Two Ways to go to Law: Interest Groups use of Parliaments and Courts

So far, studies on interest groups mostly focus on their role in administration and bureaucracy. The uses of alternative lobbying channels as well as their interconnection, however, are widely disregarded. This especially applies to the relatively new field of the legal arena. In dependence on the discussion about ‘Eurolegalism’ and an Americanization of European law, this paper aims to explain the linkage of German interest groups’ use of parliaments and legal means to pursue their interests. Parliaments are an attractive venue for interest groups, since they offer the opportunity to impact on legislation. In addition, legal action can be an attractive strategy for interest groups to counteract or to limit the scope of unpopular legislation. Our study helps to explain the decision of interest groups to address courts. A comparison of interest mediation in the German Bundestag and groups’ use of legal means shall allow us to answer the question if the increasing use of lawsuits is a reaction of deficient access to decision makers. Our basic assumption is that the use of legal means is an ‘outside’-strategy used by those groups which are not able to follow an ‘inside’-strategy due to lacking access to decision-makers. This coincides with the literature of ‘Adverserial Legalism’ which argues that the use of the legal arena depends on the access to the parliament. Taking into account that interest groups resources and access to the political arena differs between different policy fields, we focus on four different fields: economy, environmental, social and migration policies. We analyze the presence of the 25th largest interest groups in each of these fields in the public hearings of the standing permanent committees of the German parliament (Bundestag), since this serves as an indicator of their relevance to the parliamentary arena. Then we take a closer look at how interest groups use law as an arena to pursue their interest by evaluating web pages and other documents of the 100 interest groups and conducting interviews. We identify two differing judical strategies, a rather ‘defensive’ and an ‘active/aggressive’ one. A defensive strategy indicates a focus on judicial services on behalf of the logic of membership, while a rather ‘active’ strategy is connected with lawsuits, including a support of class action suits and the extension of individual and collective rights of action. Our hypothesis is that groups which claim a higher representation in the parlamentary arena have a lesser need of active judicial strategies and do not appear as an significant actor regarding systematical jurisdification. Due to this, we assume business and social interest groups to be established actors in the parliament and therefore beeing less active in the legal arena. On the other hand, we assume interest groups in relatively new policy fields like environment and migration to compensate lacking access to parliament with the use of legal channels to influence adopted laws.