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GOVT 2301


									         GOVT 2301

The Freedom to Peacefully Assemble
  and to Petition Government for a
 Redress of Grievances and Interests
    This section covers the last
participatory freedoms established
 in the First Amendment and the
    key consequences of those
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
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
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
 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

 This makes coordinated activity
The denial of the right to assemble
is critical if one is to be a successful

        For Example: Burma.
 They will also make it not illegal,
   but effectively impossible for
citizens to petition for a redress of
One measure of oppression is the
 degree to which a government
denies or punishes assembly and

 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
 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
              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

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

 People were more free to meet
   and discuss radical political,
cultural and scientific ideas. Early
 political parties were also being
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

 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
    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

 Sons of Liberty: The group that brought
        you the Boston Tea Party.
Here are some notable petitions by
         early assemblies.

The Stamp Act Congress produced
  the Declaration of Rights and

  The First Continental Congress
produced the Petition to the King.

The Second Continental Congress
   produced the Olive Branch
        Approved by the Continental Congress
                  on July 5, 1775

 To the King's Most Excellent Majesty. Most Gracious

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.

 As a result the Declaration of
Independence was written and
      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
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
The Texas Bill of Rights has similar
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
    For additional background read

- First Amendment Center: Overview of Right to
   - FindLaw: Rights of Assembly and Petition.
       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.”

   “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
 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

     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

- 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
   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
(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
1 - What is a peaceful assembly?

   2 – Who get to decide if a
  particular assembly is in fact
   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

   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
    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. –
       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
 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

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
  The right to assemble has also
been taken to imply a related right
 to associate with whomever one

 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

  The First Amendment Center
The court ruled that the freedom
of association allowed the BSA to
  expel a homosexual assistant
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”

But we are all special interests if you think about it.
Interest Groups are sometimes
    organized as non-profit

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
“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
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
    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
       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
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

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
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
Types of Selective Incentives


Members are encouraged to join
because they will receive material
     benefits if they do so.

    Joining the group helps one
advance a grand “purpose” such as
cleaner air, greater public morality,
 or some other intangible reward.

Joining the group puts one in touch
    with other, similarly minded
   people. Social options increse

 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

              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
  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
 Metropolitan Organization
Once organized, how do interest
 groups influence government
            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.

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
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
     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
 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
           Two Issues:

First, do they simply benefit those
   who are already wealthy and

Second, are they corrupt and are
 they a corrupting influence on
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
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
Money in Politics
Source Watch: List of Lobbyists.
   CRP: Lobbying Database.
Here is a glossary of terms related
 to lobbying from
      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
The Iron Triangle
 The most common example:

The military industrial complex

 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?

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