But wait, I hear you cry. Don't senators have to wait 2 years before they can lobby their former colleagues? Well, yes, technically they do. But ironically, the Lobbying Disclosure Act prohibits Members of Congress only from registering as lobbyists; they are free to work for firms that lobby so long as they don't do the lobbying themselves.
They call it "shadow lobbying," but legally, the peddlers don't have to call it anything at all. It's not regulated, there are no reports to file, and the influx of new money is literally changing the landscape of our nation's capitol. In that sense Senator Dodd kept his promise not to become a lobbyist because he never had to register as one. Click past the orange Squiggle of Influence and we'll take a bird's eye look at the newest spin on Washington's second oldest profession.
Urban legend widely credits (and here) President Ulysses S. Grant with the first use of the word "lobby" as a verb because of his penchant for meeting interested parties in the lobby of the Willard Hotel, but the first use of the term was decidedly earlier. Deanna Gelak in her book Lobbying and Advocacy quotes a letter from 1820 that contains one of the earliest uses of the word "lobbying" in print:
Other letters from Washington affirm, that members of the Senate, when the compromise question was to be taken in the House, were not only "lobbying about the Representatives' Chamber" but also active in endeavoring to intimidate certain weak representatives by insulting threats to dissolve the Union.The British, not surprisingly, claim the origin for themselves, and an Oxford English Dictionary lexicographer is on record with the claim that the term came from special interest efforts to persuade Members of Parliament.
—April 1, 1820
Whether American or British, this influence-peddling assumes one of two forms, according to Timothy M. LaPira, a Professor of Political Science at James Madison University. The first form LaPira calls "core lobbying," and is one we all see: very public efforts expended by large groups of lobbyists on issues of widespread interest. The second form is much harder to observe and therefore, to regulate. LaPira calls it "periphery lobbying," where
[h]ighly specialized lobbyists drift toward to those sparsely populated domains in the periphery where they can focus on obscure policy minutiae relatively free from public scrutiny. These fringe domains and the niche lobbying they invite yields a system that “does not promote open and freewheeling discussion of all relevant policy ideas and alternatives,” but that instead generates fragmented and inconsistent policy outputs."Fragmented and inconsistent policy outputs" is political science-speak for bad laws.
Against the backdrop of 150 years of lobbying history on both sides of the pond, it is not surprising that Washington has seen a steady growth of lobbying activity. Writer Lee Fang, in a great piece in this week's The Nation, notes that the very landscape of Washington is changing with the influx of special interest money over the last few years.
The growth of the influence industry has created a new generation of millionaires while reshaping the region in its wake. The District of Columbia skyline, once dominated by monuments, is now dotted with cranes building some $5.5 billion in new development. The 14th Street and H Street corridors, formerly gritty sections of the city, are lined with more than forty new bars and restaurants. Census figures show that four of the five wealthiest counties in the country are now DC suburbs.Fang's story is a must read, citing numerous specific examples of lobbyists (individual and corporate) moving in to be closer to those they seek to influence. In light of this burgeoning growth, it is surprising that the number of registered lobbyists in America has steadily decreased since 2007 and is currently the lowest it's been since 2002. While the number of registered lobbyists last year was only 12,279, the true figure is closer to 100,000, says Professor James Thurber of American University's School of Public Affairs, and an advisor to the American Bar Association's Lobbying Reform Task Force.
But wait, you cry again, more loudly. Didn't we pass that Lobbying Disclosure Act precisely to make lobbyists disclose what they were up to? How is it possible that so many lobbyists are doing secretly what they can't do out in the open? The final report produced by Professor Thurber and the ABA Task Force provides a simple explanation.
The landmark Lobbying Disclosure Act of 1995 (LDA) took significant strides in the direction of promoting transparency and regularity in the practice of lobbying. Even in the wake of strengthening amendments in 2007, however, the LDA remains decidedly limited in scope and effectiveness.The 2007 amendment referred to is the Honest Leadership and Open Government Act, which did improve things a bit, but the very definition of "lobbyist" still allows wide enough latitude for influence peddlers to sail circles around our Ship of State. Nor does the definition include all the ancillary entities involved in modern day lobbying: strategy firms, public relations companies, polling organizations and coalition building enterprises, just to name a few. But let's just stick with what is included for now.
A lobbyist is defined as
[a]ny individual (1) who is either employed or retained by a client for financial or other compensation (2) whose services include more than one lobbying contact; and (3) whose lobbying activities constitute 20 percent or more of his or her services’ time on behalf of that client during any three-month period.Client is defined as someone who hires a person to do lobbying for them. There are more definitions here, but the immediate loophole is apparent. This definition of lobbyist does not apply if the former member of Congress is hired not to lobby, but say, to run a trade organization as Senator Dodd did, or to be an historian, as Newt Gingrich did for Freddie Mac, or to "provide advice," as former Majority Leader Tom Daschle has made famous.
Daschle, whose use of the loophole was so prolific that insiders call it the Daschle Loophole, insists
"I do not lobby. I provide my clients with analysis, not access. I offer them strategic advice on public policy matters, including analysis of the substance, procedure and politics associated with different policy initiatives, whether they be legislative, regulatory or otherwise."Such is the domain of the shadow lobbyists, and they are taking over our nation's capitol.
Currently, none of them has to report any of their activities.
In the continuing wake of the U.S. Supreme Court decision in Citizens United--where the court eliminated the distinction between individual and corporate political speech and opened the door for corporations to spend unlimited funds on advocacy--it becomes even more imperative that we hold organizations accountable for the expenditure of these funds.
It is not surprising, then, that one of the recommendations of the ABA's Lobbying Reform Task force is to expand the reporting to include all these ancillary organizations and individuals by name if they are principally involved in the lobbying support effort. And groups like the Sunlight Foundation and Public Citizen continue to push for lobbying reform and more transparency in government. But none of these efforts have translated into any support on the Hill.
There was some noise a few years ago, as Rep. Mike Quigley (D-Illinois) introduced HR 2339, the Lobbyist Disclosure Enhancement Act and HR 2340, the Transparency in Government Act, but the noise died down when both bills stalled in the Subcommittee on the Constitution.
There is little room for optimism here. Even if we were to muster the political will to pass some sort of meaningful reform, there is no guarantee that it will work. Disgraced high-rolling lobbyist Jack Abramoff is skeptical that any such reform efforts will be successful, even if enacted into law. Abramoff, who famously served three and a half years in federal prison on corruption charges, believes lobbyists can find a way around any legislation Congress passes.
"There's an arrogance on the part of lobbyists, and certainly there was on the part of me and my team, that no matter what they come up with, we're smarter than them. We'll just find another way through."
We close with a favorite, which has no transcript but is closed captioned.