REGULATION OF GOVERNMENT INFLUENCE AND ADVOCACY:
GOVERNMENT ETHICS, LOBBYING AND CAMPAIGN FINANCE—1 CREDIT
This course will introduce students to the legal regulation of efforts to influence
government action in our democracy, focusing on the interrelated legal regimes governing ethics
of public officials, lobbying and contributions and spending of money in connection with
political campaigns. A key goal of the course will be to enable students to gain some
appreciation of the difficulty and complexity of the issues raised by the attempt, in fashioning
these legal regimes, to balance the goal of curbing corruption and improper influence with the
need to permit the legitimate advocacy and expression of views that is protected by the First
Amendment, to some degree, and that is desirable in any event in a vibrant democracy.
The course will be held on Saturday, and Saturday,…
The course will have four segments. The first segment will introduce the issue of
defining improper influence versus legitimate expression and advocacy, and the rationale for
disclosure as a general approach or solution, and will briefly review some of the basic research
and views in this area. The second segment will focus on government ethics, reviewing the
evolution of restrictions on gifts and of financial disclosure requirements, in the U.S. Congress
and Executive Branch, linked to a series of scandals over time, from the Bobby Baker and Adam
Clayton Powell cases, through the Speaker Jim Wright scandal and the 1989 Act, the 1992, 1995
and 1996 reforms, the Jack Abramoff scandal and the enactment by the Congress of the Honest
Leadership and Open Government Act (“HLOGA”), the major ethics reform package, in 2007.
The third segment will cover regulation of lobbying and lobbyists, including the
evolution of the federal Lobbying Disclosure Act and the HLOGA reforms; the Foreign Agents
Registration Act; “revolving door” rules; developments in the states with respect to restriction of
campaign fundraising and contributions by lobbyists and “pay to play” laws.
The fourth segment will consist of a general and basic overview of the evolution of
federal regulation of campaign finance, centering on the treatment of the anti-corruption
rationale. The segment will include a brief review of pre-FECA regulation; the FECA 1974
amendments; the Buckley framework, again focusing on the anti-corruption theme; key cases on
that topic pre-BCRA; the basics of BCRA and the McConnell case; and the post-BCRA
evolution of the law of contribution and spending limits, culminating in the Citizens United case
which likely will have been decided shortly before the course is given.
Grading: The student’s grade will be based on a short (10-12 page) paper that should
analyze a legislative or policy proposal (actual or hypothetical) in any of the above areas
(government ethics, regulation of lobbying, campaign finance), in terms of the tension noted
above (anti corruption vs. legitimate expression/advocacy) and take and defend a position on that
proposal.
Schedule/Reading Assignments
Session 1
Introduction: The Perennial Problem: Improper Influence vs. Legitimate Advocacy & Political
Expression
--Does money buy access/ influence? both? neither?
--How big a problem is the “appearance” of corruption or improper influence vs. the
reality?
--To what extent does disclosure solve these problems?
Readings:
Lowenstein, Hasen & Tokaji, “Empirical Observations about and Theoretical
Justifications for, Campaign Finance Regulation,” ELECTION LAW: CASES & MATERIALS 713-23
(4th Ed. 2008)
Gary C. Jacobson, THE POLITICS OF CONGRESSIONAL ELECTIONS (excerpts) (6th ed. 2004)
J Samples, “The Corruption of Representation,” Chapter 3 in THE FALLACY OF
CAMPAIGN FINANCE REFORM (2006)
R. Kaiser, SO DAMN MUCH MONEY: THE TRIUMPH OF LOBBYING AND THE CORROSION OF
AMERICAN GOVERNMENT Chapters 1, 2, 5, 6 & 20 (2008)
Session 2
Bribery and other legal theories (honest services, etc.)-- elements
Evolution of restrictions on public officials and financial disclosure requirements: the cycle of
scandal and legislative reaction; ever-tightening restrictions
Early codes; Baker; Powell; Wright; 1978 Ethics in Government Act; Ethics Reform Act
of 1989; Reforms in 1992, 1995 and 1996; Abramoff; Honest Leadership and Open
Government Act 2007
Executive Branch ethics rules overview (gifts, outside income)
Readings:
Report of House Bipartisan Task Force on Ethics, 101st Cong., 1st Sess. (1989)(excerpts)
Report of the Ethics Reform Task Force on H. Res. 168, 105th Cong., 1st Sess.
(1997)(excerpts)
Indictments, U.S. v. Abramoff; U.S. v. Ney
U.S. House Ethics Manual 1-7, 23-35, 79-82, 185-96 (2008 ed)
ABA Lobbying Manual, Chapters 1, 2, 23 (excerpts) and 24 (4th Ed.)
US Senate Financial Disclosure Report Form & Instructions (current version)
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Session 3
Regulation of lobbying and lobbyists:
Evolution of federal lobbying disclosure laws; Federal Regulation of Lobbying Act;
Lobbying Disclosure Act of 1995; Byrd Amendment; HLOGA 2007
Basic goals of and legal framework of federal lobbying disclosure; key features of
HLOGA
Foreign Agents Registration Act—brief history and overview
“Revolving door” rules—restrictions on government officials who become lobbyists
Obama Administration lobbying restrictions
Developments in the states; bans and restrictions on political and campaign activity by
lobbyists; Rule G37; “pay to play” laws
Readings:
United States v. Harriss
ABA Lobbying Manual, Chapters 1, 2, 3 (excerpts), 4, 12 (excerpts), 15 (excerpts), 36
(4th ed)
Session 4
Campaign finance regulation: evolution of the current federal regime and expression of
the anti-corruption rationale; Watergate & FECA amendments of 1974; the Buckley
constitutional framework; basic statutory framework and implementation 1980-2000; the 199697 campaign finance controversies; BCRA; Supreme Court jurisprudence post-BCRA
contribution & spending limits; individual vs. corporate/union independent spending
Readings:
Hasen, Lowenstein & Tokaji, Election Law: Cases & Materials Chapter 14 (I &
II); Chapter 15 (II & III); Chapter 16 (II & III)
Final Report of US Senate Comm. on Governmental Affairs, Investigation of
Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, S.
Rep. 105-167, 105th Cong., 2d. Sess. 31-50, 4459-4502, 4661-4776 (1998)
Thomas Mann, “The Rise of Soft Money,” pp. 17-39 in Corrado, Mann & Potter,
INSIDE THE CAMPAIGN FINANCE BATTLE: COURT TESTIMONY ON THE NEW REFORMS
(2003)
FEC v. Mass. Citizens for Life
McConnell v. FEC (excerpts)
Citizens United v. FEC
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