Winter Reading: "Access and Lobbying"

Anonymous

Wed, 02/19/2014 - 09:18

Campaign Finance

"Access and Lobbying: Looking Beyond the Corruption Paradigm</a>," by
Dorie Apollonio, Bruce E. Cain, and Lee Drutman, Hastings
Constitutional Law Quarterly 36:1 (2008) (attached; see below), has some very valuable
things to say about local government lobbying, even though it
focuses on federal government lobbying. 
 
The authors note that, despite the greater focus of academics and
good government groups on campaign finance regulation, more money is
spent by companies on lobbying than on campaigns, a sign that they
feel it is a more valuable form of influence. 
 
The big question the authors ask is, How should we be thinking of
lobbying regulation? Is it a sideline of bribery and campaign
finance regulations, or is it unique in important ways? Does it have
different goals and different constitutional limitations?

At the federal level, lobbying rules "mostly address
conflict-of-interest and corruption concerns that arise with the
non-speech aspects of lobbying such as trips, gifts and jobs." The
authors ask whether lobbying reforms can go any further and, if so, on what basis? 
 
To answer this question, the authors look at lobbying in terms of
"the three main sources of purported influence: money,
relationships, and information. Among reformers, there is too much
focus on money, too little focus on relationships, and almost no
consideration of information. 
 
Money 
The principal, direct value of money is not influence. It is access. This is
too often ignored by people who think the only problem with lobbying is
influence. The same people ignore the problem of pay to play, where
money is not paid for influence at all, only for access and the
chance to get contracts, permits, and grants. When you consider that the direct purpose of money is to get access, it may not seem quite so corrupt, but that does not make it less problematic. It just changes the terms of the discussion. 
 
The U.S. Supreme Court has recognized the issue of access and pay to
play. In its decision in <a href="http://www.law.cornell.edu/supct/html/02-1674.ZO.html" target="”_blank”">McConnell
v. Fed. Election Comm'n</a>, 540 U.S. 93 (2003), which focused on
"soft-money" contributions to political parties, the court said,
"Not only were such soft-money contributions often designed to gain
access to federal candidates, but they were in many cases solicited
by the candidates themselves." 
 
In any event, limitations on money lead to more emphasis on
less limited money, such as fundraising events, campaign contributions,
and bundling, where First Amendment issues make it harder to
regulate. This is why one of the authors' recommendations is to
limit lobbyists' role in fundraising with closely targeted rules
relating to campaign positions, PACs, and bundling. But as long as
there are corporate PACs, corporate lobbyists will be associated
with its contributions. 
 
Relationships 
With respect to relationships, reform has been limited primarily to
revolving door provisions. But these limit only direct relationships
and, in many cases, direct work on a particular matter. What is
usually ignored by these provisions is influence on particular
matters and indirect relationships, which equally provide access.
Such indirect relationships include those with family members, with
business associates, with professionals one has done business with
(and their partners), with former colleagues in other agencies and
governments, and with the usual friends of friends that ensure
access. 
 
Information 
While the emphasis of reformers is on money and relationships, the
authors believe that information is a lobbyist's most important
asset and function. Although the information lobbyists say they
provide concerns substance, that is, the issues that law-making and
regulation deal with, some of the most important information they
provide involves the electoral consequences of particular positions
and actions. Lobbyists are often not experts on subject matter
(although often they are). Many of them are political operatives
whose understanding of polling, elections, and public relations are
what elected officials find most valuable. The line between lobbying
and public relations has become increasingly blurred. 
 
In addition, lobbyists often provide information about what is going
on in other parts of a government, in other governments at the same
level, and in governments at higher and lower levels. This
information can be just as valuable. As the authors say,
"up-to-the-minute information is power," and this is something
professional lobbyists offer. 
 
The authors point out that, although it is true that lobbyists
generally provide accurate information, because they concerned about losing
access due to lack of trust, lobbyists generally
provide information that is not impartial. That is, they provide
certain facts, and withhold others. They make certain arguments, and
fail to make those that might hamper their clients' or employers'
goals. Lobbyists defend their accuracy, but accuracy is not really the issue. 
 
Information and Equality of Access 
The most important issue with respect to information is the equality of
access: is information being provided, read, and employed equally from
the different sides of an issue? If access is not equal, then
information is not neutral, and those who can more successfully get their version of
the information to the attention of decision-makers (which is what access is) will have more
influence. Therefore, information is just as important to influence
as are money and relationships, because all three involve access. It may
not appear corrupt to get information into the hands of officials
but, in fact, the information on which decisions are made, and laws
and regulations are drafted (including information in the form of
draft laws, rules and regulations, amendments, and contract and
grant specifications), are actually more directly influential than
money or relationships. This is what the money and relationships
are used for. 
 
The authors ask a series of questions I've never seen asked together in this manner:<blockquote>

What if [information] actually proves to be a better means of
achieving access to key decision makers? Should potential sources of
influence and access be judged based upon how effective they are at
achieving their intended goals? Or do we think that there is
something more inherently corrupting about campaign contributions
than information? If so, what is it?</blockquote>

Then the authors ask "whether these various sources [of influence] privilege
certain groups over others." Government ethics is, to a great
extent, about favoritism, because it leads to unjust outcomes. It
isn't fair. Conduct does not have to be "corrupt" in order to be
unethical. It can simply be unfair. The "systemic corporate bias"
that derives from the special access of those lobbying for
concentrated interests against diffuse interests (e.g., those polluting the air vs. those whose air is polluted) is a fairness or,
as the authors put it, "equity" issue. How serious is this corporate bias?
According to the authors, 85% of the total spending on lobbying
comes from businesses and trade and professional associations. 
 
The Supreme Court has not been willing to apply equity or fairness
considerations in the area of campaign finance and political speech,
except in certain circumstances involving the corporate form's
inherent advantages. It is unlikely, although possible, that equity
would be taken into consideration with respect to lobbying, an area
the Court has rarely dealt with. 
 
Funded Lobbying 
In any event, the authors have an interesting recommendation that
would deal with equity not by limiting lobbying, but rather by adding
to it. Their idea is "to increase lobbying, particularly for
underrepresented and disadvantaged groups. This might mean adopting
a public defender model, with publicly-funded lobbyists for groups
that can demonstrate a sufficiently broad membership base and non-corporate
funding. The funding could be matching or a complete subsidy. ... The incentive of having the expense underwritten for
them might encourage the formation of more membership-based,
diffuse interest groups." 
 
This is the lobbying equivalent of a public campaign financing
program, except that not all interests are expected to participate.
I can't imagine such an idea being tried at the federal level, but
as with public financing, perhaps it might be tried at the state or
local level. At the local level, it could allow community groups,
local environmental and good government groups, etc. to hire a
professional lobbyist to help them make their case and get their
version of the information, including constituent feelings, through
to local officials. This would not cost much, but might make a big
difference. It might even make people respect lobbyists more,
because they would see that at least some lobbyists, like attorneys,
use their expertise not only for corporate interests. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Winter Reading: "Access and Lobbying"

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