Lobbying, Rent-Seeking, and the Constitution

By Hasen, Richard L. | Stanford Law Review, January 2012 | Go to article overview

Lobbying, Rent-Seeking, and the Constitution


Hasen, Richard L., Stanford Law Review


INTRODUCTION

I.   THE STATE OF LOBBYING REGULATION AND JURISPRUDENCE
     A. The State of Lobbying Regulation
        1. Federal disclosure laws and other early federal laws
        2. Federal tax laws
        3. New federal laws and regulations (including Obama
           Administration initiatives)
        4. The variety of state lobbying laws
        5. Proposals for additional lobbying regulations
     B. Constitutional Jurisprudence Concerning Lobbying Regulation
        1. The traditional approach of the courts
           a. Disclosure
           b. Tax laws
           c. Other lobbying laws
        2. The changing tide: constitutional jurisprudence concerning
           lobbying regulation in a post-Citizens United world

II.  THE NATIONAL ECONOMIC WELFARE RATIONALE FOR LOBBYING
     REGULATION
     A. How Lobbying Works: Lessons from Political Science
        1. How lobbyists achieve influence
        2. Securing access
        3. After the access
     B. The National Economic Welfare Rationale for Lobbying
        Regulation
        1. Lobbying skew, equality, and inefficiency
           a. Rent-seeking, social inefficiencies, and social costs
           b. Inefficiency beyond rent-seeking
           c. The efficiency costs of lobbying
        2. The promotion of national economic welfare as a
           sufficiently important government interest to be balanced
           against First Amendment interests
     C. Balancing the State's Interest in Promoting National Economic
        Welfare with First Amendment Speech and Petition Rights in the
        Lobbying Context

III. OBJECTIONS AND EXTENSIONS
     A. Objections
        1. Ends-based objections
        2. Means-based objections
     B. Extensions
        1. Reenacting, or partially reenacting, corporate spending
           limits
        2. SEC pay-to-play rule for investment advisers

CONCLUSION

INTRODUCTION

President Barack Obama and former Alaska Governor Sarah Palin may not have a lot in common, but they share a common enemy: "Washington lobbyists." As a presidential candidate, Obama declared that "[i]f you don't think lobbyists have too much influence in Washington, then I believe you've probably been in Washington too long." (1) He explained his refusal to take campaign contributions from federally registered lobbyists on the grounds that lobbyists can "drown out the views of the American people." (2) As President, he criticized an "army of lobbyists" spending millions of dollars in an unsuccessful attempt to block passage of a bill reforming practices in the student loan industry. (3)

Sarah Palin has expressed similar views. When Fox News host Sean Hannity asked Palin if campaign contributions to then-Senator Obama and other members of Congress caused lax congressional oversight over mortgage giants Fannie Mae and Freddie Mac, Palin replied that "even more significant [than contributions] is the role that the lobbyists play in an issue like this." (4) She explained her views further in a Facebook post, in which she decried "crony capitalism" in negotiations over the financial reform bill: "Does anyone doubt that firms with the most lobbyists and the biggest campaign donations will be the ones who get seats in the lifeboat?" (5) She explained that "the big players who can afford lobbyists work the regulations in their favor, while their smaller competitors are left out in the cold." (6)

Newly elected U.S. Senator (and Tea Partier) from Kentucky, Rand Paul, went even further in his criticism of lobbyists. He declared that "[l]ast year, over 15,000 individuals worked for organizations whose sole goal was to rip you off. No, not the mafia or Goldman Sachs, but another distinctly criminal class--Washington lobbyists." (7) He called upon Congress to include in all government contracts worth at least $1 million a clause barring the contractor from engaging in any lobbying activities or making campaign contributions. …

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