The Evolving Regulation of Lobbying Richard Briffault Columbia Law School October 25 2018 Two Views of Lobbying Values Driving Lobbying Regulation Techniques of Lobbying Regulation Emerging Issues ID: 729249
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The Anxiety of Influence: The Evolving Regulation of Lobbying
Richard Briffault
Columbia Law School
October 25, 2018Slide2
Two Views of Lobbying
Values Driving Lobbying Regulation
Techniques of Lobbying Regulation
Emerging Issues
2Slide3
Two Views of Lobbying
Lobbying as Corrupting Influence
Lobbying as Constitutionally Protected Effort to Influence Government
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Lobbying as Corrupting Influence
Providence Tool Co. v. Norris (U.S. 1864) – lobbying involves “the use of sinister and corrupt means;” contingent fee contract to pay lobbyist unenforceable
Trist v. Child (U.S. 1874)
“purely professional services” such as “drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing to a committee or other proper authority” – okBut “the influence and exertion of the lobby agent to bring about the passage of a law . . . without reference to its merits by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the interest at stake, contrary to the plainest principles of public policy”
Hazelton v.
Sheckels
(U.S. 1906)
Contract for compensation for “services in procuring legislation upon a matter of public interest” unenforceable
4Slide5
Lobbying as Constitutionally Protected Effort to Influence Government
US v.
Harriss
(U.S. 1954) – Federal Regulation of Lobbying Act implicates but does not violate the “freedoms guaranteed by the First Amendment -- freedom to speak, publish, and petition the Government”Eastern RR Presidents Conf. v. Noerr Motor Freight, Inc. (U.S. 1961) – Sherman Act does not apply to efforts to lobby for passage of anti-competitive legislation: “[S]
uch
a construction . . . would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights”
Citizens United v. FEC (U.S. 2010) – “Congress has no power to ban lobbying,” citing
Harriss
5Slide6
II. Values Driving Lobbying Regulation
Protection of Lobbying itself
Prevention of Improper Influence
Promotion of a Level Playing Field by Restricting Unfair Sources of InfluenceProvision of Transparency6Slide7
III. Techniques of Lobbying Regulation
No Regulation: No restriction on lobbying per se, or on the amount of time or money spent on lobbying
Restrictions on Lobbyists’ provision of private benefits to public officials – gifts, free meals, entertainment, honoraria,
etcEmerging focus on the campaign finance activities of lobbyistsRestrictions on Contingent FeesRevolving
Door – Cooling off periods – rules barring former public officials from lobbying their former offices
Transparency: Reporting and Disclosure – generally focus on the money trail – payments to and expenditures by lobbyists
7Slide8
IV. Emerging Issues: Lobbying and Campaign Finance
HLOGA 2007 – federal candidate campaign committees, political party committees, and leadership PACs required to disclose bundled contributions from federal lobbyists > $15,000 in a 6-month period
Some state laws
Prohibit lobbyists from making contributions while legislature is in sessionBan contributions from lobbyists to candidates for offices they lobbyImpose lower donation limits on lobbyistsRegulate fundraising by lobbyists
Require lobbyists to disclose their contributions or bundled contributions
NYC
Lower donation limits for lobbyists and entities doing business with the City
Contributions by lobbyist and “doing business” entities ineligible for public matching funds
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Lobbying and Campaign Finance in the Courts
Central theme is Corruption – does court assume lobbyists raise special corruption danger, or does it require – and find – showing of actual corruption by lobbyists?
State bans on lobbyist contributions during legislative session – struck down by some state and federal district courts, usually as
overinclusive; upheld by others (4th Circuit; VT SCt)
Complete bans on lobbyist donations struck down; some bans on lobbyist donations to candidates for offices they lobby upheld; AK
SCt
sustained ban on contributions to candidates outside the lobbyist’s voting district
Second Circuit
Invalidated CT bans on contributions by lobbyists and family members to candidates, legislative caucuses, party committees and on soliciting contributions (But 4
th
Circuit upheld similar NC ban)
Upheld NYC lower cap on lobbyist donations and bar to matching lobbyist gifts
9Slide10
Disclosure Issues
Grassroots lobbying – federal law does not apply; most state laws do; courts have generally upheld requirements of disclosure of expenditures on grass-roots lobbying; questions on how to define
Contact disclosure – requirement that lobbyists disclose who specifically they lobby – rare – although SF adopted in 2010
Coalition disclosure – requirement of disclosure of identity of donors above of threshold to the organizations that formally do the lobbying10Slide11
Subsidies
Limits on Subsidizing Lobbying
IRC: Lobbying not a deductible business expense
501(c)(3)’s forfeit favorable tax treatment if they lobbyByrd Amendment bars use of federal funds to lobby for federal contracts, grants, loans, etc.Subsidies as Means of Reducing Influence of Special Interest Lobbying?Public funds to research organizations, university, think tanks, nonprofits, foundations, to provide government independent technical information and analysis – can a line be drawn between “public interest” and special interest?
Strengthening the research and analysis arms of legislatures
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Conclusion
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