Friday, September 07, 2007

Interest Groups - Above the Law?

It is no surprise that our political system is more responsive to interest groups than individuals. Interest group theory, popular in the 80’s, covered this territory very well. This can be a good thing at times. The framers enacted constitutional safeguards to protect individuals from their own caprice, such as a bicameral legislature and the Electoral College.

Interest groups transparently participate in many areas of government, including lawmaking and political appointments. Even in court, I can’t help but notice that the interest groups always seem to win. I’m not saying that the corporate interest group wins regardless of the merits of the case, but a variety of judicial doctrines tend to favor the big guys over the little. This trend leaves people like small farmers with fewer useful judicial remedies than justice warrants.

How so? Our highest law, the Constitution militates against this outcome. Regardless of Constitutional protections, overwhelming deference to federal administrative decisions, combined with interest group influence make the judicial branch a greater sanctuary for corporate interests than individuals. I’m sure there are plenty of exceptions to judicial preference for interest groups (I’m not going to try and think of them right now – feel free to fill me in), but I don’t think I’m completely wrong. It is probably easiest to find support for my theory in the field of administrative law.

Agencies often become protective of their regulated industry. Agency officials probably feel duty bound to keep the industry healthy, as well as protect the general public. Marver Bernstein (who is famous I'm sure), said that it is unlikely that a mature agency "will be able to extend regulation beyond the limits acceptable to regulated groups." In the USDA's case, its enacting legislation actually spells out its duty to regulated groups by requiring it to promote the meat industry. This might create some tension with its other duties, at least theoretically.

The revolving door between industry and agencies further weakens an agency's independent status. Cool detachment and objective decision-making are probably hard to manage when the regulated and the regulators both attend Monsanto's holiday party. Ann Veneman and Dan Glickman both worked within their regulated industry. Campaign contributions also help create agency lapdogs. Case in point, former FDA head, Lester Crawford is currently doing community service after pleading guilty to charges related to lying and conflict of interest. At least some of these appointments must reflect industry involvement in the appointment process.

Courts almost always defer to agencies, since Steven’s unfortunate (in my opinion) articulation of the Chevron two-step. The hopelessly toothless arbitrary and capricious standard of the Administrative Procedure Act does not help, since courts almost never find agencies to be arbitrary or capricious. Because of our vast administrative state relatively useless administrative remedies provide the most plentiful option for judicial redress, especially for someone like a farmer who operates under the watch of the USDA, FSA, FDA and NRCS.

Administrative remedies aside, the little guy can seek the protection of state law or constitutional remedies. So how does interest group theory play into these domains? First of all, successful interest groups should not need redress as often as individuals because they have had a hand in the lawmaking. Individuals can seek Constitutional remedies but will often find disappointment in the form of rational basis review or some form of lesser scrutiny. This routinely happens under the Equal Protection clause, the Due Process Clause and the First Amendment. Erwin Chemerinsky pointed this in an article entitled The Vanishing Constitution. I don't think very many people got swept up by his arguments, but I think there' s something to it.

The Check Off cases present a clear example of lax review for individual liberties. The Supreme Court shot down First Amendment claims brought by independent cattle ranchers and pork farmers who objected to the popular “beef, it’s what’s for dinner” and “pork, the other white meat” campaigns by finding the slogans to be protected “government speech.” 544 U.S. 550 (2005). Regardless of the appropriateness of the government speech doctrine, the slogans and attendant programs clearly benefited the Hormels of the world.

Individual states can step in where the feds fail and provide protection for unorganized groups, such as small farmers. However, state attempts to enact anti-corporate farming laws have fallen as violations of the dormant Commerce Clause. It seems like the little guys just can’t win.

Admittedly, constitutional law and administrative law embody entirely separate fields of legal doctrine. I just can’t help but see a common theme of interest groups coming out on top. I cannot help but think that the judiciary should be more aware of its role as a protector of the little guy. The majority and the influential already have plenty of representation.

(I'm just trying these ideas on for size, so feel free to poke some holes in them!)