There is now bipartisan interest in a change in the lobbying rules to reach the “back room” or “shadow” lobbyist. Most immediately, the proposal has been to have the new Administration expand the ban by Executive Order on federal government employment of lobbyists to include these individuals believed to be lobbyists in all but the name. This would close a much-derided “loophole,” one that has been especially infuriating to those who do register under the lobbying disclosure law while watching others, who seem to do pretty much what they do, escape on an apparent technicality. An amendment to the Executive Order to capture “shadow lobbying” could be followed by a corresponding change in the lobbying laws to greatly enlarge the numbers subject to mandatory disclosure requirements.
The appeal to close a loophole packs its usual punch. It answers the frustration over apparent inconsistency (the demand that those doing similar things be treated alike), and the extension of reporting requirements to “shadow lobbying” would help create a more complete picture of the total dollars spent on influencing public policy. But, as always, there are complications and competing considerations that should affect how a reform like this is designed--with what limiting principles--and how it is administered.
The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”. It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.” The "committee" that was really just a one-person enterprise was too "small scale,” the government's interests too limited: the cost in the particular case exceeded the benefits.
Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates? The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections. Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). The government's interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits. The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado's issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.
In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time. They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld "electioneering communication" disclosure on the basis of its finding that some issue speech was a “sham.” Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.
The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation. The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv. Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting. The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics.
But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?
A few years ago, after the enactment of McCain Feingold, the Federal Election Commission began issuing implementing rules, and there were not well received in reform quarters. It was objected that the agency was ignoring Congressional intent and gutting the law. One line of attack was possible Hill intervention to disapprove the rules pursuant to the Congressional Review Act. At a lunch with Senators to discuss this possibility, a prominent reform leader told the assembled legislators that if they did not reject the rules and hold the FEC to account, the public “would rise up” in protest. The public uprising did not occur, neither the Senate nor the House took action, and the reform critics took their cases to court—with some but not complete success.
But the hope for public pressure remains alive, and as Matea Gold reports in The Washington Post, there is some thought that with Super PACs and the like, things have gotten so out of hand that voters will insist on action. The ranking of campaign finance among other priorities important to voters remains low, but by one reading, it is inching up the list. Any upward movement is taken to be, maybe, a sign of more popular passion to come. This is always the wish. In the annals of modern campaign finance, it is never a wish come true.
But campaign finance history also shows that elected officials can be moved to take up this cause, and the same Post story that speculates about changes in public opinion records, more concretely, restiveness on the part of politicians. And this could make a difference. Candidates and officeholders cited in the story, such as Senator Lindsey Graham, worry about the small number of Americans—“about a 100 people”-- who can shape the course of a campaign with their money. The issue for Senator Graham is not, apparently, the cost to political equality: it is the unfairness to candidates who find that these wealthy activists “are going to be able to advocate their cause at the expense of your cause.”
Long in the field of campaign finance, well versed in its triumphs and tribulations, Larry Noble of the Campaign Legal Center objects strongly to the suggestions for disclosure reform I co-authored with Professor Samuel Issacharoff. It’s all a magic trick, he argues, that accomplishes the reverse of its stated intention: it moves contributions into the dark, raises the risk corruption and disregards the lessons of Watergate. The public is not “gullible”: it won’t buy it.
It is difficult not to imagine that Mr. Noble is engaged in theater of his own, something like the aerial feat performed yesterday by the mailman in a gyrocopter who touched down on the Capitol grounds with a similarly passionate appeal for campaign finance reform. This gentleman, undoubtedly sincere but less clearly prudent, entitled his project “Kitty Hawk”, after the Wright Brothers’ fabled flight in North Carolina in 1903. Larry, if he were maneuvering a craft, might have named it “Watergate," and he would have refreshed the message by 70 years, with only another four decades to go to cross over into the current century and to the present time.