Regulation of Government Influence
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 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.