Winter Reading: The Ethics of Lobbying

Anonymous

Thu, 01/16/2014 - 04:45

Lobbyists

In preparation for the chapter on lobbying that I'm working on, I
just finished reading a 2002 book entitled <a href="http://books.google.com/books?id=iutSz6VKRXoC" target="”_blank”">The Ethics of
Lobbying</a> 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):<blockquote>

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.</blockquote>

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 "<a href="http://www.stanfordlawreview.org/print/article/lobbying-rent-seeking-an…; target="”_blank”">Lobbying,

Rent-Seeking, and the Constitution</a>," 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 href="http://www.cityethics.org/content/how-lobbying-changing">a blog post about how lobbying is changing</a>, 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:<blockquote>

[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.</blockquote>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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