision, having been persuaded by a small number of motivated citizens to do so. For this reason, as Gee points out, we can easily run into situations where it looks like the interests of a small number of people are taken to outweigh the interests of a larger number of people who might disagree. Gee, Quentin. "Corporations, Rights, and Lobbying." Ethical Theory and Moral Practice 19,2 (2016): 397-408. De Tocqueville suggests that this is the natural state of lobbying organisations: ‘the associations know, and everybody knows, that they do not present the majority. This results from the very fact of their existence; for if they represented the majority, they would change the law themselves, instead of asking for its reform’. (de Tocqueville, Alexis. Democracy in America. Vol 1. Edited by Eduardo Nolla. Translated by James T. Schliefer. Indianpolis: Liberty Fund, 2010. 311). I am less convinced. As intimated in Section Three, there may be a variety of reasons why lobbyists may find themselves ‘outside’ government, not all of which may relate to the popularity of their cause. Here the affront to democracy is clearest. Yet, even where there is no such conflict – that is, even if the majority would agree with a decision made in response to the interests of a small number of people – the decision would still not be a democratic one, for the majority have not been involved in the decision itself. And if PDP and EUP are right, then such processes of amending democratically-made decisions look impermissible. Legitimizing lobbied-for decisions How best to respond to the argument from democracy? One interesting response, perhaps, might be to question whether the kind of public policy the argument from democracy assumes is under threat from lobbying is really democratically-made. What about those cases, for example, where the policy has only been instituted thanks to a campaign in which legislators gave out mixed-messages as to their ultimate intent? For an analysis of how these kinds of situations may affect a party’s policy mandate to institute said policies, see, for example, Goodin, Robert E. Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn. Oxford: Oxford University Press. 224-233. Another response, might be to contest the charge that those processes by which public officials make changes as the result of having been lobbying to do so are undemocratic. (In a representative democracy, for example, it might be argued that even when public officials make changes as the result of having been lobbying to do so, there has been a kind of equality among the participants at an essential stage of the decision making process: namely, at the point where the representative was elected). Both of these counters may have legs. However, here I want instead to contest a different point: namely, the thought that, simply by virtue of the fact changes brought about via lobbying are undemocratic, they are necessarily impermissible. Here it is worth remembering, perhaps, that the description of a process as democratic or undemocratic can be employed in a purely descriptive manner. As Christiano explains, it is quite compatible with the definition of democracy outlined above that, in some contexts, democratic decision-making may not be desirable. The mere description of a decision-making process as democratic need not carry any normative content. Christiano, Tom, "Democracy", The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2018/entries/democracy/>. Of course, what gets us to the normative content in the argument from democracy – that lobbying is impermissible qua undemocratic – is EUP, and it is this which I wish to contest. As above, EUP claims that no processes for amending outcomes or decisions that derive from democratic procedures are legitimate except those that are themselves democratic. Coupled with PDP, this effectively rules out as impermissible any process for amending democratically-made decisions except those that are themselves democratic. However, there seems good reason to think EUP is false. First, EUP looks false on a surface reading. In most developed democracies operating a separation of powers, the judicial invalidation of a democratically-made law, say on the grounds it violated a minority’s rights, or was otherwise unconstitutional, looks legitimate even if the process by which the decision was made was not democratic. Admittedly this claim is contentious. For those that argue that judicial review is illegitimate because undemocratic see, e.g., Waldron, Jeremy. The Core of the Case Against Judicial Review. Yale Law Journal, 2006, 115(6), 1346 (See also, Waldron, Jeremy. ‘Rights and Majorities: Rousseau Revisited’ in Liberal Rights: Collected Papers 1981-1991, Cambridge University Press, 1993, ch. 16 and Law and Disagreement, Oxford University Press, 1999. For those that argue that judicial review is not undemocratic therefore not illegitimate see, e.g., Brettschneider, Corey. Democratic Rights and the Substance of Self-Government, Princeton University Press, 2007; and, alternatively Lever, Annabelle. Democracy and judicial review: are they really incompatible? Perspectives on Politics, 2009, 7 (4). pp. 805-822. The position here is different again: namely that judicial review would be legitimate, even if undemocratic. As Madison puts it, one of the purposes of separating powers in this way being precisely that offices are arranged ‘in such a manner as that each may be a check on the other’. Madison, James. The Federalist Papers No. 51. Available at: https://avalon.law.yale.edu/18th_century/fed51.asp - Last accessed 02/03/18. If we are to suppose, then, that there are legitimate processes by which democratically-made decisions may be amended which are not themselves democratic, the question is whether emendation-through-lobbying is one of them. And I want to argue that it is. My argument here rests on a certain conception of the function and standing of democratically-elected representatives. Specifically, that, by their election, representatives are invested not only with what Guerrero calls the ‘normative mandate’ to carry out their manifestos Guerrero, Alexander A. The paradox of voting and the ethics of political representation. Philosophy and Public Affairs 2010, 38 (3):272-306. but also to use their judgement in responding to the changing facts on the ground, and their changing understanding of what follows from those facts. This sounds as though it might be leaning towards a Burkean trustee model of representation rather than a Madisonian delegate model. However, the appearance is misleading. That is, I take it that even if one thinks representatives should only follow the expressed preferences of their constituents (a delegate account of political representation), representatives are still accorded the authority to judge when the expressed preferences of their constituents has changed and when policy needs to be amended accordingly. Thus it is still true, even on that conception, that representatives are invested not only with moral authority to carry out their manifestos but also to use their judgement in responding to the changing facts on the ground, and their changing understanding of what follows from those facts, including by amending democratically-made legislation, regulation or other policy. For differences between these conceptions, see, e.g., Pitkin, Hanna Fenichel, 1967. The Concept of Representation, Berkeley: University of California, 145-62, 191-2. And that among those responses representatives are given the mandate to enact are changes to democratically-made public policy. To a certain extent, I see this as conception as simply part and parcel of what it means for a system to be one of representative, as opposed to direct democracy; which is to say, that representatives are given the moral authority to make decisions on matters of public policy without prior approval from the electorate which put them into their position. If this reading of the function of a representative is right, however, then it seems entirely legitimate for a representative (or their proxy) to amend democratically-made public policy on the grounds that their understanding of the facts has been changed as the result of engagements with a particularly persuasive lobbyist. As above, this is simply an exercise of their judgement, something which the democratic system has given them the moral authority to employ. Of course, there may be certain cases in which a representative feels bound to pursue a fresh mandate for a lobbied-for action before acting. Say, for example, upon hearing a lobbyist’s arguments, a representative is minded to act against their own manifesto. Such an act might be claimed to violating what Guerrero refers to as ‘norms of fidelity’ – namely, that the representative will do what they said they would do. It is not clear, however, that acting against a manifesto should always necessitate a fresh mandate, nor that it would always be morally impermissible to act without having secured one. As Guerrero writes, norms of fidelity may rub-up against other norms, not least norms of deference (doing as their constituents would presently prefer) and norms of guardianship (doing as would be best for their constituents) – both of which look pertinent in cases where representatives are minded to change their policies on the grounds of successful lobbying. Guerrero, Alexander A. The paradox of voting and the ethics of political representation. Philosophy and Public Affairs 2010, 38 (3):272-306. For more on how representatives might come to act on the views of their constituents, see, e.g. Weale’s discussion of the use of deliberative polling. (Weale, Albert. Democracy. 2nd edition. Palgrave:Macmillan, 2007. 121-5.) The argument for lobbying from representative democracy, then, runs something like this: If amendments to outcomes or decisions that derive from democratic procedures are made via a legitimate process, they are permissible. (this is PDP) Revision by democratically-elected representatives (or their proxies), on the basis of their judgement of the facts, or their understanding of what follows from those facts, constitute one legitimate process by which amendments to outcomes or decisions that derive from democratic procedures are made. To be clear: the thought that democratically-elected representatives are permitted to make decisions on the ‘on the basis of their judgement of the facts, or their understanding of what follows from those facts,’ is not supposed to rule out appeal to matters of right or wrong, or value. That is, I take it that one of the things that might either constitute ‘the facts’, or follow from ‘the facts’, is precisely matters of morality. Hence I also take it that democratically-elected representatives are permitted to make decisions based on their understanding of morality, and to amend decisions based on their understanding of the right and the good. Therefore Revision by democratically-elected representatives (or their proxies), on the basis of their judgement of the facts, or their understanding of what follows from those facts, are permissible. Now it is true that investing representatives with such power carries a great deal of risk, not least that they exercise their judgement poorly, or be persuaded by bad arguments – that they may be captured by what Mill refers to as ‘sinister interests’. Mill, J.S. Considerations on Representative Government. In On Liberty and Other Essays. Oxford: Oxford University Press, 1998, 292. However, the mere possibility that representatives can sometimes make poor decisions does not suffice to show that it would be illegitimate for them to amend policy on the basis of their judgement. Only that not all decisions they make are guaranteed to be just. Thus the question becomes: how best can we design representative democracies in such a way to guard against the risks of poor decision-making – including capture by ‘sinister’, as opposed to ‘publicly-spirited’, interests? Evidently this is not the place to answer that question. For some recent work on this debate see, e.g., Amy, Douglas, 1996. Real Choices/New Voices: The Case for Proportional Elections in the United States, New York: Columbia University Press; Barber, Kathleen, 2001. A Right to Representation: Proportional Election Systems for the 21st Century, Columbia: Ohio University Press.; Christiano, Thomas, 1996. The Rule of the Many, Boulder: Westview Press; Guinier, Lani, 1994. The Tyranny of the Majority: Fundamental Fairness in Representative Democracy, New York: Free Press. However, there seems good reason to think that among such protections would be precisely the kind of requirements around disclosure and transparency that has become characteristic of lobbying regulation in various polities, as described in Section One. Indeed, taking a somewhat Madisonian line, Mill himself suggests that the one corrective to capture by sinister interests may be more lobbying. As he claims: The reason why, in any tolerable constituted society, justice and the general interest mostly in the end carry their point, is that the separate and selfish interests of mankind are almost always divided; some are interested in what is wrong, but some, also, have their private interest on the side of what is right; and those who are governed by higher considerations, though too few and weak to prevail alone, usually, after sufficient discussion and agitation, become strong enough to turn the balance in favour of the body of private interests which is on the same side with them. The representative system ought to be so constituted as to maintain this state of things…’ Mill, J.S. Considerations on Representative Government. In On Liberty and Other Essays. Oxford: Oxford University Press, 1998, 301. I take it then, that decisions-via-lobbying can be a legitimate process by which outcomes or decisions that derive from democratic procedures can be amended, and in this way, even if undemocratic, decisions-via-lobbying need not violate PDP. Moreover, far from being public policy ‘through the back door’, the thought is that, where institutional safeguards are in place, lobbying ought to be public policy through the front door: which is to say, an open and transparent mechanism by which citizens can persuade elected representatives that something in the current state of public policy is amiss, and requires revision. Before concluding, there is a brief counter to this argument that I would like to discuss. That is, it might be argued that even if this argument shows lobbying need not violate PDP, there is something uncomfortable, or at least non-ideal about amending democratically-made public policy through lobbying. A parallel point emerges in a debate between Christiano and Brettschneider about those cases where the courts act against a democratically-made decision. Brettschneider worries that one implication of Christiano’s position is that, against our normal intuitions, ‘nothing is lost’ in those cases where a court protects the rights of persons after a democratic decision-making body has undercut its own authority through some of its decisions. On the contrary, Christiano replies, on his account, he can still justify the intuition that something is lost. As he explains: it would have been better if the decision had been made by the democratic assembly, rather than the court, since there is intrinsic if only conditional justice in democratic decision-making. Hence something is lost when a court must block the decision of a democratic legislature. Christiano, Thomas. Reply to Critics of The Constitution of Equality. Journal of Ethics and Social Philosophy. 2011. By a similar token, though, we might worry that ‘something is lost’ whenever democratically-made public policy is amended through lobbying. Namely, that, like the court blocking the decision of a democratic legislature, such decisions fails to have the intrinsic justice of democratic decision-making. In response, however, I want to take Christiano’s line: that even if such decision-making is non-ideal, in that it fails to have the intrinsic justice of democratic decision-making, it is not necessarily illegitimate or impermissible. Moreover, it is perhaps worth stressing, that lobbying is, in one way, a by-product of non-ideal situations. As emphasised in Section Three, we need mechanisms like lobbying in part precisely because normal democratic mechanisms like elections are simply too infrequent and too blunt to provide citizens with an effective means of redress on matters of public policy. Hence, that such mechanisms are non-ideal may be inescapable. But, then again, so is their necessity – at least, in the world as it is. Conclusion When we hear the word ‘lobbying’, our imagination may quickly go to the popular stereotype of white, middle-aged men in dark suits, holding clandestine meetings with public officials on behalf of Big Business. We might, for example, have something like the following case in mind: Bear Ears 1: On December 4th, 2017, President Trump modifies the designations of Bears Ears and Grand Staircase-Escalante National Monuments in Utah. Bears Ears is cut from nearly 1.5m acres to 228,784 acres. Grand Staircase-Escalante is halved from around 2m acres to 1,006,341 acres. The move is widely reported as a success for fossil fuel industries and ranchers. Since 2013, energy firms had repeatedly lobbied to lease more than 100,000 acres for oil and gas drilling either near or within what is now Bears Ears’ boundaries. To a degree, these kinds of stereotypes around lobbying are warranted. In Washington D.C., business groups and individual corporations still comprise the majority of lobbyists. Holly Brasher, Vital Statistics on Interest Groups and Lobbying (CQ Press, 2014). However, a substantial proportion of lobbying now is done by private individuals and public interest groups, rather than corporations. Thus, consider, in comparison: Bear Ears 2: In December 28th, 2016: President Obama designates Bear Ears in Utah a national monument, protecting 1.35m acres of land. The move is largely reported as a success for Native American tribes and conservationist groups, who have repeatedly lobbied for greater protection – the most recent effort being in October 2015, when representatives from the Hopi, Navajo, Ute Mountain, Pueblo of Zuni, and Ute Indian Tribes submitted a proposal to President Obama, seeking the designation of 1,900,000 acres (770,000 ha) as a national monument, one which would include Cedar Mesa, Indian Creek, White Canyon, Abajo Mountains, Comb Ridge, Valley of the Gods, and the confluence of the San Juan and Colorado Rivers. Both of these cases, to my mind, constitute cases of lobbying. And while it is true that citizen lobbying doesn’t raise the same ethical concerns as corporate lobbying, it still poses a set of philosophical puzzles – indeed some that are perhaps harder to navigate than those relating to corporate lobbying. Why think, for example, that the representatives from the Hopi, Navajo, Ute Mountain, Pueblo of Zuni, and Ute Indian Tribes had a right not just to express their desire for the designation of Bear Ears as a national monument but to lobby President Obama for that designation? What constitutes our right to lobbying? And what duties does such a right impose on political decision-makers and their proxies? To what extent does allowing citizens to lobby pose a threat to political equality? In this case, the representatives from the Hopi, Navajo, Ute Mountain, Pueblo of Zuni, and Ute Indian Tribes were able to secure a fair hearing from President Obama, but what of other interested citizens less able to gain the same access? And even putting aside these concerns, might we worry that there is something undemocratic about President Obama making decisions in this way? In this essay, I have tried to make progress on a number of these issues. Drawing on the work of various contractualist thinkers, most notably Rawls, I have argued that citizens have a right to lobby and that this right is best understood as a complex right-molecule, made up of both a privilege to engage in lobbying activities, and a claim on decision-makers that prospective lobbyists are granted a fair hearing. I have also argued that neither political egalitarians nor democrats necessarily have anything to fear from lobbying. First, when conceived as attempting to preserve a fair equality of opportunity in citizens’ ability to secure a fair hearing, there need not be any necessary clash between principles of political equality and lobbying. Rather, any inequalities in the procedural opportunities generated by lobbying may be permitted provided i) sufficient institutional safeguards have been put in place to mitigate against any factor which would give certain citizens an unfair advantage in their likelihood of securing a fair hearing it is capable of mitigating ii), any remaining unfair inequalities work to the benefit of the worse off. Second, that even if policy-change-through-lobbying is does not fulfil the necessary conditions of a democratic decision-making process, it is still a legitimate means by which democratically-made policy may be amended. I hope these conclusions have philosophical value. But I also hope they have some practical import too. One of the findings of the preceding analysis, for example, is that if we are to make the world safe for lobbying, we need to put various institutional safeguards in place: for example, we might look to the institution of a number of state-funded, independent organisations, tasked with seeking out currently under-represented groups, or those who are otherwise struggling to have their voices heard, and advocating on their behalf. Second, the analysis also provides a new defence of existing regulations around lobbying, as well as potentially calling for further potential laws, including, perhaps, provisions on lobbying-specific ‘fair hearing’ events and rules on admissible evidence. Inevitably, certain questions remain. For example, one lacuna in this essay is the question of what, precisely, constitutes a fair hearing. Similarly, there are open questions here about how best we might design representative democracies such that they can counter the threat of poor decision-making by ‘sinister’, as opposed to ‘publicly-spirited’, lobbyists. And thus far we have said next to nothing about what duties the lobbyist is under in how they conduct themselves whilst lobbying. However, by pushing back on those views that suggest lobbying can be dismissed out of hand, this analysis does at least provide fresh impetus into these questions, opening up the question of what we need to do if we are to secure fair equality of opportunity in the right to petition. Acknowledgements: My thanks to Han van Wietmarschen for written comments on this piece, as well as to Albert Weale and James Wilson for innumerable discussions, pieces of advice and words of encouragement during its writing. 31