Lobbyists, don’t put away your checkbooks

Participants in the campaign finance system remind one of the old saw about the opposite sex: You can’t live with them, and you can’t live without them. Candidates are tired of spending every spare minute dialing for dollars, and many lobbyists and executives are none too fond of digging deep into their own pockets. Yet, despite such misgivings, politicians want huge war chests and contributors remain all too willing to fill them.

In light of perennial concerns about the influence of money on politics, at least one leading White House contender has called for a recommitment to public financing for the presidential race. Another has foresworn lobbyist contributions. There also have been repeated calls for public funding of congressional campaigns, and legislation was reintroduced last year to do just that for Senate races. In addition to expanded public financing, there is also another approach: Retain private contributions but require donors to remain anonymous.

How would lobbyists and their clients make out under these alternative approaches, in the unlikely event that either is adopted? To quote from the 1976 Supreme Court decision Buckley v. Valeo, “Money, like water, will always find an outlet.” That is to say, under any system, lobbyists would still have a significant role in advocating for their clients and channeling money in the political process.

Proponents of public financing argue that it prevents officials from becoming beholden to contributors. Because of the diminished need for fundraising, there also would be fewer opportunities for lobbyists to hobnob with lawmakers at fundraisers. Officeholders would be freed to meet with constituents instead.

There are several reasons why these suppositions may be simplistic. First, public financing is necessarily limited by how much the government can afford. This leaves a vacuum for independent groups to step in. In recent years, in part because of restrictions on “soft money” party contributions, independent groups have received hundreds of millions of dollars from wealthy individuals and corporations. While their ability to support or oppose candidates directly is constrained by law, these groups are, overall, legal. Just last year, the Supreme Court reaffirmed the importance that our courts place on the ability of independent groups to participate in politics, and it is unlikely that complete restraints will ever be accepted.

Not only are independent groups legal, they are effective. Just ask Sen. John Kerry (D-Mass.) about Swift Boat Veterans For Truth. If candidates limit themselves to public funding, lobbyists and their clients might have fewer thousand-dollar-per-head rubber-chicken dinners to attend. They still would find it beneficial, however, to direct a few hundred thousand dollars here and there on independent groups that champion their causes.

Even if lawmakers spent less time fundraising and more time meeting constituents, they still would be meeting with the most powerful and best-organized constituents. When lobbyists for companies or unions representing tens of thousands of workers in their districts come knocking, you can bet that lawmakers will answer with more alacrity than they would for the average Joe, even if campaign money is not at stake.

So much for public financing. What about that secret donations scheme? Under the proposal by Yale Law Professors Bruce Ackerman and Ian Ayres, contributors would direct their money into blind trust accounts designated for each candidate. The Federal Election Commission would maintain these accounts and forward the funds to each campaign, without anyone ever knowing who gave what to whom. Without such knowledge, lawmakers would have no basis on which to favor their contributors.

Like public financing, secret contributions might reduce the appearance of quid pro quos, but they still would not eliminate the influence of money or lobbyists. This is because most politicians, notwithstanding stereotypes, have some ideological or policy principles. Under a secret financing system, contributors would still steer their money to the candidates most favorable to their interests, and it would remain the lobbyists’ job to identify those recipients.

Given these arguments, readers inclined to favor campaign finance reforms might be throwing up their hands at the futility of it all. But is the current system really so bad? Here, one is reminded of Winston Churchill’s famous aphorism that “democracy is the worst form of government, except for all those others that have been tried.” The rights to petition government (i.e., lobbying) and to participate in politics are basic tenets of democracy, and the use of money as a proxy for participation and effort is a fundamental aspect of a market economy.

Eric Wang is an attorney at Blank Rome LLP. He can be reached at wang@blankrome.com.