Keynote Address: Lobbying as the New Campaign Finance
| Citation | Vol. 27 No. 4 |
| Publication year | 2010 |
Georgia State University Law Review
Article 11
3-13-2012
Keynote Address: Lobbying as the New Campaign Finance
Heather Gerken
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Recommended Citation
Gerken, Heather (2010) "Keynote Address: Lobbying as the New Campaign Finance," Georgia State University Law Review: Vol. 27: Iss. 4, Article 11.
Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/11
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KEYNOTE ADDRESS: LOBBYING AS THE NEW CAMPAIGN FINANCE
Heather Gerken *
November 12, 2011
Thank you very much for having me. The conference organizers asked me to provide you with a little food for thought to go along with the more traditional sustenance that they've provided. I may repeat a few things said in the earlier panels. This will be short and sweet, in large part because I left my house this morning at 3:45 A.M. and the caffeine runs out in about twenty-five minutes.
I want to talk a little bit about the future of campaign finance reform and the future of campaign finance scholarship in the wake of Citizens United. Here I am going to draw upon my own work and the work of some of the folks in this room, including Richard Briffault and Rick Hasen, so please imagine a properly footnoted law review article scrolling behind me.
I want to make three points. First, I will argue that Citizens United has cut off most of the traditional pathways for campaign finance reform. Second, I want to talk about the new directions in which this development will push us; I will talk very briefly about future reform proposals in the campaign finance context, some of which we have already talked about today. Finally, I will talk about where I think campaign finance should go. Here I'll argue that, just as brown is the new black, lobbying is the new campaign finance. I want to talk a little bit about why I think these two areas are going to be tied closely together in practice and in theory. I'll even kick in new a policy proposal at the end by way of a party favor: a public finance analog for lobbying reform.
* What follows is a modestly edited transcript of Professor Gerken's speech.
1148 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:4
A. The Dead End for Reform: Taking Money Out of Politics
Let me start with the basic premise of campaign finance reform and why I think we may be leaving it behind. The instinct that has long undergirded campaign finance reform is to get money out of politics. It's a perfectly sensible idea if you think that money distorts political incentives. By that I simply mean that money makes politicians pay less attention to average, everyday people and more attention to wealthy corporate interests. While I subscribe to this perfectly sensible idea, I get off the boat when reformers start to make a list of the problems that they associate with money, including thirty-second advertisements, special interest groups, and the end of deliberation. These lists lead me to suspect that some reform supporters just don't like democracy. What bothers them is not money in democracy—it is democracy in democracy. But even if you like politics and think elections are ugly and kind of fantastic, you can still get on board with the idea that money can distort political incentives.
Whatever you think about the goal of taking money out of politics, Citizens United provides the latest, and perhaps the best, evidence that this goal is a dead end for reform, at least in the short term. While it may be possible to hold onto what exists now (contribution limits in particular), reformers are not going to be able to build a new McCain-Feingold regime, let alone find more muscular ways to take money out of politics, without running headlong into an exceedingly skeptical Supreme Court. While I think that McCain-Feingold was overall a good development, I think we should admit that the results of the "take money out of politics" approach have been underwhelming. That is not to say that it is theoretically impossible to take money out of politics. But in a system like ours—where elections are privately funded, where reform is piecemeal, and where public finance is generally not a realistic option—money hasn't been taken out of politics. Donors simply find new, less transparent ways to gain influence in the process. Whether you blame that on Buckley v. Valeo (the field's first blockbuster case) or Citizens United, there is no place to go.
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When academics teach students about the history of campaign finance, they always start with Buckley. It is the snake in the garden of campaign finance Eden. The story we tell is that when the Court drew a distinction between expenditures and contributions, it created a world in which politicians' appetite for money would be limitless, but their ability to get that money would not be. Political interests inevitably looked for loopholes, they inevitably found loopholes, and they inevitably drove big trucks of money through those loopholes. As a result, the entire reform game became focused on closing those loopholes—engaging in the regulatory equivalent of whack-a-mole. Either money gets driven into dark corners, where it is hard to track, or efforts to regulate start to tread on First Amendment interests— interests that would be salient even to someone who thinks that much of campaign finance regulation is constitutional.
Now, others will say that it is not Buckley v. Valeo that is the problem; it is what the current Court has been doing of late. On this view, McCain-Feingold was going to work and in the long term we would have been able to close most of the loopholes. Here I do think that reformers have a point—although it is not the point that they are constantly flogging with the press. Every time you see reformers up in front of the press, they say that Citizens United unleashed the floodgates of corporate money, that the Supreme Court's overruling of Austin—which is the one case where the Supreme Court invoked the equality rational in talking about campaign finance—was the end of the world. Here I am with some of the earlier folks on the panel. I'm a little skeptical that the ruling on independent corporate expenditures is the end of the world. I do think that transparency is important, and I would like to see some efforts to fix that problem. But we don't really know whether Citizens United has opened the corporate floodgates. And I certainly would have to agree with one of the earlier panelists that the...
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