Contingent Fee Lobbying: Inflaming Avarice or Facilitating Constitutional Rights?


Contingent fee lobbying has long been a disfavored practice. Although some commentators argue that use of a contingent fee lobbying contract could open up federal legislative and regulatory processes to greater participation by Americans of limited means, many others, including the Supreme Court, have declared that lobbying a legislature or agency under a contingent fee contract is generally both illegal and unethical. However, the conclusion that the practice is illegal is often based on a declaration that the practice is unethical . . . without a thorough examination of the sources of law that led to the presumption of illegality in the first instance.

Is it legal to lobby Congress or federal agencies on a contingent fee contract? If legal, would such a contract be ethical? These are the two core issues addressed in this article. On the way to our answers to these questions, we examine the history of lobbying and the legal treatment of lobbying. We review the early Supreme Court precedent that is often cited in support of a contingent fee lobbying ban, finding that the cases more reliably stand for a general ban on lobbying, not for a specific ban on contingent fee lobbying. We look at the evolution of lobbying – from reviled practice to respected profession – through the lenses of Senate hearings and executive branch procurement practices. We turn to the example of state law to review the competing philosophies underlying state regulation of contingent fee lobbying and to emphasize how the early Supreme Court pronouncements on lobbying may be easily employed to support either philosophy. Because the First Amendment may be implicated in any restriction on speech, we highlight how the Supreme Court’s more recent jurisprudence addressing restrictions on political speech is likely to affect any future evaluation of contingent free lobbying.

Finally, regardless whether the practice of contingent fee lobbying is legal, we examine whether certain ethical boundaries should be drawn to curb any particular tendency to corruption that may result from use of a contingent fee lobbying contract. We conclude that contingent fee lobbying should not summarily be condemned or prohibited, but propose imposing a more rigorous disclosure regime specifically aimed at this type of lobbying compensation agreement.



Date of this Version

November 2006