What are lobbyists saying on Capitol Hill? Climate change legislation as a case study for reform.

• Author: Ackerman, Sybil

1. INTRODUCTION II. THE POLITICAL SAGA III. AVAILABLE INFORMATION IV. THE SHAPE OF REFORM V. CONCLUSION I. INTRODUCTION

   "The public has a right to know, and the public should know, who is being paid to lobby, how much they are being paid, on what issue." (1) Senator Levin (D.-Mich.) was speaking in support of the Lobby Disclosure Act (LDA), a bill that passed through Congress without opposition on December 19, 1995. (2) But he was exaggerating. The LDA fails to require lobbyists to report the positions they are taking on bills considered by Congress. You cannot find out what lobbyists are saying about an issue by consulting LDA reports. Instead, one must engage in extensive independent work analyzing a host of outside sources to find out where a company stands. This Essay makes that effort and shows the positions of key industry lobbyists on a single issue: climate change. After a great deal of sleuthing, some interesting patterns were uncovered--but these only reveal the tip of the iceberg. There can be no substitute for a reform of the LDA that requires lobbyists to reveal the public policy positions of the firms employing them. Congress is presently considering LDA reform, but lobbyist positioning is not in the mix. (3) This Essay argues that it ought to be. We should not allow the Jack Abramoff scandals to cloud our vision, and instead we should use this window to make a significant move in the direction of a more democratic and transparent lobbying process.

   Why are lobbyist positions important when so many other factors influence policymaking on Capitol Hill? There are two reasons. First, shining a light on the positions of lobbyists will permit responsible and intelligent policymaking. Lobby disclosure reforms will withstand the test of time only if the law reflects an in-depth understanding of the behavior of industries and interest groups. Relying on voluntary disclosure is not enough. This Essay argues that one can craft a suitable reporting requirement that will make a real difference. Second, the public will become distrustful if a firm's public pronouncements on an issue appear to diverge sharply from its lobbyists' positions on Capitol Hill. Lobbyist positions are therefore important in order to further effective discourse and increased trust in American democracy.

   This Essay's argument proceeds in two stages. First, it will show that the current system of voluntary disclosure fails to fulfill either the goal of informed legislation on Capitol Hill or the need to inform the general public about the real-world policy positions of leading industries. The case study involves the public positions on climate change policy taken by major greenhouse gas emitters in the United States. (4) The author systematically investigated publicly available literature published by each firm, sent out questionnaires, and personally met with lobbyists. This multi-pronged approach permitted a much better understanding of most firms' political positions, but some companies were more secretive than others. Because the LDA does not require political positions to be reported, the companies and their lobbyists were within their fights to disclose information selectively, or not at all.

   The second part of this Essay makes the case for reform. The proposal builds on the existing structure of the LDA. The statute already requires lobbyists to list the bills and issue areas that concern each of their clients. (5) This Essay proposes that lobbyists also be required to report their position on each bill. All lobbyist positioning could be recorded in real time through the worldwide web, allowing others to engage in a running commentary on the quality of the information provided by the lobbyists (who can, of course, revise their reports as their positions change).

2. THE POLITICAL SAGA

   To begin, consider the political saga surrounding climate change legislation proposed over the past few years. Act One begins with a Senate floor discussion of the Climate Stewardship Act of 2003 (6) sponsored by Senators John McCain (R-Ariz.) and Joseph Lieberman (D-Conn.). A debate ensued between Lieberman and Senator George Voinovich (R-Ohio) over the position of an electric utility company named Cinergy. (7) Voinovich, who opposed the bill, asserted that Lieberman had gone over the line in suggesting that Cinergy supported the Climate Stewardship Act. Lieberman quickly backtracked, giving Voinovich an edge in the debate. In reality, Cinergy had not actively opposed the proposal, taking a neutral stance, neither supporting nor rejecting the initiative. But, after the confusion on the floor, Cinergy issued a statement opposing the bill. (8) McCain-Lieberman failed by a vote of fifty-five to forty-three on October 30, 2003, the day after Cinergy issued its statement. (9) Cinergy was hardly the only factor in accounting for this defeat, but the company's timing made Lieberman look unreliable at a moment when he wanted to show command over the situation.

   Act Two involves the oil giant British Petroleum (BP) and its position on Senator Jeff Bingaman's (D-N.M.) Climate and Economy Insurance Act of 2005, which would have imposed mandatory emission reductions on greenhouse gases. (10) The Bingaman bill started to gain traction when Senator Pete Domenici (R-N.M.) showed interest in supporting it. Bingaman was ready to offer his proposal as an amendment to Energy Bill H.R. 6, and it may have moved forward with the support of Senator Domenici. (11) At the same time, Senator Chuck Hagel (R-Neb.) proposed an amendment emphasizing technological solutions without mandatory emissions reductions. (12) At this critical moment BP intervened. BP was previously silent but now supported Hagel over Bingaman. Soon thereafter Senator Domenici withdrew his support, and Bingaman retreated, offering instead the "Sense of the Senate" Resolution on climate change, which does not have the force of law. (13) Lobbyists supporting the Bingaman bill felt blindsided by BP, which usually gains a great deal of publicity as a "green" company, proudly waving its "Beyond Petroleum" logo. (14) But when push came to shove, BP rejected mandatory cutbacks on emissions. Without a mandatory disclosure system, BP lobbyists had reason to suppose that this momentary strategic maneuver would soon be forgotten amidst its continued publicity campaign on behalf of green issues.

   These two cases show how the legislative process can be affected and distorted when lobbyists do not proactively outline their firms' positions. Cinergy's silence permitted Lieberman to assume its support--blindsiding him at the eleventh hour when the company came out with a position that suggested that the Senator had been guilty of negligent misrepresentation. Similarly, BP's generally pro-green position allowed others to assume that it would support strong measures, once again leading the company to blindside the people campaigning for mandatory emissions reductions. Cinergy apparently has learned the costs of these last minute maneuverings. Cinergy now stands out as a company that specifically references its position on climate change legislation proposed in Congress, suggesting that the firm itself did not enjoy finding itself in the middle of a politically sensitive muddle in 2003. (15) BP representatives also explain that supporting Hagel does not limit its support for additional measures in the future. (16) If both of these companies had been clearer about their positions earlier in the process, such political misunderstandings may not have occurred at all.

   These stories also illustrate how the general public can sometimes be misinformed about companies' lobbying positions on critical bills. Both Cinergy and BP have public projects aimed at voluntarily curbing emissions in their own plants---they discuss these projects publicly as a way of showing the company's green credentials. (17) Despite this, both companies were part of political maneuverings against mandatory greenhouse gas controls on a federal level. Right now it takes open debate on the floor, as in Cinergy's case, or drastic political maneuverings, as in BP's case, to have such issues become public. Asking a person with a busy life to go through the tremendous amount of sleuthing needed to find out the detailed and nuanced positions of other more secretive stakeholders is unrealistic--a standard reporting mechanism is therefore needed.

3. AVAILABLE INFORMATION

   Senators Bingaman, Lieberman, and Voinovich should not be blamed for their lack of information about lobbyists' positions. It is quite difficult to uncover the relevant information, and even more difficult to learn the positions held by all firms in a single industry, let alone survey patterns of support and opposition of all relevant stakeholders. But without such information, decision makers are dependent on meetings with lobbyists, which may in fact be unrepresentative of the positions taken by the larger group of stakeholders. As a result, politicians do not get the full flavor of the positions of all lobbyists and...