The Ethical Lobbyist

Reforming Washington’s Influence Industry

Thomas T. Holyoke

• Publisher: Georgetown University Press
• Year: 2015
• Print ISBN: 9781626163805
• eBook ISBN: 9781626162518
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Lobbyists in Washington aren’t a new phenomenon. Since the early days of the republic, citizens and groups alike have hired professionals to press their interests with lawmakers. However, recent examples of misconduct—like that seen in the Abramoff scandal—highlight the unique ethical challenges this industry faces in the twenty-first century.

Though major scandals happen less frequently than popularly believed, the more pervasive ethics problem is that members of the profession often cut deals that go against their clients' interests. They sacrifice the interests of those they represent in order to curry favor with lawmakers. In The Ethical Lobbyist, Thomas T. Holyoke exposes how current industry regulations fall short of ensuring principled behaviors and may actually incentivize unethical behavior.

Holyoke presents the provocative argument that, in addition to welcoming stronger regulations, lobbyists need to borrow a page from the legal profession and adopt ironclad guarantees of principled representation.

The Ethical Lobbyist puts forth a set of principles and a workable program for implementing reform. The result is a road map to reform that will transform “ethical lobbyist” from an oxymoron to an expectation—and change the industry and our government for the better.

1

Growth Industry

SHEER NUMBERS SHOW just how large a presence interest groups and lobbyists have in modern American politics. According to Lobbyists.info, there are nearly 18,000 organized interest groups lobbying state and national governments in the United States today, with nearly 7,000 primarily lobbying just the national government.¹ Although lobbying in Washington by private interests has been around in some form since the nation’s founding, professional advocacy on this scale is a twentieth-century phenomenon, which is now spilling over into the twenty-first century.² To get at least a general sense of when interest groups first started appearing on the political stage in large numbers, figure 1.1 shows the cumulative number of national organizations forming each year over the course of American history based on their birth dates, which are recorded in the database Lobbyists.info.³

A Brief History of American Interest Groups

Would the nation’s founders have approved of so many interest groups competing for influence in the US political system? It is impossible to really know, but James Madison at least expected it and even offered a guarded defense of organized interests as natural, and therefore legitimate, expressions of individual self-interest. He argued in Federalist No. 10 that it is “sown in the nature of man” for factions of citizens to organize around any strongly felt interest they hold in common. “By a faction I understand a number of citizens,” Madison wrote, “whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”⁴ This is the very definition of an interest group—citizens collectively advocating in the political realm for policies legitimizing and favoring the deeply felt beliefs and desires they share with each other. Furthermore, in a free society these citizen factions have a right to pressure elected leaders into enacting laws privileging their interests, even when it benefits nobody but themselves. However, though Madison believed that the formation of factions was inevitable, it is hard to imagine that he envisioned a nation of thousands of professional organized interests.

The age of organization, however, did not occur in Madison’s lifetime; nor were interest groups particularly prominent in the politics of the Antebellum Era, between the War of 1812 and the Civil War. The French philosopher Alexis de Tocqueville discovered during his travels around the early United States that though Americans certainly had a tendency to form groups when confronted with problems, they did so because pooling their resources meant that they could solve common problems without appealing to the government for help.⁵ They were, in effect, antipolitical groups. When real political groups did start appearing, they directed their appeals at state governments. Figure 1.2 shows the differences between state and national group births by subtracting the number of state start-ups in a year from national start-ups in the same year.⁶ That the trend line is under the horizontal axis until 1966 means that more state-level groups were forming than national organizations, which suggests that interest groups’ relative rates of emergence tracked the rise and decline in the importance of state governments from the late nineteenth century to the late twentieth century. Only when the national government began encroaching on the states’ authority by enacting uniform economic and social programs during the New Deal and Great Society eras of the twentieth century did the number of interest groups in Washington really explode.⁷

Today’s national community of organized interests is large and diverse in its political goals and organizational structures; figure 1.3 shows the rates at which the three most fundamental types of groups emerged over time.⁸ Professional associations, which made up 84 percent of all groups in 2011, represent interests defined by what people do for a living, and advocate for the trades, businesses, and professions employing them. Many represent specific industries, such as the American Petroleum Institute for oil producers and the American Wind Energy Association for producers of wind power as an oil alternative. Others represent many industries, such as the US Chamber of Commerce and the Business Roundtable, and still others represent narrow subinterests within industries, like the Independent Community Bankers of America and the Independent Oil Producers Association. Some, like the American Bar Association and the American Medical Association, even regulate and self-police the practices of, and entry into, their professions rather than let the government do it.⁹ Such associations—which are essentially substitutes for state control over important, highly skilled professions—often develop and enforce codes of ethical conduct.

The organization of trade and professional associations in the late 1800s was driven as much by fear of the growing influence of labor unions as by government’s increasing role as an economic regulator.¹⁰ Unions representing skilled craft workers such as pipefitters and garment manufacturers began forming after the Civil War. After a failed attempt to form an umbrella organization for labor unions by the Knights of Labor, these craft unions succeeded in forming the American Federation of Labor (AFL) to better coordinate the large-scale strikes that became organized labor’s preferred tactic of influence before it began getting involved in electoral politics in the 1930s.¹¹ Blue-collar unions representing workers in large, assembly-line-driven factories only started to appear in the early twentieth century, and they eventually formed their own umbrella organization, the Congress of Industrial Organizations (CIO). After a couple of decades of competition, the CIO bridged the rift with the craft unions by merging with the AFL to form the large, powerful AFL-CIO.¹²

More explicitly cause-oriented advocacy groups have also been around since the late nineteenth century, lobbying on behalf of women, minorities, children, the poor, and the environment.¹³ But these groups’ numbers exploded in the 1960s and 1970s, during times of social problems and unrest, and faith in the power of the state to solve their problems.¹⁴ Often started by charismatic entrepreneurs like Ralph Nader, John Gardner, and David Brower, these citizens’ groups not only brought a host of new issues and problems to government agendas; they often did so claiming that they were advocating for a public interest broader than just the narrow self-interests of their members, as the trade and professional associations did. Yet many do not actually have members so much as financial supporters like philanthropies, businesses, and even the government, especially those advocating on behalf of interests unable to mobilize themselves, like the homeless, children, and wildlife.¹⁵ Many have members whose participation largely involves writing a check or clicking a donate button. Others, however, like the National Rifle Association and the Sierra Club, have tens of thousands of passionate members. Either way, the emergence of these cause-oriented groups has made interest group politics much more contentious. Common Cause, Public Citizen, and the Union of Concerned Scientists openly state that they exist to oppose the political influence of business.¹⁶

Interest groups themselves are only a part of the national lobbying community, and not the largest portion. As table 1.1 shows, only 47 percent of the entities lobbying in Washington are things that one would call interest groups.¹⁷ The others are what political scientists call “institutions,” entities created for something other than providing political representation for some part of the public.¹⁸ These corporations, hospitals, universities, and charities all have reasons for influencing government policy, though most only lobby occasionally, as their needs demand.¹⁹

The Lobbying and Influence Industry

The people who lobby for these thousands of interest groups and institutions constitute their own professional class. But lobbying is hardly a new profession. Thomas Jefferson wrote bitterly about New England financial and southern agricultural interests lobbying Alexander Hamilton, the first Treasury secretary, in support of or in opposition to his efforts to create the Bank of the United States and also his policy of assuming the states’ debts after the Revolutionary War.²⁰ Men like Collis Huntington and Samuel Colt worked the halls of Congress in the Antebellum Era to procure lucrative steamship monopolies and military contracts for their corporate clients.²¹ The Massachusetts Whig senator Daniel Webster received a regular retainer from the Bank of the United States to advocate for its preservation, telling bank president Nicholas Biddle that he would lobby for its demise if he did not get that money.²² In the Gilded Age following the Civil War, bigger-than-life figures like Grenville Dodge, William Chandler, and the self-styled king of the lobby, Sam Ward, did political business on behalf of the great industrial Astor, Carnegie, and Rockefeller families. Ward was reputedly so influential that he set up shop in the Senate Appropriations Committee’s conference room, though he claimed his best work was done at the lavish dinner parties he threw.²³

It was in the twentieth century that something like modern lobbying emerged, at least according to the political scientist Pendleton Herring.²⁴ Rather than relying on tactics that amounted to little more than bribery (e.g., promising lucrative corporate directorships in exchange for monopoly rights) or being a gourmet chef like Sam Ward, lobbying became more about connecting citizens with their representatives and using political and policy information to press a cause.²⁵ As the number of interest groups has grown, so too has the lobbying profession. In 2011 more than 19,000 lobbyists were identified by Lobbyists.info. Even this number fails to take into account the thousands of consultants, public relations specialists, research associates, and the like who make essential contributions to the advocacy work of modern interest groups.

Today’s lobbyists are employed by the thousands of groups and corporations whose leaders believe that their interests are tied to national policy. Many more form their own private, for-hire lobbying firms, like the incredibly successful Cassidy and Associates.²⁶ Many Washington law firms have built their own lobbying practices, like the famous firm Patton Boggs, which charge clients hundreds of dollars an hour for their representational services.²⁷ Many firms employ former members of Congress—206 in 2010, according to Lobbyists.info—often just because they have close, and thus lucrative, connections to current legislators and their names alone can get the firms’ other lobbyists into meetings with powerful lawmakers.²⁸ This pattern also applies to former congressional staff members; a recent study found that 54 percent of all lobbyists once worked for Congress.²⁹ And their numbers are growing, largely because the money to be made is growing. Lobbying firms in 2010 collectively earned $807,695,192.³⁰

Perhaps because the public assumes that most lobbyists only advocate for special interests that can afford to pay their high retainers and support their lavish lifestyles, few can believe there is anything ethical about lobbying. A 2013 poll by Gallup found that “just 6 percent of Americans say lobbyists have high or very high honesty and ethical standards, making it last on a list of 22 professions surveyed.”³¹ But whether they are ethical or not, we are stuck with interest groups and lobbyists. Why? Because they are protected by the Constitution’s First Amendment, which means that our ability to judge whether lobbyists are acting ethically depends on understanding the role that this amendment gives them in the American political system.

2

The Constitutional Right to Petition and Lobby

THE FIRST AMENDMENT’S last clauses—“Congress shall make no law … abridging … the right of...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1 Growth Industry
• 2 The Constitutional Right to Petition and Lobby
• 3 A Perspective on Ethical Lobbying
• 4 Ethics and Reform
• Conclusion
• Notes
• Bibliography
• About the Author
• Illustrations