What Is the Role of a Definition of "Lobbying"?

An interesting debate about lobbying and advisory groups can be found on the Austin Bulldog website. Late last week, the Bulldog published an article about an ethics complaint filed by the president of the Austin Neighborhoods Council (ANC) against an appointed member of the Land Development Code Advisory Group (CAG). The complaint alleges that the CAG member is an unregistered lobbyist for a real estate consulting company, and that the resolution establishing CAG says that lobbyists or employees of lobbyists, registered or not, may not be members. The CAG member insists she has never lobbied, nor has her consulting firm.

There are two important issues here:  the definition of lobbyist and the membership of advisory groups. I have dealt with the latter issue in three blog posts:  a Fort Worth situation, "Making Use of Expertise," and "Alternatives to Allowing Conflicted Individuals to Sit on Advisory Boards." So I won't go into this issue here, except to say that there is no reason in the world to limit the prohibition on membership to lobbyists without limiting it equally to anyone directly or indirectly seeking special benefits from the government. There has to be a balancing of expertise with conflict of interest, and conflicts of interest are not limited to lobbyists.

The Definition of "Lobbying"
Here is Austin's definition of "lobbying" from its lobbying code:

the solicitation of a City official, by private interview, postal or telephonic communications, or any other means other than public expression at a meeting of City officials open to the public ..., directly or indirectly by a person in an effort to influence or persuade the City official to favor or oppose, recommend or not recommend, vote for or against, or to take action or refrain from taking action on a municipal question. The term lobby or lobbying shall not include a mere request for information or an inquiry about a municipal question, matters, or a procedure or communication to a City official which is incidental to other employment not for purpose of lobbying.

This is a typical, but far from ideal definition. It puts too much emphasis on communication, but at least it includes indirect communication, so that efforts to get others to communicate are included (what is known as "grass roots lobbying"). What it leaves out is such lobbying activities as drafting ordinances and reports, advising and recommending lobbying strategies to a client, research, monitoring of bills, proceedings, meetings, and events, and doing what it takes to establish and maintain personal relationships with officials, where there is often no effort to influence or persuade with respect to any particular question.

A serious problem with Austin's definition of "lobbying" is its exception for public meetings which, I assume, would include written testimony presented to a public board. Public testimony, and its preparation, is an important part of lobbying. It can consist of extensive arguments and documentation, including recommended language. It can have a serious effect on a body’s decision to act and, if so, in what manner. The fact that citizens also speak at public meetings, and this is not considered lobbying, may be taken care of in the definition of "lobbyist."

What Role Should the Definition of "Lobbying" Play?
The place to start when drafting a lobbying code is to decide what role the definition of "lobbying" or "lobbyist" is supposed to play. Is it supposed to be exclusive, so that only a few professional, full-time lobbyists will register? Or is it supposed to be inclusive, so that everyone whom the public would consider as engaging in lobbying activities will register and the public will have a full picture of who is trying to influence those who manage their community?

Since lobbying codes are part of government ethics, and appearance is central to government ethics, the best practice is not to split hairs, but rather to include everyone whose job (in part or in whole) is to seek to influence government decisions, and those for whom they work. It may take more time, but it will provide the optimum amount of transparency, and there won't be a lot of gray areas that make it look like the government and special interests are trying to keep a lot of lobbying hidden from the public.

The CAG member says that her role "is to support real estate industry clients through the City’s land development process." However, on her LinkedIn page, she says that she also engages in "tracking and responding to code and ordinance amendments being processed." So the questions are (1) whether she deals with code and ordinance amendments only at public meetings or in the form of written testimony for a public hearing, or discusses or writes about them, as well as particular matters, with or to officials in private, and (2) whether her shepherding of her clients through the land development process includes communications with officials beyond requests for information.

Anyone who seeks special benefits from a government, for herself or for her clients, needs to recognize that the public cannot know what she is saying to or seeking from officials, whether it is on one or the other side of the vague lines in the definition of "lobbying" and in the many exceptions to who must register as a lobbyist. Recognizing how her work appears to the public, she should try to increase trust in the process she is shepherding her clients through by registering as a lobbyist, not only to be on the safe side (for the benefit of herself and her clients), but also because of the importance of appearance, trust, and transparency in government ethics.

Must "Lobbyists" Be Paid?
One of the commenters to the article seeks to turn the table on the complainant, the president of the Austin Neighborhoods Council (ANC), by saying that she too is an unregistered lobbyist, who hides "under the guise of not being paid. They lobby city hall constantly for their agenda" and are represented by pro bono counsel, one of whom drafted the ethics complaint.

Should unpaid lobbyists, who represent not their personal interests (for example, a homeowner asking a council member to oppose a neighborhood plan), but rather an organization, not have to register and report on their contacts solely because they are not paid? Should the public not have access to information about the lobbying on both sides of a matter? Of course they should be required to register.

I was talking the other day to the head of a state good government group on this very topic. Since he is paid, he is a registered lobbyist. But when board members lobby, even though they are not paid, he registers them as lobbyists, even though it is not legally required. The reason is that real good government groups value transparency, and they find no reason not to let the public know about their lobbying efforts.

But most people like to act in secret and believe that they are trustworthy. They think that only other people are up to something. But the other people think the same thing. The fact is that it doesn't matter what they think; it only matters what they do. And transparency beats secrecy every time. Disclosure is essential to give the public the knowledge that allows citizens to be active in a democracy and to trust those who manage their community.

The Real Problem Here
If the complainant has not registered as a lobbyist because she is not paid, she should quickly set an example by registering herself and all those who lobby for her organization. This act will also send the message that it isn't really that the CAG member is a lobbyist (registered or not) that is the problem. The real problem is the apparent imbalance among CAG members, with too many working in the real estate business. It would be best if members either did not work in this industry and yet had a good understanding of it (individuals who have retired or moved on from the industry), or work in the industry in a capacity where they are not active in local real estate deals. But if such people cannot be found, there should be as good a balance as possible between those who benefit from or favor development and those who benefit from or favor the status quo. Otherwise, the advisory body and those who appointed its members will be seen as biased, and the body's recommendations (and their acceptance by the body's appointing authorities) will be seen as unfair.

Robert Wechsler
Director of Research-Retired, City Ethics

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