"Lobbying, Rent Seeking, and the Constitution"

I have just posted this draft on SSRN. Here is the abstract:

Politicians across the political spectrum, from Barack Obama to Sarah Palin and Rand Paul, routinely castigate lobbyists for engaging in supposedly corrupt activities or having unequal access to elected officials. Since attaining office President Obama has imposed unprecedented new lobbying regulations, and he is not alone: both Congress and state and local legislative bodies have done so in recent years. At the same time, federal courts, relying upon the Supreme Court's new campaign finance decision in Citizens United v. FEC, have begun striking down lobbying regulations, including important regulations limiting campaign finance activities of lobbyists and imposing a waiting period before legislators or legislative staffers may work as lobbyists. Two courts have held such laws could not be sustained on anticorruption grounds, and they are unlikely to be sustained on political equality grounds either.

This Article advances an alternative rationale which could support some, though not all, of the recent wave of new lobbying regulations: the state's interest in preventing the socially inefficient activity of rent-seeking. Less technically, the government's interest is in promoting national economic welfare. Rent-seeking occurs when resources are dedicated to capturing a government benefit, rather than being put to a productive use, and lobbyists are often the key actors securing such benefits. The rent-seeking analysis focuses attention on the systemic societal costs of lobbying, rather than engaging in unjustified vilification of the vast majority of lobbyists.

Part I of this Article provides an overview of the current state of lobbying regulation and lobbying jurisprudence. Part II proposes a new anti-rent-seeking rationale for lobbying regulation. It begins by describing the political science literature on how lobbying works, as well as current statistics on the extent of lobbying on the federal level and the costs of lobbyist-driven rent-seeking on the national economy. Some of the new and proposed lobbying regulations, such as anti-bundling provisions and anti-revolving door provisions, could decrease the total amount of interest group rent-seeking. The state's anti-rent-seeking interest must be balanced against the First Amendment costs of lobbying regulation in infringing on the right to speak and petition the government. I defend the reduction of rent-seeking as an important (even potentially compelling) state interest that justifies at least some new lobbying regulations against constitutional challenge.

Part III turns to objections and extensions of the argument. I respond to objections on both ends and means. On ends, I consider the circumstances in which the promotion of national economic efficiency can trump First Amendment rights. On means, I consider whether there is sufficient proof that lobbying regulations are sufficiently tailored to a reduction in rent-seeking and whether, because the "hydraulic" nature of money in politics, attempts to regulate lobbying so as to decrease rent-seeking will be easy to evade. Under extensions, I consider whether the anti-rent seeking rationale could be used to justify the reenactment, as suggested by Justice Stevens, of the ban on the spending of corporate treasury funds in candidate elections, as well as the recent SEC "pay-to-play" rule for investment advisers.

"Campaign finance reformers carry on without their leader"

The LA Times offers this report, which discusses the prospects of a disclosure law in the new Congress (I would not hold my breath).

"2 Ohio Election Cases Sent To Attorney General"

AP offers this report.

"Misidentified Priorities: Newly elected Republicans are pushing state-level voter-ID laws designed to disenfranchise minority voters."

Tova Wang has written this piece for The American Prospect.

Welcome to the Blogosphere....

to the Corporate Political Activity Law blog.

Signing Statements, Again

Charlie Savage has an interesting NYT piece discussing signing statements in relation to Guantanamo.

"Democrats Plan Push to Curtail Use of Filibusters"

The NY Times offers this report.

"Connecticut state senator resigns, pleads guilty to election violations"

See here.

"Is The Supreme Court a Majoritarian Institution"

Rick Pildes has posted this draft on SSRN (forthcoming Supreme Court Review). Here is the abstract:

In recent years, a number of scholars have argued that the Supreme Court has always been, and is destined to be, a "majoritarian" institution. Building on the work of Robert Dahl, these scholars collectively offer both historical and predictive claims: they assert that the Court's decisions have tended to reflect the values and preferences of national majorities and that deep structural forces and incentives constrain will continue to constrain the Court from departing from the preferences of these national majorities.

This article takes issue with those claims. Using as a starting point the Court's dramatically countermajoritarian recent decision in the Citizens United case, this article identifies at least six problems with the majoritarian thesis: (1) lack of clarity about who the relevant majority is that purportedly constrains the Court, such as national lawmaking majorities, national popular opinion majorities, or other possible definitions of "the majority"; (2) lack of convincing accounts of the mechanisms by which one or another of these majorities manages to constrain the Court; (3) disagreement about whether the Court's most momentous decisions, such as Brown v. Board of Education, were in fact majoritarian or not; (4) confusion between whether individual Court decisions reflect majoritarian preferences and whether the Court over long periods of time eventually reflects majoritarian beliefs; (5) failure to take into adequate account the changing power of the Court over time; (6) issues about whether data support the majoritarian thesis.

In addition, this article argues that good reasons exist to believe that the history of judicial review will not necessarily predict its future. However independent the Court might or might not have been in the past of political and popular constraints, the Court is likely to have more autonomy going forward than in the past. The strongest mechanism through which the Court reflects the outcomes of electoral processes, the appointments process, has been attenuated by the much longer average time Justices now serve; seats now become vacant on average every 3.1 years, rather than the 1.6 years that had long been the norm. That makes even more random any linkage between judicial appointments and national electoral outcomes.

The article concludes by offering Citizens United as a powerful reminder that, despite the best efforts of modern majoritarian theorists, Bickel's countermajoritarian difficulty endures. Citizens United may prove to be an isolated but important episode -- or a harbinger of an assertive new era of judicial review that operates with a good deal of independence from national lawmaking and popular majorities.

"Secretaries of State Up the Political Ante"

Stateline.org offers this report.