GOVT 2301 The Freedom to Peacefully Assemble and to Petition Government for a Redress of Grievances...

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?