By Jan Witold Baran
Sunday, January 8, 2006
If you typed the word "lobbyist" into the Google News search engine last week, the first page of 8,670 search results would have included dozens of headlines that screamed out "Lobbyist's Guilty Plea Sends Out Shock Waves Through US Congress," "Bush Campaign Getting Rid of Lobbyist's Money" and "Kennedy Among Leading Recipients of Convicted Lobbyist's Clients." The referenced lobbyist is, of course, Jack Abramoff. In spreading the news to America and the world, most news organizations deemed it sufficient to simply inform the public in headlines that a "lobbyist" had pleaded guilty. The insinuation is that there must be something inherently sinister because a lobbyist is involved. The nature of his guilt is treated as self-evident.
Perhaps this scandal will eventually be called the Abramoff affair, but for now it is a lobbying scandal. If Shakespeare lived today, perhaps he would write, "First shoot all the lobbyists." Yet in the midst of the current furor, reports do not mention that there are thousands of lobbyists in Washington who are honorable and honest people and who render a service that is both critical to a democratic society and enshrined in our Constitution.
There is irony here. The same constitutional provision that ensures the press may proclaim a lobbyist's guilty plea also protects the act of lobbying. The First Amendment is well-known for guaranteeing freedom of speech, freedom of press, freedom of assembly and freedom of religion. Often overlooked in its litany of fundamental civil liberties is the right "to petition the Government for a redress of grievances." It is this distinct clause that prevents Congress and the president from enacting a law that bans lobbying. It is a right that should not be taken lightly and that should not be eroded by the fraudulent acts of a single lobbyist.
The Washington lobbying community was aghast to learn of Abramoff's methods and practices . Bilking a handful of Native American tribes of more than $80 million in four years is shocking. Mocking those same clients in e-mails is unconscionable and disrespectful. Renting suites or skyboxes in at least three professional sports arenas is exceptional even among the most prosperous D.C. firms. Firms typically do not rent such suites because the price of tickets now regularly exceeds the limits on gifts to legislators. Most corporate offices in Washington have instituted compliance systems to ensure that their lobbyists do not exceed gift limits. For all these reasons, lobbyists are appalled at Abramoff's practice of extravagant wining and dining (at his own restaurant!), orchestrating lavish trips and offering campaign contributions in exchange for specific official acts. There may be others who bend the rules, but Abramoff retired the cup for outrageous conduct in the name of lobbying.
We have laws to prevent such corruption. If members of Congress were caught breaking those laws, they would be prosecuted and punished -- but we wouldn't abolish their seats and deprive their constituents of representation.
The framers of the Constitution recognized that citizens must be free to make appeals to those who govern and who make policies, laws and regulations that affect the citizenry. Obviously, most citizens are not physically located at the seat of government, may not know how government works, and are busy doing things other than lobbying. For those reasons, when they need help in making their petitions, they retain representatives who can more effectively seek redress on their behalf. In other words, ordinary folks need representatives to talk to their representatives.
While officials may prefer to legislate without being importuned by those affected or by their representatives, that is not the way laws should be made in an open democratic society. The founders sought to ensure the public interest by promoting pluralism and protecting the participation of all. How then can it be surprising that there are now more than 27,000 registered lobbyists petitioning on behalf of business, labor, the environment, education, abortion rights, the elderly, the poor, ethnic groups and more?
Daniel Webster may have become America's first lobbyist when he was retained as an attorney by business interests while also serving as the U.S. senator from New Hampshire. Legislators could wear two hats in those days. But the practice of employing lobbyists did not gain steam until the Grant administration. It was then that agents of private interests lingered in the lobby of the Willard Hotel a short walk from the Treasury Department and the White House in the hopes of buttonholing residing government officials and members of Congress to seek redress of some grievance. Hence the term "lobbyist." That certainly is easier to say than "grievance petitioner."
The size of the lobbyist population is proportional to the size of government. During the Civil War, the White House staff consisted of two personal secretaries to President Abraham Lincoln. Today the Executive Office of the President budgets for more than 900 employees. Lincoln was lobbied, but usually for a job in the postal service. There were many fewer legislators than today and the members had no staff. Currently there are more than 30,000 employees in Congress -- not coincidentally, that's just slightly more than the number of registered lobbyists. As the size and functions of government have grown, society has discovered more "grievances" to petition. In particular, spending by government has led to more petitions for one's perceived fair share.
Lobbying was not subject to any regulation until 1946, when the first lobbying law was passed. That initial effort required registration and reporting by lobbyists and the organizations that employed them. However, the legislation was poorly drafted. By 1954, the Supreme Court interpreted the statute so narrowly (in order to avoid violating the First Amendment right to lobby) that the law no longer provided meaningful reporting and could not be enforced. During the era of Lyndon B. Johnson, lobbyists and legislators formed an increasingly symbiotic relationship. According to biographer Robert Caro, then-Senate majority leader Johnson freely availed himself of the corporate aircraft of a major Texas construction firm, and to the extent that he relaxed, he did so at the Middleburg estate of the firm's lobbyist.
Eventually, attempts were made to tame the gift-giving and to subject lobbyists to public disclosure. Congress adopted ethics rules in the late 1950s and gradually tightened them. In 1995 the Lobbying Disclosure Act (LDA) for the first time implemented clear requirements for registration and reporting. One major reason we know that Jack Abramoff was a lobbyist and who his clients were is the information on his lobbying reports.
Just because we have laws and ethics rules, however, doesn't guarantee that people, including lobbyists, will abide by them. Nor will lobbying laws prevent a lobbyist from committing crimes such as Abramoff's. He defrauded his Indian tribe clients, law firms and financial institutions, and the American taxpayer (by not paying taxes). He also admitted to conspiring to bribe a public official. That crime is the most reprehensible in that it betrays both honest government and his profession. It is like a lawyer paying off a judge or a jury. A lobbyist, like a lawyer, must ply his profession with advocacy and facts, not with gratuities or bribes.
While laws and rules do not stop crimes and rule breakers, both are vital to establishing and maintaining public confidence in the lobbying process. Congress, in particular, must take steps to reduce the excesses that Abramoff represents while preserving the right of effective lobbying. Here are four places to start:
Enforce current House and Senate ethics rules. After reading about Abramoff's wining, dining and entertaining, many Americans would be surprised to learn that both the House and the Senate have rules that generally limit gifts, including meals, to $49.99. However, neither congressional offices nor the ethics committees actually enforce those rules, thus making a mockery of them. Congressional officials, particularly staff, should be required to certify annually that they have not received improper gifts and such certifications should be subject to laws that make false statements a crime.
Tighten up those rules . There has been much attention paid to the expensive foreign trips taken by some officials at private expense. In Congress, but not in the executive branch, officials may accept luxurious travel, accommodations and meals anywhere in the world as long the trip has some official purpose, such as giving a speech or participating in a conference. This practice must be modified or eliminated. If a trip is justified and necessary for official reasons, then it should be modest and financed by the government. If some trips continue to be privately financed, there should be limits and officials must make prompt, complete and public disclosure, preferably on a government Web site.
Require lobbyists to itemize gifts and entertainment on lobbying reports. The current LDA requires the reporting of the total amount of money spent by lobbyists, but no itemization of expenses. Itemizing gifts and entertainment over, let's say, $20 would highlight which government officials accept such blandishments and whether they are adhering to their own ethics rules. Lobbyists and their clients are not subject to the congressional ethics rules but are subject to the LDA and other statutes that prohibit bribes and gratuities.
Promote an ethical culture. The character and leadership of government officials are the most important ingredients in setting examples and demanding ethical behavior. There are, however, additional steps. Any manager working at a major corporation will tell you that he or she must participate in mandatory educational compliance programs. Workers are required to know what the rules are, what the company policies are and to demonstrate that they know. No less should be expected of government officials. Congress needs to implement a mandatory annual compliance education program and no one should receive a paycheck unless he or she has completed the program.
The above steps will not eliminate the possibility of another future lobbyist who is determined to bribe or an official who seeks emoluments. Renegades and schemers unfortunately exist. But these suggestions would help increase consciousness about the rules, encourage ethical behavior and perhaps reduce the possibility of another Abramoff operating on his scale for so long without someone blowing the whistle.
The targets of my suggestions are government officials, our leaders. It is incumbent upon them to pay their share of a dinner check and to decline a ticket to a sporting event that violates any gift limit. If they seek the social company of lobbyists they should abide by the rules or go Dutch. By the same token lobbyists must abide by the laws and act ethically, as most do, even in the era of Jack Abramoff's excesses.
Author's e-mail: firstname.lastname@example.org
Jan Witold Baran is a lawyer and former general counsel of the Republican National Committee. He served on the President's Commission on Federal Ethics Law Reform. He is not a lobbyist, but he does advise clients on the campaign finance and lobbying laws.