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GOVT 2301 The Freedom to Peacefully Assemble and to Petition Government for a Redress of Grievances and Interests Groups This section covers the last participatory freedoms established in the First Amendment and the key consequences of those freedoms Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Simply put, these refer to the right of people to form groups and to use those groups as means of taking complaints to government There two aspects to these freedoms: 1 – The right to peaceably assemble, and . . . 2 – . . . to petition government for a redress of grievances. Blog Posts: - Agency Capture - Campaign Finance - Interest Groups - Iron Triangles - Lobbying - Money in Politics Some argue these are two sides of the same right. The ability to successfully petition rests on the ability to assemble effectively. The ability of a population to assemble is essential if they are to develop the strength to force limits on governmental power. Once people were allowed to freely congregate and exchange ideas, societies were able to further develop, evolve and improve. But both rights have led to the development of political institutions some find distasteful The consequences of these freedoms are the existence of interest groups (and any organization in general to be truthful) and the ability to lobby, or otherwise attempt to influence governmental officials, in each of the three branches. What is an Interest Group? “any association of individuals or organizations, usually formally organized, that, on the basis of one or more shared concerns, attempts to influence public policy in its favor.” - Britannica What is Lobbying? “The act of attempting to influence business and government leaders to create legislation or conduct an activity that will help a particular organization. People who do lobbying are called lobbyists” – The Business Dictionary. These may be the most important freedoms listed in the First Amendment. They make the other freedoms effective. History suggests that freedom is obtained only when groups organize to petition, and if necessary fight, for it. Think of the assembly of noblemen who forced King John to sign the Magna Carta, the members of Parliament who presented Charles I with the Petition of Right, and the colonists who presented similar petitions to George III. An authoritarian regime with any competence will make it illegal for groups of people to meet or congregate. This makes coordinated activity difficult. The denial of the right to assemble is critical if one is to be a successful despot. For Example: Burma. They will also make it not illegal, but effectively impossible for citizens to petition for a redress of grievances. One measure of oppression is the degree to which a government denies or punishes assembly and petition The Right to Petition in China. For a literary example: The Castle, Franz Kafka The protagonist wanted to meet the bureaucrats necessary to address a problem, but never learned who he could take his petition to. But free societies must allow the population to assemble, and for them to create groups – or what Madison called factions in Federalist #10. Recall that Madison argued that groups would inevitably form in a free society. Every issue, presumably, would lead to the formation of a group dedicated to promoting the interests of that group. This leads to unruly, unstable politics (think of the shifting alliances of independents) but Madison argued that this was preferable to the loss of freedom necessary to eliminate factions. Pre Constitutional History The Rights to Assembly and Petition are among the oldest of the rights established in Anglo- American governing history. It may be that the most important legacy of the Magna Carta was the Security Clause which permitted a handful of the nobility to assemble and oversee the actions of the executive. This right was implicitly granted when King John signed the Magna Carta, contained in the security clause (Section 61 – an assembly of barons could petition the king if Magna Carta was not being upheld) but did not become a legal part of the British system of government until the English Bill of Rights. This recognized the right to assembly, and implicitly the right for that assembly to petition the king. From FindLaw: The right of petition took its rise from the modest provision made for it in chapter 61 of Magna Carta (1215). 207 To this meagre beginning are traceable, in some measure, Parliament itself and its procedures in the enactment of legislation, . . . and proceedings against the Crown by ''petition of right'‘ . . . . . . Thus, while the King summoned Parliament for the purpose of supply, the latter--but especially the House of Commons--petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as it increased in importance it came to claim the right to dictate the form of the King's reply, until, in 1414, Commons declared itself to be ''as well assenters as petitioners'‘ . . . . . . Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed ''the inherent right to prepare and present petitions'' to it ''in case of grievance,'' and of Commons ''to receive the same'' and to judge whether they were ''fit'' to be received. The rights to assemble and petition were not fully established for the general population in Britain until the English Bill of Rights established a constitutional order which began the slow process of checking governmental power. A critical example of a petition: The Petition of Right – 1628 The document was intended to remind Charles the First of the ancient rights and liberties possessed by Parliament. Charles I’s rejection of the Petition of Right of 1628 increased the conflict he had with the British Parliament. Ultimately, as we know, he would be executed by Parliament. The Right to Petition the King would be included in the British Bill of Rights. Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and ''all commitments and prosecutions for such petitioning to be illegal.'‘ - The English Bill of Rights and Its Influence on the United States Constitution The right to assemble was having consequences in Britain. The English Coffeehouse Movement People were more free to meet and discuss radical political, cultural and scientific ideas. Early political parties were also being established. Meanwhile in the Colonies: While the British Civil Wars waged, colonial assemblies not only grew in strength, but the North American colonists grew to assume that such assemblies were the most legitimate governing system In 1641, the Massachusetts Body of Liberties became the first royal charter to protect this right expressly, recognizing that "[e]very man whether Inhabitant or fforeigner, free or not free shall have libertie to come to any publique Court, Councel or town meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information.“ – First Amendment Center. 1765: Blackstone's Commentaries are published and read in the colonies. Blackstone argues that the right to petition belonged to every person. As conflict developed between the colonists and the British, assemblies would begin to meet and send petitions to both the King and Parliament containing grievances. As we know, King George’s attempts to reign in the colonial assemblies was a key factor in the decision to declare independence. But assemblies were necessary in order for individuals to recognize their shared grievances and determine how to act on them. Beginning in the 1760’s Committees of Correspondence began to meet to coordinate the actions of the 13 colonies in response to the actions of the British government. Sons of Liberty: The group that brought you the Boston Tea Party. Here are some notable petitions by early assemblies. 1765 The Stamp Act Congress produced the Declaration of Rights and Grievances. 1774 The First Continental Congress produced the Petition to the King. 1775 The Second Continental Congress produced the Olive Branch Petition. Approved by the Continental Congress on July 5, 1775 To the King's Most Excellent Majesty. Most Gracious Sovereign, We your Majesty's faithful subjects of the colonies of . . . in behalf of ourselves and the inhabitants of these colonies, who have deputed us to represent them in general Congress, entreat your Majesty’s gracious attention to this our humble petition. The petition was rejected. 1776 As a result the Declaration of Independence was written and signed. Note: The Declaration of Independence was not a petition. It is not even addressed to the British king. It does mention that previous petitions had been ignored. "In every state of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people." As a result, the right to petition and peacefully assemble would be embedded in the First Amendment, as well as the Texas Constitution. The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Texas Bill of Rights has similar language Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. Constitutional History The Right to Petition Read: The Right to Petition Government for a Redress of Grievances For additional background read - First Amendment Center: Overview of Right to Petition. - FindLaw: Rights of Assembly and Petition. - Answers.com. A brief list of relevant petition cases. “The right of petition means that individuals, acting alone or as part of a group, can freely send written criticisms or complaints to government officials. The right of petition also provides freedom to circulate documents for people to sign in order to demonstrate mass support for complaints against the government.” – answers.com “Petition is the right to ask government at any level to right a wrong or correct a problem.” –The First Amendment Center “. . . letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause. . .” - First Amendment Center. Perhaps the best known example of petitioning is lobbying, the act of taking an issue directly to an elected official, most often a legislator. Petitioning means more than just lobbying. Any popular activity designed to bring an issue to the attention of elected officials can be considered to be a petition. The right to each has been, and continues to be, challenged over American history as well. collective bargaining class action law suits Regarding the Right to Sue. This is a principle way that a minority can successfully petition in a majoritarian democracy. The Supreme Court has recently limited the ability of citizens to take cases to the courts by making it more difficult to demonstrate that they have standing to due. SLAPP Lawsuits. Strategic Lawsuits Against Public Participation. Such suits are sometimes filed against citizens for speaking out about a range of public matters before city councils, county commissions, school boards and other agencies. The right to petition, as mentioned above, allows for people to lobby their representatives and appeal to other government officials. Which leads to controversy: What if certain groups, due to wealth or connections, have greater ability to petition successfully than others? Can limits be placed on the activities of some in order to ensure equal access? Can the right to petition, and the unequal ability of people to petition successfully, violate the principle of equal protection? A key consequence of the right to petition is the development of a class of individuals who do so professionally. We call them lobbyists. What is Lobbying? “The act of attempting to influence business and government leaders to create legislation or conduct an activity that will help a particular organization. People who do lobbying are called lobbyists” – The Business Dictionary. “Lobbying is the leading edge of the right to petition” –TCCTA Lobbyist Beamon Floyd. For some background: How the Fifty States Define Lobbying. - From the National Conference of State Legislatures And for more detail: Wikipedia: Lobbying in the United States. Wapedia: Lobbying in the United States. Example of Lobbyists Patton Boggs Note the ex-senator (Trent Lott) and ex-representative (John Breaux) on the front row. Read Patton-Boggs’ statement that lobbying is an honorable profession. An irony: Though the right to assemble and petition are hard fought, and central to the development of free societies, special interests, lobbying, and the use of lawsuits are held in low esteem. Why? (talk amongst yourselves) The Right to Peaceful Assembly More on: The Right to Peaceable Assembly For background read through the following link to the First Amendment Center. See especially the overview. Notice that the right to assemble is qualified. A balance between expression and public order is implicit in the terminology. But this raises two important questions. 1 - What is a peaceful assembly? 2 – Who get to decide if a particular assembly is in fact peaceful More controversially, it is also taken to imply a right to protest, or engage in civil disobedience. Cases from ACLU website. Is there a reason why a group may not be able to form, or why the right to assemble or petition might be limited? As with all other first amendment freedoms, the right to assemble is limited. How does the Supreme Court define “peaceable?” What “greater interests” have been used to limit the right to assemble? The barons who forced King John to sign Magna Carta were not necessarily peaceful. But their threats led to the limitation of monarchic power. Neither were the colonists who met following the passage of the Stamp Act and later to decide to split from Britain. But their actions led to American independence. In each case, the existing regime was threatened by these assemblies and wished to suppress them. The lesson is that governments have an interest in limiting assemblies since they often are interested in limiting governmental power. There is inevitable tension between the desire to assemble, and the desire of government – or those in power – to preserve the status quo. The right to assemble has allowed outsider groups the ability to bring attention to their concerns. Sometimes these groups can very unpopular and the majority may seek to limit their right to expression. Abolition Labor Unions Marches on Washington Women’s Suffrage Civil Rights Hague v. CIO the Court . . . struck down an ordinance which vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. – findlaw. DeJonge v. Oregon a 1937 case that reversed a conviction under Oregon’s criminal syndicalism statute because it was based on mere attendance at an orderly meeting of the Communist Party. Aren’t there some groups we can just shut up because we hate what they say? But how can their assemblies be disrupted without violating the right to assembly? National Socialist Party of America v. Village of Skokie Could members of the American Nazi Party march in an area populated with many Holocaust survivors? Yes. The Westboro Baptist Church Can people protest the funerals of soldiers as a way of showing opposition to gay rights policies? Snyder v. Phelps While their message was controversial, members of the church stayed within the boundaries of the area designated to them to communicate their message. The right to assemble has also been taken to imply a related right to associate with whomever one chooses. Answers.Com: Freedom of Association Findlaw: Right of Association “. . . emphasis on a conceptual in addition to a corporeal right to meet and discuss ideas led to the recognition of a right of association.” The First Amendment Center Controversies The court ruled that the freedom of association allowed the BSA to expel a homosexual assistant scoutmaster. A controversy regarding the right of assembly: Boy Scouts of America v. Dale A consequence of the right to assemble is the development of organizations that focus on specific policy issues and develop mechanisms for obtaining them. Interest Groups What is an Interest Group? “any association of individuals or organizations, usually formally organized, that, on the basis of one or more shared concerns, attempts to influence public policy in its favor.” - Britannica Sometimes these are negatively referred to as “special interest” groups. But we are all special interests if you think about it. Interest Groups are sometimes organized as non-profit organizations. Some also serve as NGOs – Non- Governmental Organizations. Other Terms: Pressure Groups Special Interest Groups Advocacy Groups Examples of Interest Groups National Groups The AFL- CIO The National Rifle Association The American Civil Liberties Union The Family Research Council Today’s interest groups are similar to what James Madison called a “faction.” “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factions develop naturally in free, civilized societies “A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.” A democratic system allows a majority faction to become tyrannical since it can control governmental institutions. Tyranny of the Majority A minority faction cannot. But a minority group can cause problems: “It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.” A minority can make administration problematic. Jonathan Rauch: Demoslerosis Demoslerosis: The progressive loss of government’s ability to adapt due to interest group pressure. Madion argued that a diverse nation would develop a sufficient variety of interests that would split majorities into minorities. He seems to be promoting the idea that there ought to be multiple interest groups in society. If so, he should be pleased. Interest Groups today. There are thousands of groups registered to lobby in DC. Note: While voter turnout has declined since the 1960s, the number of interest groups has increased. Madison’s Mistake Implying that the existence of an interests in society leads to the development of a group to represent those interests. Groups needs catalysts in order to form. The Logic of Collective Action, by Mancur Olson. The rise of special interest group can lead to the decline of a nation. Modern understandings of interest groups argue that organized groups only form and remain powerful if a mobilizing force works to form a group and that there is a material interest that convinces people to join and work for the group’s goals. Problem: Not all interests are easily converted into groups. The Free Rider Problem Why work for collectively for a groups’ goals if you will benefit from it even if you don’t do any work? If the benefit can’t be separated between those who contribute and those who do not. Definitions of the Free Rider Problem: Wikipedia Stanford In order for a group to be formed, a political entrepreneur has to develop incentives for people to join the group. They have to convince members to avoid the temptation to free rider. There is little need to join a group, if you will benefit from the group’s efforts even if you do not contribute. But if everyone thinks this way, the group will not form, and its objectives will not be reached. Political Entrepreneur Notable Policy Entrepreneurs: Richard Mellon Scaife James Leininger A selective benefit is a reward or punishment that fosters cooperation among a group of people who might otherwise free ride. Types of Selective Incentives Material Purposive Solidary Informational Material Members are encouraged to join because they will receive material benefits if they do so. Purposive Joining the group helps one advance a grand “purpose” such as cleaner air, greater public morality, or some other intangible reward. Solidary Joining the group puts one in touch with other, similarly minded people. Social options increse Informational The group makes its members privy to information they cannot get elsewhere. An interesting read: Salvation as a Selective Benefit The strongest groups are those that can provide tangible material benefits to their members. This explains why business interest often win out over public interests. Business Groups Professional Organizations Labor Unions Examples: AFL – CIO United States Chamber of Commerce American Bar Association American Medical Association Types of Interest Groups Public Interest Groups National Rifle Association National Organization for Women American Association of Retired Persons American Civil Liberties Union Family Research Council Think tanks are a unique type of group that develops policy proposals and rationales that can influence political debate Examples of Think Tanks American Enterprise Institute Brookings Institute Cato Institute Center for American Progress List of Think Tanks Interest Groups active in Texas Info from the Texas Tribune. A list from Google. Notable area groups: Greater Houston Chamber of Commerce Metropolitan Organization Once organized, how do interest groups influence government officials? They Lobby They gain access to key governmental officials and persuade them to pass legislation favorable to their clients interests. The principle skill of any lobbyist is the ability to gain access to a decision maker. How? Lobbying influence in the Legislative Branch Information on legislation. How it affects the lobbyist’s client. Data regarding costs and public opinion. Controversy: Sometimes the information can come in the form of travel opportunities. Electioneering: Promises can be made to provide electoral support for members. Controversial votes can be defended through advertising campaigns. Influence on the Executive Branch Corridorring If “lobbying” refers to attempts to ensure that legislation is written favorably to a special interest, “corridorring” refers to efforts to ensure that the policy is favorably implemented. Executive agencies have rulemaking powers, which convert sometimes vague laws into actual policies. Lobbyists attempt to ensure that these rules continue to benefit their clients. Regulatory (or Agency) Capture Watch: “Protecting the Public Interest: Understanding the Threat of Agency Capture” Lobbyists also try to influence who is appointed to head executive and independent agencies. The goal is to ensure that the agencies are run by people with a background in the industry. Has the Securities and Exchange Commission been captured by the Financial Sector? Has the Federal Communications Commission been captured by the communications industry? Was the Mineral Management Service (now the Bureau of Ocean Energy) captured by the oil and gas industry? Did lead to the lax regulations that led to the 2010 Gulf oil spill? Influence on the Judicial Branch Test Cases Friends of the Court Briefs Influence on Judicial Appointees Legal training While lobbying is a constitutional right, many are suspicious of lobbyists, due to their inside access. Two Issues: First, do they simply benefit those who are already wealthy and powerful? Second, are they corrupt and are they a corrupting influence on government? Jack Abramoff The American League of Lobbyists An interest group that represents lobbyists argues for the benefits of lobbying. Recall Patton-Boggs’ statement that lobbying is an honorable profession. Considering the range of issues that members of Congress have to content with, lobbyist can bring items to their attention that they would not otherwise be aware of. They may be indispensible parts of the legislative process, but their growth, and the fact that most represent well funded interests, had led to strict monitoring of their activities. Efforts have been made to make lobbying more transparent. The Lobbying Disclosure Act - wikipedia From the Texas Ethics Commission: Lobbying in Texas – A Guide to Texas Law. Special attention has been paid to the amount of money that has been injected into the political process, and whether this has unbalanced the playing field against the middle and lower classes. Money in Politics Source Watch: List of Lobbyists. CRP: Lobbying Database. Here is a glossary of terms related to lobbying from Lobbyists.info A good term to know: K Street The street in Washington DC where many interest groups and lobbying firms have their headquarters. Lobbying and the IRS Areas of Controversy Do lobbyist, and interest groups, write legislation? Is legislation more attuned to the special needs of these groups than the general needs of a member’s constituents? Is there a revolving door between interest groups and governmental offices that allows sectors of the economy to tightly control that sector? The Iron Triangle The most common example: The military industrial complex Also: Prison Organic Medical Do these groups make it difficult, even impossible, for policy changes to be made. Is this demosclerosis? Final question: Do interest groups help or hurt effective governance?