Gerken: Leveling Up: A Public Finance Analog for Lobbying

The following is Part 2 of a two-part guest blog post by Heather Gerken. Part 1 is here.

Yesterday I explained why recent developments in campaign finance suggest that lobbying should play a more central role in the reform process Today I will argue that it's time to engage in a bit of intellectual arbitrage, leveraging the lessons learned from campaign finance reform to shed light on the problem of lobbying reform.

Bruce Cain, for instance, has already done that in a piece forthcoming in Race, Reform, and the Regulation of the Electoral Process (forthcoming from Cambridge University Press). There he argues that what he calls the "usual move" in lobbying reform -- giving the lobbyists who represent monied interests less voice -- is not as promising a solution as figuring out ways to give other interests more voice. Cain proposes creating "public lobbyists along the model of public defenders in criminal proceedings." Under his proposal, leaders of groups that qualify based on membership could automatically qualify as lobbyists to work on bills. To me, it's exactly the same kind of move we're now seeing in the context of campaign finance with matching programs -- an effort to level up rather than level down, to open opportunities for influence to a broader range of interests.

Here's my own effort at intellectual arbitrage. Alex Tausanovitch and I are writing up a proposal that represents the rough cognate to the public finance system in campaign finance. Our paper begins with a simple question -- what, precisely, do legislators get from lobbyists? Most assume it's money -- that's where most of the energy in lobbying reform is directed (think about the worries about lobbyists who bundle). But, as Richard Briffault has pointed out (nicely connecting the two fields), that's not really the problem. Illicit steak dinners and baseball tickets aside, legislators aren't getting the money of lobbyists. The problem is that legislators are getting money from special interests. Lobbyists are just the conduit. And, as I noted yesterday, until the Supreme Court changes course, monied interests will likely remain influential interests. We don't know how to solve that problem, but neither does anyone else in the current regulatory environment.

But there are problems we can solve in the context of lobbying. Lobbyists do more than channel money. They provide information. Indeed, some political scientists believe that information-providing function is what really makes lobbyists so influential. According to political scientist John R. Wright, lobbyists provide three types of information: (1) political information about the prospect of legislation, (2) electoral information about the implications of supporting or opposing a bill, and (3) policy information about the consequences of a bill and possible alternatives.

Here's how it works. Because lobbyists can provide politicians the expertise and information they need to move a bill forward, lobbyists can ensure that their policies get more attention and move more quickly through the process. Imagine, for instance, you are a member of Congress or a state legislator. There are umpteen billion things you could do. For some of these projects, you'd have to start from scratch -- figure out the right thing to do and then figure out whether it will work, whether it will pass, whether it will reduce your chances of getting reelected, etc. And then you'd need to do all the work to get the bill passed -- assembling legislative history, expert testimony, and a workable text.

Or...you could take the prefab materials lobbyists provide to state and federal legislators -- the McLegislation and the McTalkingPoints and the McResearch neatly packaged and ready to go (along with the lobbying equivalent of a Happy Meal toy -- all-too-helpful polling research). What would you do? You'd choose the option where you have the information you need to move forward. Richard Hall and Alan Deardoff call this a "legislative subsidy." And, of course, it's mostly monied interests that are able to provide this type of legislative subsidy. The legislative subsidy is especially important at the state level, where legislators are starved for staff and resources.

We propose a solution -- a lobbying analog to the public financing proposals we see in campaign finance circles. (For a different effort to connect the two, see Dale Freeman's 1968 student note in the Harvard Journal on Legislation). We propose providing a legislative subsidy for issues where lobbyists aren't there to provide a helping hand, where staffers and their bosses need political, electoral, and policymaking information to move forward.

We aren't naive. Legislators will still care deeply about what moneyed interests want. But that's not all they care about. And when legislators are feeling reform-minded, we want to make sure that the fight occurs on as level a playing field as possible.

The simplest version of our proposal might be just to let Congress or state legislators hire more staffers. But staffers are fungible, and it's hard to imagine legislators could resist the impulse to farm some of them out to constituent services and the like. Moreover, staffers are, by definition, generalists, and there's no guarantee they'd have the right expertise at the right time.

Second, we might try to expand the Congressional Research Service and the House and Senate Legislative Counsel's Offices (or their state-level counterparts). This would prevent the diversion-of-resources problem. But the apolitical norms of these organizations -- norms which we ought to value highly -- mean that their staff members don't provide all the information that legislators need. In particular, they can't provide the type of political information legislators need to feel comfortable moving forward.

The best option, in our view, is to fund research consultants: people who could provide McLegislation, McTalkingpoints, and McResearch, plus all of the politically relevant advice congressional members could want. We already see a ramschackle version of this occurring today. Staffers find experts in the field, who submit testimony and often do informal consulting. We have in mind researchers with semi-permanent status, people who could provide assistance during the formative stages of the decisionmaking process as well as during the period the bill actually gets amended and passed.

If we adopted a market-based solution for this -- allowing individual legislators to decide what kind of expertise they want – we would avoid the difficult problem involved in sorting the "public interest lobbyists" from what many reformers think are the "bad" lobbyists (those representing well-heeled, corporate interests). This approach, we believe, would avoid some of the constitutional difficulties associated with efforts to level the playing field by giving a leg up to particular interest groups (see, e.g., here and here)

To be sure, our proposal would allow some legislators to hire experts for the villains du jour, like the banking industry. But why would they? The banking industry is already happy to provide legislators with the help. Indeed, bank executives ought to prefer to have their own people supplying information to legislators. It seems far more likely that legislators will look for expertise in areas where it's not being supplied.

This idea is still in the kicking-around stage, and we'd welcome your help in doing so. But our larger point stands. Citizens United and the decisions that will follow are going to block many of the traditional paths of campaign finance reform. Campaign finance reform is going to move in new directions, with greater focus on leveling up rather than leveling down, directing money into politically useful channels rather than taking money out of politics. Particularly as disclosure and transparency become the constitutionally safe options for reformers, campaign finance and lobbying -- which have long been connected in practice, if not in theory -- will begin to look more and more alike. There has long been a reason to study the two together. Citizens United simply makes that fact more obvious.

"Ethics watchdog targets congressional sleepovers"

AP offers this report.

"The Recusal of American Judges in the Post-Caperton Era: An Empirical Assessment of the Risk of Actual Bias in Decisions Involving Campaign Contributors"

Vernon Palmer has posted this draft at BePress. Here is the abstract:

This article is an empirical investigation of the relation between campaign contributions and the ability of elected judges to remain impartial in their rulings. Its principal aim is to assess the risk to impartiality that unrecused rulings in favor of contributors may entail. The tense if not conflictual relationship between campaign support and judicial detachment became a national issue in 2009 when the Supreme Court ruled, for the first time, in Caperton v. A.T. Massey Coal Co., that a state judge's refusal to disqualify himself after receiving extraordinary campaign support from a litigant violated the Due Process Clause of the Constitution. The present study, building upon the approach charted in Caperton, focuses in depth upon one state supreme court's experience with contributor cases. The study follows the voting behavior of the seven Justices of the Louisiana Supreme Court (as constituted in 2006) over a 14-year period. The carefully checked database, consisting of more than 10,000 entries derived from 177 cases involving contributors, presents striking insights about the risks involved in unrecused voting. The entire database is included with the article. Far from undermining Caperton's thesis, it demonstrates that far smaller contributions also create a risk of actual bias and that the relative size of a donation, in comparison to overall campaign funds and expenditures, is not a necessary component of the risk. The value-added of this empirical contribution to the national issue is essentially three-fold. First, it lays out a detailed factual tableau concerning the size, scope and timing of contributions. Here is a mine of vital information that may serve as a predicate for analysis and reform. Second, in line with the "risk" calculus charted in Caperton, the article presents statistical measurements and new methods of comparison to gauge the likelihood of actual bias in judicial voting behavior. The statistical calculations based on the data were verified and replicated by the Center for Empirical Research in the Law in St. Louis. Third, it carries the analysis beyond the relatively easy Caperton facts and examines the risk factor in the everyday cases before the courts. Thus, it addresses the typical and more difficult questions needing to be discussed and dealt with in the future, whether by the Supreme Court in revisiting the constitutional issue or by state legislatures, state courts and professional bodies in their reform efforts.

"OCE Gives Public Window Into Congress' Self-Policing"

Lisa Gilbert has written this Roll Call oped.

"Florida governor turns Voting Rights Act rule on its head"

The LA Times offers this report, with the subhead: "Gov. Rick Scott is using the pre-clearance rule, which requires that the Justice Department OK changes in voting law in some states, to delay enforcement of a voter initiative that bars partisan gerrymandering."

"Common Cause suddenly uncommonly forceful in fighting Koch Industries"

The Washington Post offers this report.

Should Justice Thomas Recuse in the Health Case Cases Because of His Wife's Lobbying Activity?

That's the suggestion of some House Democrats. It follows the suggestion of Republican Senator Hatch that Justice Kagan sit out the health care case. And I expect some Republican will call for Justice Ginsburg to recuse on the Virginia attempt to fast-track review of the health care law because of her out of court statements on the propriety of that route of review.

I'm skeptical that in any of these cases these Justices' impartiality could reasonably be questioned, and it seems more accurate to say that partisans are looking for an excuse to knock out of the vote someone likely to vote against their interests.

"Corporations Make Political Donations At The Risk Of Shareholders' Wrath"

This item appears at "The Diversity Factor" blog.

Off to Emory Conference

Looking forward to this tomorrow. Blogging will be intermittent the next few days.