As I noted recently, the ABA passed a resolution calling for greater regulation of lobbyists.  The resolution was based upon a Task Force report, and then modified through the comments of various ABA sections and at the meeting itself.  [Disclosure: I was a member of the task force.]

One of the ABA’s recommendations in its resolution provides that a federal registered lobbyist may not “engage in campaign fundraising for a member of Congress whom he or she has lobbied during the past two years.”  The resolution, including this provision, passed without opposition at the ABA, but unsurprisingly this provision is getting pushback from lobbyists.  (Lobbyists are very happy with other aspects of the resolution, however, especially those which would classify more people as lobbyists—-right now lobbyists face competition from others providing “strategic advice” but who are able to avoid registering and otherwise meeting lobbying requirements)

Among the arguments being raised against the lobbyist fundraising limitation is that it is unconstitutional.  For example, in this Huffington Post article, a senior lobbyist at Akin Gump raises the constitutional question:

“Lobbyists could still contribute their own money,” said Trevor Potter, a campaign finance reform advocate who is co-chair of the bar association’s Task Force on Lobbying Regulation (and Stephen Colbert’s election lawyer). “But they could not solicit others, serve on host committees for fundraisers, or bundle.”

“We’re trying to disconnect the raising of money from the substantive act of lobbying — of persuading the members of the merits of your position — so that you’re arguing on the merits, not because you can raise $50,000 at a lunch the next week,” Potter said.

But the latter “is how it works,” he said. “And that is the connection we feel is inappropriate and harmful to the system.”

The proposal to de-link fundraising and lobbying would inevitably face obstacles in Congress, however.

“I think it would be impractical to think that Congress would pass this,” said Joel Jankowsky, a senior lobbyist at megafirm Akin Gump. Some members of Congress “probably have come to rely on it in part,” he said, adding, “I don’t know there’s a constitutional way they could do it,” given the free speech issues that would arise.

The constitutional objection is a serious one, but it is one I have spent many months thinking about in connection with my forthcoming Stanford Law Review article on the question of the constitutionality of lobbying regulation.  I would urge anyone interested in the constitutional question to begin with the task force report, which I believe presents a fair analysis of the question.  (There’s much more, along with alternative analysis, in my forthcoming article.)