"527 Reform May Be Needed, but Not in Lobby Bills"

Today's Roll Call has published my oped (free access, with permission of Roll Call). Here is the text:

Following the recent lobbying scandals involving Jack Abramoff and former Rep. Duke Cunningham (R-Calif.), Congressional Republicans saw a need to enact some form of lobbying reform to keep from hurting the party’s chances in the 2006 midterm elections. But as these scandals fade from the headlines, many Republicans appear to be looking for a way to pass "lobbying reform" that appears to be about cleaning up government corruption but really is intended to give Republicans an advantage over Democrats in the next election. The public shouldn't fall for it.

Both House Republicans and Republican presidential hopeful and Sen. John McCain (R-Ariz.) have sought to tie lobbying reform legislation to a regulation of 527 organizations. Because these groups act without coordination with parties and campaigns, and because they don’t engage in certain election-related speech, current law allows them to accept unlimited contributions from individuals. The proposed legislation in the House would treat 527s as political committees, thereby limiting 527 contributions from individuals to $5,000 per year, with a total yearly cap of $37,500 on any individual’s giving to all such groups as well as other non-party political committees.

Regulating 527s in this manner may or may not make good sense. After all, there is something disquieting about individuals being able to bankroll these independent outfits in hope of influencing the outcome of elections. But there's a good constitutional argument that this regulation may violate the First Amendment rights of these groups and their contributors, because regulation of independent spending may not be justified to prevent corruption of candidates for federal office.

Still, regardless of whether 527 regulation is good policy, it makes no sense to put the 527 regulation into a lobbying reform bill. Democrats, rather than Republicans, have taken the most advantage of these groups, in part because Republican Party committees and candidates have been more effective at raising contributions than their Democratic counterparts have, especially now that the GOP controls essentially all the levers of power in Washington, D.C. It was the $23 million that liberal financier George Soros poured into pro-Democratic 527s during the 2004 election that got Republicans interested in regulating the 527s in the first place.

But placing a 527 measure into a lobbying bill is sure to get the bill enmeshed in partisan controversy. And cynics believe that's the point: Either the bill passes and the Republicans enjoy a double advantage (having taken care of "lobbying reform" while also hobbling a tool that has helped Democrats), or they can blame Democrats for being obstructionist over lobbying reform.

More importantly, 527 reform has absolutely nothing to do with the kinds of scandals that led to the Abramoff or Cunningham deals. Abramoff and Cunningham were involved in the buying or selling of influence within Washington to the highest bidder. Their conduct was barred by current law, and the way to deal with such problems is better enforcement of existing law -- current lobbying rules are notoriously underenforced -- combined with increased disclosure so that illegal bribery can more easily be detected.

There isn't a 527 in sight of these scandals. Nor are 527s implicated in the larger concerns over how lobbying works in Washington. The public is concerned about lobbyists getting too much access to elected officials, and thus enjoying an unfair advantage in making their case for paying clients.

The way to deal with this concern over unfair access is not to clamp down on 527s. Instead, we should ask why Members of Congress and their staff give such access to lobbyists. Typically, the answer is that the lobbyist can provide something that the Member of Congress wants--access to a private jet, a cushy trip to an exotic location or a bundle of campaign contributions.

To deal with this problem, there needs to be heightened regulation of trips and a limit on the ability of lobbyists to raise and bundle contributions for Members of Congress. Regulating 527s in the guise of lobbying reform is just more politics as usual in Washington.

Richard L. Hasen specializes in election law at Loyola Law School, Los Angeles and writes the election law Web log.

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