You Can't Outlaw a Free Lunch
The Senate's lobbying reform proposal will fail because it's designed to fail
There's a new sign in front of the Capitol, Sen. Christopher Dodd (D-Conn.) tells us: "It says ' Not for Sale.'" Pennsylvania Sen. Rick Santorum (R-Pa.) enthuses "Congress stepped up in a big way." And Sen. Susan Collins (R-Maine) explains that The Legislative Transparency and Accountability Act, which sailed through the Senate on Friday by a vote of 90-8, will help repair busted "bonds of trust" between Congressman and constituent.
It says something that the most vocal supporters of a bill purporting to strike at power politics are people in power. Outside the Capitol, it's hard to find anybody who thinks the Legislative Transparency and Accountability Act is anything but a cheap cosmetic, a pasty layer of cut-rate foundation that appears to have persuaded precisely 90 people of its authenticity.
The reform attempt passed the same day that a Miami judge sentenced lobbyist Jack Abramoff, chapeaued poster boy for a culture of corruption, to 70 months in prison. ("I have started the process of becoming a new man," Abramoff assured the judge before sentencing.) Former Rep. Randy "Duke" Cunningham, now serving eight years for accepting bribes, has also been cast as cronyism incarnate. Both men provoked an outburst of congressional contrition, which quickly quieted into the embarrassed whisper that is Senate Bill 2349.
The bill consists largely of minor extensions to existing ethics rules. Under current law, a Congressman can set up as a K Street lobbyist just one year after ditching The Hill. If the Legislative Transparency and Accountability Act becomes law, he'll have to cool his heels for…two years. Right now lobbyists are free to buy Congressmen meals up to $50 (genesis of the $49.99 D.C. lunch.) The bill says lobbyists can no longer buy free meals for Congressmen or staffers, though employees of companies that retain lobbyists can still hit up the expense account and spring for lunch. It also introduces a spate of loophole-ridden disclosure requirements, and includes a thinly veiled attempt to restrict political speech for good measure.
Abramoff and Cunningham ignored existing laws, so it's unclear why their malfeasance is inspiration for new ones. But the faux crackdown on lobbying does reflect a "hey, how'd that happen?" theory of honest government, a worldview in which lobbyists, and not Congressmen they corrupt, are responsible for the earmarks that snake their way into appropriations bills. Like obese Americans launching lawsuits at McDonalds, Congressmen plead that they are unable to resist free lunch at The Willard without the force of law behind them.
Meal restrictions are traditionally got around by exploiting exceptions for "prior relationships," so lobbyists and politicos can always claim to be old chums from prep school grabbing a bite. And if the attempt to regulate friendship is futile, the focus on wining and dining is simplistic. As Brian Wild of the Nickles Group, a D.C.-based consulting firm, explains, the free lunch obsession reflects "an editorial cartoonist's idea of how lobbying works." Lobbyists' real advantage, says Wild, isn't in the free flow of fine wine, but in information. They know more than the staffers about the issues, and congressmen need lobbyists—who have actually read the bills being debated—to know what it is they're voting for.
Information may well want to be free, but in Washington it seems to be costing taxpayers more than ever. Influence peddlers come armed with both a specialized knowledge of Byzantine issues and prepackaged earmarks. The Senate bill requires that earmarks be disclosed 24 hours prior to debate of the bill to which they are attached. That would be a genuine reform if the provision applied to earmarks across the board, but the bill makes exceptions that will probably just redirect the flow of cash. By defining earmarks as state and local projects, the bill excludes pork attached to federal bills and routed through federal agencies. As Keith Ashdown of Taxpayers for Common Sense has pointed out, Duke Cunningham stitched giveaways onto defense bills; they would have slipped right through the federal loophole anyway.
Despite its uneven application, the bill and the sentiment behind it reflect a simplistic disclosure-as-panacea approach to the market in political influence. Its sponsors target "grassroots lobbying" specifically, which has alarmed the ACLU and the nonprofit Alliance for Justice, among others. The provision requires that groups paid to encourage the general public to contact their lawmakers directly disclose their activities. In this case, the attention shifts from manipulated congressmen to manipulated voters. And the same Congress that can't trust itself around bribe-wielding lobbyists doesn't trust voters to know their own interests without legislative intervention.
As Stephen Hoersting and former FEC chairman (and Reason contributor) Bradley Smith point out (pdf) in a Center for Comparative Politics policy piece, forcing disclosure of paid get-out-the-vote efforts allows "opportunity for favoritism or retaliation" by lawmakers. The provision does little for voters, but empowers lawmakers with information about who is and is not supporting them. Hefty fines for complex disclosure laws can be selectively enforced, targeting private groups advocating causes unpopular with those in power. Sound like a stretch? Tell that to Russell Howard and Steven Cicero, who, as Brian Doherty reported in Reason back in 1996, were slapped with an $808,000 fine after spearheading a recall effort against a state senator. Disclosure makes assisting unpopular causes more of a risk.
The grassroots lobbying provision is more campaign finance than "lobbying reform." It has nothing to do with lobbyists hobnobbing with lawmakers. But the entire bill offers a snake oil solution to a genuine malady. Lobbyists do have too much power in Washington relative to regular citizens, and Congressmen are constantly consulting lobbyists for specialized information on a dizzying array of detailed issues they have no knowledge of and no business deciding. Lobbyists are substitutes for knowledgeable staffers in a federal government sprawled so greatly, micromanaging so intently, that K Street's 14,000 foot soldiers are a necessary backstop.
If lobbyists have a hand in everything Washington does, that's at least partly because Washington wants a hand in what everyone else does. Real "lobbying reform" wouldn't outlaw free lunches. It would just make them worthless.