Although such proposals are appealing and popular across the aisle, our analysis of previous efforts to reduce the influence of special interests suggests that Trump’s plan would make the problem worse. Instead of limiting the role of lobbyists, his efforts would push lobbying further into the shadows and out of public view. Meaningful change — not “fake reform” — requires a different set of solutions, including improvements to the lobbying disclosure system and building up the institutional capacity of Congress.
One reason is that the Obama administration decided not to seek a statutory change in the definition of lobbying, which even the former White House counsel recognized as a fundamental problem. Current law defines lobbying as earning more than $5,000 per quarter, contacting more than one government official, and spending at least 20 percent of one’s time working on behalf of a single client. Activity that does not meet this strict definition is not lobbying according to the law, and can go undisclosed — even if any reasonable person would recognize it as lobbying.
Borrowing from an American Bar Association report, Trump simply proposes to drop the 20 percent threshold from the definition, and nothing else. The plan lacks specifics about whether the administration will redefine lobbying in other ways to avoid similar loopholes.
The research in our forthcoming book, “Revolving Door Lobbying: Public Service, Private Influence, and the Unequal Representation of Interests,” suggests that when bad definitions are combined with lobbying bans, the effect will not be to drain the swamp but to muddy the waters about who lobbyists are, what they do and how they influence our government.
We show how the decline in Congress’s capacity to process information, study problems and develop solutions has exacerbated the revolving-door problem. Merely “banning” lobbyists would do nothing to change the Congress’s capacity to govern, and may leave open interpretations of “lobbying as contacting government officials only” that misses a great deal of what lobbyists do, such as building relationships, working with allies in the administration and Congress and monitoring policy developments.
We and others have found that “shadow lobbyists” are a far bigger problem than a decline in disclosed lobbying alone. The size of the lobbying segment of the Washington economy — which includes government relations, political strategy, political intelligence and other areas — is at least twice as big as lobbying disclosures reveal. It might be even larger.
If Trump and Republicans in Congress are indeed serious about cleaning up Washington lobbying, we have several ideas that can help them achieve it.
First, expand the statutory definition of “lobbying” and “lobbyists” to include all “government relations” activities. We suggest going beyond the president-elect’s inclusion of consultants and advisers who we all know are lobbyists by another name. It would also be simple to create a “government relations” disclosure report that asks these professionals simply to check the right box: (a) lobbyist, (b) policy strategist, (c) political intelligence consultant and so on. We think this suggestion is in line with Trump’s “loophole” rhetoric.
Second, make disclosure more meaningful. Despite its name, the disclosure system is antiquated. The forms, devised in the mid-1990s, make it impossible to answer simple questions like “How much did Wall Street spend to lobby on Dodd-Frank financial reform legislation?” The reporting system ought not be so opaque.
Third, the disclosure process should be enforceable. Right now, the disclosure act is administered partly by the secretary of the Senate and clerk of the House, whose other tasks include publishing the official congressional telephone directory, assigning numbers to bills and transcribing the proceedings of each chamber. It’s no police department.
The Department of Justice has civil and criminal jurisdiction over the act, but only for those who fail to file reports properly and only after receiving several warnings — not over those who choose not to file a report to begin with. There is little that law enforcement can do to go after those skirting the spirit of the law and lobbying from the shadows.
Fourth, get rid of the cooling-off periods, government employment conditions and other limitations and restrictions on actual or would-be government relations professionals. Instead, let lobbyists flourish in the free market, out in the open, with full transparency, warts and all. But by requiring them to be transparent about their interactions with government, it will be easier to monitor conflicts of interest and keep them in check.
Finally, perhaps the key to curbing the influence of lobbyists is to fix Congress itself. Members and committees lack the expertise, staffing and resources to study public problems, monitor federal agencies and programs and propose solutions. These days, Congress is legislating in the dark, as members have turned over policymaking responsibilities to party leaders. As a consequence, they redirect their own efforts to fundraising, constituency service and public relations, which improves their reelection chances. That seems to work, since even in this “change” election, 97 percent of incumbents in Congress will return to the swamp next year.
Finding ways to give Congress more capacity to oversee the executive branch and the tools to solve pressing policy issues would not only improve governance but also make elected officials less reliant on special interests for information and guidance. And that would do far more to “drain the swamp” than anything that Trump has proposed so far.
Tim LaPira (@timlapira) is associate professor of political science at James Madison University.
Herschel Thomas (@herschelfthomas) is assistant professor of political science at University of Texas at Arlington