Lobbying and Campaign Finance: Separate and Together
Briffault, Richard, Stanford Law & Policy Review
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. …