There's an old joke about a man walking down a dark street who sees another man on his hands and knees under a streetlight. "What are you looking for?" he asks the second man. "My wallet," comes the reply. "Where did you lose it?" the first man asks. "Over there in that dark alley," says the second man. "Then why, in heaven's name, are you looking under this streetlight?" the first man asks incredulously. "Because," replies the second man. "It's too hard to see anything in the alley."
There are times when the debate over lobbying regulation has that same level of reasoning. To try to improve the way Washington works, the government regulates what it can monitor rather than what it should monitor.
Last week, the Congressional Research Service published a report summarizing the Obama administration's efforts to restrict the involvement of registered lobbyists in various executive branch activities. The study concludes by listing additional steps the White House or Congress could take, including modifications to the Lobbying Disclosure Act (LDA) of 1995 - a move that many in the reformist community have been calling for since the measure was last amended two years ago.
Before we consider rewriting the laws governing lobbying, it seems like a good idea to ask ourselves why Congress passed the LDA in the first place. It did so to: (1) increase public awareness of the work of paid lobbyists to influence public policy-making; (2) clarify requirements and improve enforcement; and (3) increase public confidence in the integrity of government.
In the years since the act was passed and amended, I think it's fair to say that the public is considerably more aware of lobbyist activities. However, while thousands of lobbyists diligently register and report their activities, enforcement actions against those who haven't followed the rules have been practically non-existent. As the National Journal reported in October, 1,713 potential violations have been referred to the U.S. Attorney General's office since enactment of the Honest Leadership and Open Government Act, but no enforcement actions have been publicly reported. The lack of enforcement serves to further erode the reputation of lobbyists.
Next, let's evaluate the LDA's third goal. It was probably a huge leap of faith to assume that regulating lobbyists more closely would restore trust in government. Trust must be earned by all parties in a relationship - not just the lobbyists, but also legislators and executive branch officials. While ethics laws governing Congress have been tightened up considerably, there have been so many congressional scandals, large and small, in the last decade that trust has declined considerably.
Now, what to do about it. Some have argued that the official LDA lobbyist definition needs to be expanded to arrive at a more accurate number of individuals who are paid to influence public policymaking. This approach sounds reasonable at first, but it becomes increasingly impractical - and inaccurate - the more you think about it.
First of all, lowering the threshold for classifying someone as a lobbyist would not draw a truthful picture of the scope of the lobbying profession. And expanding the definition of lobbying to include grassroots advocacy would be unmanageable. Grassroots campaigns are often ongoing activities without formal contracts and budgets. Many are multi-year efforts to influence policy by encouraging volunteers to, among other things, write their member of Congress, join an advocacy group, sign a petition, send an email to recruit other supporters, cultivate allies, compose a letter to the editor, talk to the news media, or engage in some other form of free expression.
If a retired man spends hours writing letters to government officials, are you going to ask him to register as a lobbyist? If an environmental group launches an email campaign involving tens of thousands of volunteers from a consortium of organizations, would the government require the group or its volunteers to register?
And, by the way, please remind me again why we're doing this. Are we really trying to determine who is influencing public policy illicitly, or are we looking for our wallet under a streetlight?
The "more is better" approach to defining lobbying was unworkable when it was proposed in the past. Now, it's a worse idea because the White House is using the LDA definition as a means to restrict the role of advocates. Do we want the administration deciding what grassroots organizations can or cannot say?
Any revamping of the LDA ought to start with adequately funding and arming the Justice Department to enforce the rules already on the books.
In addition, if our goal is to increase trust in government, we ought to bring the federal rulemaking process into the digital age so that millions of Americans can weigh in on policy matters. Town hall meetings accessible through the Web would help accomplish this. We also ought to make the decision-making processes of federal agencies more transparent so that those with undue influence are more readily identified.
Finally, on big-ticket issues such as Recovery Act grants, a central database ought to track efforts by members of Congress and their staffs to disproportionately influence executive branch decisions.
Now that would be revolutionary.
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A longer version of this post appears on the National Journal's "Expert Blog," which poses weekly questions about lobbying issues to a panel of "Washington insiders."