The Right to Petition as Access and Information

Our lobbying industry is widely criticized as a pay-for-play system that prioritizes powerful interests at the expense of the common good. Legislative efforts at lobbying reform, however, raise fundamental questions under the First Amendment, particularly where lobbying regulations operate to restrict lobbying activity directly. Recent scholarship into the First Amendment Petition Clause, however, offers new insights into what the First Amendment means for lobbying and public engagement with lawmakers more generally. As the history of petitioning in England, the American colonies, and Congress illustrates, the right to petition protected more than simply a form of political speech but rather a quasi-procedural right to equal participation in the lawmaking process. This Comment adds to this growing literature by considering the history of petitioning from an institutional perspective and how the Petition Clause may serve as a guide for structing the lawmaking process. The history of petitioning reveals two important interests that are central to petitioning’s historical function: the allocation of government access between competing interests and the provision of information to lawmakers. This Comment traces these interests and describes how they drove the development of formal petitioning and how they have consistently informed the Supreme Court’s Petition Clause jurisprudence. Moving forward, a renewed focus on access and information can help inform institutional efforts to reform our lobbying system, as well as doctrinal developments that recognize the government’s interest in building a more open, equitable, and informed system of engagement with the public.