The Corner

Law & the Courts

The Ocasio-Cortez–Cruz Bill Would Almost Certainly Be Unconstitutional

Alexandria Ocasio-Cortez (D, N.Y.) on Capitol Hill in Washington, D.C., May 15, 2019. (Joshua Roberts/Reuters)

A motley crew in the House and the Senate has resolved to prohibit former members of Congress from becoming lobbyists. In the bipartisan working group — which was formed ad hoc yesterday, on Twitter — are Representative Alexandria Ocasio-Cortez (D., N.Y.), Senator Ted Cruz (R., Texas), Senator Brian Schatz (D., Hawaii), and Representative Chip Roy (R., Texas).

I’m agnostic on whether this is a good idea on the merits. But, in truth, I don’t especially care given that it’s almost certainly unconstitutional on its face. The right to petition is explicitly protected by the First Amendment, and there is no exception within its text for former government employees — employees who, after they have left office, enjoy precisely the same relationship with their government as does any other citizen. Were Ocasio-Cortez, Cruz, and co. proposing to prohibit former federal legislators from engaging professionally in other First Amendment–protected behavior — say, from becoming paid writers or paid speakers or paid clergymen — it would be extremely obvious to us that their idea was unconstitutional. It should be obvious here, too. This isn’t a time-and-place restriction, or even a temporary regulation, it’s a permanent prohibition that applies to an entire class of people. That something weird and visceral happens to the modern American mind when the word “lobbyist” is introduced into the conversation does not change that fact.

I have seen some advocates of the idea suggest that Congress can get around this limitation contractually. In the private sector, this argument runs, employees sign all sorts of agreements by which they consent to limit their future behavior in exchange for being given a particular job now. So why not in Congress? This idea is problematic per se, given that the government is not a private entity, and that it is thus bound by the Bill of Rights in a way that, say, Goldman Sachs is not. But it’s also unconstitutional on its own terms per current Supreme Court precedent. In Thornton v. U.S. Term Limits, the Court ruled that the qualifications the Constitution outlines for membership in Congress are exhaustive and cannot be added to. Any attempt to render congressional eligibility contingent upon a contract that contained extraneous terms would, as a result, be illegal.

Lobbyist is not always a bad word. Bipartisan is not always a good one.

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