Political resistance from industry has hindered climate legislation in the United States. Lobbying is one of the most important ways in which firms exert influence in Congress and other rulemaking bodies. Firms involved in the production and use of fossil fuels spend far more money on lobbying than do environmental organizations and the renewable energy sector. While firms enjoy wide latitude in their political activity, the Honest Leadership and Open Government Act of 2007 (HLOGA) requires limited disclosures. But opaque, industry-wide lobbying organizations make it difficult to hold individual firms accountable for their political actions.
This Note analyzes the lobbying activity of United States Climate Action Partnership (USCAP) member firms against cap-and-trade legislation in 2009-2010 and demonstrates the ways in which many companies strategically misrepresent their interests. Strategic misrepresentation permits firms to (1) overstate their support for politically feasible outcomes; (2) trade support for access; (3) shape policy-feedback effects; and (4) lobby through larger collectives in a manner that is untraceable and free from reputational risk. In the climate context, firms use strategic misrepresentation to weaken proposed regulations, delay legislation, and secure new allies in their efforts to expand oil and gas development. HLOGA does not prevent this behavior. Attempts to restrict lobbying must avoid two pitfalls: encroachments into First Amendment rights and the hydraulic nature of money in politics. These barriers may hinder contact disclosure and coalition disclosure requirements, but Congress can protect itself from lobbying by fortifying institutional sources of policy information.
* J.D. Candidate, Stanford Law School, 2022; M.S. Candidate, Stanford Emmett Interdisciplinary Program in Environment and Resources, 2022. This Note exists because of Hajin Kim, whose generosity with her time and insights is unmatched. Thank you to the Ferrante family and to Rachel Rubin for their support and company as I forged through my first draft. I thank Danny Cullenward for several rounds of incisive feedback and Nora Freeman Engstrom for her publication advice. Magdalene Zier provided an inspiring example. Finally, I am grateful to the kind and scrupulous editors of the Stanford Law Review, especially Caroline Zhang, Marty Berger, Jenny Jiao, Mariah Mastrodimos, Grace Rehaut, Namrata Verghese, Amir Wright, Henry Koller, and Samantha H. Noh.