Posted by Richard Painter, guest-blogging: Money in Politics: http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238387770
My last post in this discussion is on lobbying and campaign money, topics discussed in Chapters 8 through 11 of my book. Chapter 8 is titled Bagmen in Black Tie or Professional Intermediaries: the Growth of the Lobbying Industry and Prospects for Reform. Here I point out that the present success of the lobbying industry is driven largely by our system of campaign finance. I suggest that we cannot significantly change the lobbying industry and how it operates without changing campaign finance. Chapter 9 discusses the many advocacy groups that engage in lobbying of public officials and that overtly or covertly engage in political campaign activities for public officials. These include public policy groups, legal policy groups, single issue advocacy groups, religious advocacy groups, foreign policy advocacy groups, trade associations, 527s and others. To the extent these groups conduct activity that would otherwise be conducted by registered lobbyists subject to the Lobbying Disclosure Act of 1995 or activity that would otherwise be conducted by political campaigns subject to the FEC disclosure rules these groups are analogous to the special purposes entities (SPEs) that businesses use to move some operations off their books. All or most of the activity of these groups is constitutionally protected free speech, but this speech is not free. These groups are a significant part of a growing industry in Washington that turns money into law and public policy. Chapter 10 discusses political activity of White House and other Executive Branch officials, a topic addressed in my first post last Monday. This activity provides a key access point for lobbyists and SPEs as well as other campaign contributors. Finally, Chapter 11 discusses campaign finance. This topic has been well worn by other authors and various systems for regulation have been proposed. Although I do not conduct a separate analysis of each proposal, which would require another book, I suggest that regulation of money in politics is an uphill battle. Between First Amendment protections that limit the de jure scope of regulations and practical difficulties that limit the de facto scope of regulations, there is relatively little that can be done other than to require more meaningful disclosure (in some instances I suggest less disclosure, for example eliminating disclosure of small contributions that may discourage such contributions). In the end, I suggest that government subsidies may be needed. Expanded public financing of campaigns would by no means eradicate the influence of money on politics, but it would increase the total amount of political speech. This should reduce the marginal benefit to be obtained from private expenditures, or at least make private expenditures that have a meaningful impact more expensive. Public financing of political campaigns could also be tied more tightly to the support of small donors, thus bringing more voices into the process. In short, more political speech not less, is probably the answer. In general I do not like government subsidies. However, the current regime allows campaign contributors and their lobbyists and SPEs to extract subsidies in ways ranging from earmarks to inefficient regulation and bailouts. It would be cheaper to subsidize political campaigns directly in meaningful amounts if doing so would reduce the marginal impact of these private expenditures on a federal budget running into trillions of dollars and a national economy that is even bigger. The alternative may be having a system that provides, but only for those willing and able to pay, the best laws money can buy. In closing, I should point out that lobbyists do not always get what they want. Jack Abramoff and his colleagues, for example, tried to fire the chief White House ethics officer, my predecessor Nanette Everson. Everson had apparently given an ethics briefing to the White House Intergovernmental Affairs office in which she encouraged direct contact between the White House and Indian tribes. Abramoff and his colleagues were furious. As reported by the House Committee on Government Reform in investigating Abramoff: It began on March 1, 2003, when Kevin Ring reported to his associates �a disturbing problem� he had heard about from the White House: Just wanted to let everyone know of a disturbing problem I just learned about at the White House. The Intergovernmental Affairs Office just received their ethics briefing, and when all was said and done, they concluded that they should NEVER call lobbyists anymore � will call tribes directly � and will NEVER have lobbyists sit in meetings, EVEN WHEN the client is meeting with the IGA Office. * * * Finally, it is scary that the White House ethics advisor � a Nanette Everson � told the IGA folks that tribes shouldn�t even need to have lobbyists, anyway � and that it is wrong for them to pay so much money for lobbyists when people in the government should be meeting with them as needed. Those are fighting words!!!! Abramoff responded, �This is horrible. Why would they f**k us like this?� Over the weekend, the team developed a game plan in a series of e-mails to �straighten out� this matter: Kevin Ring: It�s not about us, but we�re included. �� Neil, this is definitely something Barry Jackson needs to hear about. Michael Williams: WH folks are getting really arrogant lately. Not sure who is driving the train but they need to remember who there friends are ... or they risk the fate of Bush 1. Shawn Vasell: I will talk with Matt as well. This is bulls**t. Neil Volz: I will call [Deputy Assistant to the President] Barry Jackson with this today. Unacceptable. Duane Gibson: 1) find out if there is any basis whatsoever in the advice from the ethics person. Get this in house if possible, not from the WH. 2) get everson fired, because I cannot imagine any basis for such advice. 3) act quickly to find out as much as possible about her. 4) start a phone bank and give everson 1000 calls a day from every tribe with a problem. Staff Report , U.S. House of Representatives, Committee on Government Reform, 109�th Congress, September 29, 2006, citing e-mail exchange between Abramoff and his colleagues. Everson was not fired and there is no indication that she backed down on this issue. Neither did I.
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