INFLUENCES ON LAWMAKING
Lawmaking is a response to many social forces. The forces that influence lawmaking cannot always be precisely determined, measured, or evaluated. At times, several forces operate simultaneously. We have room in this section to consider a limited number of influences on lawmaking: interest groups, public opinion, and the social sciences.
The interest-group thesis contends that laws are created because of the special interests of certain groups in the population (Mahood, 2000). Examples of interest-group influence in lawmaking and policy-making abound (Gioacchino et al., 2004; Rozell et al., 2006). Today’s laws governing the use of alcohol, regulations concerning sexual conduct, abortion bills, pure food and drug legislation, antitrust laws, and all automobile safety standards, and the like are ultimately originated in interest-group activity. Even alterations in existing statutes are not immune from influence by those who see some threat or advantage in the proposed changes. Often, interest groups also act as a communication network for social movements, facilitating the dissemination of their ideas in a manner that helps to legitimize movements, exert public pressure for legal change, attract some politicians to the movements’ objectives, and effect policy change (McCann, 2006).
The nature of the interaction between interest groups and lawmakers varies based on the branch of the government. Judges, although they are not immune to interest-group pressures, are generally not lobbied in the same way as legislators or administrators. To reach the courts, a lawyer must be hired, formal proceedings must be followed, and grievances must be expressed in legal terminology. Minorities and the poor find the courts attractive because they are more readily available. To influence legislators, a group must be economically powerful or able to mobilize a large number of voters, but the courts require no such prerequisites. If a group has enough money to hire an attorney or can find an attorney to act pro bono (for public good, which usually means no fees or low fees), it can seek court action to further its interests. Further, interest groups may also turn to courts because they assume that the judicial branch may be more sympathetic to their objectives than the other two branches (McCann, 2006). For these reasons, groups representing people of color, such as the NAACP, have used the courts to secure various civil rights.
Interest groups’ techniques to influence courts are different from those used to influence legislative or administrative bodies. As political scientist Herbert Jacob (1984:151) observed,
The principal techniques are: to bring conflicts to a courts attention by initiating test cases, to bring added information to the courts through amicus curiae (friend of the court) briefs, and to communicate with judges indirectly by placing information favorable to the group's cause in legal and general periodicals.
By instituting test cases, interest groups provide judges with opportunities to make social policy. These groups often submit legal briefs that communicate relevant social science research findings to a particular case. By providing information through amicus curiae briefs, interest groups expand the confines of the judicial process and build coalitions with other groups (McGuire, 1994). Another technique is to publish decisions in legal periodicals. Judges generally read these journals to keep abreast of legal scholarship and sometimes even cite them as authority for their ruling. Publication in these journals gets one’s views before the courts and before the attentive public.
Interactions between interest groups and legislative and administrative lawmakers are more overtly political in nature. As Chapter 3 noted, many interest groups maintain Washington and state capital offices staffed with people who keep track of developments in the legislative and administrative branches and attempt to influence their activities. Some groups pay for the services of law firms in dealing with legislators or administrators. These firms provide expertise in such areas as antitrust and tax regulations and use their personal contacts with important lawmakers on behalf of their clients.
Several specific conditions enhance the potential influence of interest groups on lawmakers (Ripley, 1988). In many instances, there may not be two competing groups on an issue. When only one point of view is presented, the group is likely to get much of what it wants. For example, when banking and other money-lending interests, such as pawnshops, push for a higher ceiling for usury laws in a state, they are more likely to succeed if there is no organized opposition. Similarly, if the groups on one side of a controversy are unified and coordinated on the principal issues they want to push (or if they can minimize their disagreements), they will enhance their chances of success. If certain key members of legislative bodies (such as a subcommittee chairperson) believe in the interest group’s position, the probability of success is also greatly enhanced.
The visibility of an issue is another consideration in influencing lawmakers. When the issue is not too visible or when interest groups seek single distinct amendments to bills (such as to alter soybean export quotas in addition to others proposed by farming interests), as contrasted with large legislative packages, the chances for success increase. Conversely, as the visibility of issues increases and public attention grows (such as draft registration or wage and price controls), the influence of interest groups tends to diminish. In addition, interest groups are likely to have greater influence on issues that coincide with the interests of the groups they purport to represent. For example, the AFL-CIO may be very influential in matters concerning working conditions, but it is likely to receive less attention from lawmakers when it advocates higher tariffs for imported goods or when it attempts to guide foreign policy. Finally, interest groups are likely to have greater influence on amendments than on entire pieces of legislation. This is because amendments are generally technical and less understood by the public.
Other considerations also matter for the effectiveness of interest groups in lawmaking:
- • Financial resources determine an interest group's ability to support lawsuits, lobbying, public relations, and other activities (Abramson, 1998).
- • Interest groups that support the status quo have an advantage over groups trying to bring change, because whereas the latter must overcome several obstacles in the lawmaking process, the former may frustrate change at any of several points in the process.
- • An interest group's influence depends heavily on its status as perceived by lawmakers. An interest group is particularly influential in situations where a lawmaker shares the same group affiliation (for example, when farm groups talk to legislators who are farmers), where the group is considered important to the legislator's constituency, and where the group is recognized as a legitimate and reliable source of information.
- • A group's competence to influence lawmaking is enhanced by its ability to bring about social or economic disruptions. Threats of disorder, disruption, and mass violence have been, at times, effective bargaining weapons of relatively powerless groups (Shaw et al., 2010). Similarly, the threat of a decline in the supply of such necessities as food, medical services, and energy has been used to influence lawmakers. The ability of an interest group to create a crisis, whether a social disorder, an economic slowdown, or the reduction of supply of a needed product or service, gives it considerable clout in the lawmaking process.