Change Is Coming: The Question Is Just How Much

By Jeffrey H. Birnbaum
Monday, January 9, 2006

Skeptics consider the American system of funding elections a form of legalized bribery. It's legal because the law allows donations up to certain limits. It's "bribery" because the money is given to elect people who will do or have done essentially what the giver wants.

The recent guilty pleas of Jack Abramoff and his partner Michael Scanlon, however, threaten that tidy description. Lobbyists are worried that perfectly legal contributions will sometimes be construed as prosecutable bribes and that their time-honored and (to them) highly valuable role as fundraisers might soon be thrown into question.

"We're concerned that the cases might create a precedent that would label all legal contributions as bribes," said Douglas G. Pinkham, president of the Public Affairs Council, a nonpartisan lobbyists' education group. "This could cast doubt over the entire campaign-finance process."

Not many people believe that all donations would ever be viewed as "illegal bribes." Then again, any disruption to the system that moves in that direction would probably be good for democracy. The less campaign lucre there is, the better government will be. In an earlier column I recommended that registered lobbyists be barred from raising money for politicians -- at least during congressional sessions -- and I stand by that suggestion.

The notion isn't as crazy as it sounds. Several states already have a similar rule and, as we'll see in spades this year, all sorts of new restrictions will be debated in Congress and some of them will almost surely pass as an antidote to the anti-Washington feelings that the Abramoff affair has stirred.

Even lobbyists are offering drastic proposals. One of Washington's best-regarded lobbyists, Robert E. Juliano, has been talking up public financing of elections as a way to remove the taint that money in politics has brought. In my view that's a noble but impractical idea. Taxpayers won't long tolerate paying for politicians' campaigns with their hard-earned dollars.

In any case, so radical an approach might prove unnecessary if the Abramoff scandal scares enough congressmen and lobbyists into curtailing the wild growth in spending we've seen in congressional and presidential elections over the past several cycles. In the 2004 elections alone, federal candidates raised and spent a whopping $2.42 billion, according to PoliticalMoneyLine.com, a huge jump from the 2000 elections.

Certainly, the players in this run-up ought to be plenty frightened about the latest developments. In their conspiracy to bribe lawmakers, Abramoff and Scanlon acknowledged that campaign contributions were one of the emoluments that they provided. Along with sports tickets, foreign trips and fancy dinners, campaign donations -- even those within the legal restrictions -- were among the favors they offered in exchange for official acts.

The mere mention of those donations has sent a chill through the K Street corridor. Lobbyists have long believed that they were home-free no matter how much money they lavished on elections, as long as the amounts were within official limits. And why not? No one in recent memory has been accused of paying off a congressman with a legal campaign contribution.

The last time that a federal lawmaker was charged with accepting donations as a bribe was in the late 1960s. Sen. Daniel B. Brewster (D-Md.) was convicted of taking an illegal gratuity in the form of election funds, but the verdict was overturned by a higher court that ruled that the original judge hadn't instructed the jury thoroughly enough about the differences between bribes and campaign giving.

That was then. Now, in conjunction with the many other goodies that lobbyists can bestow, campaign cash is fair game for the Justice Department -- at least until another judge says otherwise. And that, said Stanley M. Brand of the Brand Law Group, "is a very big deal."

Proof that insiders are troubled by the possibility that campaign donations might be seen as bribes is the torrent of cash flowing out of politicians' coffers and into charities lately. More than two dozen lawmakers and political committees have shed contributions that they attribute to Abramoff and his team, and more are likely to do the same.

"Everyone is nervous about what they gave and what they were involved in with people on Capitol Hill," Brand said.

For ethics experts like Brand, the consternation has been a business boon. Corporations and congressmen are clamoring to be reminded what the rules allow and, more importantly, what they don't. The result has been a noticeable rise in the number of consultations with counsel. The House of Representatives is considering holding ethics seminars.

"What this episode has done is validate all of the cautionary instructions I've given to clients over the years," said Jan W. Baran of Wiley Rein & Fielding.

"Everything is being looked at in a different light," Brand said. "Everyone is looking at their internal practices to see if they should be doing things in the scale they've been doing them or whether they've already stepped in it" and made a mistake.

At the very least, lawmakers and lobbyists have to be careful not to say or imply that the money that's changing hands is because of, or in anticipation of, any official action. That sort of transaction, while common, will have to remain unspoken.

Other changes are also in the wings. "Most offices on the Hill will look much more closely at travel -- who goes, who is paying, the reason for the trip, etc.," said Dan Danner, senior vice president of the National Federation of Independent Business. "In the end, I think there will be less travel by members [of Congress] and staff at least for a while."

In the wake of The Washington Post's revelation last week of apparently frequent gift-rule violations by BellSouth Corp. lobbyists, congressional offices will also try harder to stay within the Capitol's gift limits, Danner added. "Members and staff will pay much more attention to these limits, and there may be some loss of business at favorite Washington watering holes" as a result.

Wider restrictions on lobbyists are coming as well, and many of them may involve campaign contributions. Both House Speaker J. Dennis Hastert (R-Ill.) and Senate Majority Leader Bill Frist (R-Tenn.) have delegated colleagues to devise new lobbying-disclosure legislation.

But the bill to watch is authored by Sen. John McCain (R-Ariz.) and Rep. Christopher Shays (R-Conn.). Under it, lobbying firms and organizations would have to disclose each fundraising event they host or sponsor for federal candidates and the total amount raised at each such event.

The legislation would also require lobbyists to report on their lobbying forms the donations they make to members of Congress and at events that honor members or entities that they created or support. In addition, the bill would force lobbyists to disclose on quarterly reports any gifts worth more than $20 that they gave to lawmakers or their aides, including meals and tickets to events.

Sen. Russell Feingold (D-Wis.) has a separate plan that would go much further. He would outright ban gifts to lawmakers and staff and would prohibit lobbyists from financing or attending trips with members of Congress. Don't expect any new law to be that extreme, but the fact that he could even countenance such ideas is an indication how serious the problem has become.

Will lobbying change? Yes, clearly. But will it change much? Probably not. "Entertainment may slow for a while but then people will figure out new ways to accomplish the same things and it will likely be business as usual for a few years," Danner said, "until the next scandal."

Jeffrey H. Birnbaum writes about the intersection of government and business every other Monday. His e-mail address iskstreetconfidential@washpost.com.