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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 bargainingclass 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.
AbolitionLabor Unions
Marches on WashingtonWomen’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 AssociationFindlaw: 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 GroupsSpecial Interest Groups
Advocacy Groups
Examples of Interest Groups
National Groups
The AFL- CIOThe National Rifle Association
The American Civil Liberties UnionThe 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:
WikipediaStanford
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 ScaifeJames 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
MaterialPurposiveSolidary
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 GroupsProfessional Organizations
Labor Unions
Examples:
AFL – CIOUnited States Chamber of Commerce
American Bar AssociationAmerican Medical Association
Types of Interest Groups
Public Interest Groups
National Rifle AssociationNational Organization for WomenAmerican Association of Retired
PersonsAmerican 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 InstituteBrookings Institute
Cato InstituteCenter 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 CasesFriends of the Court Briefs
Influence on Judicial AppointeesLegal 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:
PrisonOrganicMedical
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?