What Is the Role of a Definition of "Lobbying"?

Anonymous

Tue, 07/29/2014 - 12:19

City Related

<a href="http://www.theaustinbulldog.org/index.php?option=com_content&view=artic…; target="”_blank”">An
interesting debate about lobbying and advisory groups can be found
on the Austin Bulldog website</a>. Late last week, the Bulldog
published an article about an ethics complaint filed by the
president of the <a href="http://ancweb.org/" target="”_blank”">Austin Neighborhoods
Council</a> (ANC) against an appointed member of the <a href="http://www.austintexas.gov/content/land-development-code-advisory-group…; target="”_blank”">Land
Development Code Advisory Group</a> (CAG). The complaint alleges
that the CAG member is an unregistered lobbyist for a real estate
consulting company, and that the resolution establishing CAG says
that lobbyists or employees of lobbyists, registered or not, may not
be members. The CAG member insists she has never lobbied, nor has
her consulting firm. 
 
There are two important issues here: the definition of
lobbyist and the membership of advisory groups. I have dealt with
the latter issue in three blog posts: <a href="http://www.cityethics.org/content/fort-worth-council-mayor-and-city-att…; target="”_blank”">a
Fort Worth situation</a>, "<a href="http://www.cityethics.org/content/making-use-expertise" target="”_blank”">Making
Use of Expertise</a>," and "<a href="http://www.cityethics.org/content/alternatives-allowing-conflicted-indi…; target="”_blank”">Alternatives
to Allowing Conflicted Individuals to Sit on Advisory Boards</a>."
So I won't go into this issue here, except to say that there is no
reason in the world to limit the prohibition on membership to
lobbyists without limiting it equally to anyone directly or
indirectly seeking special benefits from the government. There has
to be a balancing of expertise with conflict of interest, and
conflicts of interest are not limited to lobbyists.

The Definition of "Lobbying" 
Here is Austin's definition of "lobbying" from its <a href="https://library.municode.com/HTML/15302/level2/TIT4BUREPERE_CH4-8RELO.h…; target="”_blank”">lobbying
code</a>:<blockquote>

the solicitation of a City official, by private interview, postal or
telephonic communications, or any other means other than public
expression at a meeting of City officials open to the public ...,
directly or indirectly by a person in an effort to influence or
persuade the City official to favor or oppose, recommend or not
recommend, vote for or against, or to take action or refrain from
taking action on a municipal question. The term lobby or lobbying
shall not include a mere request for information or an inquiry about
a municipal question, matters, or a procedure or communication to a
City official which is incidental to other employment not for
purpose of lobbying.</blockquote>

This is a typical, but far from ideal definition. It puts too much
emphasis on communication, but at least it includes indirect
communication, so that efforts to get others to communicate are
included (what is known as "grass roots lobbying"). What it leaves
out is such lobbying activities as drafting ordinances and reports,
advising and recommending lobbying strategies to a client, research,
monitoring of bills, proceedings, meetings, and events, and doing what it takes to
establish and maintain personal relationships with officials, where
there is often no effort to influence or persuade with respect to any
particular question. 
 
A serious problem with Austin's definition of "lobbying" is its
exception for public meetings which, I assume, would include written
testimony presented to a public board. Public testimony, and its
preparation, is an important part of lobbying. It can consist of
extensive arguments and documentation, including recommended
language. It can have a serious effect on a body’s decision to act
and, if so, in what manner. The fact that citizens also speak at
public meetings, and this is not considered lobbying, may be taken
care of in the definition of "lobbyist." 
 
What Role Should the Definition of "Lobbying" Play? 
The place to start when drafting a lobbying code is to decide what
role the definition of "lobbying" or "lobbyist" is supposed to play.
Is it supposed to be exclusive, so that only a few professional,
full-time lobbyists will register? Or is it supposed to be
inclusive, so that everyone whom the public would consider as
engaging in lobbying activities will register and the public will have a full
picture of who is trying to influence those who manage their
community? 
 
Since lobbying codes are part of government ethics, and appearance
is central to government ethics, the best practice is not to
split hairs, but rather to include everyone whose job (in part or in
whole) is to seek to
influence government decisions, and those for whom they work. It may take more
time, but it will provide the optimum amount of transparency, and
there won't be a lot of gray areas that make it look like the
government and special interests are trying to keep a lot of
lobbying hidden from the public. 
 
The CAG member says that her role "is to support real estate
industry clients through the City’s land development process."
However, on her LinkedIn page, she says that she also engages in
"tracking and responding to code and ordinance amendments being
processed." So the questions are (1) whether she deals with code and
ordinance amendments only at public meetings or in the form of
written testimony for a public hearing, or discusses or writes about
them, as well as particular matters, with or to officials in
private, and (2) whether her shepherding of her clients through the
land development process includes communications with officials
beyond requests for information. 
 
Anyone who seeks special benefits from a government, for herself or
for her clients, needs to recognize that the public cannot know what
she is saying to or seeking from officials, whether it is on one or
the other side of the vague lines in the definition of "lobbying"
and in the many exceptions to who must register as a lobbyist.
Recognizing how her work appears to the public, she should try to
increase trust in the process she is shepherding her clients through
by registering as a lobbyist, not only to be on the safe side (for
the benefit of herself and her clients), but also because of the
importance of appearance, trust, and transparency in government
ethics. 
 
Must "Lobbyists" Be Paid? 
One of the commenters to the article seeks to turn the table on the
complainant, the president of the <a href="http://ancweb.org/" target="”_blank”">Austin
Neighborhoods Council</a> (ANC), by saying that she too is an
unregistered lobbyist, who hides "under the guise of not being paid.
They lobby city hall constantly for their agenda" and are
represented by pro bono counsel, one of whom drafted the ethics
complaint. 
 
Should unpaid lobbyists, who represent not their personal interests
(for example, a homeowner asking a council member to oppose a
neighborhood plan), but rather an organization, not have to register
and report on their contacts solely because they are not paid?
Should the public not have access to information about the lobbying
on both sides of a matter? Of course they should be required to register. 
 
I was talking the other day to the head of a state good government
group on this very topic. Since he is paid, he is a registered
lobbyist. But when board members lobby, even though they are not
paid, he registers them as lobbyists, even though it is not legally
required. The reason is that real good government groups value
transparency, and they find no reason not to let the public know
about their lobbying efforts. 
 
But most people like to act in secret and believe that they are trustworthy.
They think that only other people are up to something. But the other
people think the same thing. The fact is that it doesn't matter what
they think; it only matters what they do. And transparency beats
secrecy every time. Disclosure is essential to give the public the knowledge that
allows citizens to be active in a democracy and to trust those who
manage their community. 
 
The Real Problem Here 
If the complainant has not registered as a lobbyist because she is
not paid, she should quickly set an example by registering herself
and all those who lobby for her organization. This act will also
send the message that it isn't really that the CAG member is a
lobbyist (registered or not) that is the problem. The real problem
is the apparent imbalance among CAG members, with too many working
in the real estate business. It would be best if members either did
not work in this industry and yet had a good understanding of it
(individuals who have retired or moved on from the industry), or
work in the industry in a capacity where they are not active in
local real estate deals. But if such people cannot be found, there
should be as good a balance as possible between those who benefit
from or favor development and those who benefit from or favor the
status quo. Otherwise, the advisory body and those who appointed its members will be seen as biased, and the body's recommendations (and their acceptance by the body's appointing authorities) will be seen as unfair. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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What Is the Role of a Definition of "Lobbying"?

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