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How money talks.

MENTION the words "lobbying" or "lobbyist" to a friend or colleague and you likely will get a strong response. Some people view lobbying as nothing more than the practice of buying influence, power, and legislation. To others, lobbying plays a vital part in our policymaking process, enabling us to exercise one of our most treasured constitutional rights--the right to petition the government.

In reality, both positions have merit and that is what makes lobbying such an interesting practice. Lobbying is a multibillion-dollar industry that impacts all aspects of public policy at the highest levels of government. At the same time, it is the avenue by which average citizens meet with their government representatives to request action.

The Oxford English Dictionary defines lobbying as "a group of people seeking to influence politicians or public officials on a particular issue." BusinessDictionary.com's definition is, "The act of attempting to influence business and government leaders to create legislation or conduct an activity that will help a particular organization." From the legal world, one definition of lobbying is "any personal solicitation of a member of the legislative body during a session thereof, by private interview, or letter or message, or other means and appliances not addressed solely to the judgment, to favor or oppose, or to vote for or against any bill...."

Looking across the definitions, there are common themes. Lobbying is active, organized, strategic, and direct. Lobbying is about influence, which is achieved through education, persuasion, contacts, and money. Lobbying targets government policymakers, including legislators, their staffs, regulators, and administrators. Lobbying is about impact--making change or protecting the status quo.

More than 12,000 registered lobbyists attempt to influence public policy through direct communications with government officials. Lobbying has been on a growth trajectory. Between 1998-2012, Federal lobbying expenditures rose from $1,400,000,000 to $3,300,000,000. What accounts for the continued growth? It very often works. The Boston Globe ran a front-page story, "Tax Lobbyists Help Businesses Reap Windfalls," which highlighted the tax benefits major corporations achieved through their lobbying efforts.

Three models are offered to explain why and how lobbying works. First is exchange: I do for you and you do for me. An early 19th-century quote from Sen. Daniel Webster typifies the exchange model: "Since I have arrived here, I have had an application to be concerned, professionally, against the bank, which I have declined, of course, although I believe my retainer has not been renewed, or refreshed, as usual. If it be wished that my relation to the bank should be continued, it may be well to send me the usual retainer."

The core implication of this model is that those with the resources--money, access, time, membership, expertise--significantly will dominate policymaking.

A second model is education. Pres. John F. Kennedy captured this model when he said, "Lobbyists are, in many cases, expert technicians and capable of explaining complex and difficult subjects in a clear, understandable fashion.... The lobbyists who speak for the various economic, commercial, and other functional interests of this county serve a very useful purpose and have assumed an important role in the legislative process."

A third model offered by Richard Hall (professor of political science and public policy at the University of Michigan) and UM colleague Alan V. Deardorff (professor of economics and public policy) is that lobbying is a legislative subsidy: "[Lobbying] is an attempt to subsidize the legislative resources of members who already support the cause of the group."

Which model is correct? In reality, lobbying is a blend of all three. Lobbying, however, has not been able to disassociate itself from scandal. An example is the conviction of lobbyist Jack Abramoff and a number of government officials for violations of law associated with lobbying--in this instance, the issue concerned gambling and Native American casinos). Abramoff wined and dined lobbyees at his co-owned posh restaurant, Signatures, and shared his skyboxes with policymakers at major league sporting events to curry favor. He also hosted and paid for golfing outings to Scotland for members of Congress. The gifts and travel accepted by legislators and members of the Administration resulted in many government officials pleading guilty to ethics violations and law-breaking.

The typical response to scandals is regulation. While there have been calls for reforms and regulations since the 1800s, it was not until 1995 that the U.S. adopted meaningful lobbying regulation with the passage of the Lobbying Disclosure Act (LDA). Its philosophical foundation was registration and disclosure. The shared belief was that, paraphrasing Supreme Court Justice Louis D. Brandeis, sunlight would be an effective disinfectant. At the Federal level, lobbyists must register and report their detailed lobbying activities. This information ultimately finds its way onto the Center for Responsive Politics website, OpenSecrets.com, where anyone can view the lobbyist's activities.

Great optimism surrounded the passage of LDA. At last, the public would be able to see who was lobbying whom, on what issues, and with what resources. The lobbying scandals that plagued the industry would come to an end. Such hopes were dashed a decade later with the Abramoff affair. Congressional action to correct the flaws in the lobbying regulations illustrated by Abramoff was swift, reflecting the anger in Congress, the media, and the general public.

The legislative efforts culminated in 2007 with the passage of the Honest Leadership and Open Government Act An example of real bipartisanship, the bill passed the House 411 to eight and the Senate 83 to 14. Then-Sen. Barack Obama (D.-Ill.) said the legislation was "the most sweeping ethics reform since Watergate." The Act tightened restrictions on accepting gifts, travel, disclosure, and the revolving door.

The demand for and supply of lobbying services combine to offer a strong foundation for advocacy in the coming years. Not only is demand sustained through increasingly complex legislation that requires outside expertise to untangle, but there is a constant supply of lobbyists making their way to K Street each year. As much as some are uncomfortable with special interests buying their way into government processes, the profession remains constitutionally protected and Supreme Court justices continue to affirm the right to petition.

There are several additional factors that favor a positive outlook for lobbying. From increasing globalization to the rise of social media to the integration of public relations with lobbying, the advocacy business appears to have a promising future.

However, there are countervailing forces as well--for instance, the increasing polarization of the parties in Washington. Congressional gridlock reduces the need for lobbying to protect the status quo. Another dark cloud is the Citizens United v. Federal Election Commission (2010) decision. The Supreme Court ruling allows corporations to donate funds directly to candidates for election. While on the surface this does not impact lobbying, funding candidates directly provides businesses with an alternative path to influence those in office and the positions they support. An additional threat involves the rising "costs" of advocacy, which refer to reputational risks associated with a lobbyist gone bad such as Abramoff. Another "cost" is adverse publicity related to reporting of lobbying data under the Lobbying Disclosure Act.

However, business interests will continue to dominate access to policymaking through lobbying and campaign contributions. While these groups may not represent our interests directly, we--the public--do gain by having better informed policymakers.

Should we be concerned that legislators only are hearing from one side of the issue? Perhaps not, as one legislator relayed: "If I am smart enough be elected to Congress, I am smart enough to know lobbyists spin their viewpoints. Therefore I solicit input from all sides of the issue. My value added is taking the range of lobbying and general public perspectives and reaching my own conclusions."

Lobbying is far from perfect, but there are several opportunities for improvement. First and foremost is increasing access for all voices, not just the well-funded. The persistent criticism of lobbying is it provides an unfair advantage to those with resources and connections. Leveling the access and expertise playing field greatly would enhance the public value that lobbying creates. Two strategies that could help to achieve this objective are pro bono lobbying by in-house and for-hire lobbyists and members setting aside time blocks for those who have a harder time gaining access.

To minimize scandals, the industry could establish not only a code of ethics, but a review and verification protocol to ensure individual lobbyists comply with the code. Those who do would be awarded the equivalent of the "Good Housekeeping Seal of Approval." A second and more aggressive enforcement mechanism would be the creation of an independent ethics commission with enforcement powers.

Another idea is to divorce lobbyists from campaign finance; federally-registered lobbyists would abstain from campaign financing activities. Clearly, this is fraught with First Amendment rights issues, but addresses what many consider the root cause of the lobbying problem.

Admittedly, these actions would be challenging to adopt. As a former member of the Boston City Council turned lobbyist put it: "I'm not sure these would fly."

Mark Fagan is a lecturer in public policy at the John F. Kennedy School of Government at Harvard University, Cambridge, Mass., and author of Lobbying: Business, Law and Public Policy, Why and How 12,000 People Spend $3+ Billion Impacting Our Government, from which this article is adapted.
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Title Annotation:Law & Justice
Author:Fagan, Mark
Publication:USA Today (Magazine)
Geographic Code:1USA
Date:Nov 1, 2015
Words:1546
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