The Perverse Effect of Campaign Contribution Limits: Reducing the Allowable Amounts Increases the Likelihood of Corruption in the Federal Legislature
2011; Wiley; Volume: 48; Issue: 1 Linguagem: Inglês
10.1111/j.1744-1714.2010.01112.x
ISSN1744-1714
Autores Tópico(s)Legal and Constitutional Studies
ResumoThe regulation of campaign finance brings together vexing issues of democracy, corporate political speech, corruption, and the electoral system.1 1 See Persily, Nathaniel, The Law of Democracy: Foreword, 153 U. Pa. L. Rev. 1, 2 (2004) (noting that recent jurisprudence “represents what is perhaps the most sweeping treatment of the issues of political money, corporate political speech, and the rights of parties in the campaign finance system.”); Richards, Eric L., Federal Election Commission v. Colorado Republican Federal Campaign Committee: Implications for Parties, Corporate Political Dialogue, and Campaign Finance, 40 Am. Bus. L.J. 83, 84 (2002) (stating that campaign finance regulation “indirectly implicates several phenomena that allegedly threaten our democratic form of government: corporate participation in electoral politics; reliance on soft money to finance candidate elections; and the emergence of ‘covert speech’ in which the true purpose of political ads is disguised in order to avoid campaign laws.”). Recent jurisprudence has engendered substantial commentary on those who perceive a “free corporate speech agenda” among the newer appointees to the United States Supreme Court,2 2 See, e.g., Hill, Frances R, Corporate Political Speech and the Balance of Powers: A New Framework for Campaign Finance Jurisprudence in Wisconsin Right to Life, 27 St. Louis U. Pub. L. Rev. 267, 267– 69 (2008) Robert Kerr notes that the term “corporate speech” is a misnomer, as corporations cannot speak, and offers instead the term “corporate political media spending.” Kerr, Robert L., Considering the Meaning of Wisconsin Right to Life for the Corporate Free-Speech Movement, 14 Comm. L. & Pol'y 105, 109 (2009). with particular attention paid to the distinction drawn between types of speech.3 3Linda Berger summarizes the distinction:When a corporation participates in the public sphere, its participation often takes the form of money. Corporate money must be given to someone to bring corporate participation into being—money to spend on public relations, advertising, or lobbying, or money to spend in a political campaign. Though the form is the same, the Supreme Court has treated these modes of corporate participation very differently. On the one hand, corporate money is seen as speech when it is the means used for corporations to sell products or state positions on issues. On the other, a majority of the Rehnquist-O'Connor Court perceived corporate money spent in election campaigns as the root of evils threatening the political process. Berger, Linda L., Of Metaphor, Metonymy, and Corporate Money: Rhetorical Choices in Supreme Court Decisions on Campaign Finance Regulation, 58 Mercer L. Rev. 949, 949 (2007). Citizens United v. Federal Election Commission,4 4558 U.S. 50 (2010). in which the Supreme Court struck down campaign finance provisions that regulated corporate speech differently than individual speech, has focused even more attention on the constitutional aspects of campaign finance.5 5 See Posting of Laurence H. Tribe to SCOTUSblog ( Jan. 24, 2010, 22:30 EST), http://www.scotusblog.com/2010/01/what-should-congress-do-about-citizens-united (stating that the decision “marks a major upheaval in First Amendment law ….”). Constitutional questions, while of fundamental importance, do not constitute the totality of issues encompassed by the regulation of campaign finance. Many of these issues are critical to business and the business environment. Citizens United, for example, raises questions about the very nature and definition of a business organization.6 6 See id. (opining that “[t]alking about a business corporation merely as another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic”). Less esoteric but just as important is the effectiveness of campaign finance regulation in producing a regulatory environment free of the influences of corruption. Scholarly review of campaign finance regulation gives virtually no attention to the actual mechanism used by such regulation: limits on the amount that each actor can contribute to a particular campaign. A fundamental purpose of campaign finance regulation is to reduce corruption.7 7 See Johnston, Meredith A., Note, “Stopping Winks and Nods”: Limits on Coordinating as a Means of Regulating 527 Organizations, 81 N.Y.U. L. Rev. 1166, 1186 (2006) (stating that the purpose of current campaign finance reform is to prevent corruption); Raskin, Jamin & Bonifaz, John, The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 Colum. L. Rev. 1160, 1162– 63 (1994) (similar). Other goals and effects attach themselves to campaign finance reform, of course, such as correcting structural imbalances in representation, and these are important aspirations.8 8 See Raskin & Bonifaz, supra note 7, at 1163 (discussing the remedial purposes of campaign finance reform with respect to structural bias). Nonetheless, the Supreme Court has singled out the prevention of corruption as the only justifiable interest identified so far in the federal legislation intended to regulate campaign finance.9 9 See Buckley v. Valeo, 424 U.S. 1, 26–27 (1976). It is therefore somewhat surprising that critical analysis of campaign finance regulation has eschewed analysis of contribution limits. Rigorous examination of the assumption that, because money corrupts, more money corrupts more seems to have been subsumed under consideration of finer constitutional points. The assumption, however, is not unassailable and must be examined. A pragmatic approach prevalent among practitioners and many scholars emphasizes weak institutions as a cause of corruption10 10 See Al-Jurf, Saladin, Changing Conceptions of Development in the 1990s, 9 Transnat'l L. & Contemp. Probs. 193, 199 (1999) (identifying “weak institutions” as a “key factor[ ] relating to corruption”); Black, Bernard S. & Tarassova, Anna S., Institutional Reform in Transition: A Case Study of Russia, 10 S. Ct. Econ. Rev. 211, 232 (2002) (noting the phenomenon of “weak institutions contributing to corruption and corruption contributing to weak institutions.”); Buscaglia, Edgardo & Dakolias, Maria, An Analysis of Corruption in the Judiciary, 30 Law & Pol'y Int'l Bus. 95, 95 (1999) (“It can be said that corruption is the result of weak institutions and human nature.”). and therefore advocates the strengthening of institutions as a means of controlling corruption.11 11 See Jeremy Pope, Confronting Corruption: The Elements of a National Integrity System (2000) (discussing methods for strengthening institutions to control corruption). This approach, however, provides scant rigor with which to analyze assumptions regarding campaign contributions. A purely institutional approach does not indicate how one is to choose among institutions nor does it provide a theory on which to base predictions about how changes to institutions will affect the behaviors of government actors. This article does not anchor its analysis in institutions. Rather, it assumes a degree of rationality on the part of each legislator when confronting an opportunity to act corruptly.12 12The term “rationality” is not meant to excuse or justify the conduct of corrupt legislators but rather indicates that a decision to act corruptly is the product of a conscious and deliberate process. Gary Becker suggested more than forty years ago that persons do make decisions about whether to commit bad acts.13 13 Becker, Gary S., Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 178 (1968). Becker's insights contributed to substantial research on criminal behavior. Becker, with George Stigler, even provided guidance to the control of police corruption.14 14 Becker, Gary & Stigler, George, Law Enforcement, Malfeasance, and Compensation of Enforcers, 3 J. Legal Stud. 1 (1974) (suggesting that increased monitoring and higher wages will curb police corruption). See also di Tella, Ragael & Schargrodsky, Ernesto, The Role of Wages and Auditing During a Crackdown on Corruption in the City of Buenos Aires, 46 J.L. & Econ. 269 (2003) (using the Becker-Stigler model to analyze efforts to reduce police corruption). This article applies Becker's useful insights to laws limiting campaign contributions. In doing so, the article draws a conclusion that does not comport with current regulation of campaign finance: decreasing the amount a single contributor may donate to a campaign actually increases the likelihood that any given legislator will choose to act corruptly. The study of corruption has engendered a body of literature too large to fully describe in this article. Scholars at the intersections of law, ethics, and business have substantially contributed to this literature. Much of the scholarship treats corruption quite broadly. Proponents of Integrative Social Contract Theory, for example, ask whether or not corruption in general violates fundamental norms and how managers should find guidance when dealing with situations that might involve corruption.15 15 See, e.g., Thomas Donaldson & Thomas W. Dunfee, Ties That Bind: A Social Contracts Approach to Business Ethics 126–27, 225–30 (1999) (discussing “hypernorms” that prohibit local groups from agreeing that they will engage in bribery); Nichols, Philip M., Multiple Communities and Controlling Corruption, 88 J. Bus. Ethics 805 (2010) (suggesting that locally negotiated agreements provide more effective assurances to control corruption). Much of the literature is explicitly transnational, particularly that literature discussing changes to the regulatory environment controlling transnational bribes paid by businesses.16 16 E.g., George, Barbara Crutchfield et al., The 1998 OECD Convention: An Impetus for Worldwide Changes in Attitudes Toward Corruption in Business Transactions, 37 Am. Bus. L.J. 485 (2000); Hess, David W. & Dunfee, Thomas W., Fighting Corruption: A Principled Approach: The C2 Principles, 33 Cornell Int'l L.J. 593 (2000); Windsor, Duane & Getz, Kathleen A., Multilateral Cooperation to Combat Corrupt Normative Regimes Despite Mixed Motives and Diverse Values, 33 Cornell Int'l L.J. 731 (2000).Compare Salbu, Steven R., Are Extraterritorial Restrictions on Bribery a Viable and Desirable International Policy Goal Under the Global Conditions of the Late Twentieth Century?, 24 Yale J. Int'l L. 223 (1999) (setting out reasons transnational control of corruption may not be viable), with Nichols, Philip M., Regulating Transnational Bribery in Times of Globalization and Fragmentation, 24 Yale J. Int'l L. 257 (1999) (setting out reasons transnational control of corruption is viable). Scholars also recognize the harms imposed by corruption that occurs completely within the private sector17 17 See Ashforth, Blake E. et al., Re-Viewing Organizational Corruption, 33 Acad. Mgmt. Rev. 670 (2008) (discussing harms of private sector corruption). and are beginning to attempt to sort out the responses of business organizations to those harms.18 18 E.g., Lange, Donald, A Multidimensional Conceptualization of Organizational Corruption, 33 Acad. Mgmt. Rev. 710 (2008) (attempting to create a four-box matrix of corruption control mechanisms). This article differs from the general corruption literature in that it focuses on the relationship between a single control mechanism and a single type of corruption by a single group of people in a single country. This article scrutinizes the limitation of the amount of money that can be contributed to the political campaigns of federal legislators in the United States. Those limitations, in turn, are imposed to control a specific type of corruption—actions taken by federal legislators in exchange for campaign contributions.19 19Most but not all of these exchanges fall within criminal statutes pertaining to bribery. See infra notes 26–28 and accompanying text. A paradigmatic example of an exchange that is not prosecuted—and in fact has been institutionalized in recent years—is meeting time with a legislator given in exchange for campaign contributions. See infra note 28. This article is concerned with the corrupt exchange regardless of whether it might be prosecuted; the terms “corruption” and “bribery,” therefore, are used in their general rather than technical meanings. See George et al., supra note 16, at 516 (arguing for an expansive definition of bribery). This specific type of corruption has a profound relationship with businesses and the business environment within the United States. Most visibly, the lobbyists and contribution bundlers who offer bribes to legislators often work for or against businesses or business organizations.20 20 See infra notes 170–72 and accompanying text (describing bundling of contributions). More insidiously, corruption can dramatically affect the regulatory environment, either by causing distortions or by engendering visceral public reaction.21 21Joan Gabel, Nancy Mansfield, and Susan Houghton, for example, describe the slush funds used by business organizations to influence and distort regulations in the 1960s and 1970s and the visceral public reaction that led to passage of strict accounting and reporting provisions in the Foreign Corrupt Practices Act. Gabel, Joan T.A. et al., Letter vs. Spirit: The Evolution of Compliance into Ethics, 46 Am. Bus. L.J. 453, 459– 60 (2009). Least visibly but perhaps most fundamentally, corruption and its consequences undermine the health and viability of markets and market institutions.22 22 See Mayer, Don, Corporate Citizenship and Trustworthy Capitalism: Cocreating a More Peaceful Planet, 44 Am. Bus. L.J. 237, 271– 72 (2007) (discussing the direct relationship between responsible behavior and a healthy market environment). The article begins in Part I with a discussion of the nature of corruption and how it harms the United States. Part II briefly reviews the development of campaign finance reform legislation. Part III then analyzes the decision to act corruptly and shows that the legislation does not reflect an understanding of that process. Instead, the model shows that limiting the amount that may be contributed to a campaign actually increases the likelihood of corruption. The point of this article is to demonstrate that failure of current legislation. This article does not undertake to advocate a particular reform of the campaign finance system. However, the process of breaking down and analyzing the considerations of a legislator facing a corrupt offer casts insights into possible reforms, which are discussed in Part IV. This article concludes that serious efforts to control corruption must take into account the influence of campaign contribution limitations and that efforts to limit such contributions can actually have an exacerbating effect instead of an ameliorative effect on corruption in government. Discussions of corruption often begin with definitions of corruption. “No one has devised a universally satisfying ‘one-line’ definition of corruption.”23 23 Pinto, Jonathan et al., Corrupt Organizations or Organizations of Corrupt Individuals? Two Types of Organizational-Level Corruption, 33 Acad. Mgmt. Rev. 685, 686 (2008) See also Epstein, Edwin M., The Good Company: Rhetoric or Reality? Corporate Social Responsibility and Business Ethics Redux, 44 Am. Bus. L.J. 207, 215 (2007) (discussing difficulties in defining corruption). Joseph Nye offers the most widely accepted general definition of corruption: the abuse or misuse of public office or trust for personal rather than public benefit.24 24 Nye, Joseph S., Corruption and Political Development: A Cost-Benefit Analysis, 61 Am. Pol. Sci. Rev. 417, 419 n.10 (1967). See also Delaney, Patrick X., Transnational Corruption: Regulation Across Borders, 47 Va. J. Int'l L. 413, 417 (2007) (referring to Nye's as the “classic definition”). Nye's definition embraces aspects of the public interest and public office definitions, and also refers to incentives in a manner that echoes market-based definitions. This article uses Nye's definition as a starting point for analysis of one particular iteration of corruption: bribery or bribery-like transactions involving campaign contributions to candidates for the federal legislature within the United States.25 25Corruption occurs in a variety of forms and each of those forms probably manifest within the federal legislature of the United States; this article focuses on bribery because the legislation at issue in this article does so. In general, scholars studying corruption often concentrate on bribery as a proxy for corruption in general. See, e.g., Susan Rose-Ackerman, Corruption: A Study in Political Economy 4 (1978) (“I shall always keep bribery in the analytical foreground.”). The laws of the United States criminalize the giving or offering of bribes to or the taking of bribes by federal legislators, including bribes offered in the form of campaign donations.26 26 Dixon, Colleen B. et al., Public Corruption, 46 Am. Crim. L. Rev. 927 (2009). Not all acts that fall within Nye's broad definition of corruption, however, are prosecuted. Bestowing the privilege of a face-to-face meeting with a legislator in exchange for campaign contributions, for example, may constitute misuse of office and certainly inures to the legislator's rather than public benefit.27 27 See McConnell v. Fed. Election Comm'n, 540 U.S. 93, 150–52 (2003) (describing this transaction as corrupt); see also Hasen, Richard L., Shrink Missouri, Campaign Finance, and “The Thing That Wouldn't Leave,” 17 Const. Comment. 483, 493 (2000). Nonetheless, the United States does not prosecute that particular exchange.28 28Not all forms of lobbying involve a quid pro quo exchange of money for time. See Retnasaba, Gajan, Do Campaign Contributions and Lobbying Corrupt? Evidence from Public Finance, 2 Geo. Mason J.L. Econ. & Pol'y 145 (2006) (differentiating types of lobbying but empirically finding large amounts of corrupt lobbying). Regardless of whether corruption is prosecuted or not, corruption harms the United States.29 29The means by which corruption harms the United States are discussed infra notes 31–72 and accompanying text. Unfortunately, despite regulatory efforts aimed at controlling corruption,30 30The regulatory history is discussed infra notes 73–123 and accompanying text. perceived levels of corruption within the United States seem to be increasing. Those who monitor or prosecute misbehavior within the federal legislature report escalating levels of corruption. When sentencing a congressional aide for corrupt acts, Judge Friedman of the Federal District Court spoke openly of the growing culture of corruption in the federal legislature, “an environment that has become, frankly, more and more corrupt … corrupted by money. You've literally got lobbyists sitting in Congressional offices writing legislation.”31 31Philip Shenon, Man Linked to Abramoff is Sentenced to 18 Months, N.Y. Times, Oct. 28, 2006, at A9. Nongovernmental groups that observe the legislature report both an increase in the general inclination toward corrupt acts and increases in specific and observable acts of corruption.32 32Citizens for Responsibility and Ethics in Washington, Twenty Six Reasons for Ethics Reform: The Most Corrupt Members of Congress, http://www.crewsmostcorrupt.org/ (last visited Oct. 15, 2010); Common Cause, Campaign Finance Reform: A New Era (Jan. 2009), http://www.commoncause.org/atf/cf/%7Bfb3c17e2-cdd1-4df6-92be-bd4429893665%7D/COMMONCAUSECAMPAIGNFINANCEREFORMAGENDA2009.PDF; Congressional Accountability Project, Ethics Index, http://www.congressproject.org/ethics/index.html (last visited Oct. 15, 2010); Gary Ruskin, The Honest Government Agenda: How Congress Can Clean up Corruption ( Jan. 10, 2006), http://www.commercialalert.org/issues/government/corruption/the-honest-government-agenda-how-congress-can-clean-up-corruption. Citizens of the United States report in growing numbers that they perceive the federal legislature to be corrupt and that their perception of corruption affects their relationship with their government. A review of surveys by Gail Russell Chaddock indicates that “[n]early half of Americans believe that most in Congress are corrupt and that corruption affects both parties equally.”33 33Gail Russell Chaddock, Search of Capitol Hill Office Creates Another Storm, Christian Sci. Mon., May 24, 2006, at 1, 1. Some reported and perceived corruption undoubtedly consists of bribes given directly to legislators in exchange for abuse or misuse of office. The actions underlying the indictments of Senators Ted Stevens and Randall Cunningham, for example, consisted of the provision of valuable goods and services in exchange for those legislators awarding millions of dollars worth of federal contracts to an oil pipeline service company and defense contractors.34 34 See Mark Mazetti, Report Spells Out Favors by Former Congressman, N.Y. Times, Oct. 18, 2006, at A5 (describing Cunningham's conviction); Across State Lines, Campaigns & Elections, Sept. 2007, at 20, 20 (describing Stevens' indictment). The process through which a single senator can award a federal contract, called earmarking, is briefly explained infra notes 160–63 and accompanying text. Senator Stevens was not found guilty of a crime. The bulk of reported corruption, however, consists of bribery involving campaign contributions.35 35 Retnasaba, Gajan, Do Campaign Contributions and Lobbying Corrupt? Evidence from Public Finance, 2 J.L. Econ. & Pol'y 145 (2006). These bribes are given in the form of a contribution either directly to the fund managed by the legislator-candidate or to funds managed by others endeavoring to have that candidate elected. Former Representative Tom DeLay, for example, was indicted for distributing favors in exchange for money contributed to organizations that campaigned for his reelection.36 36 See Anne E. Kornblut, The Abramoff Case: The Overview; Lobbyist Accepts Plea Deal and Becomes Star Witness in a Wider Corruption Case, N.Y. Times, Jan. 4, 2006, at A1. These bribes are the type at which campaign finance regulations are aimed. Corruption affects the business environment. Early scholarly treatments of corruption found corruption mildly beneficial or at worst neutral in its effects on an economy. In the 1960s scholars such as Nathaniel Leff and Samuel Huntington suggested that bribes act as “speed money,” increasing the speed with which moribund bureaucracies make economic decisions or as ad hoc salaries that induce underpaid bureaucrats to perform.37 37Samuel P. Huntington, Political Order in Changing Societies 59–71 (1968); Leff, Nathaniel, Economic Development through Bureaucratic Corruption, 8 Am. Behav. Scientist 8, 8– 14 (1964). A decade later Richard Posner suggested that political corruption represented nothing more than a pure transfer of wealth.38 38 Posner, Richard A., The Social Cost of Monopoly and Regulation, 83 J. Pol. Econ. 807, 812 (1975). These theories of corruption relied on a static analysis of a one-time benefit accrued through a single transaction. By the 1980s, economists such as Jagdish Bhagwati and T.N. Srinivasan,39 39 Bhagwati, Jagdish N. & Srinivasan, T.N., Revenue Seeking: A Generalization of the Theory of Tariffs, 88 J. Pol. Econ. 1069, 1086 (1980). Stephen Magee,40 40Stephen P. Magee, Endogenous Tariff Theory, in Neoclassical Political Theory: The Analysis of Rent-Seeking and DUP Activities 41, 51 (David C. Colander ed., 1984). and Douglass North41 41Douglass C. North, Three Approaches to the Study of Institutions, in Neoclassical Political Economy: The Analysis of Rent-Seeking and DUP Activities, supra note 40, at 33, 34. took issue with the failure to adequately address transaction costs. By 1997, the World Bank was able to point out the consensus among economists that a static analysis could not accurately describe the effects of corruption and that dynamic analysis of the cumulative effects of corrupt acts on subsequent transactions would produce a far more accurate depiction.42 42World Bank, Helping Countries Combat Corruption: The Role of the World Bank 14–15 (1997). More recently Johann Lambsdorff has offered an elegant model that vitiates the transfer of wealth theory.43 43Johann Graf Lambsdorff, The Institutional Economics of Corruption and Reform: Theory, Evidence and Policy 131–35 (2007). In its statement supporting the United Nations' program to eradicate corruption, the representative of the United States summed up the effects of corruption: “Corruption and democracy are incompatible; corruption and economic prosperity are incompatible; and corruption and equal opportunity are incompatible.”44 44UN Doc. A/58/PV.50, at 19 (Oct. 31, 2003), quoted in Murphy, Sean D., Contemporary Practice of the United States Relating to International Law, 98 Am. J. Int'l L. 182, 184 (2004). This statement has just as much relevance to corruption within the United States legislature as it does with respect to corruption anywhere else in the world. Corruption in the United States legislature risks at least three types of injury to the polity: damage to the connection between electors and representatives, distortion of the economy, and distrust of government by those whom government should serve. Federal legislators in the United States inhabit a complex decision-making environment.45 45 See Fox, Justin & Shotts, Kenneth W., Delegates or Trustees? A Theory of Political Accountability, 71 J. Pol. 1225, 1225– 27 (2009) (discussing the complex expectations created by representation and referring to a “delegate trap” in which constituencies send contradictory signals to representatives); Friedman, Dan, Magnificent Failure Revisited: Modern Maryland Constitutional Law From 1967 to 1998, 58 Md. L. Rev. 528, 539– 40 (1999) (“In representational democracy, elected representatives face a constant tension between their role as representatives of the people and their role as leaders…. When the elected leaders properly negotiate the tension between leadership and representation, they become able to shape public opinion.”). Legislators represent constituencies and must attempt the difficult task of interpreting, synthesizing, and then taking into consideration the desires of those constituencies.46 46 See McCrone, Donald J. & Kuklinski, James H., The Delegate Theory of Representation, 23 Am. J. Pol. Sci. 278, 278, 278– 99 (1979) (describing the “delegate” theory of representative government and stating in summary, “[t]he delegate theory of representation, in short, posits that the representative ought to reflect purposively the preferences of his constituents.”). Legislators also lead the nation as a whole and therefore must sometimes act according to their own evaluations of factors and circumstances.47 47 See Rehfeld, Andrew, Representation Rethought: On Trustees, Delegates, and Gyroscopes in the Study of Political Representation and Democracy, 103 Am. Pol. Sci. Rev. 214, 214– 15 (2009) (stating that sometimes representatives must “act as they believe is best for the nation versus acting as their electoral constituents desire”). Legislators also act in concert with one another and therefore must take into account the political nature of the environment that they inhabit and the consequences of negotiating and trading support.48 48 See Levin, Ronald M., Congressional Ethics and Constituent Advocacy in an Age of Mistrust, 95 Mich. L. Rev. 1, 54 (1996) (stating that “vote-trading, exchanges of favors, and other sorts of ‘logrolling’ are an integral part of congressional culture.”). Attempts to positively describe the manner in which legislators negotiate this complex environment engender much debate and criticism.49 49The two positive theories most often used in legal scholarship are public interest theory and public choice theory. Shaviro, Daniel, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. Pa. L. Rev. 1, 6 (1990) Although each is considered useful, each has engendered substantial debate and criticism as positive theories. See id. at 36–50, 76–106 (criticizing public interest and public choice theories); Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (2008). Reza Dibadj succinctly summarizes the criticisms: “Public choice theories are incomplete, and critiquing the so-called ‘public interest’ doctrine provides limited analytic insight. Emphasis on ‘public’ and ‘private’ polarities, to which the overwhelming majority of commentary is devoted, is unsatisfying.” Dibadj, Reza, Regulatory Givings and the Anticommons, 64 Ohio St. L.J. 1
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