The full-time professional “reform” groups have hatched their latest scheme to wring politics out of politics. This time it is the lobbying “reform” measure they are demanding Congress pass, and now, as always, conservatives must be extremely wary.
Here are five reasons conservatives should do whatever they can to stop passage of this very flawed “reform” measure:
1. The bill intrudes upon the 1st Amendment-protected rights of citizens to petition their government.
Ten years ago, when the GOP Congress enacted the Lobbying Disclosure Act of 1995, there were daily expressions of concern regarding the potential impact of the proposed legislation on the 1st Amendment “right to petition the government for redress of grievances.” For that reason, the legislation was constructed as a disclosure, not a regulatory statute. There were no criminal penalties, and the purpose was to simplify the existing law and establish broad parameters for disclosure of information regarding who was lobbying, for what interests, on what issues and for how much money. The law specifically excluded grassroots lobbying (mobilizing citizens to contact their legislators on specific issues) from the definition of “lobbying” requiring registration and disclosure. Lobbyists weren’t categorized as vermin, and no reporting of non-lobbying activities was envisioned or even suggested. Any such suggestion would have been considered anathema to the 1st Amendment.
Fast forward to 2007. That pesky 1st Amendment is long forgotten (thanks to the practice Congress had ignoring the 1st Amendment in the McCain-Feingold legislation). The right to petition the government is rarely considered or mentioned: not in the debates, not in the framework of the drafting, not in the discussions regarding the penalties and not in the consideration of whether there are any constitutional implications of requiring people to submit to wholly different standards of disclosure, reporting and criminal penalties and fines simply by exercising the 1st Amendment right to lobby. Indeed, the last paragraph of the version of the bill passed by the House in May provides that “nothing in this act or the amendments made by this act shall be construed to prohibit any … activities protected by the free speech, free exercise or free association clauses of the 1st Amendment to the Constitution.”
That’s nice. No mention of the rest of that clause of the 1st Amendment which actually reads: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
It is as though Congress is deliberately refusing to acknowledge the existence of that clause of the 1st Amendment in adopting this bill.
This time around, Congress is intent on vilifying lobbyists, interfering with their ability to do their jobs helping to educate Congress and staff regarding the myriad of things that Congress does every day to interfere with, regulate and control every aspect of American life.
Conservatives should not vote for this legislation because first and foremost, it fails to protect by its very language the rights of the American people to petition the government through the lobbying process.
That should be sufficient reason to vote “no.” Knowing otherwise, here are some more reasons to kill the bill.
2. Congress should first determine how best to enforce the existing law governing lobbying registration and disclosure and House and Senate ethics rules before enacting major changes in a statute that interferes with basic 1st Amendment rights.
The justification for passage of the bill is the “Jack Abramoff scandal.” Jack Abramoff is in jail. Former Congressmen Bob Ney (Ohio), Randy “Duke” Cunningham (Calif.), and various and sundry people associated with all of the above are in jail. The misdeeds of Abramoff and others were illegal.
The system worked, punishing those who violated the laws. If there is something that needs to be done, it would be to simplify and clarify the House and Senate Ethics rules and ensure better application, education and enforcement of the existing rules and laws.
But, like on Groundhog Day, the same thing happens over and over: People break the rules and the law, they get punished under the existing laws but that isn’t enough — Congress engages in its usual legislation-by-headline approach and rushes to enact an entirely new set of laws to make whatever laws someone has already violated really illegal.
Think Sarbanes-Oxley. The Enron scandal brought us the most expansive and expensive incursion by government into private business since the 1930s, and meanwhile, Enron and other corporate wrongdoers were already charged and many of them convicted and imprisoned under the laws they broke before Congress enacted Sarbanes-Oxley.
Why do conservatives participate in these “Oh-my-we-have-a-scandal-we-have-to-pass-a-new-law” charades? Where are the conservatives in Congress who will stand up and say, “Abramoff broke the law, and he’s in jail. We’re not going to trample 1st Amendment rights of every other American because he was a bad actor. We’re going to enforce the laws we currently have on the books, and where those are confusing we are going to simplify so everyone who wants to abide by the rules and the laws will be able to do so without hiring a team of attorneys to tell us what the laws actually mean.”
3. The legislation is designed by people who hate conservatives — the same people who brought us McCain-Feingold.
This is the most bizarre of all the things related to the lobbying “reform” issue. Who exactly are those men behind that curtain to whom conservatives are paying no attention? How about the identical people who clamored for McCain-Feingold: the incredibly well-financed professional “reformers” who have nothing else to do but think up ways to get Congress to trample the 1st Amendment yet again — Fred Wertheimer and his Democracy 21 array of entities, Common Cause, the New York Times, the Washington Post, all the national media and the liberal editorial writer wannabes at virtually every newspaper in America. Since when did conservatives start listening to those guys? In fact, these same people are working behind the scenes today under cover of darkness to craft a bill that they, by their own admission, plan to spring on both houses of Congress to pass without a conference committee with no input from anyone but the most liberal “reform” groups in the country.
Now that’s a scenario that begs conservative members of Congress for support, isn’t it? Where are the conservative voices saying, “This is a terrible process and we are not going to be stampeded — again!”
4. The language of the bill is vague and scarily arbitrary.
It should not be too much to ask for members of Congress to study any bill with this much media momentum for passage and to ask “what’s in this Kool-Aid” before voting for the bill. In fact, any time there is this much media momentum for enacting a new “reform,” conservatives need to be especially wary before jumping to its support.
With the caveat that no one but the liberal, professional reformers without real day jobs know what is going to be in the final bill when it is unveiled for immediate passage, here are some examples of the drafting problems in the bills already passed by the House and Senate:
The Senate version of the bill defines a prohibited “gift” from a lobbyist as a gift of “services.” Now, that’s an interesting thought. Does this mean that a staffer or member who contacts an expert in a particular field for an analysis of legislation, where the expert is a “lobbyist” or someone who works for an entity that employs or retains a lobbyist, has received an illegal “gift of services”? And if it isn’t reported, does that constitute perjury on the part of the lobbyist? And who is going to define “services”? The House clerk? The secretary of the Senate?
Does Fred Wertheimer’s drafting of the lobbying reform bill constitute a lobbyist providing an illegal service to Congress? Does anyone think he is going to be held to account under this new law?
The definitions of when members of a coalition or association have to be reported as lobbying clients are completely unintelligible in the House version of the bill—before swallowing that provision, shouldn’t members of Congress at least understand what it means? And what the impact is? And whether it is constitutional?
These are just a couple of the myriad of language problems in the legislation. Who is combing through the pages of these bills to try to fix the language? And who will fix the problems that are sure to arise from this botched process?
5. The bill is a subterfuge to get Congress to adopt taxpayer financing of congressional campaigns.
The lobbying “reform” bill is in reaction to the Abramoff scandal, and the bill is designed to create a brand new scandal in the future so as to justify the next big thing from the professional liberal reformers: taxpayer financing of congressional campaigns. Read the congressional debate on the lobbying reform bill. Member after member stood up saying, “This is the next best thing we can do without enacting public financing of campaigns.”
What the bill does is create a database that will link campaign contributions from lobbyists to members of Congress or their leadership PACs in such a way as to enable journalists and the cottage industry of reformers to “official acts” by members and staff — votes, amendments, “Dear Colleague” letters or other actions a member or staffer may take in the official office. The legislation imposes criminal penalties and the Senate version requires the U.S. attorney for the District of Columbia to report annually on prosecutions undertaken under the new law. Where a prosecutor is pressured to prosecute prosecutions will happen. The “reformers” and their partners in this enterprise want to able to easily “connect the dots” they already see as corrupt between campaign contributions and the normal functions of Congress and to bring pressure to bear for criminal prosecutions of those functions — the media’s scandal stories will write themselves. And amid much sighing and wringing of hands, there will be great pressure from the reformers and liberals in Congress to “solve the problem” by prohibiting all private contributions to campaigns as “inherently corrupt” and creating a public, taxpayer-financed scheme for campaign finance. That is the underlying motive and agenda of this effort.
Why conservatives in Congress are participating in this scam is beyond explanation. The liberal editorial writers back home are never going to support them anyway—and it would seem that protecting the 1st Amendment would be sufficient justification to Just Say No.
Killing the lobbying reform bill would be a great day for the Constitution and a setback for the liberal reformers. Conservatives should at least try to make that happen.