The constitutional law governing campaign finance regulation is back up for grabs. The late Justice Antonin Scalia was an unwavering member of the U.S. Supreme Court majority that cast a skeptical eye on all forms of campaign finance regulation, save disclosure requirements. His death leaves the remaining Justices sharply and evenly divided on the crucial question of what government interests may justify campaign finance regulation. In addition to Justice Scalia, the other justices who made up the majority—Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito—take the position that the only acceptable justification for restricting campaign contributions and expenditures is to prevent the appearance or reality of corruption that stems from the quid pro quo exchange of money for a political benefit. By contrast, the dissenters—Justices Breyer, Ginsburg, Sotomayor, and Kagan—understand corruption in a broader sense, one that includes the superior access and influence that big donors and spenders may enjoy.
If the Court is to embrace equality as a rationale for restricting the flow of campaign dollars, it will require empirical research on how the current system is actually functioning. Since Citizens United v. FEC, independent expenditures have increased dramatically at the federal level, in terms of both the total amount spent and the number of groups engaged in such spending. Yet relatively little is known about how this influx of outside spending affects the process of governance. Our 2014 report The New Soft Money: Outside Spending in Congressional Elections explored these topics, but much more work remains to be done.
What became abundantly clear to us over the course of researching The New Soft Money is that the money flowing into election campaigns is only half the story. To understand its real‐world impact, one must also understand lobbying. For it is through the legislative and administrative process that interest groups are able to pass government policies that benefit those who donate to election campaigns. If campaign contributions and expenditures are where an investment is made, then lobbying is where the payoff occurs. To understand the current system of campaign finance, including the inequalities of access and influence endemic to this system, we must also understand how our lobbying system works.
We would therefore disagree with Bismarck, were he actually responsible for the sausages quotation. At this crossroads moment in the history of campaign finance regulation, it is essential to understand how sausages—by which we mean laws—are made. This requires engaging in careful study of the relationship between what happens at the front end of the political process, when campaign contributions and expenditures are made, and at the back end, when the lobbying takes place. The remainder of this Essay sets forth guidance on what that might mean for future researchers. First, we review the theoretical concern that disparities in wealth cause inequalities of political access and influence. Second, we discuss—based largely upon our experience in writing The New Soft Money—the practical problems inherent in assessing the extent to which this theory manifests in reality, given the ubiquity of money in both electoral campaigns and lobbying. Third, we propose specific research projects that might address this empirical difficulty and which would reveal how wealth disparities affect elections and governance.