Lobbying and campaign finance: separate and together.

• Author: Briffault, Richard
• Position: Symposium: The Law of Lobbying

INTRODUCTION

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. (1) At roughly the same time, several of the leading candidates for the Democratic presidential nomination clashed over the propriety of accepting campaign contributions from lobbyists. (2)

Yet, lobbying and campaign finance also present different issues, and they are generally governed by different statutory regimes. The importance of the campaign finance/lobbying distinction was underscored in 2007 by the Supreme Court in FEC v. Wisconsin Right to Life, Inc. (WRTL), (3) which carved out an enormous as-applied exception to Congress's limitations on corporate and union campaign spending to assure that campaign finance law does not constrain the ability of corporations and unions to undertake grassroots lobbying expenditures. As WRTL indicates, lobbying is often subject to less restrictive controls than campaign finance, suggesting further that the two practices implicate different concerns.

Although both lobbying and campaign finance have each been the subject of extensive scholarly treatment, relatively little attention has been paid to the relationship between these two closely related, yet different activities, and the regulatory regimes that deal with them. This Article constitutes a first effort at probing the relationship between lobbying and campaign finance. The next Part provides a brief overview of the commonalities, differences, and interactions of campaign finance and lobbying. Part II compares the techniques that mark the regulation of these two modes of political expenditure, and contends that these differences reflect distinct goals. It suggests that transparency, enforced by reporting and disclosure requirements, plays and ought to play a bigger role in the regulation of lobbying than in campaign finance. By contrast, egalitarian goals, implemented by a mix of limits and subsidies, are more significant in the campaign finance setting. A third goal--the control of improper or undue influence--is central for the regulation of both lobbying and campaign finance.

Part III addresses an area where these two fields are increasingly coming together: the regulation of the campaign finance activities of lobbyists. In the 2007 Honest Leadership and Open Government Act, Congress required campaign committees to disclose substantial bundled contributions provided by lobbyists. (4) Many states have enacted direct restrictions on lobbyists' campaign contributions, bundling, and other forms of support for candidates' campaigns. (5) And former Senator John Edwards won significant attention in the summer of 2007 with his refusal to accept lobbyists' donations and his criticism of Senator Hillary Clinton over her failure to follow suit. When they occur together, lobbying and campaign contributions can compound the dangers of undue influence that each practice presents separately. But it is not clear that singling out lobbyists' campaign contributions for special regulation makes sense. Lobbying and campaign contributions can both be instruments for seeking influence. Although some lobbyists are powerbrokers in their own right, for the most part that influence is deployed on behalf of the lobbyists' clients, not the lobbyists themselves. Senator Clinton's position that the real problem is not the lobbyists but the interest groups they represent seems right. Campaign finance practices like bundling that can be sources of influence over candidates and officeholders should be regulated generally and not just when engaged in by lobbyists. On the other hand, there may be some situations where the campaign activities of lobbyists provide special influence for lobbyists above and beyond the benefits to their clients; in those cases, regulations aimed at lobbyists may be appropriate.

1. COMMONALITIES, DIFFERENCES, AND LINKAGES

   1. Similarities

      Both lobbying and campaign finance are vital to representative democracy. Lobbying helps elected officials obtain the information they need to develop legislative or regulatory initiatives; to assess how proposals for government action will affect specific interests, industries, constituencies, or society at large; to determine how different groups view particular policy alternatives; and to decide how they will vote on the measures that come before them. By the same token, individuals, organizations or groups affected by government action or seeking government assistance to deal with a political, economic, or social problem engage in lobbying in order to present public officials with the facts and arguments they believe support their positions.

      Like lobbying, campaign finance also involves information and communication. Campaign expenditures supply the voters the information they need to select among competing candidates or to make a decision concerning a ballot proposition. Campaign expenditures enable candidates, parties, political committees and interest groups to present their views to the voters to influence the electorate's decisions with respect to the election of public officials or the approval or rejection of ballot measures. Campaign contributions enable candidates, parties, committees, and groups to pay for those campaign expenditures. Given their critical roles in enabling democratic self-government, it is not surprising that both lobbying and campaign expenditures are protected by the Constitution--specifically, the First Amendment guarantees of the fight to petition, the freedom of speech, and the freedom of association. (6)

      Lobbying and campaign finance, however, also raise common concerns about unequal wealth and improper influence over the political process. Both lobbying and campaigning depend on the use of money, and money is radically unequally distributed in our society. Individuals, organizations, and interest groups with greater financial resources have an advantage in gathering information, undertaking analyses, and presenting facts and arguments to government officials, much as the well-funded can more easily engage in direct communications with the voters or provide candidates with the financial support they need to campaign. And, of course, candidates with more resources--either their personal funds, or funds provided by donors--have an advantage in campaigning. To be sure, inequalities in wealth do not fully determine either lobbying or election results. Numbers of supporters, organizational ability, intensity of effort, and substantive positions on issues all affect electoral and legislative outcomes. But money can matter to a degree that is in tension with the formal political equality of citizens.

      Campaign finance and lobbying also raise concerns about improper influence, or corruption, that is, the danger that government officials will make decisions based on their own private benefit--whether to aid their reelection efforts or to add to their personal wealth--rather than the public interest. As the Supreme Court recognized in upholding the contribution restrictions of the Federal Election Campaign Act, "[t]o the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined." (7) The Court has emphasized that improper influence is not limited to outright bribery but also extends "to the broader threat from politicians too compliant with the wishes of large contributors." (8) So, too, in cases dating back to the nineteenth century, the Court has expressed concern about the corrupting effects of "the influence and exertions of the lobby agent to bring about the passage of a law." (9) Both campaign finance and lobbying are also regulated not simply because of the possibility of actual corruption but because of the potentially demoralizing effects on public confidence in government of the "appearance of corruption" attributable to unrestricted contributions (10) or the "direct access to elected representatives" enjoyed by lobbyists. (11)

      As a response to these common concerns, lobbying and campaign finance regulation are subject to some similar regulations. At the federal level, and in many states, both lobbyists and political committees may be required to register, and to report, for public disclosure, information about their finances and expenditures. Federal and state laws may forbid activities particularly associated with improper influence, such as cash contributions above a de minimus level in the campaign finance setting, (12) or the giving of gifts to public officials in the lobbying context. (13) Regulations may also target certain actors deemed especially problematic. Congress prohibits corporations and unions from making campaign contributions and expenditures. (14) So, too, because of the danger that they may be able to trade on inside knowledge and close social ties, Congress imposes "revolving door" restrictions on the ability of former members of Congress and former congressional staffers to lobby Congress. (15)

   2. Differences

      Despite these similarities, lobbying and campaign finance present many differences, reflected in regulatory structures and techniques. Lobbying and campaign finance are subject to different statutory regimes with different rules and different enforcement bodies. At the federal level, for example, campaign...