Raising the Expectation of Professionalism

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At the Inside Counsel’s Ninth Annual Conference, Robert Bauer, campaign finance lawyer and council to Barack Obama’s 2008 presidential campaign and the Democratic National Committee, gave the keynote speech, focusing on the changing nature of lobbying regulation. There are many important points in his speech, which is at times complicated and dense, but I’m going to focus on his main point here. You can read the whole thing here on Bauer’s blog.

Bauer writes:

[W]hile a steep increase in concerns about lobbying is hardly unusual during periods of economic and related political stress, as we now experience it, it would be a mistake not to see a more profound, more basic, change now in progress.  Put another way, it would be a mistake to take the limits proposed for lobbying as merely symptomatic and to wait for the symptoms to pass when underlying conditions stabilize.

I am referring to the critical press on lobbying, accompanied as it is by new regulation and heightened scrutiny.

In the time that I have practiced, over a period of thirty years, I have observed the steady growth in regulation just as I have seen how readily the press and members of the regulated community seem determined to discount its significance. The developments of 2007 and 2008 are the latest of a series of steps toward the regulation of private interest lobbying and it is hard, surveying the course of events, to see them as the last.  The full weight of these changes may not be felt for some time to come. That time seems sure to come, however.

This is undoubtedly true. Lobbying is coming under increasing scrutiny as it has established itself as a powerhouse industry ($3.27 billion reported by registered lobbyists in 2008) that mixes both private business with a component of public responsibility.  The public largely believes lobbying to be a corrupting influence on the politicians that they elect to serve the public interest. Lobbyists largely believe that they are engaging in constitutionally protected activity that is essential for governance. These two ideas, while contradictory, are working to create a situation where regulation of lobbying is likely to increase.

As Bauer points out towards the end of his speech, recent reform efforts have focused on the professionalism of the lobbying industry, including treating them as equal partners with lawmakers.

[T]he newer rules do seem to have been influenced by the expectation that while lobbyists discharge a constitutionally protected function, there are constraints on their conduct and—going beyond constraints—an affirmative expectation of professionalism that the Court in [Trist v. Child] was expressing.  A major change, mentioned earlier, is the decision to hold lobbyists to the same gift rules that Members observe under their Congressional rules, and it shows both the role of constraints and the expectations of professionalism.

On the one hand, those rules are a simple prophylactic measure to tighten up the gift rules.  If the Member should not accept the gift, the lobbyist should not offer it.  There are limits on the form of lobbying and the rules are meant to further enforcement by addressing the supply side.  But on the other hand, Members and lobbyists are collaborating in the making of public policy and the more positive case for the rules is one that takes both lobbyist and Members as acting, though in different ways, in a public capacity, each bearing to different degrees responsibilities to the public.

This — raising the expectation of professionalism — looks to be the direction that further lobbying regulation will take. One area that deserves focus is the transparency of lobbyist operations. Acknowledging the important role that lobbyists play, while requiring full transparency in their operations — as we do, or at least aspire to, from our public servants. Transparency in lobbying contacts, in the unregistered swathes of influencers, and in other areas will help provide meaningful information to a wary and unsettled public in ways that the Lobbying Disclosure Act of 1995 failed to do and also ensure the legitimacy of lobbying as a crucial part of governance. This is one area that raises the professional expectations of lobbyists and bridges the gap between the contradictory views of their profession between themselves and the public.

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