Private ethics, public conduct: an essay on ethical lobbying, campaign contributions, reciprocity, and the public good.

• Author: Susman, Thomas M.
• Position: Symposium: The Law of Lobbying

The author of a recent book examining "Imperial Washington" observes that "some form of degenerative neuro-political condition has left government responsive to particular interests but deaf to the popular will." In posing whether the expression "Decline and Fall" is relevant today in our nation's capital, Cullen Murphy seems most struck by his failure to see a clear "boundary between public good and private advantage." He is not the first, and certainly will not be the last, to make this observation. 1

Many have looked at the forces shaping public policy and governmental decision-making in Washington, and most reviews have been critical. Books bearing titles like "Scandal," "Money Men," and "Parliament of Whores" leave little doubt of their authors' condemnation of the system as we know it. The list of lobbyists and public officials--starting with Jack Abramoff--who have been indicted and imprisoned in the past two years is eye opening. A recent investigation by the Center for Public Integrity, American Public Media, and Northwestern University's Medill News Service found that, between January 2000 and June 2005, members of Congress and their staff went on nearly 23,000 trips valued at almost fifty million dollars, all paid for by private sponsors, including corporations, trade associations, and nonprofit entities. (2) The Democratic take-over of the reins of power in the 110th Congress has been attributed in large part to the public revulsion at what has been aptly called a culture of corruption in Washington.

We know a lot about who did what to whom in creating this culture, and we have seen both houses of Congress rush to enact legislation to do something about it. (3) We even have a good idea of where the fundamental problem lies, and money has much to do with it, though many of the so-called reforms bear only a tangential relationship to that root of all evil. Each piece of reform is crafted individually and sometimes (though not often) carefully. But they do not fit together to form a coherent whole. Perhaps they never will. Both Congress and the lobbying profession seem to be developing two dimensional solutions to three dimensional problems, so it is little wonder that those solutions often do not work as intended.

In this essay I attempt to drill beneath the usual diagnoses of the problems in Washington and to explore the role of reciprocity as it applies to relationships between lobbyists and elected officials. I begin with recognizing the importance of lobbying in our democratic system and its constitutionally protected status. I then discuss why lobbying is more than a private activity carried out on behalf of private interests, but is inevitably and unavoidably imbued with public implications. Thus, when applied to the lobbyist, the ethical standards ordinarily used to guide private conduct must have an added component to accommodate the public impact of that conduct. With an understanding of the reciprocity principle, the plot thickens, for when public officials reciprocate for private favors, the benefits of the transaction are inevitably bestowed upon narrower interests. And, although gifts and travel and honoraria and other such tangible favors that lobbyists can provide to legislators can be banned, as the recently enacted legislation seeks to do, the ubiquitous cloud of campaign contributions and other campaign-related activities by lobbyists is not as easily dissipated.

1. LOBBYING AND LOBBYISTS

   Despite lobbying's historic identification with corruption of governmental processes, most elected officials readily admit that it would be very difficult, as a practical matter, to conduct the public's business without lobbyists. (4) Lobbyists bring information to officials that they could not otherwise obtain; provide a counterweight to arguments by the executive branch or other interested parties; assist in identifying the consequences of proposed courses of action; and translate into relevant parlance everything from public opinions to demographic data to scientific developments. And the information flows in both directions: lobbyists interpret for their employers and clients the direction in which Congress may be going on a particular issue, what options remain available with respect to a specific piece of legislation, the potential impact of decisions, and what might be done to effect a desired change in direction. Finally, lobbyists help hold public officials accountable for their actions. These are all good: good for Congress, good for business, and good for the public.

   But even if lobbying were not responsible for so many good things, lobbyists and lobbying would still be difficult to control. After all, the First Amendment expressly provides a right "to petition the Government for a redress of grievances" and prohibits Congress from making laws that restrict that right-unless, of course, there is an overriding public purpose to be served by a restriction reasonably tailored to attain that goal.

   And even if the Constitution did not speak specifically to lobbying (that is, the right to petition the government), lobbying should nonetheless remain at the core of a modern democracy. Issues are too complex, the public too dispersed, and competing voices too cacophonous to rely exclusively on town hall meetings and citizen action to keep elected officials informed of constituent interests.

   So, though it may have the potential to corrupt official decision-making, lobbying is constitutionally protected, it is useful, and it can be central to effectuating government by and for the people.

2. PUBLIC IMPACT, PUBLIC GOOD

   In his thorough book on lobbyists, journalist Karl Schriftgiesser discusses how Congress had attempted to distinguish "good lobbying" from "bad lobbying," recognizing that the former is the kind the Founding Fathers wanted to protect in the Constitution, whilst the latter is the product of the old fashioned "pressure boy" lobbyist who sought to coerce or corrupt Congress on behalf of private clients. Schriftgiesser quotes an article in the popular press that sought to tell readers how to distinguish between the two:

   The basic test of the goodness of lobbying is truth.... Lobbying that is not for truth is bad ... [while] lobbying on behalf of the rights of all men as individuals under fair competition to choose, to earn, to own, is ethical. Lobbying against such rights is bad.... Anyone should be free to teach, preach, or lobby for objective truth, including established American ideals. But lobbying for special advantages for laborers, farmers, businessmen, races, or religious sects, as classes, is antisocial, radical, and bad. (5) Lest the reader scoff at this outmoded and unrealistic description of lobbying, note that it is part of a long tradition, touching both law and religion, that continues today. One of the early pronouncements was by the Supreme Court in 1875. The Court refused to enforce a contract for compensation of a lobbyist that was contingent upon enactment of legislation to settle a claim against the United States. The Court recognized that activities "intended to reach only the reason of those sought to be influenced ... rest on the same principle of ethics as professional services rendered in a court of justice." (6) But agreements "for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the passage of a private claim, without reference to its merits ... were ... contrary to the plainest principles of public policy." (7) Notes the Court:

   If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law...