Winter Reading: The Ethics of Lobbying

In preparation for the chapter on lobbying that I'm working on, I just finished reading a 2002 book entitled The Ethics of Lobbying from the Woodstock Theological Center at Georgetown University (Georgetown UP). It's an excellent introduction to a number of issues involved in lobbying of the federal government, most of which are relevant at the local level, as well. The book is the result of a multi-year project, which included interviews with about 50 lobbyists about what they do, how lobbying has changed, and what lobbyists' ethical challenges are. They interviewed them individually, and then brought them together in small groups and in a large plenary session.

One of the project's goals was to draft Principles for the Ethical Conduct of Lobbying, which are included in the book. In addition, the book includes quotations from the lobbyists interviewed, organized by topic; a look at what ethics is; the state of lobbying and its ethical concerns; regulation of lobbying at the federal level; the ethics of political advocacy in terms of the integrity of the democratic process; and a hypothetical case study accompanied by questions, to allow each reader, or group of readers, to better discuss the issues raised in the book.

The book points out what is valuable about lobbying. It provides a check on governmental power, it allows citizens to band together to get their message across to government officials, it educates government officials and the public, and it provides expertise to government.

Lobbying Is Constitutionally Protected
The book makes it clear that lobbying is multiply protected by the First Amendment. Most specifically, lobbying is protected by the right to petition the government for redress of grievances. It is also an exercise of free speech and, where it involves groups of people working together, of free association.

But the center makes it clear how important the distinction is between political rights (law) and their responsible exercise (ethics):

The law guarantees the protection of rights; ethics seek to determine when they are used in a legitimate and responsible manner. All rights, to be effective, must be complemented by corresponding obligations. Governments have the explicit obligation to protect the liberties and to fulfill the basic needs of their citizens. But citizens have obligations as well, obligations to one another and to the political community to which they belong. … The irresponsible exercise of lobbying … can undermine the impartiality of public officials or it can abuse the right of petition, using it for narrow and partisan purposes that violate historic justification.

As the center points out, the right to petition for grievances was intended to be employed relatively equally, not primarily by those with personal connections or great wealth. Access to officials was never intended to be limited primarily to the lobbyists of those seeking personal, financial benefits rather than furthering political interests. According to the center, the principal systemic concern about lobbying is that it "fosters a claimant politics based on the pursuit of self-interest and group advantage rather than a civic politics based on the discovery and enactment of the comprehensive public good."

At the federal level, much lobbying is issue oriented rather than intended to seek benefits from or prevent harm by the federal government. At the local level, there is relatively little issue-oriented lobbying. The great majority comes from those seeking specific benefits (contracts, grants, permits, and developments that might increase the value of one's property) or trying to prevent specific harm to their financial interests (regulations and nearby developments that might harm the value of one's property). Such lobbying is less redress of grievances than an investment intended to lead to future profits. This sort of lobbying is "rent-seeking." As Richard Hasen wrote in his essay "Lobbying, Rent-Seeking, and the Constitution," 64 Stanford Law Review 191 (January 2012), "Rent-seeking occurs when individuals or groups devote resources to capturing government transfers, rather than putting them to a productive use."

The Woodstock Center notes that inequalities of access and influence, and how they are perceived by the public, demoralize our democracy, leading to a reduction in citizen participation. The center believes that lobbying must be viewed in the context of all democratic values and requirements, not solely in terms of the First Amendment. These values include political equality, accountability, informed consent of the governed, the promotion of justice, and the refinement, enlargement, and deepening of public opinion through deliberative practices.

The center also notes that lobbying is not limited to influencing particular governmental decisions, such as legislation, regulations, contracts, grants, or permits. It also helps determine the government's policy agenda, prevent reform, make or prevent appointments, and shape public opinion. Little lobbying actually involves the redress of grievances.

Lobbyists' Professional Responsibilities
The center takes the position that lobbyists' obligations are not just to their clients or employers. They also have obligations to the officials they lobby, to the public media whose coverage they seek to influence and, because they are citizens, to their country:  the obligation to promote the public good and democratic values.

Considering that, traditionally, most lobbyists have been attorneys, this idea is not generally accepted by lobbyists. Lobbyists believe they should zealously represent their clients, just as if they were representing them in a legal proceeding. The center wants them to start thinking differently, more broadly, about their responsibilities.

The center's position is based on a view of the lobbyist as "a professional advocate constrained by a personal civic responsibility." Such an advocate differs in important ways from a legal advocate in a private controversy. Such an advocate should, the center contends, weigh the implications of their efforts on the public's well-being, and fully and honestly inform both client and policymaker of the consequences of the policy objectives they are pursuing, and recommend to their clients and put into practice only ethically acceptable lobbying strategies. They should not take on clients with a poor ethical history or that ask them to act unethically. Clients should also consider lobbyists' ethical history and the way in which they represent them. For the center, honesty is the most important ethical act, because otherwise lobbying is manipulative, fraudulent, and harmful to the public, and departs seriously from the sort of open deliberation which is central to the practice of democracy.

Conflicts of Interest
It's worth noting that one of the Woodstock Center's seven principles is the avoidance of conflicts of interest. But the center limits conflicts to those a lawyer has when representing clients whose goals are in conflict. For some reason, the center did not consider the lobbyist's conflicting obligations beyond their clients as conflicts of interest. This, after all, is an important basis for lobbyist regulation. Most of the regulations on lobbyists are, in fact, conflict of interest rules that apply to lobbyists as agents for clients seeking benefits from a governmental body. Even disclosure rules, which apply specially to lobbyists, derive from the conflict between the interest of lobbyists and the officials they seek to influence in keeping their contacts secret and the interest of the public in knowing how and by whom those who run their community are being influenced.

The last paragraph in the last principle calls for a lobbyist requirement to report ethical misconduct. Oddly, the requirement only applies to lobbyist misconduct, not to misconduct by officials or by those seeking special benefits through means other than lobbying (such as gifts).

Recommendations
Besides the principles it sets out, which it would like lobbyists to embrace, the center supports "full public disclosure of lobbyists, their clients, and their specific political initiatives and activities." But it goes further than this common sort of reform. To create more equality of influence, it recommends the creation of public forums where citizens and their representatives can exchange political opinions and deliberate about the public good. It also recommends a re-examination the way we think, speak, and feel about government and citizenship, moving from an emphasis on individual rights and the pursuit of self-interest to a greater emphasis on civic virtues and a greater regard for the needs of the disadvantaged as well as posterity.

The Changing Nature of Lobbying
Recently, I wrote a blog post about how lobbying is changing, how it is becoming more and more about marketing and public relations. The Woodstock center's book makes it clear that this is nothing new. Over ten years ago, it made the same observation, ironically, in the context of health care reform:

[O]rganized interests now use all the tools of modern political communications to advance their objectives: massive and expensive grassroots lobbying, shaping public opinion through media campaigns and political advertising, fundraising for candidates who are increasingly dependent on organized interests for electoral support, targeting key members of congressional committees, and so on.

Robert Wechsler
Director of Research-Retired, City Ethics

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