With the passage of health reform, the administration and Congress will
turn their attention to other issues. One thing, however, will remain
the same — the assault upon lobbyists.

The administration is calling for greater disclosure of lobbyist activities and an expansion of the definition of lobbyist that would extend prohibitions and restrictions to a greater number of corporate executives.

{mosads}A recent front-page headline in The Washington Post exclaimed, “The Lobbyists Win by Killing Tax on Liquor.” Another article quoted a senator who was unhappy with the direction of the healthcare debate as saying, “[T]he lobbyists are winning.” From the sound of it, lobbyists must be the most powerful people in Washington.

Although a few lobbyists have been known to beat their chests, they are not nearly as powerful as critics would have one believe. It is the interests that lobbyists represent that have the power. When someone complains that lobbyists are winning, they may be acknowledging the lobbyists are representing differing constituency interests so compelling that they cannot be ignored.

Before anyone blames corporations, it is not necessarily business that wields the influence. Often it is average Americans for whose interests corporations and other groups mobilize. Take, for example, the headline about the liquor tax. It wasn’t the lobbyists and their clients who killed the tax increase. It was probably concerns that legislators had about the reaction of the millions of consumers who enjoy the occasional drink and who did not want to have to pay more for the pleasure. Those individuals, mostly middle- and lower-income Americans, are a powerful voting bloc.

If that is so, why complain about lobbyists? Critics say that unlike average Americans, lobbyists wield “undue or special” influence over politicians, which allows them to obtain political favors for their clients. But what is that undue or special influence?

In the past, it could be said that lobbyists gained influence by wining and dining politicians, giving them expensive gifts and taking them on trips to exotic locations. Due to the reforms of 2007, that is no longer allowed. The only benefit that a lobbyist can give to a member of Congress is a campaign contribution, which all Americans can do. And most lobbyists are not significant fundraisers or donors, as an examination of disclosure reports indicates.

When industries come under fire, they often develop voluntary codes of conduct establishing practices that, if followed, would satisfy their critics. Some have tried this, but while well-intentioned, the effort has had very little impact. Perhaps it did not go far enough.

Since all lobbyists can do to ingratiate themselves to a member of Congress is to make or raise campaign contributions, lobbyists could voluntarily refuse to do so. What if there were two classes of registered lobbyists, those who raise or make campaign contributions and those who voluntarily refrain from doing so, i.e., a “non-donor lobbyist”? Since a non-donor lobbyist would give nothing of value to a member of Congress — no meals, gifts, travel or campaign contributions — there is no rational basis to subject her or him to the prohibitions and restrictions that apply to lobbyists who do make or raise contributions. For those who would say that others in a company or firm would do fundraising and contributing instead, this could apply to all in an enterprise. Before anyone takes this idea seriously, however, he or she should ask if the adoption of such a policy would change the way lobbyists are viewed.

Consider the executive branch. No lobbyist has ever donated to the president, as he eschewed contributions from them during his campaign. The president has barred his political appointees from accepting any gifts from lobbyists, such as a $20 meal, which had been allowed in past administrations, including that of President Bill Clinton. Thus, there is no opportunity for a lobbyist to endear him- or herself to a political appointee, and yet executive branch restrictions are the most severe and appear to be expanding. So what is the source of the special undue influence by lobbyists in the executive branch?

And what of the legislative branch? Members of Congress do accept contributions from lobbyists. Surely there should be some benefit to being a non-donor lobbyist there.

 The administration wants the Lobbying Disclosure Act amended to generally eliminate the 20 percent exception and to require the reporting of all meetings a lobbyist has with covered officials. While there are many good arguments against each of those suggestions, assume they were enacted. Would lobbyists then cease being political piñatas? Perhaps it is time for the administration to invite the lobbying community to discuss whether that is possible.

Spulak is a King & Spalding partner in the Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.