Is Motive Relevant to Lobbying?

Anonymous

Tue, 04/01/2014 - 05:11

Complaints/ Investigations/Hearings

Rarely is a non-politician celebrity the subject of a local
government ethics matter. So with David Beckham the subject of a
Miami-Dade County ethics commission investigative report last week,
and with important issues to boot [pun intended], this is an
impossible matter to pass by. 
 
Initiating Contact 
The most interesting issues in this matter are whether lobbying is a one-way
street, and the underlying issue: whether motive or intent is relevant to lobbying. That is, when there is a meeting between a government
official and the officer of a company who may be seeking special
benefits from the official's government, does it truly matter who
initiated the contact? Is it reasonable that, when the government
official initiates the contact, the meeting does not involve
lobbying, but when the company officer initiates the contact, the
meeting does involve lobbying?

What is this all about? Last year, Beckham was looking for a place
to build a soccer stadium for an expansion major league soccer he
was going to buy, and Miami-Dade County wanted to be that place. In
fact, the government official involved is the Miami-Dade mayor. 
 
There is nothing in the Miami-Dade lobbying provisions that
expressly deals with who initiates contact, but both government
officials involved have expressed their belief that who initiates
contact matters a great deal. The EC's investigative report does not
expressly deal with this issue, but its conclusion does note that
"the observation was made that the County was essentially lobbying
Mr. Beckham." And it concludes, "if [Beckham] is [to be] involved in
discussions intended to influence County officials, he would need to
register as a lobbyist." 
 
With alternate language, this last sentence points to the definition
of "lobbyist" (§2-11.1(s)(1)(b): someone who "seeks to
encourage the passage, defeat, or modifications of ... any action,
decision or recommendation of County personnel..." Thus, whether an
individual is a "lobbyist" is based on the potential lobbyist's motive
("seeking to encourage") more than on the potential lobbyist's
activities. 
 
I don't think that Beckham's motive in meeting with the mayor was
anything other than to encourage him to offer large government
subsidies in order to get him to bring his team to Miami. If someone
announces his desire to build a soccer stadium, isn't he effectively
announcing that he is interested in getting government subsidies for
that stadium? Doesn't the statement of interest in doing this mean
that Beckham "sought to encourage" government subsidies and,
possibly, the sale of government land to his team? Does someone in
his position have to initiate a meeting in order for him to be
considered to be "seeking to encourage government action"? I think
everyone in the public knows that, like the owner of every other sports team, his
hand was out, and that he knew he didn't have to make a call in
order to encourage governments to fall all over themselves trying to
hand out benefits to his team. 
 
Another consideration here is that ethical misconduct is a two-way
street. Companies try to influence officials, and officials try to
get companies to pay to play. It is very difficult to tell the two
apart. Why should lobbying be any different? Shouldn't the public
know that such discussions are going on, whoever initiated them? If
the company officer gives the official a gift, does anyone ask
whether it was offered, demanded, or expected? It's the gift that
matters. Similarly, it's the meeting that matters. 
 
Is Motive Relevant? 
The basic question here is, Should "lobbyist" be defined in terms of
motive? Using the Miami-Dade language, should it be
required that someone "seek to encourage" government action or
inaction? Or should any contact, direct or indirect, by someone who
may benefit from that contact be considered lobbying? I believe the
latter should be the case. I think it is better to define "lobbyist"
as someone who engages in a "lobbying activity," such as
communicating and attending meetings, without the requirement that
such activities be "intended to influence" or "for the purpose of
influencing," two forms of the usual language (in fact, this is the language used
in the investigative report). 
 
The intent to influence should be assumed, not proven. Motive is
not something that ordinarily has to be proven in government ethics.
An important reason is that it is very difficult to prove. How, in
fact, do we know who initiated the contact that led to the meeting?
We have only the participants' word, and the participants all wanted
the problem to go away. So even if Beckham's people had actually
initiated the meeting, it might be very difficult to prove. Since
it's irrelevant, why should proof of initiation be required? 
 
If a government official accepts a gift from the officer of a company seeking benefits
from the official's government, that is all that has to be shown to
find a violation. If an official helps a family member get a job, it
is not a defense that the official felt the family member was the
best person for the job and, therefore, that the official acted with
the best of motives. So why should motive matter to whether
someone is a lobbyist or not? If she or her client may benefit from
government action, that should be enough to show that a lobbying
activity was "for the purpose of influencing." 
 
There may be exceptions, such as seeking information. But if a
private meeting is involved, it should be considered lobbying.
Period. It should not even be asked who initiated the contact or why
the company officer attended the meeting. 
 
How They Do It Up North 
The fact, however, is that motive does matter here in the U.S.A.
Every American municipal lobbying code I looked at requires that, to
be considered a lobbyist, an individual has to seek or attempt to,
or have a purpose to, influence government action. This makes some sense
when one considers only the popular conception of lobbying. But so
much lobbying is not about influencing. It's about developing and
maintaining a personal relationship that will, in the future, pay
off for oneself, one's company, or one's clients. There need not be
a current matter or even a foreseeable matter for lobbying to occur,
when one party is a government official in a position to influence
government action and the other is someone who, directly or
indirectly, may benefit from government action. 
 
I did find an exception to the American approach . . . in Toronto.
The Toronto lobbying code says, very simply, that "to lobby" is "to
communicate with a public office holder on any of the following
subject matters." But, an American might say, wouldn't that mean
that an ordinary citizen would have to register as a lobbyist before
complaining to his council member about a development being
discussed for his neighborhood? The answer is No, because an
ordinary citizen isn't paid to lobby. He's lobbying, but he's not a
"lobbyist." Beckham isn't paid to lobby either. But he is covered as
"an individual who is the sole proprietor of a business, when the
individual is lobbying on behalf of that business." If you own a
business that might be affected by a development, a call to your
council member constitutes "lobbying." 
 
Drawing the Line 
If one drops motive, however, where does one draw the line so
that someone who happens to be a developer can simply have dinner
with a friend who happens to be a council or zoning board member,
and not disclose it as a "lobbying activity"? My response is, why
not disclose it? What harm does it do? A developer should be
registered as a lobbyist anyway, whether she has a current project
or not. If you recognize that government ethics is about
appearances, then it's best to act like what you appear to be:
someone seeking special help from the city government, who cannot
prove that his personal friendship with a particular official has
nothing to do with the developer's business with the city or that
they did not talk about what to do with a vacant piece of city land. 
 
The only difference in the Beckham matter is that he is new to the
game. As a soccer player, it wouldn't matter if he had dinner with
the mayor. As a potential major developer, it matters a great deal.
No one in Miami doubts the motive of either party to the meeting. No
one doubts that it is a public matter that could greatly benefit
Beckham (and possibly benefit county residents as well, depending on
the deal that is made, that is, on the lobbyists' success). 
 
When Lobbying Begins 
The second principal issue, and the only one expressly dealt with in
the investigative report, involves timing. The investigative report
states, “[N]ow that the MLS stadium idea has gained momentum only
those individuals who are properly registered should be meeting with
County officials to influence or encourage” the stadium plan. But
how much momentum is necessary for registration as a lobbyist to be
required? Here is the relevant Miami-Dade language, which follows after
the above language from the definition of "lobbyist":<blockquote>

any action, decision or recommendation of County personnel during
the time period of the entire decision-making process on such
action, decision or recommendation which foreseeably will be heard
or reviewed by the County Commission, or a County board or
committee.</blockquote>

In other words, one is a lobbyist with respect to a government
matter that one reasonably believes will be considered by a county
body, but only during the decision-making process. The question is
when that process begins, not when that process gains momentum. 
 
If, say, I want to buy a piece of government land, doesn't the
process begins as soon as I contact, directly or indirectly, any
government official that may have influence on the matter? If the
decision is made by a special board, but I schedule a meeting with
my council member, that is lobbying, even if the council member
didn't know about this piece of government land and won't make a
decision about it. It is lobbying because the council member has
influence, and lobbying, as lobbying codes insist, is about
influence. 
 
The decision-making process begins when inquiries about a possible
sale begin, because those lobbying communications will affect the
outcome, or at least the lobbyist could be presumed to hope.
Otherwise, the inquiry would not have been made. 
 
According to the physics I studied in high school, momentum is mass
times velocity. The mass is the government official. The velocity is
the lobbying activity. I think that's all the momentum necessary for
lobbying to commence. 
 
Consider this. If, at the meeting, Beckham had handed the mayor a check for $100,000,
would that not be considered a gift just because there wasn't enough
momentum yet for Beckham to be considered a "lobbyist" or a
"restricted source"? When it comes down to it, in situations like Beckham's, what is the
difference between being a "lobbyist" or a "restricted source"? They
are both individuals or entities that are seeking benefits from the government. The only difference is the
activities in which they engage. When a "restricted source" gives a
mayor a gift, isn't that an illegal gift? When a "restricted source"
meets with a mayor, isn't he then a "lobbyist"? If momentum and the
decision-making process are irrelevant to gifts, they should be
irrelevant to lobbying. Gift-giving and lobbying are simply
different activities by the same people for the same assumed
purpose. 
 
Ethics Leadership 
This is a situation where ethics leadership should have won the day.
The mayor should have taken another kind of initiative with respect
to the meeting with Beckham. His office should have said to
Beckham's people when the meeting was proposed, "We may be
initiating this meeting, but since we are going to be discussing
possible business between you and the government (or, at least,
that's what the public will reasonably assume), everyone attending
should register as lobbyists before the meeting. The law does not
clearly require this, but it is the right thing to do. Since you are
a celebrity and anything you do is front-page news, the front-page
ethics rule — would you want to see this on the front page? — is not
a thought experiment; it's a fact. It would look best for everyone if
it were noted that you had offered to register as a lobbyist even
though it was not clearly required." 
 
High-level officials need not let an ethics commission carry the
entire ethics burden. They should initiate ethical conduct just as
they initiate sports stadiums. And unlike in soccer, government
players have an obligation not only to follow the rules, but to
follow the spirit of the rules and do what is necessary to prevent
the appearance of impropriety. 
 
Beckham's attorneys should also have provided some ethics
leadership. They should have told him that, if he were going to be
talking to government officials, he should register as a lobbyist.
Even where the attorneys knew they could make a good argument about
initiative or timing, the right thing to do, and the best thing
for Beckham's image (and the public's acceptance of massive stadium
subsidies), was to register him as a lobbyist before any contact was actually made. In
fact, three lawyers registered as Beckham's lobbyists before the
meeting. They should have signed their client up while they were at
it. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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