Keynote Address to
Inside Counsel’s Ninth Annual Conference

by Robert F. Bauer

May 5, 2009

      I appreciate the opportunity to speak to you today about the changing conditions in which business interests conduct their government relations programs.  The topic is, in a word, lobbying.  Other labels have been invented, "government relations" among them—but also "legislative affairs", or "government affairs"—and yet it seems to come back, sooner rather than later, to lobbying, the universal and customary shorthand. So I’ll use that word without any intended pejorative association.

     One key preliminary point: I am not here on behalf of any organization, or of any proposal, and I am not speaking for any client. The subject of lobbying is one I am involved with as an attorney in private practice who follows the development of the law and has advised on it.

     And my purposes here are two:

first, to describe the current state of affairs— the political tensions around lobbying and the laws and rules adopted to respond to them; and

second, to clarify if I can the arguments and offer a glimpse of where they might lead in the future.

     This is my main point, which I will put to you upfront: that while a steep increase in concerns about lobbying is hardly unusual during periods of economic and related political stress, as we now experience it, it would be a mistake not to see a more profound, more basic, change now in progress.  Put another way, it would be a mistake to take the limits proposed for lobbying as merely symptomatic and to wait for the symptoms to pass when underlying conditions stabilize.  

     I am referring to the critical press on lobbying, accompanied as it is by new regulation and heightened scrutiny.

     In this Administration, the  issue of lobbying has been dramatized by the barriers to lobbyist entry into the Administration; by the limits on their post-employment opportunities (at least for the duration of the Obama Presidency); and by the recent rules limiting lobbyists to written communications about the disposition of Recovery Act funding for specific projects.

     Before the change of Administration, the Congress had its say, in the Honest Leadership and Open Government Act of 2007, subjecting lobbyists (and their employers) for the first time to liability, civil and criminal, for violation of Congressional gift rules, and to other requirements.  The rules themselves were amended to "zero out" gifts from lobbyists, with some exceptions provided for, and the campaign finance laws were amended to compel candidates and parties to disclose bundled contributions exceeding a threshold amount in any quarter.

     These initiatives may seem embedded in moments in time—what we happen to be going through, just now—but this is not so. 

     In the time that I have practiced, over a period of thirty years, I have observed the steady growth in regulation just as I have seen how readily the press and members of the regulated community seem determined to discount its significance. The developments of 2007 and 2008 are the latest of a series of steps toward the regulation of private interest lobbying and it is hard, surveying the course of events, to see them as the last.  The full weight of these changes may not be felt for some time to come. That time seems sure to come, however. 

Images of Lobbying

     Obviously, in considering how lobbying might be regulated, it is necessary to call to mind what it is believed to be.  And there are seemingly two views that receive vivid expression, with a more tempered outlook left gasping for air.

     For the prosecution, we have the image of rampant greed and self-interest driving for control of our government. Consider the writings of two fine journalists and observers of lobbying, Jeffrey Birnbaum and Robert Kaiser.

     Birnbaum, writing about lobbyists in l992, suggests that for them "there is no right or wrong, only winners and losers"[1]; they have perfected "astonishingly effective" techniques for infiltrating the government and getting their way on behalf of clients.[2] In a comment to which I will shortly return, Birnbaum argues that corporate interests have so successfully invaded the governmental process that "corporate lobbyists…seem to be part of the government itself."[3]

     Robert Kaiser came along this year with a new treatment within the same genre, and his title speaks of the "triumph of lobbying" leading to the "corrosion" of American government. [4] In the last three decades, he argues, Washington has changed, not for the better. Government has grown ever larger and penetrated more deeply into American commerce, and at the same time, politicians, in need of money, have to bargain with corporate sources for a mutually satisfactory accommodation: laws that corporate interests want or can live with, in return for money that politicians require in abundant amounts for their campaigns.

     This is one picture, and it is a bleak one, leading to calls for corrective legislation.  It is the dominant picture, certainly in the press, and reporters and editorialists can sell it with ease to the broader consuming public.  Of course, in the background are the findings of public opinion surveys documenting a loss of confidence in the government, a fair share of which is attributable to the beliefs about the influence of interests, through lobbyists and otherwise.

     The other picture, one on which lobbyists and their clients insist,  is of a right to petition one’s government for redress of grievances. The larger and more powerful the government, the greater the cause for grievance, and lobbyists serve this cause, while also bringing needed outside views, information and analysis to the policy-making process. 

     One consultant on lobbying, writing in l989, admits that lobbyists have a bad reputation.  He notes jokes such as this: that lobbyists are buried in unmarked graves, sparing their families the pain of seeing the tombstones desecrated. 

     But this author defends the craft in straightforward terms.  "Groups lobby governments", he writes, "because government, and frequently only government, has the power to give them what they want". [5] And this means all groups, the profit and the nonprofit: the ones committed to better business conditions and others dedicated to the expansion of civil rights.

     These defenses of lobbying can be found, if one looks hard and long enough, in technical, less popular literature, but where it is found the defense is defensive, as if the authors recognize that theirs is a hard sell. One my favorites is an academic book written in l963, entitled The Washington Lobbyists, whose author concludes that lobbying in that time was markedly less "venal" than in our nation’s prior history.[6]  But he also takes on the question of the personality make-up of lobbyists, assuring readers that lobbyists are more or less like the rest of us, albeit with a mildly higher tolerance for frustration. 

     Assuring us that lobbying has become less venal, he also feels compelled to have us see lobbyists as more like us—more human, less alien.

     This is apparently a finding of importance to the lobbying community, since one of the lobbyists he interviews advises that "Lobbyists need to have a continuing validation of their adequacy as a human being in our culture." [7]

What is the Trouble Here?

     Which of these images best captures the real place, role and effects of lobbying? Kaiser concedes that "in the matter of lobbying, Americans seem doomed to accept what often feels like contradictory propositions"[8]—namely, the right to petition the government, and the dangers seen in the exercise of that right. He agrees that it is not obvious why someone looking for help with a problem that government should be faulted for hiring an expert, a lobbyist, to help. 

     Kaiser ends up with the suggestion that it is the very scale of lobbying, expanding in proportion to the greatly enlarged scale of government, that presents a palpable increase in the dangers incident to the exercise of the right.  "Drawing the line", he says, between legitimate and illegitimate lobbying, "got harder as the money got bigger". [9]

     But this does not get us very far.  It may be more urgent to have the line drawn clearly when there is more money at stake.  The challenge of line-drawing remains, in substance, the same.  Illegitimate lobbying is not any less objectionable if it is conducted in pursuit of small potatoes. 

     Certainly the extreme forms of illegitimacy are relatively easy to identify. One commentator, writing early in the last century, discussed the types of what he called "improper influence", and these were:  "bribery, coercion, underhanded dealing, falsification [and] false pretenses".[10]  Fair enough, and within this class of offenses, lie the grounds for criminal liability. But most of the debate is not really about the extremes—about, say, the Jack Abramoffs of this world—but about ordinary-course lobbying that Washington representatives provide as a service to their clients all the time. 

     A different, more fundamental critique focuses less on instances of misconduct and more on the access or influence achieved by those able to pay for the services of professional lobbyists: in the words of one study, "the general complaint is that professional lobbying as it is currently practiced…undermines political equality."[11]   Some can afford lobbyists and others cannot. So here the problem with lobbying has to do with what it is and not how, for better or for ill, it is practiced.  And this sort of criticism, sweeping as it is, widens the gap between the objection to lobbying and the constitutional protections extended to it.

Response to the Trouble

     This tension—a tension between what Kaiser calls contradictory propositions, exacerbated by differences over the propositions themselves—accounts for the complicated history of lobbying regulation. For a while, it explained why laws passed were weakly enforced and generally, by those meant to be regulated, disregarded.  But if, as I believe, a political consensus is forming around the need for controls on privately paid programs to influence the government, then clarity about the dangers being addressed becomes a paramount requirement.  If you don’t know what you are trying to control, the controls enacted may miss their intended target by a mile, and who knows where they will land—if anywhere.

      Since the late nineteenth century, we have seen regulatory lunges at the perceived evil.  Those who think today’s rules, edicts and proposals go too far might look back and ponder the past as lesson and as prologue. Many years ago, Congress entertained a bill to prohibit railroads from hiring lobbyists.  The Governor of Missouri issued an order prohibiting lobbyists from remaining physically in the Capitol for any period longer than 36 hours.

     More discriminating, and of greater interest, are the laws that constrained the forms of lobbying.  Louisiana barred any lobbying method except those that involved an appeal to “reason”; and Georgia enacted a similar law, limiting lobbying to appeals "addressed solely to the judgment."  In these laws, quaint and self-deluded as they may seem, there is a hint of what may be more reasonably troubling to those who worry about lobbying.

Trist v. Child

     What this troubling feature is—and how long it has held the attention of lobbying’s critics—may emerge most clearly from considering a remarkable Supreme Court decision, the case of Trist v. Child, decided in 1874.[12]

     This case is important: it is short, as cases tended to be in those days, to their lasting credit.  (The more prolix jurisprudence of our day is no stronger for its page-length.)  But it seems that Trist touches succinctly on virtually every aspect of the unease with which lobbying is received—and it speaks, too, to the confusions that envelop it.

     The Court entertained a claim by a lobbyist that the client, having promised to pay on a contingency for pressing a claim against the federal government, reneged.  Begin with the fact that the individuals in question, the client and the lobbyist, were men of high character and reputation, as the Court is quick to point out.  Nothing they had done was wrong and nothing illegal. And the retention of lobbyists per se was not at issue:  the Court allowed for the possibility that those seeking assistance from the Congress might seek what it called "professional services".

     Yet in this case, the something went wrong, and it seemed that the wrong, defined as an offense against public policy and a form of corruption practiced by men not themselves corrupt, consists of how the arguments for the client were made.  The Court reproduced this communication from the lobbyist to the client:

Everything looks very favorable. I found that my father has spoken to C_____ and B_____, and other members of the House. Mr. B_____ says he will try hard to get it before the House. He has two more chances, or rather 'morning hours,' before Congress adjourns. A_____ will go in for it. D_____ promises to go for it. I have sent your letter and report to Mr. W_____, of Pennsylvania. It may not be reached till next week. Please write to your friends to write immediately to any member of Congress. Every vote tells, and a simple request to a member may secure his vote, he not caring anything about it. Set every man you know at work, even if he knows a page, for a page often gets a vote. The most I fear is indifference.[13]

     The elements disturbing to the Court seems to have been these:

1. The form of payment:  it was contingent on success and
related to the amount of the recovery; and

2.  The mode of persuasion:  it was private conversation, pursued Member by Member, and it was conversation of a certain kind—devoid of any attention to the "merits".

    The complaint about the form of payment is not unrelated to the concern with a case pressed without regard to the merits.  For just getting the payment made, the lobbyist would be paid a healthy share of the recovery.  He would not be put to any particular professional trouble:  no skilled argument, no exacting fact-gathering.  He talked to people who, revealingly, did not seem to care, and he approached them from every angle, including mobilizing their pages.  In effect, by the simple and unadorned act of asking, the lobbyist was paid well—paid for having, managing and orchestrating relationships.

     The same can be said of the mode of persuasion.  It was all private, all personal, and off the record.  It does not appear that questions were asked or answers given.  Indifference seems to have reigned:  the votes were easily gotten, or so it appears, since "a simple request to a member may secure his vote, he not caring anything about it."  It was all a question of bending the right ears.

     Now a fair question is—so what?  The story these members were told was a simple one of compensation promised and not paid.  The merits—of the claim that, is—were, taken in this sense, straightforward, needing little elaboration. And for that matter the form of payment was well suited to this simple case.  Since a strong case did not have to be developed and made, the easiest measure of just compensation could fairly be a percentage of the amount recovered.

     So what is the Court all in a snit about here?  If this was a decent case, mounted by men of good character, and running into no obvious problems except indifference on the part of the legislators,  what is the problem, and how did the word "corruption" come to be attached to this set of facts?  It is clear that since the Court terms the problem one of public policy, the public is thought to have been harmed in some way—or would be if the contract were upheld.

     On one level, the answer seems to be that if someone pays another to move the government, the element of compensation entails obligations in the discharge of the services.  What a citizen could do, the lobbyist cannot—because she has been paid to do it.  By imposing certain requirements of form, the corruptive potential of the money is mitigated—protections are built in.

     More profoundly, these requirements of form are satisfied by proceeding professionally, through advocacy of the merits.  The accent here should be on professional effort, distinguished from a whispering campaign dependent on relationships.  So the Court states:

We entertain no doubt that in such cases, as under all other circumstances, an agreement express or implied for purely professional services is valid. Within this category are included drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable. But such services are separated by a broad line of demarcation from personal solicitation, and the other means and appliances which the correspondence shows were resorted to in this case.[14]

     Closely connected to this expectation of professionalism is a set of understandings of how arguments will be pitched—with "truth, frankness, and integrity".  And this is an expectation of arguments pitched to the merits of the matter.

     This is a mirror image of the requirement binding on elected officials to consider, in entertaining requests from their donors, only the merits.  Another way to look at it is this:  the lobbyist, in accepting pay to affect policy, becomes a quasi-public officer.  Her obligation is to the client, but also in meaningful part to the public-at-large, and if the conduct is corrupt, it means that the part of this responsibility owed to the public was not met.  Hence, the Court in Trist v. Child found the contrast to have worked a "public wrong".

Lobbyists and Professional Obligation

     At just the time that lobbyists are questioned as predators, swooping down ravenously on legislators, there is acceptance that they work within a profession.  Those who lobby have a set of skills and experience that qualify them for the task, and as Jeffrey Birnbaum advises us, their work is sophisticated in technique and "astonishingly effective".  It is a craft, and lobbyists practice it as fiduciaries, custodians of the interests of their clients.

     The Trist Court says that for all practical purposes lobbyists are no different from lawyers—they are professionals in just that sense.  "They rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable."  Of course, in Washington and elsewhere, many lobbyists are lawyers, working from law firms.  The larger, deeper claim here is that their professional responsibilities are, in theory, the same.  (I say in, theory, because I do not want to get into a discussion here of the ethics, in practice, of lawyers).

     Within the legal profession, there are two views of how far professional responsibilities extend, and these are instructive in considering what might be asked of lobbyists.  One is very narrow, and it is concerned with making sure that the lawyers act appropriately toward their clients.  They should avoid conflicts of interests, or overcharges:  they should act professionally within the four corners of that contractual relationship.

     Another, eloquently expounded by Anthony Kronman of Yale Law School is that lawyers have an obligation to the society at large, a public-spiritedness—what Kronman calls "an other-regarding moral component."[15]   This affects how arguments are made, to be sure, but more profoundly than merely by avoiding "bribery, coercion, underhanded dealing, falsification [and] false pretenses". 

     Returning to the sphere of lobbying, we are reminded of Jeffrey Birnbaum’s claim that "corporate lobbyists…seem to be part of the government itself."  It is easy to appreciate the view that lobbying is not a purely private, wealth-maximizing activity, and that its ethical standards cannot rest satisfactorily at the level of treating clients fairly   and avoiding criminal misconduct or “underhanded dealing”.  As the industry develops and improves continually on its techniques of persuasion, it will hear demands that it consider professionalism in this wider sense, as entailing an obligation to consider, in the choice of means and the pursuit of ends, the public impact of its work.

The Regulatory Horizon and the Prospects for Professional Development

     Over the last thirty years, as lobbying has swelled in volume and in proven sophistication, regulation has made its halting adjustments.  The rules have been stitched together from many sources, old and new, and like any emerging body of law, it has not achieved full coherence or internal consistent of theme and approach.  There is no reason to dismiss the prospects for further change toward a more matured body of rules.

     And the newer rules do seem to have been influenced by the expectation that while lobbyists discharge a constitutionally protected function, there are constraints on their conduct and—going beyond constraints—an affirmative expectation of professionalism that the Court in Trist was expressing.  A major change, mentioned earlier, is the decision to hold lobbyists to the same gift rules that Members observe under their Congressional rules, and it shows both the role of constraints and the expectations of professionalism.

     On the one hand, those rules are a simple prophylactic measure to tighten up the gift rules.  If the Member should not accept the gift, the lobbyist should not offer it.  There are limits on the form of lobbying and the rules are meant to further enforcement by addressing the supply side.  But on the other hand, Members and lobbyists are collaborating in the making of public policy and the more positive case for the rules is one that takes both lobbyist and Members as acting, though in different ways, in a public capacity, each bearing to different degrees responsibilities to the public.

     Now what?  Because the developments in the law will proceed, as often they do, on an unpredictable pace, under immediate political pressures, and in some muddle about objectives, a tidy conclusion is not in the offing.  Always there is a danger of excess, of things getting out of hand—on all sides.  One risk is that, failing to see that the lobbying industry is more a target of serious regulation than perceived, the lobbying industry will fail to grapple with the dominant understandings of its role and of the professional expectations of its practitioners. 

     Congress in the 2007 enactment invited lobbyists to take a hand in the debate over their work and its regulation.  It expressed a "sense" that they develop "proposals" for self-regulatory organizations that would establish lobbying standards, training on law, ethics and disclosure, and standards for reasonable fees and appropriate client disclosures. 

     We can see in these specifications both the narrow and expansive views of professional obligation.  In responding to these invitations, the lobbying industry will find itself asked to give close consideration to both.  If it does, it may have a chance to shape the course of this debate and to influence the next round of rules and standards that this debate is sure to generate.

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[1] Jeffrey H. Birnbaum, The Lobbyists (l992) at xv.

[2] Id. at 16.

[3] Id. at 3.

[4] Robert G. Kaiser, So Damn Much Money, The Triumph of Lobbying and the Corrosion of American Government (2009).

[5] Charles S. Mack, Lobbying and Government Relations (l989) at 6.

[6] Lester W. Milbrath, The Washington Lobbyists (l963) at 299.

[7] Id. at 98.

[8] So Damn Much Money at 95.

[9] Id. at 18.

[10] Edward B. Logan, Lobbying (l929) at 85.

[11] Woodstock Theological Center (Georgetown University), The Ethics of Lobbying: Organized Interests, Political Power and the Common Good (2002) at 64.

[12] 88 U.S. 441.

[13] Id. at 443.

[14] Id. at 450.

[15] "The Fault in Legal Ethics," 100 Dick. L. Rev, 489, 498.