RALEIGH – Ever pull an all-nighter, either to finish a project or cram for a test, and then congratulate yourself on your prodigious efforts – only to see the results later on and be disappointed? It’s been nearly 20 years, but I can recall episodes from college that bore the unmistakable imprint of problematic procrastination.
Over the past few days it has been crystal clear to many observers that the North Carolina Senate is suffering from its own bout of problematic procrastination when it comes to ethics and lobbying reform. While the NC House spent a comparatively generous amount of time crafting a series of bills responding to what is, let’s face it, the most newsworthy and significant policy issue of the year, senators chose to address major issues involving lobbying and ethical transgressions in a so-called “omnibus” bill. The term proves telling if you deconstruct it a bit: the Senate bill meanders into a wide variety of matters, not all of them relevant to the issue at hand, and the resulting detours conspire to keep the legislation from arriving at the original destination.
Essentially, the General Assembly is in the midst of re-writing the state rules that govern public-policy advocacy and political debate. Getting the legislation wrong could bring serious risks to First Amendment freedoms of speech, press, petition, and assembly while failing to serve the public interest with the timely information and clear, bright ethical lines that voters demand and deserve.
Eagle-eyed analysts have spotted many problems, born either of procrastination or bad faith, in the legislation. Freedom Newspapers reporter Barry Smith, for example, writes about the unequal treatment afforded to private-sector lobbyists, subject to new reporting requirements and restrictions, and public-sector “liaisons,” whose lobbying efforts would not be subject to the same rules. In The Charlotte Observer, Raleigh columnist Jack Betts takes on a provision that has puzzled and worried my colleagues and I at Carolina Journal and the John Locke Foundation in the past few days: an attempted definition of “news medium,” used to exempt some from the new rules, that is so convoluted as to translate into no exemption at all by some readings. (In fairness, this goofy definition of news medium is actually left over from the problematic procrastination that preceded last year’s passage of a lobbying bill.)
Also in The Charlotte Observer, two leaders of the North Carolina Coalition for Lobbying Reform, former House Speaker Dan Blue and former GOP leader Bill Cobey, call attention to three structural flaws in the legislation: the lack of a ban on lobbyists serving as campaign fundraisers, the loopholes in a new ban on lobbyists giving valuable gifts to lawmakers, and insufficient authority afforded to a new state ethics commission.
I would add another concern to the list: the bill creates a new category of “solicitor,” separate from lobbyist, comprising any person or group seeking to communicate with the general public to encourage their involvement in a public-policy debate. There appears to be no exemptions at all to the resulting requirements to report expenses, such as printing information or hosting events, and revenues, such as private contributions or advertising contracts. Did the framers of the legislation truly mean to make newspapers, universities, neighborhood organizations, and a wide variety of nonprofits subject to such onerous regulations, even when they avoid endorsing particular bills or political candidates? If so, the lawmakers have either intended this “solicitation of others” provision to scuttle the entire legislation, politically or through constitutional challenge, or they have lost their marbles.
I strongly believe the state legislature needs to reform ethics and lobbying laws. It need to takes the time to do it right, however. That means clearly distinguishing between influence-peddling, lobbying, and advocacy:
• Influence peddling is the illegal use of personal gifts, cash, campaign contributions, or other items of value to purchase a governmental decision. In addition to investigating and prosecuted specific allegations of influence peddling, government should adopt rules that limit the opportunities and temptations to engage in this behavior.
• Lobbying is the perfectly legal exercise of the freedoms to speak, print, assemble, and petition directly to government officials, often on or in some other fashion utilizing public property, to convince officials either to vote in a certain way on a certain bill or to make a certain decision. It is appropriate to require disclosure of who is engaged in formal lobbying and how it is being financed, so as to assist public and private institutions seeking to ensure that lobbying does not become influence-peddling, much as it is appropriate to require disclosure of donors and amounts given to political campaigns (I would continue the parallel and argue that it is wrong to impose dollar limitations on either lobbying or political activism).
• Advocacy is the perfectly legal exercise of the freedoms to speak, print, and assemble to express one’s views on public-policy issues. Whether it is a newspaper editorial or column, a campus-based protest or forum, a panel discussion sponsored by a trade association, a political talk show on TV, a policy paper by a scholar or policy analyst, a blog moderated by a private political junkie, or a public debate sponsored by a think tank, advocacy is not lobbying as long as the intended audience is general, not limited to decisionmakers, and it is not merely a device for using third parties to carry out what would otherwise be a lobbying function (such as a lobbying group using a phone bank to link voters to their lawmakers to expressly advocate the passage or defeat of a bill).
What should be absolutely out of the question is the idea that government can properly regulate the activities of private citizens’ ability to organize and express their views to their fellow private citizens. Believe it or not, the bill as currently written does precisely that.
As much pressure as they may be on the General Assembly to wrap things up and adjourn, it is imperative that speed does not become the enemy of sagacious public policy.
Hood is president of the John Locke Foundation.