Reforming reform

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Congress may be in for some surprises if it tries to alter lobbying and ethics rules without considering how these changes affect campaign finance and elections. Bifurcating these issues may make sense as a tactic to ease the passage of legislation, but history suggests separating rules related to "petitioning the government" from elections is easier said than done.

That's because lobbying, ethics, and campaign reform share two real-world common denominators -- unintended consequences and inter-relatedness. Like the water balloon of American politics, squeezing First Amendment practices doesn't make them disappear; they just pop out somewhere else.

Twenty-five years ago, labor unions pushed a provision in the Federal Election Campaign Act (FECA) of 1971 allowing them to use their own treasury funds to administer union political action committees. The union-drafted floor amendment stemmed fromconcernthat labormightlosea pendingSupreme Court case, Pipefitters Local Union No. 562 v. United States. The appeals court held the pipefitters PAC was "compulsoryand union-financed" rather than "voluntary and member-financed." The "Pipefitters case had caused considerable alarm in labor circles," wrote Edwin Epstein, a University of California Business School professor, in a 1980 paper for an American Enterprise Institute-sponsored conference. Labor wanted insurance that it could still use its union funds for organizing purposes in case the Supreme Court upheld the appeals court, so a change in law was sought and the Democratic majority in Congress obliged.

In 1974, when Congress adopted the first changes to FECA, labor advocated another modification -- the removal of a prohibition on federal contractors forming a PAC. Mr. Epstein notes that a number of labor unions were "government contractors" because they received federal manpower training and development grants.

While Democrats accommodated the unions in 1971 and 1974, the unintended beneficiaries were corporations, who used these new laws as a green light to form their own PACs. In the wake of the 1972 election and the Senate Watergate investigation, when several major U.S. companies were charged with making illegal corporate contributions, these two changes in law provided a new legal but unintended avenue for business participation. Corporate PACs grew almost ten-fold after these laws were passed -- from less than 100 in the early 1970s to nearly 1,000 by the end of the decade -- while the number of labor PACs remained flat, giving unions stout new competition in the campaign finance arena.

The growth of highly partisan 527 organizations in the wake of the McCain-Feingold Bipartisan Campaign Reform Act is another, more recent example. BCRA was supposed to improve the tenor of campaigns, by regulating when, where and how campaign money was spent and raised. Yet many of the ads run by 527s were among the most vicious and negative in the last election cycle.

The ongoing Wisconsin Right to Life v. Federal Election Commission case offers yet another example of unintended consequences associated with BCRA. Wisconsin Right to Life ran afoul of the law's prohibition barring groups from running ads that mention a candidate's name 60 days before an election. While BCRA's intention was to bar corporations and unions from running "election oriented" ads two months prior to voters going to the polls, WRTL's activities were intended to influence the legislative practices of ending judicial filibusters, not the outcome of any particular election. Once again, regulating one First Amendment practice (money as political speech) spills over to limiting another (petitioning the government) -- and the subject of prolonged and confusing litigation.

So, with Congress soon considering ethics and lobbying reform, here are just a few serious questions to consider. Will clamping down on contacts between lawmakers and lobbyists drive these relationships more into the political fund-raising circuit? Is that desirable? Should Congress adjust lobbying/ethics rules without considering the new rules for campaigns? Will tougher lobbying rules mean some persons or groups don't get represented? These are all important questions, none of which generates a lot of media attention. Press sharks chase a different kind of topical chum.

Addressing these issues without considering the consequences on other First Amendment-protected practices, like political speech and campaign finance, is a recipe for more problems. Three decades of history tell us that.