A motley crew in the House and the Senate has resolved to prohibit former members of Congress from becoming lobbyists. In the bipartisan working group — which was formed ad hoc yesterday, on Twitter — are Representative Alexandria Ocasio-Cortez (D., N.Y.), Senator Ted Cruz (R., Texas), Senator Brian Schatz (D., Hawaii), and Representative Chip Roy (R., Texas).
I’m agnostic on whether this is a good idea on the merits. But, in truth, I don’t especially care given that it’s almost certainly unconstitutional on its face. The right to petition is explicitly protected by the First Amendment, and there is no exception within its text for former government employees — employees who, after they have left office, enjoy precisely the same relationship with their government as does any other citizen. Were Ocasio-Cortez, Cruz, and co. proposing to prohibit former federal legislators from engaging professionally in other First Amendment–protected behavior — say, from becoming paid writers or paid speakers or paid clergymen — it would be extremely obvious to us that their idea was unconstitutional. It should be obvious here, too. This isn’t a time-and-place restriction, or even a temporary regulation, it’s a permanent prohibition that applies to an entire class of people. That something weird and visceral happens to the modern American mind when the word “lobbyist” is introduced into the conversation does not change that fact.