Multiple stories point to a huge lobbying effort on the part of the financial industry as the Senate debates reform to the financial sector. Banks, hedges funds, derivatives clearinghouses, investment firms and all the major industry trade groups are all on the ground lobbying to try and change, alter and weaken the coming reforms. And that's pretty much where our knowledge of the efforts to influence our elected representatives ceases. Lobbying disclosures do nothing to provide the public with information regarding who lobbyists meet with and what exactly their lobbying relates to.

This brings up a serious point when we consider the reason for a transparency or disclosure policy. Who benefits from the cursory information released in current lobbying disclosures? What disclosures would better benefit the public? Does the issue that the transparency policy seeks to address require a tougher response?

The Senate is currently debating financial reform, one part of which is the requirement that all derivatives be traded in the open. This is an application of transparency and disclosure to a particular problem: opacity in the derivatives trading market led to a lack of knowledge across the financial world as to the level of risk that many firms were taking on. Another argument, equally as valid, would be that the actual product of over-the-counter derivatives and specific types, i.e. credit default swaps, were so risky that they were one of the direct causes of the economic crisis. You're likely to support a different response depending on what your narrative of problem is. If these products are viewed as so dangerous as to have been a direct cause of the crisis a considerable option would be to ban them. If the problem is simply under the radar trading and a lack of knowledge among traders, banks and regulators then transparency would seem more appropriate.

One could view lobbying the same way. Did financial sector lobbying lead to a deregulation of the industry, particularly around derivatives? And then wasn't that lobbying part of the root cause of the current economic crisis? If that is the narrative then stricter regulations on lobbying might be in order. Whenever I read the comment threads of stories or posts about lobbying they are riddled with ordinary people stating that lobbying should be banned. Same thing goes when I talk about politics at the bar. The only issue is that, unlike with credit default swaps or any other dangerous product, lobbying cannot be banned.

The First Amendment provides for the right to petition the federal government. Of course, companies, individuals or organizations with a lot of money can hire a bunch of people to do it for them. Short of a constitutional amendment altering the First Amendment or an amendment ending corporate personhood (I doubt this would matter in terms of lobbying), there is no way to ban lobbying.

Transparency in the lobbying profession, along with regulations governing types of practices (which are often applied to targets of lobbying and not the lobbyists themselves), is likely the sole means to assuage the public's fears about the profession. Current disclosure policy provides for the following: names of lobbyists, client name, issues lobbying on, amount spent/amount contracted, government entity contacted, some revolving door disclosure and voluntary listing of bill numbers, names and policies. This is all very cursory information that does little to inform the public of how outside interests are attempting to influence government policy.

The one significant change in disclosure that goes to the root of the public fears of lobbying would be immediate disclosure of lobbyist contact with lawmakers, government officials and government offices. When people complain about banks lobbying Congress or health insurers lobbying Congress they are feeling powerless because they have no idea what the level of influence is and where the influence is directed. There an informational valley here that creates extreme distrust and fear.

Representative democracy suffers when people don't trust their elected representatives when they are in Washington. The best way to alleviate this dilemma is to increase the information flow out of Washington. To paraphrase John Adams, knowledge diffused through the people can provide opportunity to prevent abuses of the system of representative democracy.

Lobbyists are in midst of a bonanza in Washington. With the Obama administration pursuing so many goals at once, the influence industry is booming. One area that has lobbyists salivating like cats surrounding a mouse is the $787 billion stimulus package (only about $400 billion of this was actually spending-related) signed into law earlier this year by President Obama. That was the reason that the administration crafted rules for stimulus lobbyists designed to limit their ability to influence spending decisions and make transparent their actions. The rules, smartly summarized by my colleague Daniel Schuman here, included a requirement for agency officials to disclose all contacts made by lobbyists in regards to the stimulus. The Associated Press looked at these disclosures and found little disclosure occurring with wide discrepancies in the format of disclosure among those few reports filed:

President Obama ordered federal officials to disclose their contacts with lobbyists trying to influence how the government doles out money to jump-start the economy. Yet few such communications have been reported even though lobbyists say they are busier than ever with the multibillion-dollar stimulus.

Since the $787 billion American Recovery and Reinvestment Act passed in February, federal agencies have reported 197 contacts with lobbyists about stimulus grants.

In August, the entire government reported only eight such lobbying contacts. The Pentagon, which controls about $7.4 billion in stimulus spending, reported just one lobbying contact so far this year. The Homeland Security Department, with at least $3 billion to spend, reported none.

Forgive me for not believing that the Pentagon has only been contacted by ONE lobbyist and the Homeland Security Department has had ZERO contact with lobbyists over stimulus spending. Other agencies are no better. Of particular concern is the lack of a standardized format for disclosure. According to the AP, "The Education Department described 19 encounters, including Secretary Arne Duncan's meetings with the NAACP and other groups, some with detailed descriptions of the discussions. Energy Department reports include barely legible scrawls as well as 159 pages of public comments on a transmission infrastructure program."

If the administration is going to undertake a serious effort to reduce influence around and bring transparency to stimulus spending they are going to need to reconsider how they are requiring these disclosures. In the recent OMB memo on stimulus lobbying rules, the administration stated its intent on creating a web tool to “facilitate disclosure of lobbyist contacts concerning the Recovery Act.” The development of this tool should also coincide with the creation of standardized disclosure. Beyond that, they need to empower some official at each agency to enforce the disclosure rule.

For right now, this is both not-too-surprising and very disappointing. Maybe we just need a law requiring lobbyists to disclose their contacts. Perhaps the administration, which campaigned on transparency and curtailing the power of lobbyists, could consider putting their weight behind a legislative effort to increase transparency in the influence industry.

That seems to be a question raised from The Next Right's Soren Dayton. Dayton is taking the position that lobbyists and factions seeking to influence government do not have influence and therefore we should not require them to disclose their activities. This position is very much outside of the mainstream of thought on lobbyists and their influence in Washington. Currently, there are over 30,000 registered lobbyists in Washington with the sole job of influencing outcomes in the federal government. This could include, as Dayton says, educating officials and running pressure campaigns, and truly, there is not an inherent wrong with what almost all lobbyists are doing. However, even if the vast majority of lobbyists are doing no wrong, the revelation of their activities is still essential to a vibrant representative democracy. Over the years, the classic and legal case for regulation of lobbying has been built, starting with Madison's treatise against faction in Federalist No. 10. As we know well, the American form of government was created to temper the power of faction without limiting the liberty needed for a free society, despite liberty being to faction "what air is to fire". While there should be no attempt made to prevent factions from interacting with the government (the right of petition), there certainly can be regulation of factions and interests who seek action from Congress or the executive branch.

Modern lobbying disclosure laws take their root in the changes in American society following the Civil War. In 1876, the first lobbying regulation was enacted, albeit briefly, in response to concerns about the growth of the influence industry, which was growing alongside the growth of the federal government. Many of the pushes to enact lobbying regulation have followed on the heels of outrages and scandals. The 1876 regulation rule was adopted following the long reveal of the Credit Mobilier scandal, where lawmakers also worked as lobbyists handing out railroad stock to congressional leaders. Later outrages included a lobbying campaign against the Underwood-Simmons tariff bill that eventually revealed that the National Association of Manufacturers had an office inside the Capitol and provided all sorts of support for supportive lawmakers, a phony grassroots lobbying attempt by opponents of the Public Utility Holding Company Act of 1935, the lobbying attempts to quash certain provisions in the Merchant Marine Act of 1936, the Koreagate scandal in the 1970s, the Wedtech scandal in the late 1980s, and many, well documented cases during the 1990s and 2000s. All of these episodes (with an assist from Mark Twain) helped to inform public opinion that lobbyists were an execrable blight on representative democracy. This is despite the fact that lobbyists are not only protected by the First Amendment, but a vital part of democracy.

It is in these two contradictory notions -- that lobbyists are scum and that lobbyists are vital for democracy -- that lobbying regulation must exist. Debate over previous lobbying regulation bills (the Federal Regulation of Lobbying Act of 1946, the Lobbying Disclosure Act of 1995, and the Honest Leadership and Open Government Act of 2007) acknowledged that the disclosure by lobbyists is not only due to the potential for corrupting activity, but because they serve an important role and their existence needs to be revealed, not only to the public, but for lawmakers and officials to better understand with whom they are meeting. In fact, the general thrust of the debate during consideration of the Lobbying Disclosure Act of 1995 surrounded the need for lawmakers to be informed of who they are meeting and discussing policy. While this has served the legislative need to know the bias of a caller, it has not served the public interest nor has it helped the factions and interests that hire lobbyists to better police each other.

The positions that the Sunlight Foundation supports, and that Dayton finds to be mockable, are that lobbyists should disclose, in real time, their contacts with officials, including what was discussed, and that the threshold for lobbyist registration should be lowered to include the many influencers who operate behind the scenes (see: Daschle, Tom). These positions would provide an important view into a part of governance process that has so far been kept in the shadows. The reason why the disclosure of contacts is important is not because we are worried that lobbyists are engaging in a quid-pro-quo but because of associational bias. In her legal essay, St. John's University law professor Anita Krishnakumar explains that, "...[T]he public perceives that lobbyists receive special face time with elected officials. Irrespective of where that face time occurs -- in scheduled meetings, on a train ride, over a game of power, or on the golf course -- it creates opportunities for lobbyists to persuade elected officials of their clients' positions, opportunities that ordinary citizens do not have. In other words, the public's concern is not just that elected officials will engage in blatant vote-selling to lobbyists, but, more subtly, that they will be partial to the causes of lobbyists' clients because they spend a lot of time in lobbyists' company."

In many cases, lobbying contact disclosure may show lobbyists working to create bills before they are even dropped in the hopper. While Dayton denies that lobbyists write bills, there is enough proof out there that hired lobbyists have worked hard at crafting many important bills. Another revelation would be the frenzied lobbying for earmarks, which are often largely driven by paid lobbyists. (While Dayton supports a ban on earmarks, he does not recognize that their origin, and the reason why they are so reviled, is because they are often the creation of lobbyists.)

The disclosure of lobbying contacts provides not only the public with a better view of which interests and factions are trying to influence outcomes, but it also provides a chance for those same interests and factions to view the actions of their opposition. If union officials are putting a full court press over the Employee Free Choice Act, business groups will be able to see which lawmakers they are targeting and can prepare a better response. Groups can help educate the public on which lawmakers are more supportive of their causes, or if they are in opposition. And some lawmakers, exposed by the sunlight, may find it in their interest to meet with more groups to not only provide a more bipartisan public record, but to also gain insight from a more diverse group of interests.

A legitimate issue that Dayton raises is that government officials are the ones that we should be pointing a finger at. They are the ones who ultimately make the final decision on legislation or regulation and, therefore, they should face accountability, not lobbyists. In the Obama administration stimulus lobbying rules, we see a bit of this position. Lobbyists are not required to disclose who they meet with or what they are discussing, instead it is the agency official who must disclose written and oral communications with registered lobbyists. This is a reversal of the disclosure burden, away from the lobbyist. While I firmly believe that lobbying contacts should be disclosed, for the better of the public, the interests, and the government officials, there is still a debate over who discloses that information. Should it be the lawmaker or their staff? Or should it be the lobbyist? Or both? As evidenced by the Obama stimulus rules, that is still up for debate.

The need for a better system of lobbying disclosure, that increases registration and disclosure, is necessary to provide the public, interests, and lawmakers with the information that actually matters and to provide the professional legitimacy that the lobbying industry needs.