Elizabeth Warren's Lobbying Tax Is Anti-Constitutional Pseudo-Policy

The Massachusetts senator's respect for the Constitution knows many bounds.

Among the freedoms guaranteed by the First Amendment is the right "to petition the Government for a redress of grievances." In other words, you have a right to communicate with the government, to complain about its current policies, and to advocate for new and different ones without fear of punishment or censor. You might call this a right to gripe about the government, to the government. Alternatively, you might call it a right to lobby. 

The unlimited right to petition the government—to lobby the lawmakers who make decisions that affect your life, your family, your fortune, and your business—is a right that Sen. Elizabeth Warren (D–Mass.) thinks American businesses should not have. 

Warren, who is running for the Democratic presidential nomination, has proposed taxing corporate lobbying. Expenditures between $500,000 and $1 million would be taxed at 35 percent. Spending over $1 million would face a 60 percent tax rate, which would jump to 75 percent above $5 million. Some non-profits would be exempt, but the tax would hit trade organizations as well as corporate influence efforts. 

Warren's campaign estimates that if the rule had been in place over the last decade, and businesses had made no changes to their lobbying activities, it would have raised about $10 billion. But as with her wealth tax proposal, which is designed more to degrade large fortunes than to raise revenue for the government, the point isn't really to generate new funds from taxation. It is to eliminate much of the lobbying that happens in Washington. 

"We can end excessive lobbying," Warren wrote in a tweet this morning. Excessive lobbying. Excessive petitioning of the government. The point of Warren's tax on lobbying is to eliminate, or at least severely degrade, a fundamental constitutional right. It is probably unconstitutional, in the sense that it wouldn't stand up to a court challenge. It is certainly anti-constitutional, in the sense that it is contrary to the spirit of the First Amendment. 

That's not terribly surprising coming from Warren, whose respect for the Constitution knows many bounds. As National Review's David French has written, many of Warren's vaunted plans—from her wealth tax to her proposed executive order banning fracking—appear likely to cross legal and constitutional lines. As a candidate, she has repeatedly demonstrated her willingness to ignore the irritating limitations imposed by the Constitution to pursue her political and policy objectives. 

And in this case, it's both. Or, more precisely, it's a political objective masquerading as a policy goal: Warren, who is vying for frontrunner status in the Democratic primary race, wants to look tough on lobbyists and lobbying, and this is a way to do it. It's pseudo-policy, a veneer of wonky seriousness draped over anti-constitutional populist dogma. 

Like many of Warren's bad ideas, it may be politically savvy: Lobbyists are not exactly popular in America these days, and lobbying is widely viewed as grubby and unseemly, if not actively corrupt. 

This view is not always correct; asking (lobbying) the government to pursue different laws and different policies can be a noble task and a path to better governance. But the view of lobbying as ignoble does have some merit; individuals and corporations often lobby for bad ideas. Indeed, as Bradley Smith and Luke Wachob of the Institute for Free Speech recently noted, Warren herself has a long history of directly encouraging federal lawmakers to adopt policies she prefers, particularly on issues like bankruptcy, about which she has produced misleading research for decades. Over and over again, she petitioned the government to adopt her misguided views—as was her right. 

At other times, lobbyists advocate for narrow self-interest. Following the passage of Obamacare, for example, medical device makers, who have a heavy economic footprint in Massachusetts, the state Warren represents, pushed hard for a repeal of a tax directed at their industry. Starting with her 2011 campaign for Senate, Warren supported their position and backed much of the rest of their agenda in a 2012 op-ed for a trade publication. Industry lobbyists later praised her as a helpful working partner. "We've enjoyed the opportunity to work with Sen. Warren during her tenure in Congress," a representative from a major medical device industry group told Time in 2015. No doubt they did. 

Lobbying—or petitioning—the government to change a law, or advance an agenda, or redress a grievance, like, say, a tax on your industry, might not be held in high esteem. But it is a form of protected speech. And that protection is designed to shield those who are not in government from those who are, to level the playing field between those who wield direct political power, and those who do not. It is more than a little revealing that Warren, a powerful senator who wants to be an even more powerful president, is proposing to weaken that protection in hopes of advancing her own political interests. Warren, you might say, is lobbying for herself.