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The Ethics of Lobbying: Organized Interests, Political Power, and the Common Good
published in Woodstock Report No. 72, December 2002
"The ethics of lobbying." What is meant by those simple English words? During the last four years when I have told friends and colleagues about this project, they have usually laughed or looked at me quizzically. To many of them, the title of this conference and of the book on which it is based is either an oxymoron or the description of a quixotic task. I begin with this sad observation because four years of commuting between Vassar College and Georgetown have sharply highlighted the contrasting perspectives of insiders and outsiders on the nation's politics. Most of the insiders we interviewed welcomed our attempt to provide practical guidelines for their profession. Most of the outsiders skeptically wondered whether ethical guidelines for the lobbying profession would make any difference. The outsider's distrust is not only of lobbyists, but of the organized interests that hire them, the public officials they seek to influence, and of the fairness and integrity of the political processes by which we are governed.
Images, Old and New. What is lobbying? It is the deliberate attempt to influence public law, policy, and administration through various forms of political advocacy. The right to lobby is constitutionally guaranteed by specific provisions of the First Amendment, provisions that protect freedom of speech and the petitioning of government for redress of grievances. Our goal in this project was never to challenge that constitutional right, but to distinguish carefully between its responsible exercise and the multiple ways it can be abused or distorted. Although lobbying has become a well-established political practice, it has undergone major changes during the last 40 years. In Washington, D.C., lobbying has become a major growth industry. As the scope and reach of the federal government have expanded, so has the number of professional lobbyists and the political sophistication with which they ply their trade. Popular images of well-heeled lobbyists making lucrative deals with corrupt politicians, the infamous quid pro quo, are in most respects out of date. Explicit bribery will always be with us, but that is a crime very few lobbyists presently commit. The sophistication to which I refer involves carefully orchestrated campaigns to set the nation's political agenda, to influence the votes of public officials, and to slant the coverage given their clients or projects by the communications media. Public relations techniques borrowed from advertising and marketing are deliberately used in lobbying campaigns to shape public opinion on critical issues.
Lobbyists also play an important role in electoral politics as candidates increasingly rely on them for fund raising, direct contributions and tactical advice in the electoral contest. The negative image of lobbyists largely derives from three public criticisms: 1) their established connection to money and power; 2) their reliance on manipulative marketing techniques in the courting of public opinion; and 3) the judgment that they are political "hired guns" at the service of the highest bidder. To what extent this disreputable image is deserved is a matter of heated debate.
What is ethics? Although most people strive to be good and to live responsibly, they find it difficult to say what ethics is. There is a parallel with time. Almost all adults can tell time, but even philosophers are perplexed about what time really is. Ethics is a form of practical inquiry about the most important human concerns: about the type of persons we should become, the type of communities we should create, what we should do and avoid doing; the interdependence of rights and obligation, and about which goods are more important and which evils more threatening than others.
American culture has been marked from the beginning by a strong individualism. This individualism is clearly reflected in the way most Americans think about ethics. They are reasonably confident in their judgments about personal ethics, about their obligations and responsibilities as parents, spouses, and friends. They are much less confident in thinking about public ethics, about their obligations as citizens, the public responsibilities of corporations and other organized interests, and institutional injustice and systemic or structural inequities.
Applying the Ethical Scissors. Public ethics, if it is to be practical, if it is to make a significant difference, needs to exhibit a three-part structure. The first part is based on factual knowledge. How do things actually stand, how do they presently work, how do people typically conduct themselves in the field under investigation, in this case lobbying the government? To answer these questions, we interviewed numerous people directly engaged in the lobbying process. We asked for their candid assessments about current practice and the ethical challenges it raised, and we followed these confidential interviews with a series of group discussions among people with opposing views of American lobbying. We supplemented these personal accounts of practitioners with scholarly studies of lobbying and lobbyists by journalists and respected academics. By combining these two sources of knowledge, we tried to meet the ethical requirement of realism, of actually knowing what we were talking about.
The second strand of ethical reflection is critical and normative. What are the legitimate public purposes that justify lobbying? What are the relevant norms and precepts that distinguish responsible lobbying from the abuse of the right of petition? What are the balancing rights and obligations that properly apply to clients, lobbyists, public officials, members of the media, and ordinary citizens from all walks of life? What are the civic virtues required of those who participate in the policy-making process, if that process is to be reasonably fair and its substantive outcomes just?
The third strand of ethics provides concrete recommendations for reform. How can we wisely and effectively transform existing practice so that it accords more closely with the relevant ethical norms and standards? Effective and lasting reform calls for practical wisdom that unites the lower blade of factual realism with the upper blade of critical norms and standards so that the ethical scissors actually cut. When the scissors of practical reform do cut, they make things better, they lessen harm, and they help to create a more just society.
Ethics is a fallible, self-correcting, deliberative process that applies to every domain of human conduct. There is no contradiction, then, in attempting to develop an ethics of lobbying. In fact, given the importance of lobbying in American politics today, it should be the focus of sustained ethical scrutiny and periodic reform.
Let me now turn to the subtitle of this conference: organized interests, political power, and the common good. To what do these terms refer and what is the intelligible connection among these three components of public life?
Voluntary associations play a critical role in a continental democracy like the United States. They serve as intermediary public powers bridging the divide between ordinary citizens and the federal government. When they function responsibly, they serve to educate the government about the needs, concerns, and grievances of its citizens, but they also serve to educate the public about foreign and domestic policy, and about the complex responsibilities of government in a global society. Intermediate associations lessen the remoteness and impersonality of government. They help to bring the far-off near.
The Coalescence of Power. There are many different types of voluntary associations organized to achieve very different purposes. The associations on which we focused were organized economic interests with substantial financial resources who use professional lobbyists to influence public policy in order to secure economic benefits and to prevent economic harm. Why did we place the emphasis where we did? It is not because organized economic interests are the only groups threatening the common good or abridging the rights of individual citizens and disadvantaged minorities. The danger of faction, as Madison recognized, can be driven by religious passions, racial hatred, and moral intolerance, as well as by greed and inordinate ambition. But the greatest danger of faction today seems more likely to come from the coalescence of economic and political power, from the disproportionate influence of money and all that money can buy, on public officials and on public policy and law.
Nearly all the lobbyists with whom we spoke were experienced professionals, hired by clients that included both for-profit and non-profit associations. They were skilled and dedicated advocates, proud of their profession, and eager to distinguish ethical from unethical lobbying practices. Our conversations with them largely turned on the tension between their professional obligations to their client and to the public officials they lobbied, and their civic obligations as citizens to the good of the national community. We have tried to address the ethical challenges they regularly experience in the "Woodstock Principles for the Ethical Conduct of Lobbying." Although these principles apply especially to lobbyists, they are of immediate relevance to everyone involved in the policy-making process: clients, lobbyists, public officials and their staffs, journalists and editorial writers, and concerned citizens who want to distinguish effectively between legitimate and illegitimate political advocacy.
The purpose of these principles is practical. They prescribe what lobbyists should do and avoid doing if they are to conduct themselves with professional competence and personal integrity, while fulfilling their civic obligations as concerned citizens.
The decisions taken by the federal government in its several branches affect every aspect of American life; these effects extend from war and peace to the cars we drive, the food we eat, the air we breathe, the concrete liberties and protections we enjoy. The American people may dislike government, but they need to recognize more explicitly the scope of its power for good or ill.
The single most important reason respect for government has declined is the overwhelming role of money in American politics. It is the money of organized interests that pays for political campaigns, for negative advertising, for lobbyists and public relations specialists, and even pays for the orchestrated anti-government ideological campaigns to which we have become so accustomed. The heavy reliance of elected officials on special interest funding deprives them of their greatest public asset: their deserved reputation for impartiality, independence, fairness, and special concern for the weak and the vulnerable. It is indeed reasonable to distrust the coalescence of economic and political power, to fear the influence of wealth on public practice and law. Business interests have a legitimate concern with govern-ment policy for it can greatly affect their competitive success or failure. But unless political power is truly independent of corporate power, an independence that is severely compromised by the money culture in Washington today, then government cannot check the inevitable abuses that occur in a capitalist economy, nor protect the needs and rights of those recurrently injured by impersonal market forces. Whose side is the government finally on? Until ordinary citizens really believe that the answer to that ques-tion is the American people as a whole, particularly those citizens who are weakest and most vulnerable, the distrust of politics and the suspicion of government will not abate.
The Common Good. In a capitalist economy, economic activity is essentially self-interested. Corporations seek the benefit of their shareholders, labor unions the benefit of their membership. Merchants seek to achieve a higher profit margin; consumers want the lowest possible prices consistent with the quality and convenience they desire.
Political activity, especially in a democratic republic, is meant to be different. The proper aim of public officials is to promote and protect the common good, the comprehensive and enduring well being of the political community as a whole. Whenever the concept of the common good arose in our discussions, it was greeted with skepticism. Reasonable people would critically ask, "Who knows what the common good is?," as though it were similar to a physical law that natural scientists had discovered and confirmed by experiments. Our response to this skepticism was simple and direct. The common good is what we are properly seeking to discover through public deliberation and argument. In its general outlines it is known in advance, but in its needed concreteness, especially as it bears on policymaking and law, it is still to be discovered through practical inquiry and informed debate.
The general outlines of the common good are articulated in the preamble to the U.S. Constitution. The citizens of the United States have created a federal system of government in order "to form a more perfect union, to establish justice, to insure domestic tranquility, to provide for the common defense, to promote the general welfare, and to secure the blessings of liberty for ourselves and our posterity."
But the general outlines of the common good are similar to the second normative level of ethics we discussed earlier. They articulate the goals of our common public effort, but not the immediate imperatives that prescribe or proscribe conduct here and now. The task of practical wisdom and the purpose of legitimate political deliberation is to determine concretely, here and now, what national unity, justice, security, prosperity, and liberty really require in the thicket and turmoil of existing reality.
Fulfilling this indispensable deliberative task is not only the responsibility of public officials, though their obligations are pre-eminent, but it is also the responsibility of democratic citizens as they interact with government through voluntary associations. It is also, we argue, the responsibility of professional lobbyists as they struggle to balance civic and professional obligations in their daily practice.
There is an overriding danger today that we will think and speak of politics on the model of economics. When that happens, citizens become consumers, lobbyists become marketing and public relations experts, and public officials become sweet talking peddlers whose political services are available to organized interests at the right price. In conclusion, I want to argue that it is not only essential that we institutionally and practically separate economic and political power in the interests of justice, but it is equally essential that we clearly distinguish citizens, lobbyists, and statesmen from consumers, marketers, and tradesmen. Today's demoralizing political culture obscures those vital distinctions in ways that injure us all. Authentic citizenship requires an enlarged, public-spirited mentality, a form of civic self-transcendence, in which we place the sustainable good of the whole community at the forefront of our thinking and judging. Public spirit and civic virtue are not luxuries in a sound and respected democracy; the only reliable way to discover and enact justice and the common good is to pursue them disinterestedly.
I want to make two points this evening in the context of our discussion of the "Woodstock Principles."
First, I believe that lobbying is an honorable profession, that lobbyists are important to the functioning of democracy in general and of legislatures more particularly, and that, at least at the federal level where I spend my time, both lobbyists and legislators are, for the most part, very honest and ethical.
Second, I strongly support having codes of ethics for lobbyists, and I think the "Woodstock Principles," with perhaps a single exception, provide very strong and valuable ethical touchstones for lobbyists who participate at all levels of government.
A Vital Role. First point: my observations on the state of lobbying and government today. Before talking about today, I need to acknowledge our sordid history. Unques-tionably, the history of lobbying, in this country and elsewhere, is not one that would draw kudos from ethicists. Keep in mind, however, that neither would the conduct of many elected government officials through the years.
Fistfights on the floor of Congress, Credit Mobilier, Teapot Dome, none of these or other ignoble moments in our history has diminished my enthusiasm for our form of government and our institutions of government. The genius of our system has been that the passage of time has not brought corrosion or breakdown, but cleansing, improvement, and renewal.
Though we all complain about our government, we still have the longest continuing democracy in the history of the world and a government with a fundamental respect for personal liberty and a market economy. As to lobbying, I think it's fairly clear that as lobbying has increased in importance, it has also become more ethical. We must be doing something right.
At the federal level and in most states we have laws against bribery, extortion, and gratuities; we have ethics rules governing elected officials; we have ethics committees or commissions; and, perhaps as important as our laws and official overseers, we have a vigilant media fixed on exposing public wrongdoing. States and the federal government also have laws and rules governing lobbyists, including registration, disclosure, and routine reporting.
The First Amendment accords lobbyists a role of Constitutional protection. And, as a more practical matter, government has become sufficiently complex that, without the information lobbyists bring to legislators, decision-making would be at best poorly informed. Yes, we have all read reports about lobbyists in Maryland who were sent to jail for ethics infractions and about the recent conviction of an Ohio Congressman. I do not minimize the importance of those exceptions; they constitute a breach of public trust and undermine public confidence in government. But I repeat my firm conviction that both lobbyists and legislators are, with very few exceptions, honest and ethical, and I am proud to work with and among them.
"Yes" to Codes. My second point: I strongly support codes of ethics for lobbyists, and I would personally subscribe to almost all of the "Woodstock Principles." That observation should not be surprising. I co-authored the American League of Lobbyists ("ALL") Ethics Code, and I participated enthusiastically in the consultations leading to the development of the "Woodstock Principles." They are great, and I strongly commend this little volume to all lobbyists and their clients.
A code of ethics can establish community standards, and they become expected by clients and members of legislatures. A lobbyist's success and reputation will turn on compliance with those standards.
Furthermore, a combination of adverse media coverage and peer condemnation will usually provide sufficient motivation for compliance.
I would point out that the ALL Code of Ethics and the "Woodstock Principles" have one failing in common: they do not address in any helpful way the troubling relationship between financing political campaigns and lobbying. The ALL Code is silent on the issue. While the discussion in the text of Woodstock's lobbying book contains a number of references to the role of money in bringing about decline in respect for government, the "Woodstock Principles" themselves only say a couple of things on this subject: that "financing political campaigns should not compromise elected officials or undermine public trust in their independence and impartiality" [principle 1], and that "fund-raising efforts or campaign contributions" should not be "linked to support for a particular policy objective" [principle 3(f)]. I agree with both points, but am concerned that they do not say enough. I think an entirely separate Woodstock effort might fruitfully be directed at the issue of money and politics.
"No" to the Common Good as a Guide. In the end, my own reticence to sign on to the "Principles" focuses on my discomfort with a commitment to the concept of the "common good" that is highlighted in the title of this program and the new book. This presumes that there is a knowable and timeless "common good" that should not just be considered, but should be given special attention, perhaps even primacy, in lobbying activities. It would be too easy to say that, as a lawyer, I am bound by the codes and canons that require my allegiance to clients first and foremost, even if there may be some societal interest that must take second chair. I won't take that course this evening.
Unfortunately, I am afraid I have trouble with the concept that there is an immutable common good that provides a measurable guidepost for lobbying activity. I think it fair to propose that members of Congress remain faithful to the goal of promoting the common good, as well as the well-being of a constituency. But is it my job, as a lobbyist, to determine whether the common good is best served by cheap power provided by hydroelectric plants that can make electricity more readily available to the poor, or by maintaining pristine waterways? I think that's Congress's role, not mine.
Is the common good measured in the here and now, or looking only to the future? A short-term view would mean much environmental protection legislation that raises costs and eliminates jobs to protect a view or recreation or a species would have to be opposed. Also, the common good can change in the long run. Societies believed slavery to be beneficial to the common good for 2,000 years; since slaves weren't citizens, their interests were not relevant.
Finally, what do we do with strong opposing moral claims? Is the common good better served by protecting the life of an unborn child or advancing the health and well-being of the mother?
In the end, I am concerned that this focus on the "common good" can prove too easily to represent the agenda of one group or another. I agree with emphasizing morality, integrity, honesty, and support for institutions as part of an ethics code. But I think compassion and charity for the vulnerable and disadvantaged should be matters of conscience and aspiration for all of us, not mandates for lobbyists. The Ten Commandments, our most important and revered ethical code, say nothing about the disadvantaged and vulnerable. I question whether a lobbyists' code should.
With that reservation, I express enthusiasm for the "Woodstock Principles." I recognize that no code of ethics can, alone, guarantee ethical conduct of either lobbyists or government officials, but codes can provide road maps for our important journey through the territory called government affairs.
The harm is the money, as Tom Susman said. And I'd like to start there. Then I'd like to address the issue of the common good.
There may be only 60 percent of the lobbyists registered who represent corporations, but it's 99 percent of the money. And so, the number of lobbyists is important, but the amount of money is huge. Maybe it's 95 percent of the money, but it's most of the money. We're very lucky that in the last 30-40 years, the number of public interest lobbyists has grown astronomically, but it's still a small pittance compared to the corporate lobbyists, both because they're fewer in numbers and because they don't have the money to do the kinds of lobbying that the corporations do. For example, the pharmaceutical industry spent $180 million on lobbying in a two-year period. One-hundred eighty million dollars! Think of what that could pay for in our society. And that's, of course, why we don't have drugs at a lower price, and why there's opposition to having drugs covered under Medicare and, with respect to HMO's, why there's no patient's bill of rights.
That's why there are front groups bought and paid for by the pharmaceutical industry. One's called the United Seniors Association, another is Citizens for Better Medicare. They use our name, the word "citizen," but they don't represent us. They're just front groups for lobbyists. And the reason that they have front groups, of course, is because the public interest lobbyists have been very successful in appealing on the basis of ethics and moral issues despite the lack of money. But we don't win a lot of these battles because we don't have the money. They mimic citizens because they know that that's what the public cares about and that's the way they advertise themselves and that's the way they advertise their issues. So money counts.
The Private Interest. There was an interesting memorandum written in August 1971 by Justice Louis Powell, shortly before he became a Supreme Court justice. At that time, he was a hired counsel for the Chamber of Commerce. What he said is that the economic system is at risk because of the public interest, the growing public interest that is taking over our educational system, and influencing and affecting our young people and media. And the only way that corporations are going to survive is if they spend a lot of money to infiltrate all of those arenas. And so you have today numerous public policy institutes funded by corporations. Not all, but the vast majority of professors in the United States do contract work for corporations. And you can go through all of it. Look who owns our television media today; it's major corporations that have vast other interests.
You know, the issue is not whether there is cheating. When I first came to Washington in the '60s, I knew members of Congress who used to go out and have a drink with lobbyists, who would give them a couple of hundred bucks. They'd put them in their pocket, and legislators would do them a favor. We would be horrified at that today. And so, Tom said: "Yes, there have been improvements; there have been important changes." But the cheating of the public is much more subtle today. And it uses the argument that Tom has raised about the common good - that there are arguments on both sides. I don't disagree with that. There are arguments on both sides. It's just that most of the time both sides don't get heard. And, most lobbying is secretive. There's a reporting system today that's improved, where you have to report the amount of money you spend. But you don't know which corporations went in to see which members of Congress and offered numerous things to them.
Members of Congress are still invited all the time to travel and attend corporate conferences in fantastic places that are beyond the reach of most individuals. And at those conferences, they and all the corporate officials have lunch and dinner for a day or two together. That's worth a lot of money. All this has a big impact on the Congress: what a member of Congress is going to push, what amendment they're going to push in committee, what tax breaks they're going to give that depletes the Treasury and increases taxes for the rest of us or reduces the amount of money spent on the public as a whole. Most of that is unknown. Of course, I do the same thing. I try and get my amendments through and I try to get my committee report language included. But I do it at the complete will of the members. They want to do it, they do it. They don't want to do it, they don't do it. But for corporations, the money system dominates. So the amount of money in campaigns has everything to do with our public debate, and with our discussion of what is the common good because, for example, who testifies before Congress? Most of the time, it's whoever the corporations want to testify. And often public interest representatives never get to testify. Occasionally they'll be allowed as an outlier and they'll be put on as a third panel when most of the members of Congress have left.
Admittedly, Some Improvement. Now I have to say there have been some real improvements. We got rid of honorariums in 1989. It used to be that a member of Congress could be asked by the Trucking Association to come down the street and give a breakfast talk for 10 minutes and get paid $2,000, which he put in his pocket. There was a 1995 gift law that limited the number of times a member of Congress could go out to dinner and be wined and dined by lobbyists. It used to be that some members of Congress, the chairman of the Ways and Means Committee comes to mind, would go every night. He'd have a standing tab at certain restaurants that he or she particularly liked. And also the lobbying registration law was updated in 1995, so you really can tell better what influence lobbyists have. The reason I can tell you the pharmaceutical industry spent $180 million and had 636 lobbyists, more than one for every member of Congress, is because of these reporting requirements, although they're still not very easy to use. They're not organized by bill number; they're organized by names of lobbyists. So if you want to work with one bill, you have to look at thousands of lobby reports in order to tell the total impact of the lobbyists on that bill. Amazing isn't it?
And we have passed the Campaign Finance Reform Law. It is, of course, under challenge constitutionally and it took seven years to get it through. The influence of money in campaigns is one of the reasons we don't have good fuel economy standards. I set the fuel economy standards, the last one that's ever been set, in 1977. The reason the energy bill has $21 billion for fossil fuels, which of course doesn't help global warming, is because there's a total imbalance of huge numbers of lobbyists controlling this issue. The reason we don't have new requirements for security measures around nuclear power plants, despite the fact that we're about to go to war over nuclear materials, is because of lobbying. The weakening of the safe drinking water act - I could go on and on. This is not a balanced system. And even if the lobbyists completely abided by the Woodstock code, it wouldn't deal with the money system. And I don't know how that's ever going to change unless you have public funding of elections. If you remove the money system, then the lobbying can straighten itself out. Even though industry will always have more money to spend, at least it won't be buying and selling members of Congress from time to time. But the likelihood of getting that is very slim in the near future.
As to whether lobbying should be regulated, the regulation we have in lobbying today is disclosure. And there are some missing links in that disclosure. You do not have to disclose grassroots lobbying, which is where the front groups operate, and the Woodstock book says we shouldn't have front groups. They are misleading to the public. But front groups often work through grassroots lobbying that's not recorded. And then there's the question of advertising. But in terms of regulating lobbying more than that, I think the best you could do is a code of ethics as you have presented to us tonight and use that as a standard against which to measure the behavior. But again, in terms of the outcome of our public policies and whether they're going to represent our best public interests, that is going to be dominated by the business lobbyists. And we will always suffer from them unless the money system is changed.