Legal Commentary

Grassroots Lobbying, Campaign Finance Laws and the Integrity of Democracy

By Jeff Milyo

It?s been my pleasure to guest blog this week on the topic of grassroots lobbying regulations. In the four previous posts, I?ve summarized the lessons from Mowing Down the Grassroots:  existing lobbying regulations in 36 states are so broad as to cover situations in which individuals or groups communicate to other citizens about public issues (i.e., grassroots lobbying) and such regulations have costs that have gone largely unrecognized.

The traditional rationales for regulating lobbyists ? corrupting or buttonholing public officials ? do not apply to grassroots lobbying; instead, states have asserted a right to know ?who is speaking? for the furtherance of the ?integrity of democracy.?  I leave for others to debate whether such a purpose is a legitimate reason to burden political speech, association and the right to petition.

The claim that political reforms are critical to preserving the integrity of democracy has been made by reformers of all stripes; whether referring to term limits, public financing, disclosure laws, voter identification, ballot access, etc., proponents frequently assert that their pet issue is crucial to this goal.  However, these claims are rarely put to the test, which brings our discussion back to my world of social science research.

The phrase ?integrity of democracy? sounds great, but it must mean something concrete to be testable.  A common operational definition is the public?s trust and confidence in government; that?s the wording one sees in statements of legislative intent for campaign finance and lobbying laws, and that is the sense in which many political scientists have studied the issue. Since we can measure public trust and confidence in surveys, this permits us to put reformers claims to the test.

So does mandatory disclosure of grassroots lobbying increase public confidence or for the matter do lobbying regulations in general?  I don?t know; no one does. It hasn?t been studied.  But I can tell you whether campaign finance regulations increase trust and confidence, as that has been put to the test.

My intuition is that laws governing candidate elections are far more salient to the public than mandatory disclosure of grassroots lobbying, so if we fail to find an effect of the former, it probably doesn?t exist for the latter.  Conversely, if we find an effect for campaign finance laws, it?s probably safe to assume that is an upper bound for any effect of mandatory disclosure of grassroots lobbying on public confidence.

David Primo, a political scientist at the University of Rochester, and I authored a study in the Election Law Journal (vol 5(1): 2006) which is the only published research that attempts to identify the treatment effect of state campaign finance laws on some measure of public faith in democracy.  In that study, we exploit the fact that variation in state campaign finance laws over time and across states provides a natural experiment for us to test whether reforms matter.

One challenge we faced is that there are no existing datasets that systematically gauge public trust in state government over time; instead, we employ measures of ?political efficacy? ? whether people think democracy works in a general sense ? as our outcome variable.  We examine 50 years of data from the American National Election Studies, control for relevant covariates and all that other good stuff; bottom-line:  the presence of disclosure laws for state candidates has a small positive, albeit marginally significant (p<.10), effect on two of our three measures of political efficacy.

In contrast, public funding of campaigns has a larger and significant (p<.05) negative effect on the same two measures.  Contribution limits on corporations, unions and PACs have a significant (p<.05) positive effect on only one of our three measures, while limits on contributions from individuals to state candidates have no significant impact on efficacy.

So there is at best weak evidence consistent with the notion that sunshine is a disinfectant; however, our study only compared the existence of mandatory candidate disclosure of contributors versus no mandatory disclosure.  We did not examine the effects of more or less comprehensive disclosure, but assuming diminishing marginal effects of more intensive requirements, this does establish an upper bound for the treatment effect of incrementally more mandatory disclosure on public confidence in democracy: i.e., not much.

The other lesson that emerges from our study is that more restrictive campaign finance regulations do not have much of an effect on public confidence, nor even always a positive effect.  However, as noted, one drawback to our study was the absence of a specific measure of the respondents? trust and confidence in their state government, rather than ?government? in general.

For that reason, I have collected data from more than 30 different opinion surveys over the last 20 years, in order to conduct a similar analysis with an arguably less noisy outcome measure.  Unfortunately, this new work in progress cannot identify the effect of adding candidate disclosure laws, since all states have had such requirements in place during the last two decades.  But the basic findings for campaign finance laws are similar, in that they appear to have very little substantive impact on citizens? trust and confidence in their state government.

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I appreciate the time and effort of those of you that read these postings and\or contributed to the lively comments; my thanks to the hosts, as well.

Full post as published by The Volokh Conspiracy on June 25, 2010 (boomark / email).