Should lobbyists be required to disclose anything?
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.