Is Motive Relevant to Lobbying?

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":

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.

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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