There is now bipartisan interest in a change in the lobbying rules to reach the “back room” or “shadow” lobbyist. Most immediately, the proposal has been to have the new Administration expand the ban by Executive Order on federal government employment of lobbyists to include these individuals believed to be lobbyists in all but the name. This would close a much-derided “loophole,” one that has been especially infuriating to those who do register under the lobbying disclosure law while watching others, who seem to do pretty much what they do, escape on an apparent technicality. An amendment to the Executive Order to capture “shadow lobbying” could be followed by a corresponding change in the lobbying laws to greatly enlarge the numbers subject to mandatory disclosure requirements.

The appeal to close a loophole packs its usual punch. It answers the frustration over apparent inconsistency (the demand that those doing similar things be treated alike), and the extension of reporting requirements to “shadow lobbying” would help create a more complete picture of the total dollars spent on influencing public policy. But, as always, there are complications and competing considerations that should affect how a reform like this is designed--with what limiting principles--and how it is administered.

This is one view of the effects of modern political reform, and here is another, and their conclusions are, in a sense, similar: reforms have not worked as intended. But they don’t have in mind the same failures.

Robert Samuelson thinks the reforms have weakened the political system, undermining political parties and blocking other channels for constructive compromise and effective governance. Isaac Arnsdorf argues that, in the case of lobbying reform, the laws have worsened corrupt practice, not curbed it, and he is most exercised by legislators' ability to wield influence for private profit after leaving office.

The one commentator thinks we have government enfeebled by the unforeseen effects of reform; and the other sees reform to have left government more corrupt. Both analyses travel the familiar route of making a point that it invites the reader to take too far.

This is a good time for carefully researched and balanced discussions of political reform and Lee Drutman has now stepped in and done his part with an excellent book about lobbying, The Business of America is Lobbying (2015).  It is not a screed and instead looks closely at the growth and changed character of this activity within the corporate sector.  Drutman concludes with proposals for reform but only and admirably after he pares away preconceptions and identifies precisely what he believes the problem to be.

Corporate lobbying has become pervasive, Drutman claims, but he does not mean by that that it is always effective.  Huge amounts of money are spent unwisely or inefficiently and Drutman assigns some of the responsibility for the excess to the lobbyists themselves.  It is a business, after all, and those engaged in lobbying are immodest, he finds, in appraising the value of their efforts.  Their clients, relying on this appraisal, ask for more of the same, which the lobbyists are only too happy to provide.  (In fairness, lawyers should be quick to admit, lobbyists are not the only professionals convinced of their indispensability.)  So a great deal of money is spent on lobbying.

Of course not all of it is wasted.  Drutman is judicious in evaluating lobbying effects: he writes that “contrary to public opinion, politics is not a vending machine.” Id. at 23.  But in certain circumstances, depending on the salience of the issue and other factors, lobbyist can be quite effective, and the well-paid experience and savvy lobbyists are the most effective. One clear finding is that lobbyists who come out of government, spinning the revolving door as they go, can boast of a relatively impressive record of success for their clients.  Wrong to believe that all their lobbying dollars are worthwhile, the corporate employers of lobbyists are not mistaken to believe that sometimes it pays-- and they are well advised to pay-- to have the best lobbying talent on their side.

It is no secret that the campaign finance debate has become fruitless and repetitious – – in short, exhausted. Mark Schmitt of the New America Foundation, a powerful progressive voice on reform, is one among a number of who believes that the entire question should be rethought from scratch. He has published a paper through a collaborative effort of the Brennan Center for Justice and the New America Foundation, arguing for a new framework built around a conception of political opportunity. He should win a large audience for what he says about the staleness and inaccuracies in the policy debate, and for the suggestions he makes for a change in direction.

Assessing Lobbying Reform in the Obama Administration

Presentation to the American University Conference on Lobbying Reform in the U.S. and the E.U.

March 17, 2014