Lobbying


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Lobbying

The process of influencing public and government policy at all levels: federal, state, and local.

Lobbying involves the advocacy of an interest that is affected, actually or potentially, by the decisions of government leaders. Individuals and interest groups alike can lobby governments, and governments can even lobby each other. The practice of lobbying is considered so essential to the proper functioning of the U.S. government that it is specifically protected by the First Amendment to the U.S. Constitution: "Congress shall make no law … abridging … the right of the people peaceably … to petition the Government for a redress of grievances."

The practice of lobbying provides a forum for the resolution of conflicts among often diverse and competing points of view; provides information, analysis, and opinion to legislators and government leaders to allow for informed and balanced decision making; and creates a system of checks and balances that allows for competition among interest groups, keeping any one group from attaining a permanent position of power. Lobbyists can help the legislative process work more effectively by providing lawmakers with reliable data and accurate assessments of a bill's effect.

The role lobbyists play in the legislative arena can be compared to that of lawyers in the judicial arena. Just as lawyers provide the trier of fact (judge or jury) with points of view on the legal issues pertaining to a case, so do lobbyists provide local, state, and federal policymakers with points of view on public policy issues.

Although lobbying as a whole serves as a checks-and-balances safeguard on the legislative process, individual lobbyists are not necessarily equal. Unlike voters, who each get one vote, lobbyists vary in their degree of influence. The level of influence a lobbyist has over the legislative process is often proportional to the resources—time and money—the lobbyist can spend to achieve its legislative goal. Some people think lobbyists in general have too much power. During his 1912 campaign for president, woodrow wilson remarked, "The government of the United States is a foster child of the special interests. It is not allowed to have a will of its own."

The term lobbyist has been traced to the mid-seventeenth century, when citizens would gather in a large lobby near the English House of Commons to express their views to members of Parliament. By the early nineteenth century, the term lobby-agent had come to the United States, where it was applied to citizens seeking legislative favors in the New York Capitol lobby, in Albany. By 1832 it had been shortened to lobbyist and was widely used at the U.S. Capitol.

In the early 2000s lobbyists practice their trade not only in the halls of the U.S. Capitol and the corridors of state legislatures, but also on playgrounds, in boardrooms, in manufacturing plants, at cocktail parties, and in retirement homes. Contemporary lobbying methods include political action committees, high-tech communication techniques, coalitions among groups and industries sharing the same political goals, and campaigns to mobilize constituents at the grassroots level. Lobbyists include schoolchildren who want to prevent their favorite neighborhood park from becoming a shopping mall, corporations who contribute to a particular legislator's campaign, lawyers who speak with legislators on behalf of their clients' business interests, cities who lobby the state legislature for changes in transportation laws, presidential aides who suggest new amendment language to congressional committee members, retired persons who want to save their government benefits, and many others. Each type of lobbyist attempts to win support for a particular point of view.

Samuel Ward, a well-respected lobbyist, was so successful at influencing legislators that in the mid-1800s Congress decided to investigate him. When questioned about the elegant dinners he orchestrated for politicians, the self-described King of the Lobby said, "At good dinners people do not talk shop, but they give people a right, perhaps, to ask a gentleman a civil question and get a civil answer."

Despite the noncorrupt success of lobbyists such as Ward, lobbyists during the mid-nineteenth century were often regarded as ethically questionable individuals. This reputation was enhanced whenever lobbyists abused their position with improper practices such as bribing members of Congress.

Although lobbying is specifically protected by the Constitution, numerous attempts have been made to regulate it—attempts that, not surprisingly, lobbyists have historically resisted. Congress began efforts to reform lobbying in 1907, when it banned campaign contributions from banks and corporations. In 1911 proposed restrictions on domestic lobbying were first considered, but these were not approved until 1946, when Congress passed the Federal Regulation of Lobbying Act (2 U.S.C.A. §§ 261, 261 note, 262–270 [1946]).

In 1954 lobbyists challenged the Regulation of Lobbying Act for being unconstitutionally vague and unclear. In United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989, the Supreme Court responded by upholding the act's constitutionality but also by narrowing the scope and application of the act. The Court ruled that the act applies only to paid lobbyists who directly communicate with members of Congress on pending or proposed federal legislation. This means that lobbyists who visit with congressional staff members rather than members of Congress themselves are not considered lobbyists. In addition, the act covers only attempts to influence the passage or defeat of legislation in Congress and excludes other congressional activities. Further, the act applies to and restricts only individuals who spend at least half of their time lobbying.

According to the 1946 act, lobbyists to whom the law applies are required to disclose their name and address; the names and addresses of clients for whom they work; how much they are paid and by whom; the names of all contributors to the lobbying effort and the amount of their contributions; accounts that tally all money received and expended, specifying to whom it was paid and for what purposes; the names of all publications in which the lobbyists have caused articles or editorials to be published; and the particular legislation they have been hired to support or oppose. In addition, the act requires lobbyists to file registration forms with the clerk of the House of Representatives and the secretary of the Senate prior to engaging in lobbying. These forms must be updated in the first ten days of each calendar quarter for as long as the lobbying activity continues. Violation of the act is a misdemeanor punishable by a fine of up to $5,000 or a jail sentence of up to 12 months, and a three-year prohibition on lobbying.

Although a number of lobbying statutes have been enacted that regulate special situations—such as lobbying by the agents of foreign governments, employees of holding companies, and firms affected by various federal shipping laws—the Federal Regulation of Lobbying Act remains the only comprehensive law governing the practice of lobbying.

Critics of the 1946 act suggest that its effectiveness is limited, since it does not apply to a large part of the population that actually lobbies the government. In fact, in 1991 the General Accounting Office found that nearly 10,000 of the 13,500 individuals and organizations listed in a popular lobbyist directory were not registered under the 1946 act.

In 1995 Congress passed a law designed to close loopholes in the 1946 law by increasing lobbyists' accountability: the Lobbying Disclosure Act of 1995 (Pub. L. No. 104-65, 109 Stat. 691). Under the new law, individuals who receive at least $5,000 in a six-month period from a single client are required to register with the clerk of the House and the secretary of the Senate, listing the congressional chambers and federal agencies they contacted, the issues they lobbied for, and how much money was spent on the effort. The reporting requirements also apply to organizations whose own employees lobby on their behalf and spend at least $20,000 in a six-month period on that effort.

Should Lobbyists Be Strictly Regulated?

Since the 1940s there has been continuing debate in the United States over the proper role of lobbyists in a democratic society. Lobbyists contend they offer a valuable service to legislators and government officials, providing information and raising questions about pending legislation or executive action. Critics argue that many lobbyists are nothing more than influence peddlers who seek political and legislative favors for their clients.

The perception that lobbyists and the interest groups they represent have corrupted the political process has led to state and federal legislation that regulates lobbyists. Nevertheless, a fundamental conflict remains over the extent to which government may regulate lobbyists and lobbying activities. Those opposed to restrictions on lobbying argue that the First Amendment guarantees the right of citizens to petition the government for redress of grievances. Placing restrictions on lobbyists impairs this right. On the other side, critics of lobbyists assert that regulations are needed to preserve the democratic process and to ensure the legitimacy of government. Many people have become cynical about politicians and government, perceiving that only lobbyists have access to the halls of power.

Lobbyists believe that their activities are protected by the First Amendment. Though the U.S. Supreme Court has never stated that there is a constitutional right to petition the government, supporters of lobbying note that several state supreme courts have acknowledged a fundamental right to do so. Therefore, any regulations on lobbying must be the least restrictive means to further a compelling state interest.

Lobbyists assert that regulations requiring them to name specific contacts made with legislative or congressional staff have a chilling effect and weaken relationships that have been built up over many years. Staff members are often under time pressure to find information on legislative issues, and depend on lobbyists to help them meet these demands. Disclosure of contacts with lobbyists forces staff members to refrain from making legitimate requests, out of fear that disclosure will produce political embarrassment.

Lobbyists argue they have been given an unflattering and absurd stereotype as influence peddlers. With over fourteen thousand lobbyists in Washington, D.C., representing every conceivable interest group, including environmental and consumer organizations, it is clear that there is a demand for lobbying. The size and complexity of the federal government have, in large part, driven the need for lobbyists to help define positions on issues of public policy. Moreover, on all issues of widespread concern, lobbyists are found on both sides, producing one more set of checks and balances that undercuts the simplistic picture of corruption and favoritism.

Lobbyists and their supporters maintain that intrusive regulations on lobbying can impair the democratic process. Laws that seek to identify contributors to lobbying groups may have a chilling effect on the exercise of citizens' rights. If made public, a contribution to an unpopular lobby can discourage similar contributions by others. Because many unpopular lobbies are small and poorly funded, discouraging even a few donors may significantly affect the support for a wide variety of viewpoints.

Supporters of strict regulation of lobbyists dispute these arguments. They contend that regulation is needed to prevent special interests from controlling the political process, to ensure ethical behavior on the part of lawmakers and government officials, and to enhance the public's confidence in the government. Numerous scandals have been linked to lobbying at the federal and state levels, providing ample justification for such regulation. Lobbyists have a place in the legislative process, concede many critics, but they must be prevented from using money and favors improperly to influence legislators and their staffs.

Critics of lobbying note that the courts have generally supported reasonable regulation of lobbying activity. This type of regulation does not prevent lobbyists from openly and appropriately communicating with government in regard to legislation. The regulation does restrict traditional practices such as giving legislators and staffs tickets to sporting events, paying for meals and entertainment, and underwriting golf and skiing junkets. These practices have contributed to the public perception that gifts and favors buy access to legislators and sometimes even votes.

Critics of lobbying also support regulation that forces the public disclosure of whom lobbyists represent. Registration of lobbyists is a minimally restrictive means of serving the public interest, yet it gives the public information on which interest groups are involved in pending legislative matters. Critics argue that lobbyists should not be permitted to work their influence in anonymity. The public has a right to know what interest groups have shaped legislation.

Despite the reforms legislated in the federal Lobbying Disclosure Act of 1995, 109 Stat. 691, 2 U.S.C.A. § 1601 et seq., critics of lobbying argue that additional reform is needed. The act addresses disclosure, registration, and a ban on gifts and meals, but it leaves large loopholes, the largest being the ability of lobbyists to make large contributions to the campaign committees of members of Congress. The critics point out the irony of banning small gifts yet permitting senators and representatives to accept $5,000 donations for their campaign committees from political action committees controlled by lobbyists. Even more distressing, note critics, is the change this situation has produced in the dynamics between lobbyist and legislator: it is now the legislator who calls the lobbyist, asking for a political contribution.

Critics charge that the unceasing quest for campaign cash has distorted the political system. The only way to prevent lobbyists and the special interests they represent from dominating the legislative process is to establish the public financing of congressional campaigns. Once campaign contributions are no longer an issue, critics conclude, lobbyists will lose their last effective means of improperly influencing legislation.

Besides these federal regulations, states may separately enact their own regulations governing state lobbying. Most lobby restrictions involve reporting and registration provisions similar to those in place at the federal level.

Further readings

Browne, Steven A. 1995. "The Constitutionality of Lobby Reform." William and Mary Bill of Rights Journal 4.

Dekieffer, Donald. E. 1981. How to Lobby Congress: A Guide for the Citizen Lobbyist. New York: Dodd, Mead.

Doherty, Carroll J., and the "Inside Congress" Congressional Quarterly Staff. 1996. Congressional Quarterly Weekly Report 54 (January 20).

Fuller, William P. 1993. "Congressional Lobbying Disclosure Laws: Much Needed Reforms on the Horizon." Seton Hall Legislative Journal 17.

Government Accounting Office. 1991. Federal Lobbying: Federal Regulation of Lobbying Act of 1946 Is Ineffective. July. Washington, D.C.: Government Accounting Office.

Hancock, William A., ed. 2000. Special Study for Corporate Counsel on Corporate Lobbying Activity. Chesterland, Ohio: Business Laws, Inc.

Jacobs, Jerald A., ed. 1989. Federal Lobbying. Washington, D.C.: Bureau of National Affairs.

Lane, Edgar. 1964. Lobbying and the Law. Berkeley: Univ. of California Press.

"Legislative Reform." 2003. San Diego Law Review 40 (winter): 67–114.

Luneburg, William V., ed. 1998. The Lobbying Manual: A Compliance Guide for Lawyers and Lobbyists. 2d ed. Chicago: Section of Administrative Law and Regulatory Practice, American Bar Association.

Mack, Charles S. 1989. Lobbying and Government Relations: A Guide for Executives. New York: Quorum Books.Schram, Martin. 1994. "Shakedown." Mother Jones (September–October).

Stokeld, Fred. 2000. "IRS Explains Rules on Lobbying by Public Charities." Tax Notes 88 (July 10): 168–9.

Stone, Peter H. 1996. "Shining a Brighter Light on Lobbyists." National Journal. (February 5).

Tollison, Robert, and Richard Wagner. 1988. Smoking and the State: Social Costs, Renting, and Public Policy. Lexington, Mass.: Lexington Books.

Cross-references

Election Campaign Financing.

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