The Quandaries of Ethics Reform in the Trump Era

December 19, 2016
posted by Bob Bauer

There is now bipartisan interest in a change in the lobbying rules to reach the “back room” or “shadow” lobbyist. Most immediately, the proposal has been to have the new Administration expand the ban by Executive Order on federal government employment of lobbyists to include these individuals believed to be lobbyists in all but the name. This would close a much-derided “loophole,” one that has been especially infuriating to those who do register under the lobbying disclosure law while watching others, who seem to do pretty much what they do, escape on an apparent technicality. An amendment to the Executive Order to capture “shadow lobbying” could be followed by a corresponding change in the lobbying laws to greatly enlarge the numbers subject to mandatory disclosure requirements.

The appeal to close a loophole packs its usual punch. It answers the frustration over apparent inconsistency (the demand that those doing similar things be treated alike), and the extension of reporting requirements to “shadow lobbying” would help create a more complete picture of the total dollars spent on influencing public policy. But, as always, there are complications and competing considerations that should affect how a reform like this is designed–with what limiting principles–and how it is administered.

Who is available to serve?

We have a lot of talk about an inexperienced President-Elect–no public office held, no experience in government–and now, on another track, he is being urged to restrict the range of seasoned personnel he and his subordinates might appoint. (Put aside for a moment, please, complaints about which of the seasoned personnel they may be inclined to appoint.) The Obama Executive Order covers all those who meet the legal definition of lobbyists, and critics sharply criticized it for keeping out of public service individuals with much to offer. If this criticism is valid, it stands to reason that it would have no less merit if the pool of potential appointees were being still further limited.

There is an answer: waiver authority to allow for an exception when the Administration determines that the individual under consideration brings special or indispensable experiences or talent, and that the goals of the ethics policy should yield to the need for his or her service. Since 2009, there were few waivers, but each waiver invited complaints that the Obama Administration was inadequately committed to the ethics policy. Of course, the fewer waivers granted and the less flexible the policy, the louder were the complaints of another kind–that the policy was foolishly rigid and unnecessarily kept capable people out of the government.

Damned if granting waivers; damned if not.

So if this step to expand ineligibility for service is taken, what provision will be made for waiver authority, and what will be the press’ and reformers’ readiness to evaluate its exercise on a case-by-case basis rather than condemn it for hypocrisy right out of the box? 

Who is “lobbying” and should have to comply with public reporting requirements?

Mr. Trump and others have suggested he would like to see this “loophole” closed in the lobbying disclosure laws themselves. What will be the limiting principle in deciding whose policy-influencing activity constitutes “lobbying” subject to government controls?

Right now the law does not distinguish the profit from the nonprofit lobbyist– the highly priced and prized lobbyist-for-hire working for corporate business interests, from the lobbyist working in-house for a public policy tax-exempt. The Obama Executive Order did not make that distinction and was roundly attacked for it, especially in the progressive community. And what about other forms of policy influence, such as that exercised by “think tanks” alleged in the New York Times reporting to be “blurring the line between researchers and lobbyists”? Would lobbying reform include, as has been proposed in the past, grassroots lobbying–appeals to the public to pressure legislators for or against a public policy position?

For example, we now have an escalating war over rules to compel reporting of “issue advocacy,” which is effectively a fight by a different name over grassroots lobbying. In a recent turn of events, New York enacted a law that would require 501(c)(4) organizations to disclose semi-annually the financing of any communication to 500 or more members of the general public which

Refers to and advocates for or against a clearly identified elected official or the position of any elected official or administrative or legislative body leading to the outcome of any vote or substance of any legislation, potential legislation, pending legislation, rule, regulation, hearing, or decision by any legislative, executive or administrative body.

A number of organizations have objected strongly to the law, including Common Cause, the League of Women Voters and New York PIRG, and Civic Union has filed suit. In its Complaint, Civic Union argues that the law intrudes on advocacy of “all conceivable matters of public policy – – with no connection whatsoever to the government’s concern about quid pro quo relationships, electoral transparency, or the corruption of candidates or public officials.”

Civic Union notes, as have other organizations concerned with the regulation of issue advocacy, that donors will cut back on their support to avoid disclosure. Should those donors’ resistance to exposure warrant sympathetic attention? With all the evidence of harsh, retributive uses of social media to attack political adversaries, it is not hard to appreciate the reasons for donor unease. This fear will increase as the most senior political leaders use Twitter and other Internet platforms to single out for public attack those they disagree with.

This all presents a hard question for progressive reformers: how to go about legislative revision of the lobbying and “issue advertising” disclosure laws that would subject to greatly widened public exposure the individuals, strategies employed and resources committed in the epochal policy conflicts beginning next year.

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