Businesses shape international law through ‘astroturf activism,’ paper finds
The furor over the 2010 Citizens United decision drew intense scrutiny to the role of corporate money in U.S. politics and raised questions about the influence of businesses in American lawmaking.
But corporate interests also play a powerful role in international legal processes, sometimes by covertly creating or co-opting non-governmental organizations to lobby lawmakers on their behalf — creating a type of "astroturf activism" that masquerades as grassroots efforts.
That's the conclusion of a new paper by Melissa Durkee, an assistant professor at the University of Washington School of Law. Published in November on the Social Science Research Network and forthcoming in the Stanford Law Review, the paper examines how corporate entities have infiltrated NGOs due to an outdated legal structure at international organizations such as the United Nations. And Durkee suggests how pathways could be created to give businesses legitimate access to international lawmaking processes.
"Businesses are involved in international lawmaking and governance, and there is inadequate scholarship about this and inadequate regulation of it," Durkee said. "That can have a detrimental impact on lawmaking."
Corporations engage in astroturf activism in three main ways, Durkee said, by:
- Co-opting and capturing the agendas of existing NGOs
- Forming their own NGOs to get accredited as consultants to entities such as the World Health Organization or the United Nations Economic and Social Council
- Working through trade or industry associations
"When we think about NGOs lobbying at the United Nations, we think about the traditional ones like Amnesty International or Greenpeace," Durkee said. "But what hasn't been recognized is the fact that some of these NGOs are mouthpieces for corporate interests."
Corporations have secretly gained access to international officials by exploiting a set of arcane rules developed by the United Nations that gives nonprofits — but not businesses — a special consultancy status, Durkee writes. That gives them access to meetings with international officials, allows them to receive information intended solely for NGOs and provides opportunities for informal lobbying, among other perks.
NGOs have exploded in numbers since the 1980s and are considered a democratizing influence in international lawmaking, Durkee said. But an estimated 10 percent of NGOs that have UN consultancy status are industry or trade organizations, such as the World Coal Association or the World Nuclear Association.
Others appear to be grassroots entities but have been created or coopted by business, Durkee said. Examples include the National Wetlands Coalition, a nonprofit formed by U.S. oil companies and real estate developers, and Citizens for Sensible Control of Acid Rain, a now-defunct group formed by coal and electricity companies. Those front groups cast suspicion on legitimate NGOs, she said, and the co-opting of credible organizations makes it difficult to determine their real missions or hold those organizations accountable for meeting them.
Durkee traces the advent of the astroturf activism phenomenon in international law to the consultancy system for NGOs that was developed in the early 20th century. At that time, she said, most businesses had to form associations in order to lobby before international officials because they simply were not yet capable of lobbying at the international level individually. Over the ensuing decades, corporations have increasingly become transnational entities, in some cases with the size and economic clout of states, but the law has not kept pace with that reality.
"The system is outdated, and businesses are playing a large role in international governance," Durkee said. "We need to update the law to reflect that. Businesses haven't been given a legitimate port of entry to international negotiators, so they're using the available ones, and one of the available ones is this consultancy system for NGOs."
The lawsuit brought against tobacco companies by several U.S. states in the 1990s offers a stark case study of astroturf activism, Durkee said. Evidence produced during the case revealed numerous tactics the companies used in an effort to thwart industry controls, from secretly surveilling World Health Organization activities to forming front groups and trade unions.
But Durkee is quick to point out that not all astroturf activism is nefarious. Some collaborations between nonprofits and corporations are beneficial, she said.
"Maybe it's impossible to extricate corporate influence from NGOs, and there might be reasons why we don't do that. Good can come from these partnerships. But we do need to equip lawmakers with better information about who's speaking."
In her paper, Durkee proposes two possible ways to do that — by requiring greater disclosure by NGOs and industry associations, or establishing a regulatory framework to allow businesses direct access to officials and lawmakers. Both options would require further study, Durkee acknowledged. But she said change is overdue, particularly as issues largely under the purview of corporate entities, such as internet privacy and cyber warfare, stretch across borders.
"We're at a place now where we're fundamentally rethinking what role states and business entities have to play in global governance," she said.
"There needs to be reform that updates for current realities, so that businesses that are global, transnational actors can have some legitimate channels of input into the international lawmaking process."
The paper is available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2865340
For more information, contact Durkee at [email protected] or 206-616-3084.