Although our modern lives present many irreducible questions -- nature vs. nurture, liberty vs. security, funny vs. good-looking -- a recent paper suggests an answer to the perennial question of whether it’s better to be smart or well-connected, at least if you’re a lobbyist.

Whether lobbyists’ main role is the providing of access or expertise to politicians is the topic of a paper entitled “Is It Whom You Know or What You Know? An Empirical Assessment of the Lobbying Process.” The authors evaluated lobbying registration records, FEC reports, committee assignments, and lobbyists background information to reach a stark conclusion:

[L]obbyists appear to systematically switch issues as the politicians they were previously connected to switch committee assignments, hence following people they know rather than sticking to issues. We also find evidence that lobbyists that have issue expertise earn a premium, but we uncover that such a premium for lobbyists that have connections to many politicians and Members of Congress is considerably larger.

In other words, being well-connected is financially rewarded at a much greater level than possessing expertise. And lobbyists will abandon their areas of expertise in order to maintain personal connections to their former colleagues.

The authors speculate that “the price tag attached to lobbyists services suggest that they bring to the table a complementary resource, perhaps reputation, credibility or political savvy, in the transmission of information.” It is no surprise that people rely on their social networks to make decisions.

How much is it worth to lobbyists when congress relies on social networks over expert networks? The paper “Revolving Door Lobbyists” suggests an answer:

[W]e find that lobbyists with past working experience in the office of a US Senator suffer a 24% drop in revenue -around $177,000- when their ex-employers leaves office...

Consistent with the notion that lobbyists sell access to powerful elected officials, the drop in revenue increases with the seniority of and committee assignments power held by the Senator immediately prior to leaving office. For lobbyists connected to US Representatives we find similar if weaker effects.

The authors findings illustrate the forces that affect staffers career incentives. “A large portion of what makes revolving door lobbyists particularly attractive is perishable has the implication that staffers may have relatively short careers. Once a connection to a powerful Senator has been established, a staffer may want to move into lobbying and cash in this unique asset while it is still valuable.”

Along those lines, my research into staff turnover indicates that House hill staffers are young, with an average age of 31, suffer from a high turnover rate, and senior staff are paid significantly less than their private sector counterparts. Congressional staff are also likely overwhelmed by their responsibilities. Moreover, expert networks within Congress that could support policymaking -- including the legislative support agencies -- have been significantly weakened over the last 25 years.

When faced with overwhelming and complicated tasks, it is unsurprising that staff rely upon assistance from their former colleagues. Those lobbying efforts help determine the legislative agenda, although the true extent to which this happens is difficult to know.

Even with the 2006 lobbying reforms, we still cannot see the nitty-gritty of how lobbying works. It’s difficult to track the role of individual lobbyists, and many people who regularly lobby congress are not required to report their roles at all. If we wish to truly understand the influence ecosystem, and to change the incentives underlying policymaking, we need more transparency. Sunlight's suggestions on lobbying reform are available here.

Improving federal lobbying laws is the focus of a new report released by a task force of the American Bar Association’s Section on Administrative Law and Regulatory Practice. The Task Force on Federal Lobbying Laws, on which I served,* recommended [PDF] more comprehensive disclosure by lobbyists and those who support their efforts as well as strengthened enforcement of current law. To become ABA policy, the report must be reviewed by the ABA’s governing bodies.

Here are highlights from the report's recommendations:

• End a major loophole as to who counts as a registered lobbyist. The law would be changed so that a person need only spend 12 hours/quarter to be required to register as a lobbyist; current law requires a person to spend 20% of their time engaging in lobbying activities before having to register. It would also simplify the monetary trigger that requires registration.
• Disclose more lobbying information. Lobbying firms and organizations would be required to disclose more information about their activities, including contacts with all congressional offices, committees, and federal agencies; provide a list of all bills and topics regarding which lobbying activity was conducted; and identify all persons who engaged in “lobbying activities” or “lobbying support.”
• Better track lobbyists and lobbying. The publicly-accessible lobbying disclosure database should be improved; lobbyists would now be able to be tracked individually through the use of unique identifiers; and a new form for lobbyists to deregister would be employed.
• Require reporting for those involved in professional lobbying campaigns. Clients would be required to disclose the lobbying and lobbying support activities of firms hired to assist in a lobbying campaigns -- whether they are engaged in polling, public relations, coalition building, strategic planning, or providing assistance from high-profile public figures. All of these disclosures would be available online. Most people doing this work would be officially deemed “lobbying supporters.”
• Focus special attention on big money and big wigs. Anyone who is a “lobbying supporter” must file regularly if he or she has bundled money; given more than $10,000 in federal donations w/in a year of providing lobbying support; spent more than 10% of his/her time providing advice on lobbying strategy; or served as a Member of Congress, Senate-confirmed political appointee, or within the last 5 years as a Congressional staffer or within the Executive Office of the President.
• Separate lobbyists and fundraising. Individual lobbyists cannot engage in certain fundraising activities to support a campaign for a Member of Congress -- or a candidate for Congress -- with whom that lobbyist has had a “lobbying contact” within two years. Similarly, an individual lobbyist cannot make a “lobbying contact” if he or she has engaged in a covered fundraising activity within the past two years. (Note that candidates for Congress are not covered under current law.) Also, this prohibition on fundraising would be applied to other registered lobbyists at the same firm where a lobbyists has made a lobbying contact, and would require the firm as an entity to abstain from raising funds for that Member/candidate or directing money to that political figure.
• Clear up Earmarks. Although the report doesn’t take a specific position, it generally recommends that the House and Senate consider making earmark disclosure more timely and meaningful, perhaps in the ways described in the Earmark Transparency Act of 2010. Similarly, lobbyists who seek earmarks (and their employers) would be required to file a form stating they have neither contributed to nor sought individual or PAC contributions for the Members they lobbied for earmarks during the current session of congress. Also, lobbyists who are paid on a contingent fee basis would need to publicly file that contact if they lobby for earmarks, tax relief, or targeted loans, grants, contracts, or guarantees.
• Fix the Byrd Amendment. The Byrd Amendment, which (generally speaking) bans those who receive government contracts from using government money to hire lobbyists to lobby Congress or the executive branch, is badly worded and needs to be clarified. The report calls on OMB to issue final rules interpreting the statute.
• Improve enforcement. The Task Force noted the lackluster enforcement of the Lobbying Disclosure Act, and recommended that Civil Division of the Department of Justice may be a reasonable candidate to be assigned the duty of interpreting and enforcing compliance with the LDA.

* Note: I served on the Task Force as a liaison, which means that I participated in all the deliberations but did not vote on any issue.

Each new Congress begins with its own unique face. The ascendant Newt Gingrich in 1994, the first woman Speaker of the House surrounded by children in 2006 and a teary-eyed John Boehner in 2010. As we await the future for presumptive Speaker Boehner's policies, we know that those of Gingrich and Nancy Pelosi differed greatly. That is save for one area: transparency. A new Congress, with fresh blood, offers a singular moment to advance transparency causes, whether in the legislative field or elsewhere.

Of course, the decisions on where to move on transparency has largely been influenced by the idiosyncrasies of the Speaker or the new congressional class or the prevailing winds of the time.

In January of 1995 Speaker Gingrich unveiled the first online database of legislation known as THOMAS. THOMAS was a breakthrough at the time even though it did not include anywhere close to the amount of information that it does today. Gingrich, a fan of the futurist Alvin Toffler, was incredibly interested in computers and found it important to make legislation available to the public over the new Internet technology.

The House of Representatives, under the Democratic majority prior to the 1994 election, had put a lot of work into wiring offices for Internet access and posting legislative information through the House Information Services (HIS) and the Government Printing Office (GPO). The new Republican majority, particularly Gingrich and incoming House Administration Committee chairman Bill Thomas, thought that HIS was a pet project of the Democrats and that GPO was inept. This led them to centralize control over the online legislative database in the Library of Congress, where THOMAS still lives today.

In 2006 Pelosi and the Democrats were elevated to office, in part, due to a string of corruption scandals tainting the Republicans. The Jack Abramoff scandal exposed both the casual and explicit corruption in Washington. Associational biases led to corrupt decisions as staffers accepted sports and concert tickets and wound up doing favors for lobbyists. Travel to exotic locales, for educational purposes, of course, were prized lobbyist tricks to win support from congressmen for their clients. Meals could be used as bargaining chips. And in the case of Rep. Randy "Duke" Cunningham, earmarks were sold to defense contractors for yachts, prostitutes, antique furniture and, in one case, a house.

The Democrats moved quickly once the new Congress began. A bill was drafted that included dramatically increased transparency on lobbyists and lobbyist gifts to members of Congress, restrictions on private travel and the receipt of gifts from lobbyists and increased transparency around earmarks and other legislative activities including committee hearings and conference committees. This was a landmark bill that has made following Congress and influence much easier in the Internet age.

This phenomenon is not new either. The increase in new congressmen, largely in the Democratic Party, from 1970 to 1974, produced a series of lasting transparency policies in campaign finance, committee operations, executive branch operations and congressional activity.

So what does this mean for the Republicans in their 2010 form under a Speaker Boehner? That appears to be a big unknown at the moment. Boehner does not appear to have the zest for technology that Gingrich did, nor does the moment portend a need for action as the corruption scandals of 2006 pushed Pelosi to act. There are, however, some areas that both Boehner and Majority Leader-to-be Eric Cantor have noted that could provide some clues as to where transparency could be advanced in the House.

The Republican leadership has stated that they are going to devolve some power back to committee chairmen after a decades-long centralization of power in leadership offices. This provides a moment to codify rules and increase transparency in committee rooms.

The Sunlight Foundation released a list of rules changes for the new Congress to adopt, which includes a series of important changes to committee openness. These include posting recorded votes online in a structured format, post official transcripts, disclose financial statements filed by witnesses and post all committee documents online. (More suggestions can be found here.)

Giving the public time to read bills before they come to the floor for debate is another area that appears ripe for action. This was a hallmark criticism that Republicans made of the legislative process in the 111th Congress and they should codify a rule requiring bills be posted online for 72 hours prior to consideration.

John Boehner has consistently stated his support for transparency in the legislative process during his term as Minority Leader. As he ascends to the Speaker's chair, many will watch to see how his criticisms of opacity translate into policies of openness.

In the wake of an annual GAO report that some lobbyists have failed to register upon employment by a client, Representative Mary Jo Kilroy (D-Ohio) introduced legislation that would impose fines for late filings and require lobbying registration fees to fund enforcement of the filing provision. The bill aims for a higher level of accountability for lobbyists, who usually suffer no repercussions for failing to comply with registration requirements.

The “Fee on Lobbyists Act,” or HR 5751, would fine late-filings lobbyists $500 the first time they fail to register that they've taken on a client, and $1,000 for each subsequent infraction. It would also instantiate a public list of non-compliant lobbyists drawn from House and Senate records, whose names would be removed from the list once they file the report and pay the fine. Funds raised from these fines and the annual $50 per-client filing fee would be available to the appropriate House and Senate offices to pay for reviewing and auditing registrations. OMB Watch wrote about the bill last week; we noted its introduction in our daily roundup; and Rep. Kilroy issued this press release.

As things currently stand, the House Clerk's Office and Senate Office of Public Records do not always know when lobbyists fail to file, and when they do find out, they send reminder letters that give the non-compliant 60-days to file (as required under 2 USC 1605). Theoretically, ongoing non-compliance could trigger prosecution by the Attorney General's Office, after referral from the House or Senate. According to the GAO report, the AG often sends a letter demanding compliance; it notes the most recent enforcement actions were three settlements of civil actions in 2005. Theoretically, the maximum civil fine is $200,000 and the maximum criminal penalty for knowingly and corruptly failing to comply is 5 years imprisonment, although these provisions are largely unenforced.

The legislation cuts through much of the red tape to create an incentive to timely compliance, but there may be some room for additional improvements.

For example, although the legislation calls for the Secretary of the Senate and the Clerk of the House “to reconcile their databases … so that information … is compatible and easily comparable,” for this provision to have real bite it should mandate the publication of unique ID numbers for each lobbyist in every instance where that lobbyist is referenced. That way, it is easy to have confidence that the “John Smith” in the first quarter 2011 filing is the same “John Smith”in the fourth quarter 2010 filing; or to track his work for different employers over time. (Based on her press release, I think Rep. Kilroy intends for this provision to reconcile the list of non-compliant lobbyists made available by the House and Senate, but that is not clear from the text of the legislation)

Another possible improvement is to keep a public list (in a searachable, sortable, downloadable database) of all non-complying lobbyists and their employers, even when they pay their fine and file their forms. That way, the public can see whether the same lobbyists fail to file time and time again. Of course, the database should note the date when the lobbyist filed their updated forms and paid the fees. Except when a lobbyist is self-employed, it is employer (not the lobbyist or client) who files these registration forms, and it makes sense to fine the employer and not the lobbyist him/herself for each instance of noncompliance. Employers should be prohibited from passing through the late filing cost to clients or employees, and should be identified in this database.

In addition, to the extent the Senate and House lack the capacity to review these forms for timeliness and completion, one mechanism used to good effect in other circumstances is to let the public report instances of non-compliance. Timely and complete release of all filings will allow the public to contribute to this effort.

Additionally, there are likely to be instances where people have stopped lobbying and no longer need to file regular reports. Tracking these people is very difficult, as noted by the Center for Responsive Politics in their recent report “The Deregistration Dilemma.” They recommend:

Creating a separate form where a lobbyist can register and be assigned an ID…. A simple form in which a lobbyist discloses his or her employer and past government experience.... The form could also give the option for a lobbyist to deregister that is, terminate his or her status as a registered lobbyist, and thus forgo all the disclosure responsibilities entailed in that status.

Earlier this week, Sen. Tom Coburn and a group of Republican senators sent a letter to Majority Leader Harry Reid stating that certain provisions in the health care reform bill violated disclosure requirements created in the Honest Leadership and Open Government Act of 2007. Here's a snippet of the letter (Full letter):

"It is clear that the Manager’s Amendment, in addition to the underlying bill, includes specific provisions which benefit some states and not others. We therefore ask you, as the sponsor of the Manager’s Amendment and underlying bill, to provide a list of all earmarks and congressional directed spending as required by The Honest Leadership and Open Government Act of 2007.”

This is a bit perplexing for a couple of reasons. First, the letter does not provide a list of the provisions that may be in violation of disclosure requirements. In the past, Coburn has been excellent at naming and providing lists of earmarks and other questionable provisions in bills, so this strikes me as a bit odd. Second, and most important, the provisions that I can only assume that Coburn is referring to would not fall under the disclosure requirements laid out in the 2007 ethics law. The provisions most likely being referred to are the Louisiana Medicaid deal made by Sen. Mary Landrieu and the Nebraska Medicaid deal made by Sen. Ben Nelson. Increases or changes in Medicaid or Medicare spending are not "directed spending items" as defined by the Honest Leadership and Open Government Act and would not be subject to disclosure requirements. Here's the relevant legislative language:

5 "(a) the term 'congressionally directed spending item' means a provision or report language included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive process"

Emphasis added. Medicaid and Medicare funding are statutory and administrative formula-driven processes and thus the disclosure requirement does not apply.

Now there could very well be other items in the Senate manager's amendment to the health care bill that would be subject to these disclosure requirements. I don't know. It would be useful to see Coburn's list of "over a half dozen" such provisions to gauge whether they should be subject to the relevant disclosure requirements. Furthermore, if Coburn believes that the requirements under the Honest Leadership and Open Government Act do not go far enough in requiring the disclosure of spending targeted towards the interests of particular members it would be interesting and useful to see statutory or rules changes that he thinks are appropriate. That's a conversation I'd like to have.

David Sirota posted on OpenLeft yesterday on what he called "the reward method of corruption." Sirota writes, "As opposed to the Payoff Method whereby a campaign contribution is made and then a favor is legislated, the Reward Method gives a politician a goodie after a favor is done, sorta like a dog being given a treat for rolling over." This is one of two major issues raised by the revolving door between government and lobbying. (The other issue being the use of access built up over the years.)

While I don't think there is a direct answer, which Sirota was seeking, to how to stop the flow of lawmakers and staffers from government to the lobbying profession--short of greatly increasing their pay--there are some things to mitigate the effects.

First, let's look at the problem. This goes from the somewhat benign, lawmaker goes to work for a nonprofit cause not connected to private enterprise, to the wholly corrupt, the various staffers who did deals for Jack Abramoff and then were hired by his lobbying firm. But for the most part, these things fall in between, a staffer or lawmaker has a particular expertise and flips to make more money doing, essentially, the same thing they were doing in Congress.

Now perhaps the biggest fear is that, in preparation for a future career on K Street, a staffer or lawmaker will do favors, directly or indirectly, having been asked or on their own volition, to protect future hiring opportunities. The biggest example of this is Billy Tauzin, who was in talks to head the pharmaceutical industry's top lobbying shop, PhRMA, while he was writing the Medicare Prescription Drug, Improvement, and Modernization Act, the largest health care overhaul since the 1960s. Tauzin's tale included many instances of opaque situations: closed conference committees with lobbyists at the table, secret discussions for future employment, unreported meetings with lobbyists. The revelation of all of these things would have aided in providing the public with a view into Tauzin's world preemptively.

What I'm saying is that the preemptive, or real time, disclosure of a variety of items would allow the public to prevent a lawmaker from doing favors for a potential future employer. The following would be most useful:

• Real time lobbying disclosure with increased reporting requirements — We've covered this here, here and here recently. Require lobbyists to disclosure all meetings with covered officials within 24 hours. Require lobbyists to report with whom they meet and the office of the lawmaker when they are meeting with staffers. Also require specific information on positions taken on bills, appropriations, or other topics of discussion.
• Open all conference committees and require time to read conference reports — Require all conference committees to be open to the public (didn't the Democrats promise this back in 2006?) and require all conference reports to be available for 72 hours prior to consideration. (Of course, beyond this, all committees should be open and all bills should be available for 72 hours prior to consideration.)
• Increase reporting requirement for job negotiations — Currently, members of the House and some staffers must report job negotiations to the Clerk of the House, but the information is not publicly available.

As I said earlier, I don't think there is a direct way to limit government officials from leaving for a more lucrative profession outside of increasing their pay. There could be a longer "cooling off" period in the House, where it is only one year, and perhaps an extension to staff making less money than currently meets the threshold for the post-employment lobbying restriction. But that hasn't stopped lawmakers from taking positions as "consultants" and later becoming lobbyists (see: Hastert, Dennis or Daschle, Tom).

Greater transparency and disclosure would, however, be the best solution at present to provide less incentive for lawmakers and staff to act favorably for future employment. With more eyes on their actions there will be fewer Billy Tauzin's, Kevin Ring's, Michael Scanlon's, and Tony Rudy's.

The GAO is bound by law under the Honest Leadership and Open Government Act of 2007 to file an annual review of compliance with lobbying disclosure requirements. A review of last year's disclosure compliance was released yesterday. For the review, the GAO randomly audited 100 lobby shops to determine their level of compliance. The contains statistics on those 100 lobby shops and estimations for the statistical level of disclosure across all lobby shops. Here are some of the noteworthy estimated statistics:

• 6 percent of all lobbyist disclosures "erroneously report the amount of income or expenses for lobbying activity."
• 7 percent, at minimum, of all lobbyist disclosures "list lobbying activity that did not actually happen."
• 3 percent, at minimum, of all lobbyist disclosures "fail to fully disclose whether the individual lobbyists for a specific client held an official covered position."
• 4 percent, at minimum, of all lobbyist contribution disclosures "omit donations that should have been reported."

And these are statistics based on the 100 randomly audited lobby shops:

• 14 percent of lobbyist disclosures were contradicted by documentation provided by lobbyists.
• 65 percent of lobbyist contribution disclosures "could be supported by FEC data or documentation provided by lobbyists."
• 16 percent of lobbyist contribution disclosures (LD-203) "contained erroneous entries or failed to disclose required contributions."
• 13 percent of registrants could not be linked to "a corresponding report... likely because either a report was not filed or reports that were filed contained information, such as client names, that did not match."

You can read the full report here.

Yesterday, the Washington Times reported that various pharmaceutical companies and trade groups have contributed $172,500 to the Utah Families Foundation, a nonprofit closely connected to Sen. Orrin Hatch. The Times article notes that the contributions to the Utah Families Foundation "provides fresh evidence that the campaign-finance limits and transparency reforms that President Obama demanded and that Congress enacted still leave avenues for interests to route large sums of money to lawmakers' favorite causes without disclosure." While there are certainly still loopholes in the ethics and transparency reforms the example presented by the Times appears to not only be false, but to invert the actual effect of the transparency reforms.

Let's look at the whole story. The Times states that the information about the contributions to the Utah Families Foundation came from a "normally confidential" IRS disclosure form was accidentally released. That form covered the year 2007, the year that the ethics reforms the Times mentions were enacted, but before they were put into operation. Contributions to nonprofits connected to members of Congress were only required to be disclosed in 2008 and in no years prior. It would have done the Times well to have looked at the legislative history of the reforms they were mentioning. Also, simply by delving into the lobbying contribution databases operated by the Clerk of the House and the Secretary of the Senate we can see that contributions, labeled Honorary or Meeting Expenses, to the Utah Families Foundation for 2008 were disclosed.

In 2008, four pharmaceutical companies contributed a total of $47,500 to the Utah Families Foundation, labeling these contributions as Honorary Expenses for Sen. Orrin Hatch. These companies include Cephalon, Abbot Laboratories, Johnson & Johnson, and Baxter Healthcare Corporation. Also making reporting Honorary or Meeting Expenses were Pfizer and PhRMA, the lobbying arm of the industry. PhRMA spent $75,000 on Honorary and Meeting Expenses for Sen. Hatch, while Pfizer spent only $10,000.

While the Washington Times does help to illuminate the connections between the pharmaceutical industry and a powerful senator, their assertion that the lack of disclosure surrounding the Utah Families Foundation in 2007 is a failure of transparency reforms enacted in 2007 is not based in reality. In fact, if we believe that the laws are followed and companies disclosures are accurate than there is a very different story to be told here.

A comparison of the contributions made to the Utah Families Foundation in 2007 and 2008 clearly show that the pharmaceutical industry has greatly reduced their contributions since the transparency reforms were enacted. The contributions to the Utah Families Foundation have gone down from $172,500 to $47,500. Perhaps the fear of disclosure led these companies to reduce their pursuit of alternate avenues of influence. After all, sunlight is the best disinfectant.

The Clerk of the House and the Secretary of the Senate have updated their Lobbying Disclosure Act databases. (This may have happened a while ago, but I just noticed.) The improved functions include an increase in the number of search functions. This includes over two dozen search categories, the ability to search using up to 5 categories on the Senate site and 6 categories on the Clerk's site at the same time, and the ability to download XML/CSV files of searches.

Some of the highlights of new search categories are issue area (includes bill numbers), specific lobbying issue, and government entity contacted. These search functions will allow users of these databases to discover far more information than before in a much shorter period of time. This is all thanks to standardization of the forms, electronic disclosure, and some increased transparency requirements in the Honest Leadership and Open Government Act.