Lobbying Reform: Another Assault on Constitutional Rights?

“Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble and petition the Government for a redress of grievances.”

–U.S. Constitution, First Amendment

The people’s rights are never in greater jeopardy than when Congress is seized by one of its periodic spasms of reform. As we witnessed with so-called “campaign finance reform,” such efforts typically do little to address real issues, but instead result in a further increase of government power and concomitant loss of freedom among the citizenry. Such reform hysterics are intended mostly to political effect, to implant in the mind of a supposedly gullible public the impression that Congress has “done something” to fix this or that problem that the politicians themselves created by some previous excess of reformist zeal.

Such is likely to be the outcome resulting from the Jack Abramoff scandals. The Republican leadership in the House and Senate reportedly has embraced the need for a lobbying reform measure. The hope is that by loudly thumping the tub for something styled “reform,” the GOP will inoculate itself against the Democrats’ partisan charges of corruption and preempt a move by the Dems to introduce their own legislation, which surely would be even more Draconian. The GOP is desperate to wrap itself in the reform mantle to neutralize the issue before the November election. The leadership also wants to checkmate a reform bill that Sen. John McCain introduced in December.

Real rights are at risk in all this. The Constitution explicitly protects the right of the people to petition the government, i.e. to lobby. This right is explicitly linked to the right of assembly and for good reason: groups of likeminded citizens are more likely to focus the attention of Congress when they petition for a redress of grievances than the lonely voices of individual citizens. The provisions in the McCain bill on “grassroots lobbying” potentially could cripple activist organizations and arguably are unconstitutional (but in the aftermath of the McCain-Feingold campaign finance decision who can say how a Supreme Court would rule even with a Roberts and an Alito sitting in judgment?)

As the Wall Street Journal noted, Republicans want to embrace “reform” rather than change their own personal behavior. If the GOP leadership really were serious about cleaning out its Augean stables, shoveling out the Abramoff fraud, bribery and influence-peddling mess, the solution is readily at hand: simply ban all gifts, no exceptions. Senators and congressmen are elected to do a job, for which they are adequately compensated by the taxpayers. They have no need to supplement their incomes with gifts and gratuities: no golf junkets, no free dinners, no fruit baskets, no bottles of 12-year-old single-malt Scotch.

Of course, Congress really does not want to reform itself. It wants to have its tiramisu and eat it, too. The pols want to give the appearance of having reformed lobbying practices — and slapping down all those slippery special-interest denizens of Gucci Gulch down on K Street — while retaining access to the goodies. Our politicians simply cannot bring themselves to give up the sense of entitlement they believe comes with election to public office.

And so, rather than cut itself off cold turkey from the lobbyists’ largess, Congress instead will further limit the public’s participation in the political process, insulate members against those pesky bands of citizen-activists, and muzzle public criticism or scrutiny of their records.

The root of the Abramoff scandal was not lobbying, but criminal behavior. Lobbying not only is a perfectly legitimate activity, it is a constitutionally protected right. It’s right there in the First Amendment. But the approach to reform we are most likely to see will be further restrictions on the right of the people to influence their representatives rather than any actual restraints on Congress. House Speaker Denis Hastert already is booming the notion that some form of lobbying reform is necessary and has named Rep. David Drier of California to devise the appropriate legislation. In part this is intended to preempt similar efforts by Democrats Marty Meehan of Massachusetts and Rahm Emanuel of Illinois in league with Republican flibbertigibbet Chris Shays of Connecticut.

The 500-pound gorilla in lobbying reform, however, is John McCain, the media darling who’s poll numbers are simply astronomic. Given Sen. McCain’s lofty standing as a “reformer” with the public and his support among a mainstream media always eager to dilute the influence of competing interests in the public arena (the January 5th Washington Post trumpeted lobbying reform in an editorial “McCain’s Day to Crow”), the challenge of stopping this juggernaut will be formidable.

As usual, Sen. McCain stole a march on the Republican leadership when he introduced a lobbying reform bill in December. The Lobbying Transparency and Accountability Act of 2005 (S. 2128) is a nifty piece of mischief. Sen. McCain is a zealot on this issue. He has all the militancy of an ex-smoker. In this regard, the Keating Five scandal was a watershed event for Sen. McCain. Even though his culpability in the affair was at worst marginal, the scandal struck deeply at Sen. McCain’s deserved reputation as a man of character and integrity. He has been floridly overcompensating ever since, championing campaign finance reform and now lobbying reform to demonstrate his repentance (I observed the Keating Five affair close up while deputy editor of the Arizona Republic’s editorial pages and on several occasions discussed the matter with the senator. I know how deeply he was stung by the scandal.)

Nevertheless, Sen. McCain’s bill is troubling. Requiring greater reporting of lobbying activities is all well and good (so long as such requirements apply equally to all – labor and public employee unions, AARP, George Soros, the huge non-profit lobbies for universities, foundations and the like.) In his press release touting the introduction of S. 2128 Sen. McCain pointed out that the bill keeps intact existing law governing the disclosure of the identities of members and donors to non-profit, tax-exempt organizations under Section 501C of the Internal Revenue Code. Indeed it does. But this is not the whole story.

The McCain bill has an entire section devoted to “grassroots lobbying.” Under the bill’s provisions, if a tax-exempt non-profit organization were to hire someone to conduct lobbying on behalf of an issue, almost everything related to that lobbying would have to be reported with 20 days: the name of the lobbyists and the lobbying firm; the total amount of money spent on the lobbying effort; the specific lobbying activities undertaken; the amount spent on “advertising;” the amount spent on “grassroots lobbying” (that is, mobilizing an organization’s membership or the general public at large); a list of specific issues the lobbyist is hired to engage as well as a list of all legislation and references to “specific executive branch activities” (presumably efforts to influence federal regulators or agencies, including the White House); identification of each person paid to lobby; and disclosure of any third party donor subsidizing the lobbying effort. (In the interest of full disclosure, the consulting firm with which I am associated engages in such work on behalf of small non-profit, tax-exempt organizations.)

All this amounts to an assault on grassroots lobbying. It is tantamount to requiring every non-profit, tax-exempt organization to disclose to adversaries its total game plan and major donors. Sen. McCain obviously is angry about Abramoff’s use of some legitimate, if gullible, non-profit organizations, as well as phony front groups, to lobbying Congress on behalf of his clients. Yet the McCain bill paints with too broad a brush. Its provisions are unnecessarily complex, open to regulatory abuse and mischievous court interpretations.

None of the non-profits groups that I’ve been associated with over the years has ever resorted to expensive gifts, fancy trips to exotic resorts, or campaign contributions to influence members of Congress. The highest caliber weapon in the arsenal of most conservative non-profits is moral persuasion backed up by the pressure of grassroots activism and public disclosure. How much such a citizens’ group spends on advertising or direct mail, or who it hires to conduct background research into an issue, is nobody’s business.

It’s little wonder why some politicians despise grassroots groups. Such organizations tend to make life uncomfortable. They draw the public’s attention to issues some politicians would rather avoid. They publicize voting records and issue vote scorecards. They mount letter writing and email campaigns. They even buy advertising in states and congressional districts to bring pressure to bear for or against their issues. It’s called representative democracy.

The McCain-Feingold campaign finance reform bill, inexplicably upheld by a constitutionally befuddled Supreme Court, insulated Congress from and excess of scrutiny during elections; the McCain bill would limit the other way citizens exercise influence over their elected representatives, namely, lobbying.

Most of this, of course, would be unnecessary if government were not so big, were not so powerful, and did not tax-and-spend so much. The explosive growth in lobbying is a predictable byproduct of the size of government. Is it any wonder special interests spend so much either to protect themselves from the depredations of government or to belly up to the trough of government goodies?

If a conservative GOP leadership truly wanted to do something to rein in lobbying, then it could start by reducing the size and power of the government. Rep. Jeff Flake of Arizona has proposed, for example, that Republicans take a modest step in this direction through earmark reform by strictly limiting the number of special earmarked pork barrel spending measures such as the nearly 4,000 in last year’s highway bill that embarrassed the GOP leadership. Legions of lobbyists labor tirelessly to secure such earmarks for their clients. Yet according to Hill insiders, Rep. Flake’s modest proposal has been declared DOA in the GOP conference.

So instead of controlling their own behavior, the Republicans want to hide behind measures to restrict the constitutional rights of the citizenry, limit the public’s access to their representatives, and further insulate politicians against scrutiny. And this is reform?