making local government more ethical
A New York Daily News article yesterday describes an interesting conflict situation. At least one lobbying firm has worn two hats in its relationship with the speaker of the New York City council. One hat was that of a campaign and appointments consultant, the other was that of a contract lobbyist for multiple clients. See a Crain's New York Insider blog post from January for more about such relationships with the speaker.

This is legal, as the speaker's spokesperson insists, but there is still a serious conflict situation that needs to be handled responsibly. As Susan Lerner, head of New York Common Cause, is quoted as saying, “The merger between campaign consultant and lobbyist by the same entity raises significant problems and concerns.” In other words, the problem lies in having one firm wearing multiple hats in its relationship with a high-level official.

What specific problems does wearing these two hats cause? One, consulting creates a special relationship that goes beyond the usual meals and meetings with lobbyists. A special relationship leads to special access and favoritism, or the appearance of these. Lobbying is all about relationships, and lobbyists are obligated to do anything they can to further their relationships, especially with someone as important as the head of a major city's council.

The Speech or Debate Clause of the U.S. Constitution protects activities within the "legislative sphere" from being heard outside the legislature, and prevents the introduction of evidence of legislative activity in any such hearing. A recent brief from the U.S. House Ways and Means Committee in S.E.C. v. Ways and Means Committee argues (on pp. 30, 34-37) that communications between industry lobbyists and the staff director of the committee's subcommittee on health are privileged and may not be subpoenaed by the SEC in an investigation of alleged insider trading-related leaks.

The Washington state Legislative Ethics Board has been discussing how many meals a state legislator should be able to accept from lobbyists and lobbyist-employers under the "infrequent" meals exception in the state ethics code. The exception allows legislators to accept food and beverage when their attendance is "related to the performance of official duties" on "infrequent occasions." The board has apparently never defined "infrequent."

It's About Perceptions
This discussion has some resemblance to the discussion of how many angels can fit on the end of a pin. Once you believe that one angel can fit on a pin, where do you stop? This is why many in the government ethics world (including me) believe that officials should not be accepting any meals from those seeking special benefits from their government. It isn't because any particular official can be "bought" by the price of a meal. It's about perceptions.

After all, the basic Washington state gift rule prohibits any gift "if it could be reasonably expected that [it] would influence the vote, action, or judgment of the officer or employee, or be considered as part of a reward for action or inaction." I don't think it is possible for an official to convince the public that a restricted source wants to meet with her for any reason other than to influence or reward her vote, action, or judgment.

The portrayal of lobbying state and, hopefully, a few local officials will soon be in the hands of Lawrence Wright, the Pulitzer Prize-winning author of The Looming Tower: Al Qaeda and the Road to 9/11 and, most recently, Going Clear: Scientology, Hollywood, and the Prison of Belief.

But the portrayal will not be in the form of a book. According to an article yesterday in the Austin Chronicle, Wright will be scripting an HBO series called God Save Texas, based loosely on his 2004 play, Sonny's Last Shot. The story is about "a down-home, honest kind of Texas lawmaker who finds himself embroiled in all the corruption, pressure, gladhanding, and flawed morality that Texas politics can allow."

Good news and bad news about lobbying from New York City's new mayor. The good news, according to a recent article on the Capital New York website, is that the mayor has said that his administration will disclose "substantive" meetings that members of his administration conduct with lobbyists. This is, he says, a practice he followed when he was the city's public advocate (a sort of ombuds), before he was elected mayor.

Disclosure of such meetings by officials is an excellent check on disclosure by lobbyists, and provides an official-by-official view of the lobbying that is done. This could be required by ordinance or regulation, but when it is not, it is good to see high-level officials setting up a procedure in the meantime.

However, voluntary disclosure is not a replacement for making disclosure part of the lobbying or conflicts of interest program, because a voluntary procedure usually lacks detailed definitions and requirements, training, neutral advice, and independent enforcement. It is a valuable gesture, and can provide useful information, but it works best for a mayor – as opposed to an independent office like an ombuds — as a step toward the goal of institutionalizing the procedure.

San Francisco's board of supervisors will soon vote on a number of amendments to its lobbying code (attached; see below). According to an article in yesterday's San Francisco Chronicle, the amendments are based on recommendations by local good government groups, which have pointed out that loopholes in the current law allow many lobbyists not to register. The amendments are sponsored by the board's president, David Chiu.

Independent Agencies
It is a good thing that the amendments extend the definition of "lobbyist" to those who lobby independent agencies, offices, and bodies. The officials who work for or sit on these bodies are some of the most lobbied officials, but they generally do not like to be included in government ethic programs and, therefore, are often excluded from them. Here are some of the agencies, offices, and bodies that are currently not covered, but would be: