Introduction lobbyists - saints or sinners?

AuthorMorrison, Alan B.
PositionSymposium: The Law of Lobbying

If one listened to the presidential campaign speeches of Senator Barrack Obama and former Senator John Edwards, and to a lesser extent those of the other candidates, including Senator John McCain, the source of everything wrong in Washington, D.C. is lobbyists. One would also think that the only groups that have lobbyists are the "special interests"--those groups whose goal is to raid the U.S. Treasury and/or to produce unsafe or shoddy products, exploit workers, or despoil the environment.

But if one reads this fine collection of essays, one would conclude that lobbyists are what enable government to function. They provide vital information to lawmakers, help craft carefully balanced legislation, communicate insights from government officials to their clients, and otherwise provide the essential grease that makes the government run (more or less) smoothly. To be sure, each contributor recognizes some flaws with the current system of federal government lobbying, but sees both significant progress from the past practices and also offers readily available (if ultimately incomplete) solutions to what currently ails the system. Who is right, or, as is often the case, is there some truth on both sides?

Before turning to that question, in one sense the answer does not really matter. That is because, as all the authors recognize, the right to lobby is the right to petition the government for redress of grievances, which is explicitly protected by the First Amendment. Of course, the lobbyist, even when actually delivering the petition to a member of Congress, is only the messenger--albeit a highly skilled one--for the client, who is the actual petitioner. That is true whether the lobbyist is an in-house employee of a for-profit or non-profit organization, such as Microsoft, the Chamber of Commerce, the AFL-CIO, or the Sierra Club, or the lobbyist or his firm is retained by an organization, or sometimes an individual, to represent the organization before Congress. (l) Thus, it is the client that has a First Amendment right that the Constitution protects, not the lobbyist. However, just as the Supreme Court recognized in the campaign finance arena, money may not be speech under the First Amendment, but it is the virtual sine qua non of political speech without which the speech of candidates will, at best, be muted and, at worst, not delivered at all. (2) So too for lobbying: for most organizations, volunteers or perhaps paid staff with other primary duties, can attempt to deliver their message or their request to Congress, but in most cases it will not stand a very good chance of success without a professional to assert it. In short, the right to petition the government successfully depends significantly on having experts carry out that right on your behalf, which means having a lobbyist.

The constitutional protection of lobbyists (on behalf of their clients) is significant because no matter how much the population at large wants lobbyists to disappear, we are stuck with them, at least until the petition clause is removed from the Constitution. The question thus becomes, what can we and should we do to regulate lobbyists, like we regulate campaign contributions, and for that we need to know more about what is right and what is wrong with lobbying under our current system.

MONEY & LOBBYISTS

The great cartoonist Herblock was forever drawing lobbyists with hefty girths, smoking cigars, and money bulging from their pockets. That is my instant image of a lobbyist when I hear them attacked in campaign talks, and I am sure that most Americans are unaware that the ACLU, most universities, and many environmental groups, religious organizations, and other entities that most people would never think of as "special interest" groups have registered lobbyists. The likely reason for this impression is that we equate lobbyists with giving money to politicians, and many of these "other" lobbyists do not have the money to contribute, nor do their clients. Thus, it is essential to separate the lobbying activity of directly influencing legislation through advocacy from the indirect means of influencing a member of Congress to be generally favorable to you and your clients by contributing to his campaign for reelection or providing other financial benefits to him. It has long been illegal to give a gift (including a campaign contribution) with the explicit or even implicit understanding that the recipient will take some specific action, such as a vote on a bill, in exchange for the gift--that is called bribery. But we have long passed the time when quid pro quos were the only kinds of exchanges that were considered inappropriate for elected officials to receive, which is why Congress has enacted limits on contributions that any individual, including a lobbyist, can give to candidates for federal office. Assuming the current rules are sufficiently stringent, the question remains, should there be stricter rules for lobbyists?

There have been proposals to forbid registered lobbyists from making campaign contributions to any candidate for federal office or any candidate that the person has lobbied (or will lobby during that member's term of office). The former seems overbroad--why forbid someone from giving to a candidate whom they respect and with whom they have no professional business? The latter is much more complicated, but both raise serious First Amendment problems. Some would say, "you have a choice: be a lobbyist or make...

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