Lobbying is an honorable profession: the right to petition and the competition to be right.

• Author: Allard, Nicholas W.
• Position: Symposium: The Law of Lobbying

INTRODUCTION

Lobbying is an honorable profession. In America and perhaps around the world, that simple statement is more likely to be a sarcastic punch line to a bad joke than a self-evident proposition. Low public esteem for lobbyists is hardly a modern phenomenon. (1) The reasons why lobbyists have been reviled throughout history are legion, including the simple, undeniable fact that in some notorious cases lobbyists got their bad reputations the old fashioned way: they earned it. (2) However, more remarkable than the persistent image in the public consciousness of corrupt influence peddlers, is that today, while trust of professional lobbyists is particularly low, the number of lobbyists and the level of lobbying activity continues to rise. Highly touted new lobbying laws and rules have not dampened the demand and need for lobbying services. Instead, greater regulation has actually coincided with a sharp increase in professional lobbying, alongside an increase in related work by professionals with government-relations expertise representing clients facing oversight and public investigations. Indeed, an unintended consequence of new lobbying rules, enhanced enforcement, and stricter penalties is that what was once a cottage industry of government ethics and lobbying compliance training and counseling is suddenly a booming practice area for Washington law firms. (3) Since the new rules were issued, proliferating seminars and advice columns by practitioners, continuing legal education courses, and compliance training sessions are playing to packed audiences of lobbyists. (4) Observers who, depending on your perspective, are either insightful or unfairly cynical (or both) say these lobbyists are trying to learn how to evade the law. (5) In reality, the widespread effort to learn about the new ethics rules, while inconsistent with popular myths about lobbying, is evidence supporting the themes advanced here: lobbyists work hard at their challenging profession. Today, lobbying is more necessary, widespread, and complicated than ever before. It is also more open, more professional, subject to more rules, and practiced with a greater degree of legal compliance.

The public is extremely suspicious of lobbyists: approximately eighty percent of Americans believe that lobbyists exercise undue influence on public policy. (6) Presidential candidates decry the role of lobbyists, and some will not accept their campaign contributions. (7) Today, like the 1970s Watergate era, the early 1990s prior to Republicans' wresting control of Congress from Democrats, and other watershed points in political history, (8) headlines about a spate of scandals involving members of Congress, (9) Executive Branch officials, (10) legislative staff, (11) and notorious lobbyists (12) capture national attention. The cacophony of bad news drowns out the fact that the crooked lobbyists are deviant outliers who hardly represent the norm. Each of these scandals is, in a sense, an extreme example which should remind us that the public policy process is usually above board and honest. In Washington, D.C. alone there are approximately 85,000 attorneys, a large number of whom engage, to varying degrees, in public policy. At this writing, there were 35,844 registered lobbyists. (13) Exceedingly few of these men and women would even contemplate breaking an ethical rule or tolerate anyone who does. (14) The public policy work of these professionals rarely is noted by the press, and when it is, it is not because they had an ethical lapse. Those headlined for breaking the rules were caught and punished, and they did not prevail in bending the law and policy their way. (15) The bad guys not only violated public trust, but shortchanged those clients who were naive enough to try to buy outcomes, because they did not, and in fact could not, deliver. The scandals we all read about were essentially political Ponzi schemes that collapsed, inevitably, under their own weight. The public policy arena is too complex and, as will be argued here, competition is too strong among vigilant adversaries for the quick fix to work. Results obtained by those reckless and foolish enough to shortcut the policy processes or to employ underhanded tactics, will not endure when uncovered, which regularly occurs. Public disclosure, through formal reporting requirements or as a result of the work of journalists and watchdogs, is a powerful disinfectant. (16) Nevertheless, "reputations are easy to damage but difficult to repair" is an unfortunately apt cliche. It seems the bad conduct of some lobbyists has convinced the public that corrupt lobbyists are typical rather than exceptional, masking the routine work of those engaged in all aspects of making and implementing laws. (17)

Consequently, there is a great deal of myth and misperception about what public policy advocacy entails and the important role it plays in the democratic process. The simple truth is that our government cannot be bought. (18) If it were that easy--if all it took to prevail was to a buy a few steaks, sponsor a golf trip, or make campaign contributions--then anyone could do it, and there would be no reason to hire a professional lobbyist to argue your case before lawmakers or to help you navigate through the procedural and political labyrinth. People working in Congress and the Executive Branch are honest and dedicated. They are also attuned to political constituencies. (19) Even if they are tempted to ignore ethics rules, those who ignore the public interest (and their political self-interest) do so at the peril of their careers. (20) Public policy advocates are also, with few exceptions, diligent and honest. Writing from the perspective of lawyer policy advocates who practice in law firms, this author has an even easier case to make than lobbyists who do not because lawyers thrive on compliance with rules, and must adhere to their own professional standards and canons of ethics. Like the Kosher hot dog company, lawyer lobbyists must "answer to a higher authority." (21)

The public does not have to rely solely on the integrity of lawmakers and lobbyists to protect the public interest. Perhaps the most effective self-correcting mechanism in the policy process is the intense competition to be right. No single interest, no lobbyist, has a monopoly on access and information. Lawmakers and their staff, if they are any good, as most are, do not rely on a single source of information when making policy decisions. They indeed have multiple information resources, including their own research, think tanks, the Congressional Research Service, the Congressional Budget Office, the Joint Tax Committee, and so on. So, while lobbyists have an opportunity to influence policy decisions by informing lawmakers of their client's view, they are generally not the only source a lawmaker relies on, and there is additionally no guarantee the lawmaker will even listen. As Hubert Humphrey said, "the right to be heard does not automatically include the right to be taken seriously." (22) Moreover, another built-in safeguard is that no policy decision is ever final. What can be done, can be undone or changed. The examples of legislative or regulatory legerdemain in the dead of night outside of public view are a rare and endangered species. They occur infrequently, and when they do, they invariably do not survive the light of day unless supported by a substantial, credible, public-interest justification. (23) This competition to be right can be seen in large public policy debates, such as those over healthcare, energy, communications, education, taxes, immigration, privacy, defense, and national security. These debates involve numerous legitimate and competing interests and are fought out in a continuous, never-ending cycle in a number of different arenas. For example, the landmark Telecommunications Act of 1996 (24) was enacted to rewrite and modernize over six decades of communications law. The epic legislative battles over this law can be traced back almost two decades to the break up of the Bell telephone system, the emergence of subscription television, and the entry of satellites and new technology into the commercial market. In the days after enactment of the 1996 Act, over 180 regulatory proceedings were initiated at the Federal Communications Commission to determine how to implement the new law, court challenges were filed against the statute, and legislative efforts to revise the Act began anew. Additionally, since 1996 the explosion of e-commerce took the debate into new terrain to determine what rules should apply when you "slip down a worm hole" and communicate in cyber space. These shifting, unceasing policy battles continue to this day. (25) In the words of the Saturday Night Live character Roseanne Roseannadanna: "It's always something."

Or, for example, consider the fiercely competitive policy brawls in the 110th Congress over the State Children's Health Insurance Program (SCHIP) and various features of Medicare. Those debates pitted "lobbyists" representing children, nurses, doctors, senior citizens, nursing homes, specialty hospitals, health businesses, insurance companies, tobacco companies, convenience stores, gas stations, states, foreign sovereigns, and the Administration against each other, all vying for different legislative outcomes. In addition to direct lobbying of members and staff on Capitol Hill, these interests used the full panoply of lobbying techniques including mobilizing grass roots support, building coalitions in key districts, running ads on cable and broadcast television and in print, and generating internet traffic on the topic. (26) The intensity and legitimacy of competition for policy outcomes is reflected in the variety of those who lobby for themselves or on behalf of others. Lobbyists not only represent wealthy businesses, but also small businesses, entrepreneurs, inventors...