Judicial Lobbying: The Politics of Labor Law Constitutional Interpretation

Abstract

This paper links the theory of interest groups influence over the legislature with that of congressional control over the judiciary. The resulting framework reconciles the theoretical literature of lobbying with the negative available evidence on the impact of lobbying over legislative outcomes, and sheds light to the determinants of lobbying in separation-of-powers systems. We provide conditions for judicial decisions to be sensitive to legislative lobbying, and find that lobbying falls the more divided the legislature is on the relevant issues. We apply this framework to analyze supreme court labor decisions in Argentina, and find results consistent with the predictions of the theory. Answering these questions is important for three main reasons. First, it will allow us to reassess the stability of the separation of powers' system in response to outside pressures. In particular, do potentially active interest groups reinforce or weaken judicial independence? Second, by explicitly modeling the interactions between the legislature and the courts in the policy making process, our framework clarifies the biases that result from putting the emphasis solely on the link between lobbying and legislative outcomes, and allows us to improve upon this benchmark. 1 Lobbying Under Separation of PowersThe asymmetric impact of lobbying on the payoffs of the court and the legislature shapes its effectiveness in affecting policy in equilibrium, and as a result, impacts interest groups' incentives to engage in costly lobbying activities in the first place. The overall effect of this asymmetry rests crucially on the extent of effective judicial independence.Were the court completely insensitive to outside pressures, the asymmetry would induce meager incentives for lobbying efforts. This degree of court seclusion, however, is unusual. While most judiciaries are isolated from direct public approval, they are not immune from elected politicians' influence. Indeed, in most democracies, judicial decisions are not the last word. Legislatures can normally reverse judicial statutory rulings with a simple majority, although overturning constitutional rulings normally requires a higher level of political consensus. The legislature can, furthermore, affect the court's incentives by imposing sanctions such as court enlargements (Gely and Spiller 1992), impeachments (Iaryczower, Spiller and Tommasi 2002), and in some countries simply by not reappointing them. 3 To sum up, the majorities in government can constrain the decisions of the court. This is the essence of the so-called, "separation of powers" literature: public opinion alters judicial decisions, but does so only indirectly, by affecting the composition and preferred policies of members of the legislature (see Segal 1997, and Bergara, Richman and Spiller 2003 for a discussion).

Buy, Lobby or Sue: Interest Groups' Participation in Policy Making - A Selective Survey

“…Iaryczower, Spiller and Tommasi (2006) show that when policy-makers are uncertain about the realization of θ, lobbying by the interest group restores the complete information mapping between the preferences of the electorate and policy outcomes. In particular, they show that equilibrium lobbying increases with the realization of θ when, given θ, the court is constrained by the legislature (i.e., θ∈K), and does not change when the court is unconstrained (θ∈ [θ 0 ,θ 1 ]).…”

“…For this strategy to be "optimal", though, the policy implementation must have reflected the erroneous strategic choice by the interest group. 31 Much of this section is taken liberally from Iaryczower, Spiller and Tommasi (2006). 32 DeFigueiredo and DeFigueiredo (2002) develop a similar vote buying rather than indirect lobbying model.…”

“…In other words, in this model, lobbying influences policies indirectly, via judicial adaptation. Second, the expected level of lobbying decreases the more effective the separation of powers between the court and the legislature is (i.e., the 37 See Proposition 3 in Iaryczower, Spiller and Tommasi (2006). 38 This should come as no surprise, however, since for this purpose, increasing x c with β L and β H given is qualitatively similar as simultaneously reducing both β L and β H taking x c as given, and from the prior discussion we know that β L and β H have opposite effects on the expected level of lobbying.…”

“…Indeed, Iaryczower, Spiller and Tommasi (2006) find that interest groups lobby more when the courts are more constrained by the legislature.…”

“…In other words, lobbying is effectively fully informative. As long as (informed) policy is responsive to the electorate's preferences, interest group types facing different pro-interest group dispositions of the electorate will 36 See Proposition 2 and Lemma 1 in Iaryczower, Spiller and Tommasi (2006). always choose different levels of lobbying, allowing the reproduction of the complete information link between policies and the preferences of the electorate.…”