Election Law Getting Interested In Lobbying Reform


An important piece from Heather Gerken:

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.