| Subject: [EL] Electionlawblog news and commentary 2/9/11 |
| From: Rick Hasen |
| Date: 2/9/2011, 10:24 AM |
| To: Election Law |
Reply-to: "rick.hasen@lls.edu" |
The following is Part 1 of a two-part guest blog post by Yale's
Heather
Gerken.
Much has been written about the future of campaign finance
reform in the wake of Citizens United. Today I will talk
about why lobbying may be the new campaign finance. In my next
post, I'll post on one direction lobbying reform might take.
I believe Citizens United will prove to be a pivotal
moment for campaign finance reform. That's not because the
decision has unleashed the floodgates of corporate speech or
because it overruled Austin (the arguments reformers
typically offer). It's because, as I have written elsewhere,
Citizens United seems to have cut back on the reasons
that Congress can regulate campaign finance. By substantially
narrowing the definition of corruption -- the core justification
offered for most reform -- the Court substantially narrowed
Congress's power to act. Lower courts have already taken the
Court's cue and begun to invalidate other campaign-finance
provisions on these grounds. If the courts continue along this
path, it will be very hard to rebuild McCain-Feingold, let alone
pass bigger, better reform in the future.
So where do we go from here? In the past, reformers have
typically focused on taking money out of politics. Now that the
Court has placed roadblocks along that path, pragmatic reformers
need to move in new directions; they need to find ways to
harness politics to fix politics. It may be time to acknowledge
that money will inevitably be part of the system unless the
Court radically changes course. Our goal, then, should be
figuring out how to use its attractions to create the right
kinds of incentives for politicians. The obvious and popular
example of this strategy is matching rules, which convert a $20
donation into, say, $100 or $200. While campaign finance has
typically tried to level down -- restricting the ability of the
monied to influence politics -- we might instead try to level up
by making small donations worth more. We would thus give
politicians a reason to reach out to working-class and
middle-class voters. Disclosure and disclaimer rules might
similarly help us harness
politics to fix politics by converting what is typically a
campaign advantage -- having big business on your side -- into a
potential liability.
If the future direction of reform involves channeling money in
useful political directions rather than pulling it out of the
system entirely, lobbying reform fits naturally with these
efforts. Indeed, just as beige is the new black, lobbying may be
the new campaign finance.
Lobbying has been neglected by most people who write in the
field (including me). I believe that Richard
Briffault is the only election law professor to have
written in depth about the many connections between the two
(though others, like Sam
Issacharoff and Rick
Hasen, have recently moved in this direction). The rest of
us, however, have made a serious mistake in neglecting the
relationship between lobbying and campaign finance. That's
because the two work in tandem with each other as interest
groups seek political influence. As long as lobbying and
campaign donations remain both substitutes and complements, we
should not study one without studying the other. Both are
different means for achieving a similar set of political ends,
not isolated phenomena that fit neatly into different academic
silos.
Just as the two fit together as a practical matter, they fit
together as a theoretical one. That's not to say the problems
are precisely the same, as Richard
Briffault has pointed out. But campaign finance and
lobbying share many important attributes. Both address the
problem of political influence. Both involve legislative foxes
guarding the regulatory henhouse. Both raise serious
constitutional questions. And both require us to regulate shape
shifters. As Michael
Kang has argued, in politics we are rarely regulating
stable legal entities. Instead, we are often trying to control a
loose collection of interests that can take different forms as
circumstances dictate. Each time the courts or legislatures try
to regulate a particular type of political institution,
political entrepreneurs find new outlets to channel their
energies. Party donors become supporters of 527s, then 501c4s
and c6s. Lobbyists deregister and become consultants. They are
shapeshifters. We see it in campaign finance, and we see it in
lobbying. If any regulatory area plays to our field's
comparative strengths -- raising the same sort of puzzles we
routinely study -- it's lobbying.
Several years ago, Richard
Briffault suggested that the reason we don't study the two
problems together is that the plausible solutions are quite
different. As he noted, campaign finance reform has long had a
strong egalitarian element to it, whereas lobbying reform
focuses almost entirely on questions of disclosure and
transparency. But Richard wrote that before Citizens United. It
may well be that, by the time the Court is done with its work,
his observation will no longer apply. I suspect that much of the
future work on campaign finance will focus on disclosure and
transparency simply out of necessity. These regulatory arenas
will thus look even more alike than they do now. Indeed, as I'll
argue in my next post, I think that we can build on what we've
learned in the campaign finance arena to chart new paths on the
lobbying front.
Wendy Kaminer blogs
(via Eric
Brown, who also links to this
Greg Sargent post on Democratic convention fundraising).
So reports
Richard Winger.
The Honolulu Civil Beat offers this
report.
See here.