Scholarship@WashULaw

Document Type

Article

Publication Date

2017

Publication Title

Stanford Law Review

Abstract

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules for aspiring international lobbyists creates the transparency problem I identify by prohibiting all but covert business access. I argue that the access rules have been rendered obsolete by globalization and fundamental changes in relationships between national governments and multinational business entities. To that historical critique, this Article adds an efficiency account and an evaluation of the law’s conceptual coherence that draws from pluralistic theory. The analysis gives rise to two potential avenues for reform. One proposal would require enhanced disclosures, and the other would offer formal access to business entities, engaging business input but also exposing it. Either potential reform would update the law to better accommodate contemporary business roles in international governance. The stakes, I show, are high. On the one hand, business can offer lawmakers expertise and politically neutral solutions. On the other hand, unchecked business influence can obstruct and neutralize laws aimed at solving critical global problems.

Keywords

International Law, Business Entities, Corporations, International Organizations, United Nations, Non-Governmental Organizations, NGOs, Civil Society, Non-State Actors, Industry Associations, Trade Associations, Lobbying, Capture, Treaties, Global Administrative Law, Pluralism, Globalization

Publication Citation

Melissa J. Durkee, Astroturf Activism, 69 Stan. L. Rev. 201 (2017)

Comments

Featured on JOTWELL (Journal of Things We Like (Lots)): Verity Winship, Business Lobbying Goes Global, Jan. 18, 2017, at http://intl.jotwell.com/business-lobbying-goesglobal/

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