RALEIGH – If lobbying consists of activities clearly protected by state and federal constitutions – such as free speech and petitioning government for redress of grievance – is there anything governments can legitimately do to rein in the kinds of practices that have become notorious in Raleigh and Washington?
Absolutely. In fact, the Democratic-led North Carolina General Assembly has already enacted an initial package of reforms, now scheduled to go into effect in 2007 but possibly to be sped up this year by politicians fearful of public disaffection. It enhanced disclosure requirements for registered lobbyists, among other things. And at the federal level, the Republican-led Congress seems headed in the same direction with legislation that would restrict travel arrangements, meals, and other personal gifts conveyed from lobbyists to lawmakers.
Legitimate reforms of lobbying reflect at least three general themes or concepts. I’ll explore each in some detail.
First, persuading public officials to take an action – passing or defeating a bill, funding a program, hiring a specific individual, etc. – can properly encompass a range of activities. But it cannot extend to bribery, to giving the official cash, merchandise, or services in exchange for the desired governmental action. Surely we can all agree on that.
Second, determining whether public officials are being bribed is not a simple matter, nor should it always be a criminal matter. It is not simple because technically lawmakers could accept valuable gifts from a lobbyist with whom they would have sided anyway – in other words, proving that the causation runs from gift to action can be a challenge. Sometimes lobbyists or their principals are friendly and generous towards members because they are grateful for the members’ political views and influence, not because they think the members will vote the wrong way unless the money flows.
Related to this, bribery cannot be always and only a criminal matter. Just because it would be difficult in a court of law to prove bribery does not mean there should be no recourse for those concerned about a public servant’s relationship with lobbyists. In a republican form of government, voters enforce rules of ethical conduct at the ballot box. They have a right to conclude, rightly or wrongly, that a legislator is too cozy to lobbyists or special interests. Furthermore, as citizens of a republic they have the right to information about the conduct of their government, so they can make just such a determination. That means that while formal lobbyists have every right to ply their trade, and individuals every right to hire those lobbyists to do so, the public has a right to know who is paying whom, and how much.
It’s worth thinking about these categories a bit more. Formal, registered lobbyists represent paying clients before governmental bodies as a profession. They are distinguishable from citizens petitioning government on their own behalf, or radio talk-show hosts and newspaper editorialists expressing their opinions, or nonprofit watchdog groups compiling information or offering policy recommendations. Professional lobbyists, like politicians themselves, have made a conscious decision to spend their workdays in the halls of government seeking to influence its actions for paying clients. I think these individuals can legitimately be required to report their clients and expenditures. I also think they can legitimately be prohibited from giving politicians valuable personal gifts, and perhaps even from giving politicians campaign contributions (both are activities that many lobbyists tell me they would welcome a ban on so they would have a good reason to say “no” when asked to part with their cash).
The third theme has to do with the conditions that lead to unethical conduct. Lobbying usually turns into bribery or pay-for-play dealmaking when government is secretive, entrenched, and excessive in its size and scope. As economist Walter Williams put it the other day: “If Congress did only what’s specifically enumerated in our Constitution, influence-peddling would be a non-issue simply because the Constitution contains no authority for Congress to grant favors and special privileges.” Among the reforms falling within this theme would be eliminating programs that subsidize businesses, large or small, and banning the insertion of individual pet projects, call them earmarks or pork-barrel as you will, into budget bill.
When lobbying-as-persuasion turns into lobbying-as-influence-peddling, it reflects nothing more or less than human beings giving in to temptation, as we are all wont to do on occasion. It is not only in the public interest but also in the interest of politicians and lobbyists themselves for there to be clear, understandable rules that reduce the temptation to sell government favors for status or cash.
Hood is president of the John Locke Foundation. This is a follow-up to a previous column outlining the constitutional protections afforded to lobbying.