The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates for the Democratic presidential nomination clashed over the propriety of accepting campaign contributions from lobbyists. Show
Yet, lobbying and campaign finance also present different issues, and they are generally governed by different statutory regimes. The importance of the campaign finance/lobbying distinction was underscored in 2007 by the Supreme Court in FEC v. Wisconsin Right to Life, Inc. (WRTL), which carved out an enormous as-applied exception to Congress's limitations on corporate and union campaign spending to assure that campaign finance law does not constrain the ability of corporations and unions to undertake grassroots lobbying expenditures. As WRTL indicates, lobbying is often subject to less restrictive controls than campaign finance, suggesting further that the two practices implicate different concerns. Although both lobbying and campaign finance have each been the subject of extensive scholarly treatment, relatively little attention has been paid to the relationship between these two closely related, yet different activities, and the regulatory regimes that deal with them. This Article constitutes a first effort at probing the relationship between lobbying and campaign finance. The next Part provides a brief overview of the commonalities, differences, and interactions of campaign finance and lobbying. Part II compares the techniques that mark the regulation of these two modes of political expenditure, and contends that these differences reflect distinct goals. It suggests that transparency, enforced by reporting and disclosure requirements, plays and ought to play a bigger role in the regulation of lobbying than in campaign finance. By contrast, egalitarian goals, implemented by a mix of limits and subsidies, are more significant in the campaign finance setting. A third goal – the control of improper or undue influence – is central for the regulation of both lobbying and campaign finance. Part III addresses an area where these two fields are increasingly coming together: the regulation of the campaign finance activities of lobbyists. In the 2007 Honest Leadership and Open Government Act, Congress required campaign committees to disclose substantial bundled contributions provided by lobbyists. Many states have enacted direct restrictions on lobbyists' campaign contributions, bundling, and other forms of support for candidates' campaigns. And former Senator John Edwards won significant attention in the summer of 2007 with his refusal to accept lobbyists' donations and his criticism of Senator Hillary Clinton over her failure to follow suit. When they occur together, lobbying and campaign contributions can compound the dangers of undue influence that each practice presents separately. But it is not clear that singling out lobbyists' campaign contributions for special regulation makes sense. Lobbying and campaign contributions can both be instruments for seeking influence. Although some lobbyists are powerbrokers in their own right, for the most part that influence is deployed on behalf of the lobbyists' clients, not the lobbyists themselves. Senator Clinton's position that the real problem is not the lobbyists but the interest groups they represent seems right. Campaign finance practices like bundling that can be sources of influence over candidates and officeholders should be regulated generally and not just when engaged in by lobbyists. On the other hand, there may be some situations where the campaign activities of lobbyists provide special influence for lobbyists above and beyond the benefits to their clients; in those cases, regulations aimed at lobbyists may be appropriate.
Constitutional Law | Law | Law and Politics
Richard Briffault, Lobbying and Campaign Finance: Separate and Together, 19 Stan. L. & Pol'y. Rev. 105 (2008). Page 2
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A sizable literature on class actions has long suggested that the plaintiff’s attorney is an independent entrepreneur over whom the class members have only limited control. But the analysis cannot stop here. Why does this state of affairs exist? This essay will give two connected answers to this question as a prelude to evaluating what reforms are likely to work: (1) The rules of "litigation governance" differ diametrically from those of corporate governance. An entrepreneur seeking capital for a business venture must convince investors to "opt in" and buy the securities of the entrepreneur's start-up corporation. In contrast, a plaintiffs attorney can file a class action which, if successful, will entitle this legal entrepreneur to a mandatory court-awarded fee, and class members can escape inclusion only by "opting out.” This stark difference between an "opt in" rule for corporate governance and an "opt out" rule for litigation governance explains, at least in part, why agency costs are higher in the latter context. (2) The market for class action counsel has long been characterized by relatively weak competition. To be sure, some competition exists, but, as explained later, it is today fought, not for the loyalty of class members, but rather over the choice of the lead plaintiff. Brief and incomplete as these two assertions are, they frame important policy questions. Because the "opt out" rule for class actions gives plaintiffs attorneys much of their bargaining leverage in class actions, it is not easily modified or discarded. However, it also implies imperfect accountability and high agency costs because class members did not select their attorney, did not choose to sue, and were not necessarily even aware of the existence of the action. Thus, the usual vocabulary used to describe the attorney/client relationship fits only awkwardly with this joint venture in which the attorney represents a class that has not retained the attorney in return for a basically predictable share of the recovery that the court (and not the class) will award if the action settles. Still, what alternative is there? Can we design alternative institutional arrangements that will reduce the agency costs surrounding reliance on the attorney/entrepreneur who today dominates class action practice? This essay's answer is that by encouraging opt outs, public policy can stimulate greater competition and compel class attorneys to become more faithful champions.
John C. Coffee Jr., Accountability and Competition in Securities Class Actions: Why "Exit" Works Better than "Voice", 30 Cardozo L. Rev. 407 (2008). Page 6
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Since the early 1970s, the number of individuals in jails and state and federal prisons has grown exponentially. Today, nearly two million people are currently incarcerated in state and federal prisons and local jails. The growth of imprisonment has been borne disproportionately by. African-American and Hispanic men from poor communities in urban areas. Rising.incarceration should have greatly reduced the crime rate. After all, incapacitated offenders were no longer free to rob, assault, steal, or commit other crimes. However, no large-scale reduction in crime was detected until the mid-1990s. The failure of crime rates to decline commensurately with increases in the rate and severity of punishment reveals a paradox of punishment: recent experiments have shown that among persons of color, especially those who are poor or reside in poor neighborhoods, harsher punishment has produced iatrogenic or counterdeterrent effects. We identify two processes that produce punishment paradoxes or First, the long-term and spatially defiance of legal sanctions. concentrated shift of social and economic resources from informal social controls to formal legal controls, particularly incarceration, weakens localized informal social controls and creates recurring cycles of discontrol. Neighborhood and work contexts offer social status and mete out shame and social opprobria for wrongdoing. However, stable rates of inequality and deprivation in minority communities compromise three dimensions of social control: social capital or regulation, "stakes in conformity" through marriage and work, and participation in political institutions. Second, high rates ofpunishment produce "stigma erosion" where punishment loses its contingent value that lends credibility to its claims of fairness and proportionality. As the social and cultural distance between the punishers and the punished widens, respect for the legitimacy of punishment suffers. Dissatisfaction with both procedural and distributive justice can motivate legal cynicism and noncompliance, and these processes are intensified in contexts of weak social control and high legal control. As legal control replaces informal social control, the state's role in socialization and the fostering of moral communities diminishes. The devolving of the public sector involvement in socialization further moots the reintegrative functions of punishment. This restructuring and devaluation of government, accompanied by the restructuring and fragmentation of economic activity in poor communities, complicates the achievement of a social consensus on the rationale of punishment in a broader context of social control, and limits the efficacy of informal processes of social regulation.
Criminal Law | Law | Law and Race | Law and Society | Law Enforcement and Corrections
Center on Global Governance
Jeffery Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 Ohio St. J. Crim. L. 173 (2008). Page 10
Since the early 1970s, the number of individuals in jails and state and federal prisons has grown exponentially. Today, nearly two million people are currently incarcerated in state and federal prisons and local jails. The growth of imprisonment has been borne disproportionately by. African-American and Hispanic men from poor communities in urban areas. Rising.incarceration should have greatly reduced the crime rate. After all, incapacitated offenders were no longer free to rob, assault, steal, or commit other crimes. However, no large-scale reduction in crime was detected until the mid-1990s. The failure of crime rates to decline commensurately with increases in the rate and severity of punishment reveals a paradox of punishment: recent experiments have shown that among persons of color, especially those who are poor or reside in poor neighborhoods, harsher punishment has produced iatrogenic or counterdeterrent effects. We identify two processes that produce punishment paradoxes or First, the long-term and spatially defiance of legal sanctions. concentrated shift of social and economic resources from informal social controls to formal legal controls, particularly incarceration, weakens localized informal social controls and creates recurring cycles of discontrol. Neighborhood and work contexts offer social status and mete out shame and social opprobria for wrongdoing. However, stable rates of inequality and deprivation in minority communities compromise three dimensions of social control: social capital or regulation, "stakes in conformity" through marriage and work, and participation in political institutions. Second, high rates ofpunishment produce "stigma erosion" where punishment loses its contingent value that lends credibility to its claims of fairness and proportionality. As the social and cultural distance between the punishers and the punished widens, respect for the legitimacy of punishment suffers. Dissatisfaction with both procedural and distributive justice can motivate legal cynicism and noncompliance, and these processes are intensified in contexts of weak social control and high legal control. As legal control replaces informal social control, the state's role in socialization and the fostering of moral communities diminishes. The devolving of the public sector involvement in socialization further moots the reintegrative functions of punishment. This restructuring and devaluation of government, accompanied by the restructuring and fragmentation of economic activity in poor communities, complicates the achievement of a social consensus on the rationale of punishment in a broader context of social control, and limits the efficacy of informal processes of social regulation.
Criminal Law | Criminal Procedure | Law | Law and Race
Center on Global Governance
Jeffery Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 Ohio St. J. Crim. L. 173 (2008). Page 11
Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime. The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the competing interests of public safety and the possibility of rehabilitating young offenders. This authority has now been usurped by legislators and prosecutors. The recent changes in state law have moved large numbers of juveniles into the adult system. As many as 25 percent of all juvenile offenders younger than eighteen, says Fagan, are now prosecuted in adult court. Many live in states where the age boundary between juvenile and criminal court has been lowered to sixteen or seventeen. The key policy question is: do these new transfer laws reduce crime? In examining the research evidence, Fagan finds that rates of juvenile offending are not lower in states where it is rela-tively more common to try adolescents as adults. Likewise, juveniles who have been tried as adults are no less likely to re-offend than their counterparts who have been tried as juveniles. Treating juveniles as adult criminals, Fagan concludes, is not effective as a means of crime control. Fagan argues that the proliferation of transfer regimes over the past several decades calls into question the very rationale for a juvenile court. Transferring adolescent offenders to the criminal court exposes them to harsh and sometimes toxic forms of punishment that have the perverse effect of increasing criminal activity. The accumulating evidence on transfer, the recent decrease in serious juvenile crime, and new gains in the science of adolescent development, concludes Fagan, may be persuading legislators, policymakers, and practitioners that eighteen may yet again be the appropriate age for juvenile court jurisdiction.
Criminal Law | Criminal Procedure | Juvenile Law | Law
Jeffrey Fagan, Juvenile Crime and Criminal Justice: Resolving Border Disputes, 18(2) The Future of Children: Juvenile Justice 81 (2008). Page 12
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Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples? One way to frame these questions is to ask whether there is a shared etiology in the racial and sexual orientation contexts. That is to say, can or should the contemporary struggle mirror the arc of justice in the racial equality context fifty years ago? Does getting the justice project right today mean that same-sex couples are entitled to our own Loving moment, and that we are entitled to it soon? Surely that is the overwhelming view in the lesbian, gay, bisexual, and transgender legal community. But I will say here, as I have said elsewhere, that there are good reasons to resist the analogy to Loving and to resist the pull of a Loving-like notion of justice. As we push to create a less heteronormative society, we ought to rely less on lawyers and more on politics, and in so doing, we may find different analogies that inspire our political and legal strategies in the present.
Law | Law and Politics | Law and Race | Legal History | Sexuality and the Law
Center for Gender & Sexuality Law
Katherine M. Franke, Longing for Loving, 76 Fordham L. Rev. 2685 (2008). Page 17
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Keynes taught years ago that international cash flows are always political. Western response to the enormous increase in the number and the assets of sovereign wealth funds (SWFs), and other government-directed investment vehicles that often get lumped together under the SWF label, proves Keynes right. To their most severe critics, SWFs are a threat to the sovereignty of the nations in whose corporations they invest. The heat of the metaphors matches the volume of the complaints. The nations whose corporations are targets of investments are said to be threatened with becoming "sharecropper" states if ownership of industry moves to foreign-government absentee holders. More tempered critics fear that SWFs will make decisions for political, not economic reasons. Calls for both domestic and international regulation of sovereign wealth funds' investments are now a daily occurrence. In this Article we frame a minimalist response to concerns over SWFs. The high profile controversy over the rise of SWFs is one – but only one – of the frictions that result from the interaction of two very different conceptions of the role of government in a capitalist economy – "state capitalism as opposed to market capitalism." In the form of market capitalism that has developed in the advanced economies, to be sure with fits and starts, the individual company is the unit whose value is maximized. Prohibitions against government subsidies and preferences reflected in WTO and European Union rules are designed to prevent governments from shifting the level of profit maximization from the company to the state. In contrast, some major developing countries (China foremost among them) increasingly reflect a form of state capitalism – what we call the new mercantilism. In this form, the country is the unit whose value is to be maximized, with a corresponding increase in the role of the national government as a direct participant in and coordinator of the effort. For the developed economies, the belief that free trade and competition amongst companies increases GDP at the national level is an article of faith: the market polices the tautology. For developing economies, particularly those whose enterprises must compete with companies from more advanced economies, the state, acting through SWFs, through direct ownership of operating companies, and through regulation, seeks to level the playing field. For the new mercantile capitalism, the government attempts to ensure that company-level behavior results in country-level maximization of economic, social, and political benefits.
Center for Contract and Economic Organization
Center for Law and Economic Studies
Ronald J. Gilson & Curtis J. Milhaupt, Sovereign Wealth Funds and Corporate Governance: A Minimalist Response to the New Mercantilism, 60 Stan. L. Rev. 1345 (2008). Page 24
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Why are campaign contributions so important for interest groups seeking to influence government?
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