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Winter Reading: "Access and Lobbying"
Wednesday, February 19th, 2014
Robert Wechsler
"Access and Lobbying: Looking Beyond the Corruption Paradigm," by
Dorie Apollonio, Bruce E. Cain, and Lee Drutman, Hastings
Constitutional Law Quarterly 36:1 (2008) (attached; see below), has some very valuable
things to say about local government lobbying, even though it
focuses on federal government lobbying.
The authors note that, despite the greater focus of academics and good government groups on campaign finance regulation, more money is spent by companies on lobbying than on campaigns, a sign that they feel it is a more valuable form of influence.
The big question the authors ask is, How should we be thinking of lobbying regulation? Is it a sideline of bribery and campaign finance regulations, or is it unique in important ways? Does it have different goals and different constitutional limitations?
At the federal level, lobbying rules "mostly address conflict-of-interest and corruption concerns that arise with the non-speech aspects of lobbying such as trips, gifts and jobs." The authors ask whether lobbying reforms can go any further and, if so, on what basis?
To answer this question, the authors look at lobbying in terms of "the three main sources of purported influence: money, relationships, and information. Among reformers, there is too much focus on money, too little focus on relationships, and almost no consideration of information.
Money
The principal, direct value of money is not influence. It is access. This is too often ignored by people who think the only problem with lobbying is influence. The same people ignore the problem of pay to play, where money is not paid for influence at all, only for access and the chance to get contracts, permits, and grants. When you consider that the direct purpose of money is to get access, it may not seem quite so corrupt, but that does not make it less problematic. It just changes the terms of the discussion.
The U.S. Supreme Court has recognized the issue of access and pay to play. In its decision in McConnell v. Fed. Election Comm'n, 540 U.S. 93 (2003), which focused on "soft-money" contributions to political parties, the court said, "Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves."
In any event, limitations on money lead to more emphasis on less limited money, such as fundraising events, campaign contributions, and bundling, where First Amendment issues make it harder to regulate. This is why one of the authors' recommendations is to limit lobbyists' role in fundraising with closely targeted rules relating to campaign positions, PACs, and bundling. But as long as there are corporate PACs, corporate lobbyists will be associated with its contributions.
Relationships
With respect to relationships, reform has been limited primarily to revolving door provisions. But these limit only direct relationships and, in many cases, direct work on a particular matter. What is usually ignored by these provisions is influence on particular matters and indirect relationships, which equally provide access. Such indirect relationships include those with family members, with business associates, with professionals one has done business with (and their partners), with former colleagues in other agencies and governments, and with the usual friends of friends that ensure access.
Information
While the emphasis of reformers is on money and relationships, the authors believe that information is a lobbyist's most important asset and function. Although the information lobbyists say they provide concerns substance, that is, the issues that law-making and regulation deal with, some of the most important information they provide involves the electoral consequences of particular positions and actions. Lobbyists are often not experts on subject matter (although often they are). Many of them are political operatives whose understanding of polling, elections, and public relations are what elected officials find most valuable. The line between lobbying and public relations has become increasingly blurred.
In addition, lobbyists often provide information about what is going on in other parts of a government, in other governments at the same level, and in governments at higher and lower levels. This information can be just as valuable. As the authors say, "up-to-the-minute information is power," and this is something professional lobbyists offer.
The authors point out that, although it is true that lobbyists generally provide accurate information, because they concerned about losing access due to lack of trust, lobbyists generally provide information that is not impartial. That is, they provide certain facts, and withhold others. They make certain arguments, and fail to make those that might hamper their clients' or employers' goals. Lobbyists defend their accuracy, but accuracy is not really the issue.
Information and Equality of Access
The most important issue with respect to information is the equality of access: is information being provided, read, and employed equally from the different sides of an issue? If access is not equal, then information is not neutral, and those who can more successfully get their version of the information to the attention of decision-makers (which is what access is) will have more influence. Therefore, information is just as important to influence as are money and relationships, because all three involve access. It may not appear corrupt to get information into the hands of officials but, in fact, the information on which decisions are made, and laws and regulations are drafted (including information in the form of draft laws, rules and regulations, amendments, and contract and grant specifications), are actually more directly influential than money or relationships. This is what the money and relationships are used for.
The authors ask a series of questions I've never seen asked together in this manner:
The Supreme Court has not been willing to apply equity or fairness considerations in the area of campaign finance and political speech, except in certain circumstances involving the corporate form's inherent advantages. It is unlikely, although possible, that equity would be taken into consideration with respect to lobbying, an area the Court has rarely dealt with.
Funded Lobbying
In any event, the authors have an interesting recommendation that would deal with equity not by limiting lobbying, but rather by adding to it. Their idea is "to increase lobbying, particularly for underrepresented and disadvantaged groups. This might mean adopting a public defender model, with publicly-funded lobbyists for groups that can demonstrate a sufficiently broad membership base and non-corporate funding. The funding could be matching or a complete subsidy. ... The incentive of having the expense underwritten for them might encourage the formation of more membership-based, diffuse interest groups."
This is the lobbying equivalent of a public campaign financing program, except that not all interests are expected to participate. I can't imagine such an idea being tried at the federal level, but as with public financing, perhaps it might be tried at the state or local level. At the local level, it could allow community groups, local environmental and good government groups, etc. to hire a professional lobbyist to help them make their case and get their version of the information, including constituent feelings, through to local officials. This would not cost much, but might make a big difference. It might even make people respect lobbyists more, because they would see that at least some lobbyists, like attorneys, use their expertise not only for corporate interests.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The authors note that, despite the greater focus of academics and good government groups on campaign finance regulation, more money is spent by companies on lobbying than on campaigns, a sign that they feel it is a more valuable form of influence.
The big question the authors ask is, How should we be thinking of lobbying regulation? Is it a sideline of bribery and campaign finance regulations, or is it unique in important ways? Does it have different goals and different constitutional limitations?
At the federal level, lobbying rules "mostly address conflict-of-interest and corruption concerns that arise with the non-speech aspects of lobbying such as trips, gifts and jobs." The authors ask whether lobbying reforms can go any further and, if so, on what basis?
To answer this question, the authors look at lobbying in terms of "the three main sources of purported influence: money, relationships, and information. Among reformers, there is too much focus on money, too little focus on relationships, and almost no consideration of information.
Money
The principal, direct value of money is not influence. It is access. This is too often ignored by people who think the only problem with lobbying is influence. The same people ignore the problem of pay to play, where money is not paid for influence at all, only for access and the chance to get contracts, permits, and grants. When you consider that the direct purpose of money is to get access, it may not seem quite so corrupt, but that does not make it less problematic. It just changes the terms of the discussion.
The U.S. Supreme Court has recognized the issue of access and pay to play. In its decision in McConnell v. Fed. Election Comm'n, 540 U.S. 93 (2003), which focused on "soft-money" contributions to political parties, the court said, "Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves."
In any event, limitations on money lead to more emphasis on less limited money, such as fundraising events, campaign contributions, and bundling, where First Amendment issues make it harder to regulate. This is why one of the authors' recommendations is to limit lobbyists' role in fundraising with closely targeted rules relating to campaign positions, PACs, and bundling. But as long as there are corporate PACs, corporate lobbyists will be associated with its contributions.
Relationships
With respect to relationships, reform has been limited primarily to revolving door provisions. But these limit only direct relationships and, in many cases, direct work on a particular matter. What is usually ignored by these provisions is influence on particular matters and indirect relationships, which equally provide access. Such indirect relationships include those with family members, with business associates, with professionals one has done business with (and their partners), with former colleagues in other agencies and governments, and with the usual friends of friends that ensure access.
Information
While the emphasis of reformers is on money and relationships, the authors believe that information is a lobbyist's most important asset and function. Although the information lobbyists say they provide concerns substance, that is, the issues that law-making and regulation deal with, some of the most important information they provide involves the electoral consequences of particular positions and actions. Lobbyists are often not experts on subject matter (although often they are). Many of them are political operatives whose understanding of polling, elections, and public relations are what elected officials find most valuable. The line between lobbying and public relations has become increasingly blurred.
In addition, lobbyists often provide information about what is going on in other parts of a government, in other governments at the same level, and in governments at higher and lower levels. This information can be just as valuable. As the authors say, "up-to-the-minute information is power," and this is something professional lobbyists offer.
The authors point out that, although it is true that lobbyists generally provide accurate information, because they concerned about losing access due to lack of trust, lobbyists generally provide information that is not impartial. That is, they provide certain facts, and withhold others. They make certain arguments, and fail to make those that might hamper their clients' or employers' goals. Lobbyists defend their accuracy, but accuracy is not really the issue.
Information and Equality of Access
The most important issue with respect to information is the equality of access: is information being provided, read, and employed equally from the different sides of an issue? If access is not equal, then information is not neutral, and those who can more successfully get their version of the information to the attention of decision-makers (which is what access is) will have more influence. Therefore, information is just as important to influence as are money and relationships, because all three involve access. It may not appear corrupt to get information into the hands of officials but, in fact, the information on which decisions are made, and laws and regulations are drafted (including information in the form of draft laws, rules and regulations, amendments, and contract and grant specifications), are actually more directly influential than money or relationships. This is what the money and relationships are used for.
The authors ask a series of questions I've never seen asked together in this manner:
What if [information] actually proves to be a better means of achieving access to key decision makers? Should potential sources of influence and access be judged based upon how effective they are at achieving their intended goals? Or do we think that there is something more inherently corrupting about campaign contributions than information? If so, what is it?Then the authors ask "whether these various sources [of influence] privilege certain groups over others." Government ethics is, to a great extent, about favoritism, because it leads to unjust outcomes. It isn't fair. Conduct does not have to be "corrupt" in order to be unethical. It can simply be unfair. The "systemic corporate bias" that derives from the special access of those lobbying for concentrated interests against diffuse interests (e.g., those polluting the air vs. those whose air is polluted) is a fairness or, as the authors put it, "equity" issue. How serious is this corporate bias? According to the authors, 85% of the total spending on lobbying comes from businesses and trade and professional associations.
The Supreme Court has not been willing to apply equity or fairness considerations in the area of campaign finance and political speech, except in certain circumstances involving the corporate form's inherent advantages. It is unlikely, although possible, that equity would be taken into consideration with respect to lobbying, an area the Court has rarely dealt with.
Funded Lobbying
In any event, the authors have an interesting recommendation that would deal with equity not by limiting lobbying, but rather by adding to it. Their idea is "to increase lobbying, particularly for underrepresented and disadvantaged groups. This might mean adopting a public defender model, with publicly-funded lobbyists for groups that can demonstrate a sufficiently broad membership base and non-corporate funding. The funding could be matching or a complete subsidy. ... The incentive of having the expense underwritten for them might encourage the formation of more membership-based, diffuse interest groups."
This is the lobbying equivalent of a public campaign financing program, except that not all interests are expected to participate. I can't imagine such an idea being tried at the federal level, but as with public financing, perhaps it might be tried at the state or local level. At the local level, it could allow community groups, local environmental and good government groups, etc. to hire a professional lobbyist to help them make their case and get their version of the information, including constituent feelings, through to local officials. This would not cost much, but might make a big difference. It might even make people respect lobbyists more, because they would see that at least some lobbyists, like attorneys, use their expertise not only for corporate interests.
Robert Wechsler
Director of Research-Retired, City Ethics
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