After examining the First Amendment and the Supreme Court’s role in Part I, this part will take a look at the legislative branch, Congress, and its role in allowing lobbying and soft money in US politics. Through the past decades, Congress has tried to reform the way lobbying and campaign finance works. In the following, the most important attempts at this will be examined.
The Federal Election Campaign Act (FECA) of 1971 was the first great attempt by Congress in modern times to reform federal elections and the way these were financed. It was amended several times during the 1970s, in response to the Watergate-scandal and the Buckley v. Valeo 1976 Supreme Court case. Originally, the act imposed rules on the disclosing of contributions, as well as limits on campaign spending. However, the latter was deemed unconstitutional by the Buckley v. Valeo ruling. These limits were restored to a lesser degree by an amendment in 1979, yet it did not limit outside money or “soft money,” i.e., money that is spend from other sources than the candidate and his or her party. An amendment to FECA in 1974 created the Federal Election Commission (FEC), a regulatory agency, which regulates campaign finance legislation and, as mentioned earlier, has played a part in many of the Supreme Court’s cases on the matter. With FECA, Congress, preemptively, tried to deal with the increase in campaign spending and influx of outside money into politics through lobbying activities. Nonetheless, due to the Supreme Court ruling in Buckley v. Valeo, the act became weakened and did not have the desired effect.
In 1989, Senator Robert Byrd, the Chairman of the Senate Committee on Appropriations, proposed an amendment that passed the same year. This was called “Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions,” but became known as the Byrd Amendment. It was a direct response to the growing lobbyist industry in Washington, the amendment requiredmore disclosure, when lobbyists were involved in the legislative process and it sought to end “earmark lobbying”. Earmarks were the name given to small pieces of legislation in, usually appropriation bills, which would direct some of the federal funds to a certain company or institution. Especially, universities hired lobbyists to try to secure these earmarks from appropriation bills for education and research goals for their own institutions. The Byrd Amendment, in essence, ended the “earmark lobbying,” since it also brought media attention to these lobbying activities; attaining federal funds in such a direct manner.
Yet, Congress still felt the need to regulate the lobbyist industry, and six years after the Byrd Amendment, it passed the Lobbying Disclosure Act of 1995. It was later amended thoroughly in the wake of the Abramoff scandal in the Honest Leadership and Open Government Act of 2007. The law required lobbyists to register at the clerk of the House of Representatives before lobbying. If this requirement was not met, a severe civil fine could be given out. It also increased the disclosure regulations of the Byrd amendment and FECA, by extending the degree of which lobbyists and their clients were required to disclose their political contributions publicly. The Lobbying Disclosure Act of 1995 also repealed the rather weak Federal Regulation of Lobbying Act of 1946. Subsequently, it remains one of the strongest pieces of legislation on the regulation of lobbyists, although lobbyists have been able to find new ways, repeatedly, to avoid that any new regulation diminishes their influence with politicians.
The last piece of legislation covered in this part is the McCain-Feingold Act or, as it is officially called, the Bipartisan Campaign Reform Act of 2002 (BCRA). This act was made to amend FECA and after it was signed into law by President George W. Bush, it set up regulation on campaign financing by the national political party committees and banned ads that aired within 30-60 days of election, unless they were paid for by regulated fund, i.e., not “soft money”. However, BCRA saw its shares of days in the Supreme Court, since many argued that it was, at least in parts, in violation with the First Amendment. Nevertheless, the first case in which the law was questioned, McConnell v. FEC, the court deemed it constitutional for the most part. Yet, cases such as Davis v. FEC, FEC v. Wisconsin Right to Life and Citizens United v. FEC had rulings that diminished the power and effect of BCRA, as described in Part I. Those cases deemed parts of the regulation on campaign financing and the ban on “soft money” ads unconstitutional. Consequently, less than ten years it was signed into law, the Bipartisan Campaign Reform Act of 2002 has not been effective in limiting campaign spending or “soft money” in political election due, mostly, to Supreme Court rulings.
During the last few decades, Congress has attempted to limit both the increase in campaign spending and the inflow of “soft money” from outside interests. Congress itself is also the main target for lobbyists and their clients’ money. Yet, it has not succeeded and spending has increased dramatically. As seen above, many of Congress’ laws have been ruled unconstitutional due to the First Amendment and the Supreme Court’s interpretations of free speech. However, the Supreme Court and its justices are not the only reason for the lack of regulation on lobbying and campaign financing.
First, the typical gridlock in Congress is a hindrance for many bills seeking to reform campaign financing and lobbyist’s access, as well as other policy issues. On issues such as reforming the access lobbyists have, disclosure of contributions, and cool-off periods for government officials along with direct limits on campaign contributions and spending, it seems there is a lack of checks and balances. The reason for this is that such reforms would directly affect the very politicians and government officials, who are supposed to make the laws. In other words, a Member of Congress might be more hesitant to support a law that affects him or her negatively. For instance, many Senators, Representatives and their staffers become well-paid lobbyists, when their time on Capitol Hill is over. Thus, it could be argued that in order to attract the best candidates for public office, allowing them to earn a lot of money as lobbyists later in their career might be a good idea. However, critics will argue that the best-suited candidates for Congress are not running because of the money. Nevertheless, Congress has not been able to provide effective reforms that limits and regulates lobbying activities and campaign financing, at least not any that have had a lasting outcome on the structures of outside interests’ access to political influence and the American electoral process.
Secondly, lobbyists are clever and constantly find new ways and loopholes to contribute money and seek influence. Every time Congress puts up new regulations, lobbyists find ways to work around these regulations. An example of this was when Congress was setting limits on donations to candidates running for public office. This made it more difficult for lobbyists to channel their clients’ money to the candidates they wanted to support. However, early modern lobbyists figured out other ways to supply politicians’ campaign coffers with clients’ money. One of these methods was to buy a lot of a politician’s book, which in some cases was written mainly for this purpose, and, thereby, supporting the candidate financially, in an indirect manner. Another method was paying the candidate overprice for holding lectures and speeches at universities. A third example of lobbyists circumventing Congress’ regulation is from the post-Abramoff-scandal years. The Honest Leadership and Open Government Act of 2007 and other amendments to regulative acts set very low limits on how much a lobbyist could spend on taking a member of Congress or member of his or her staff to lunch. Yet, if they did not call it lunch, but instead called it a “fundraise dinner”, the lobbyist was suddenly able to donate thousands of dollars to that Member of Congress. These are just a few examples of how the ingenuity of lobbyists is making it hard for those in Congress who are working to reform the extent of lobbying activities.
Lastly, it should be noted that even the biggest supporters of campaign finance reform and lobbying regulation are dependent on lobbyists and their clients to fill up the campaign’s “war chests.” Senator John McCain, who was one of the main actors behind the Bipartisan Campaign Reform Act of 2002, wrote in his memoir “money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.” Yet, studies from Campaign Finance Institute and the liberal advocacy group Public Citizen concluded that McCain had more lobbyist collecting money from their client for his presidential campaign than any of his rivals had. This shows that even the stoutest opponents of “soft money” and lobbyists in American politics are dependent on lobbyists, when they are campaigning.
“A major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
The quote above was expressed about the Citizens United v. FEC ruling and it was spoken by the US President Barrack Obama. It is a clear sign that the person who holds the highest office in the US acknowledges that the current system and its structures are flawed and that interest groups that seek to promote self-serving narrow interests are allowed too much access and influence, when it comes to American politics. As stated earlier, the Constitution, the Supreme Court and the Congress are the ones accountable for the current system, which enables and allows lobbyists to funnel “soft money” from outside interest to politicians, who has come to depend on that money for their (re)election campaigns. A system that is allowed due to a Supreme Court that interprets the Constitution’s free speech and the “government petition”-section to include almost limitless financial donations. In addition to a Congress’ efforts that is being crippled, in part, by the Supreme Court rulings and, in part, by its own interests and dependency on the current system.
- Baumgartner, F. R., Berry, J. M., Hojnacki, M., Kimball, D. C. & Leech, B. L. (2009). Lobbying and Policy Change: Who Wins, Who Loses, and Why. The United States of America: The University of Chicago Press.
- Bibby, J. F. & Cotter, C. P. (1980). Presidential Campaigning, Federalism, and the Federal Election Campaign Act. Publius, Vol. 10, No. 1, The State of American Federalism, 1979 (Winter, 1980), pp. 119-136.
- Birnbaum, J. H. & Solomon, J. (2007, December 31). McCain’s Unlikely Ties to K Street. The Washington Post.
- The Colombia Law Review Association (1947). The Federal Lobbying Act of 1946. Columbia Law Review, Vol. 47, No. 1 (Jan., 1947), pp. 98-109.
- Cornell University Law School (n.d. a). 45 CFR 2543.87 – Byrd anti-lobbying amendment.
- Hrebenar, R. J. & Morgan, B. B. (2009). Lobbying in America: A Reference Handbook. The United States: ABC-CLIO.
- Kaiser, R. G. (2010). So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government. The United States: Vintage Books.
- Lessig, L. (2011). Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It. New York, the United States of America: Hachette Book Group.
- Liptak, A. (2010, January 21). Justices, 5-4, Reject Corporate Spending Limit. The New York Times.
- Ornstein, N.J., Mann, T.E., Malbin, M.J., Rugg, A. & Wakeman, R. (2014). Vital Statistics on Congress Data on the U.S. Congress – A Joint Effort from Brookings and the American Enterprise Institute. The Campaign Finance Institute, Chapter 3.
- Pear, R. (2008). Ethics Laws Isn’t Without Its Loopholes. The New York Times.
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