Judy Nadler and Miriam Schulman
These materials were prepared for the Markkula Center for Applied Ethics program in Government Ethics by Senior Fellow Judy Nadler and Communications Director Miriam Schulman. The Center provides training in local government ethics for public officials. For more information, contact Hana Callaghan.
Most people think they know what lobbying means, but this field is one where the definition is part of the controversy. One clear definition is offered in the "Principles for the Ethical Conduct of Lobbying" developed by Georgetown's Woodstock Center: Lobbying "means the deliberate attempt to influence political decisions through various forms of advocacy directed at policymakers on behalf of another person, organization or group."
That meaning is broader, however, than the legal definition contained in the Lobbying Disclosure Act of 1995, the federal legislation that regulates lobbying Congress. The LDA excludes from its definition activities that might fall under the Woodstock principles, such as congressional testimony, general public relations work, and advocacy on behalf of churches. The LDA also covers only paid lobbyists.
There are also points at which the definition of lobbying blurs with other activities. What, for example, is the difference between a consultant and a lobbyist, especially when the person called in to consult is employed by a group with an interest in the policy being debated? If a union official spends a fair percentage of his or her time working to influence labor policy, is that lobbying?
What does lobbying have to do with ethics?
Periodic scandals make many Americans skeptical about the role of lobbying in a democracy, but the right to try to influence legislation is protected under the First Amendment to the U.S. Constitution: Congress shall make no law abridging the right of the people "to petition the government for a redress of grievances." This protection assumes that people should be involved in the decisions that affect them and that advocacy for a variety of causes is a crucial part of good decision making.
Since the ethical foundation of lobbying is the vigorous public debate necessary for informed decision making, ethical dilemmas related to lobbying tend to arise when various behaviors by lobbyists and lawmakers undermine the fairness and transparency of that process and do not contribute to the common good.
The most obviously unethical (and illegal) practice associated with lobbying is paying a policy maker to vote in a favorable way or rewarding him or her after a vote with valuable considerations. If this practice were allowed, people and organizations with money would always win the day. But even with outright gifts to lawmakers outlawed, there are subtler ways to "buy" undue influence. As we write, Congress is debating lobby reform that would disallow lobbyists paying for congressional travel and lavish meals. Local officials are faced with similar temptations-tickets to games or concerts, dinners in expensive restaurants, etc.
Fairness questions also arise when some lobbyists have easier access to lawmakers than others. Frequently discussed is the problem of revolving door lobbyists-those people who once served as public officials who then go into the private sector and work to influence their former colleagues. In addition to relationships with lawmakers, they may, for example, still have access codes to offices, use lawmakers' exercise facilities, or otherwise have easier entrée to the corridors of power.
Other kinds of relationships besides collegiality may undermine fairness. Especially on the local level, policy makers are often lobbied by people they know socially. It is incumbent upon public officials to avoid influence that might arise out of their friendships.
One way to improve the fairness of the lobbying process is to make sure that possible sources of influence are visible to the public. This goal is behind various state and federal requirements that lobbyists register and file reports on the issues they have discussed with lawmakers. Various proposals have been offered to strengthen these transparency provisions, increasing the frequency of reporting and the number and variety of organizations that qualify as lobbyists. On the local level, some groups are calling for access to lawmakers' appointment books so that the public can see who they met with and what they discussed.
At the federal level, transparency has come up in reference to "earmarks." These are provisions benefiting particular industries or organizations that lawmakers insert into appropriations bills, often at the behest of lobbyists who have made significant campaign contributions. These earmarks are usually added at the last minute so that other members of congress do not have sufficient time to study them. Some reformers have advocated increasing transparency by requiring that earmarks-and the names of their sponsors-be published online at least 24 hours before a bill comes to a vote.
Lobbyists are advocates. That means they represent a particular side of an issue. According to the Thomson Gale Legal Encyclopedia,
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.
But what is the lobbyist's obligation to be fair to the other side? In the advocacy model, lobbyists may do anything on behalf of their clients as long as it is not outright immoral or illegal. Jesuit political scientist Thomas Reese, S.J., himself a former lobbyist, argues that this model does not always translate well in the public sphere. In a courtroom, two equally powerful attorneys go before an impartial judge. In the halls of Congress or the State Assembly or City Hall, the lobbyist often represents powerful interests, while the people have no representative. An ethical approach to lobbying must ensure that someone stands up for the common good. Lawmakers have an obligation to solicit the views of those who are not represented by powerful lobbying groups.