Proposed Reforms Regarding the Disclosure and Regulation of Federal Lobbying
The American people and government watchdog groups are frustrated by the significant influence that special interests wield in
The Lobbying Disclosure Act of 1995 (LDA), conflict of interest laws under the Ethics Reform Act of 1989, and the regulations governing travel for congressional and executive employees, have all marked significant efforts to curtail corruption and the appearance of corruption in lobbying the federal government. But over time, several weaknesses and omissions in these laws and regulations have become glaringly evident. Public Citizen recommends the following reforms for enhancing the disclosure and conduct of lobbying activities.
Section I: Limiting Influence Peddling by Lobbyists
1. Prohibit registered lobbyists from soliciting or arranging for campaign contributions to lawmakers and political parties, and severely restrict campaign contributions that lobbyists may give from their own pockets to those whom they lobby.
As members of Congress and party committees hustle to raise campaign cash, one pool of potential donors – lobbyists – provides a rich and easy source of funds. Their support comes in three ways:
Lobbyists are willing, and expected, to make campaign contributions to those whom they lobby. An extensive set of interviews with numerous
Far more important as a means for lobbyists to dish out campaign cash is through soliciting campaign funds from their clients, bundling funds from their friends and colleagues, and hosting fundraising events, all on behalf of the lawmakers whom they lobby.
Lobbyist solicitations of contributions from clients – known in lobbyist parlance as “OPM” for “other-people’s-money” – are a very important tool in the influence peddlers’ arsenal. A lobbyist’s clients are usually more than willing to cooperate in a campaign contribution strategy to gain access in hope of sealing the deal with officeholders. The Westar scandal that Public Citizen helped uncover is but one case in point.
Westar’s lobbyist laid out a schedule of campaign contributions that each company executive would have to make in order for the Kansas-based firm to “buy a seat at the table” with congressional leaders. The contributions were made according to the schedule, even though one company executive asked the lobbyist about the targeted recipients of their contributions: “Who is [Rep.] Shimkus, who is [Rep.] Young. DeLay is from
Lobbyists can also serve as a convenient conduit for bundled campaign contributions. Disgraced lobbyist Jack Abramoff gave only a few thousand dollars to the Bush presidential campaign out of his own pocket, but he was more importantly a “Pioneer” for the Bush campaign. As a Pioneer, Jack Abramoff was assigned an identity number by the Bush campaign and then approached his friends and colleagues each to chip in their legal limit of $2,000 for the Bush campaign – and write Abramoff’s ID number on their checks. Through this bundling technique, Abramoff raised at least $100,000 in bundled contributions from others for George Bush, all of which is identified by the campaign as raised by Abramoff. That kind of money can buy favors.
Well-financed lobbyists will also arrange fundraising events for officeholders. Such an event can easily rake in large sums. In a complaint filed with the FEC, Public Citizen documented the numerous activities of one lobbyist, Mitch Delk of Freddie Mac, arranging fundraising events for federal officeholders, candidates and party committees. In the 2002 election cycle alone, Delk hosted 45 such events. More than half (24) of the events featured as a special guest Rep. Michael Oxley (R-Ohio), chairman of the House Financial Services Committee, which regulates Freddie Mac. Nineteen (19) of these events were held explicitly for the benefit of congressional members with oversight responsibility over Freddie Mac.
To keep this type of abusive influence peddling in check, registered lobbyists should be prohibited from soliciting or arranging for campaign contributions to lawmakers and political parties – period. No laundering of client money, no bundling of contributions from associates, and no fundraisers hosted by lobbyists and lobbying firms. This will address the problem of big money coming from lobbyists.
Furthermore, very low contribution limits should apply to lobbyists for what they can personally contribute to candidates out of their own pockets. Lobbyists, like everyone else, may have a right to chip in their own money for candidates they favor, but since lobbyists pose such a potentially corrupting influence over lawmakers, the contribution limits on lobbyists should be exceedingly low, such as in the hundred dollar range per candidate per election.
2. Prohibit privately-sponsored travel for government officials and staff.
Travel by congressional and executive branch officials and employees are subject to gift rules and ethics regulations. In addition to “official travel,” which is paid for by the government, federal officials and employees may also partake in privately-sponsored travel related to their official duties.
Government-paid official travel is strictly regulated by the appropriate governmental agency. The rules governing privately-sponsored travel, however, are more lax. A government official or employee may accept travel expenses to attend a meeting, speaking engagement, fact-finding trip, or similar event in connection with official duties from a private source if:
The abuses of privately-sponsored travel, especially for members of Congress and their staff, are legendary, earning the nom du jour of “congressional junkets.” The cases of abuses are piling up day by day, featuring such stories as lobbyist Jack Abramoff arranging a $70,000 golf junket for House Majority Leader Tom DeLay and others to
Though there are some legitimate privately-sponsored trips for educational purposes, the abuses of travel privileges are so widespread as to become the norm. Travel for congressional and executive officials and employees are a
The solution to these travel abuses is simple: All privately-paid travel for government officials and their staff should be banned. If a trip is necessary or offers important educational opportunities to government officials and their staffs, then the government should pay for it as official travel.
If Congress does not have the will to ban privately-sponsored travel and end this avenue of corruption altogether, it could take a number of other steps that would remedy the most egregious abuses. The existing ethics rules could be tightened to make it harder for lobbyists to use non-profits, parent companies and corporate clients to avoid the ban on lobbyist-paid travel. At a minimum, travel rules should:
3. Restore the “no-cup-of-coffee” gift ban.
There appear to be fairly strict limits on gift-giving to members of Congress and their staff and to executive branch officials: Lobbyists (and all others) may provide a single gift of less than $50 in value or a total of gifts of less than $100 in value per year to a single covered official (the limits are somewhat lower for executive branch officials). These gift rules often are not enforced, easily sidestepped, and frequently cited by lobbyists and covered officials as too confusing and difficult to monitor.
The restrictions of both chambers of Congress are further watered down by permitting unrealistic accounting methods to mask the true value of gifts. The current situation is further worsened because there is no requirement that gifts be disclosed.
House Republicans in 1995 established strict rules banning the acceptance of gifts by members in that body. The Senate and the executive branch enacted rules that reduced the values of gifts officers and employees could receive. Since then, the Senate and executive branch gift rules have remained generally constant, while House rules have been steadily relaxed, over time becoming less stringent than either the Senate or executive branch rules.
Gift giving is now commonplace in Congress and the executive branch. Numerous exceptions to the limits on gifts have reduced the scope of regulation dramatically. These include:
Even more problematic than the exceptions to the gift rules is the general lack of monitoring and enforcement. The states of
Gifts are an unnecessary and potentially troublesome source of business between lobbyists and public officials and should be prohibited altogether.
4. Establish a central ethics agency for Congress to monitor and enforce federal lobbying, travel, gift and ethics laws and regulations.
Currently, the implementation, monitoring and enforcement of lobbying, travel, gifts and ethics laws are done loosely through a confederation of offices, each with different levels of jurisdiction. The Clerk of the House and Secretary of the Senate receive and disclose lobbying and travel reports. Ethics standards, travel and gift rules for the House of Representatives are implemented and enforced primarily by the Committee on Standards of Official Conduct. Senate ethics standards, travel and gift rules fall under the authority of the Senate Select Committee on Ethics.
This quilt of lobbying and ethics authorities has resulted in a myriad of different rules applying to different individuals and branches, and considerable confusion among all persons covered under the regulations. Moreover, there are serious questions whether any of these congressional committees have the independence and discipline to fulfill their mission. The Clerk of the House and the Secretary of the Senate will not act without directives from members of Congress. The ethics committees have a self-interest in weak enforcement and can end up in bitter disputes, as happened in the House of Representatives in 2004 and 2005.
Several states provide better models for implementation and enforcement of lobbying and ethics laws through independent ethics agencies, with leaders selected on a non-partisan and rotating basis, and with multiple-year budgets to protect against retaliations by a hostile legislature or governor. An independent agency overseeing lobbying and ethics at the federal level would help protect against partisanship, encourage responsible enforcement of lobbying and ethics laws, and standardize their implementation.
Congress should consolidate the responsibilities of the Senate and House ethics committees, as well as each body’s lobbying disclosure responsibilities and travel and gifts monitoring, into an independent agency capable of serving as a strong watchdog.
Members of a new congressional ethics agency should be full-time positions, staffed and directed by career officials who are not members of Congress. It should assume all the responsibilities of ethics enforcement and lobbying disclosure for both houses of Congress. The agency should also be afforded a budget that is approved once every two sessions of Congress, in order to better insulate the agency from retaliation.
5. Strengthen the Office of Governmental Ethics to monitor and enforce federal travel, gift, and ethics laws and regulations for the executive branch.
Ethics and conflict of interest guidelines for executive branch employees are developed by the Office of Governmental Ethics (OGE), which has little enforcement authority. As an ethics enforcement agency, OGE is better structured than the congressional ethics committees in that most of its employees are career public servants rather than partisan politicians. However, OGE is given only advisory authority on ethics matters and is chartered to work as a “partner” with executive agencies.
For example, while OGE has developed guidelines for granting waivers for employees from the conflict-of-interest laws governing future employment searches, these are only guidelines. Each executive branch agency promulgates its own waiver procedures, which are then interpreted and enforced by the specific ethics officer appointed within that executive office. As a result, there is no one set of procedures for seeking and receiving waivers from conflict-of-interest laws, and each set of waiver procedures are interpreted differently by different offices.
Moreover, OGE has neglected to establish itself as an effective public information source. Though the agency compiles and scrutinizes previous employment records for scores of executive branch appointees and employees, it makes little effort to make these records available to the public.
In the executive branch, the OGE should continue to serve as the principle oversight agency, but be strengthened in order to ensure that conflict of interest standards are consistently applied. OGE must be granted some enforcement authority, particularly over civil violations, and should not be viewed as a “partner” sharing ethics responsibilities with other executive branch agencies. It must be empowered as the central ethics agency for the entire executive branch, responsible for the promulgation of rules and regulations, monitoring their implementation, and enforcing compliance. It should also serve as the central repository for all rules and compliance actions, and function as the executive branch’s public outreach clearinghouse for ethics.
Section II: Slowing the Revolving Door
1. Extend the revolving door “cooling off” period to two years and include a prohibition on all lobbying activity during that period.
Under the Ethics Reform Act of 1989, members and staff of the federal executive and legislative branches are subject to restrictions on post-government lobbying activities. While any former government official or employee may walk through the revolving door and accept a position as a lobbyist immediately after leaving the public sector, there are specific constraints on their activities, depending on the nature of their previous public service. The most common restriction is the one year “cooling off” period. Generally, former members of Congress and senior level staff of the executive and legislative branches are prohibited from making direct lobbying contacts with former colleagues for one year after leaving public service.
The objectives of this cooling off period are two-fold. First, the revolving door can cast doubts on the integrity of official actions and legislation. A member of Congress or a government employee could well be influenced in their official actions by promises of high-paying jobs in the private sector from a business that has a pecuniary interest in the official’s actions while in government. Second, the former government employee may give the undesirable appearance of utilizing the opportunities and privileges gained while working as a public servant to enhance private gain, both of the former employee and the special interest group that hired the employee.
In practice, the cooling off period is falling far short of its objectives. As documented by Public Citizen, it is typical for 45 to 50 percent of members of Congress to begin a lobbying career after leaving public office.
A one-year ban on lobbying is an ineffective barrier to officeholders who shift to the private sector using their public sector connections. The former five-year ban that applied to executive officials under the Clinton Administration may be too draconian, potentially removing officials from ever working in their areas of expertise. A more appropriate cooling-off period would be a two-year ban on lobbying. Two years comprise an entire session of Congress. This is a crucial time period during which former colleagues of the newly-minted lobbyist may retire, congressional staff may move on to other opportunities, and committee chairmanships may switch party.
The lobbying activity subject to the current one-year prohibition has been narrowly defined to include only direct contact with federal officials. All other forms of lobbying activity, such as researching relevant issues, developing lobbying strategy and supervising lobbyists, are not subject to the one-year ban. As a result, it is common for covered officials to step into lobbying positions immediately upon leaving government. They run the entire lobby shop; they only stop short of picking up the phone and making the pitch.
The scope of prohibited lobbying activities during the cooling-off period should be expanded. It is not enough to prohibit direct lobbying contacts, which are only a small part of the profession of lobbying. Former officials should also be prohibited from engaging for pay in “lobbying activity” – the research, strategy development and supervising of activity specifically designed to facilitate making a lobbying contact with a covered official.
2. Temporarily suspend special privileges of former members of Congress who become lobbyists.
Once a member of Congress retires or leaves office, they are granted certain special privileges. These include access to the floor where members vote and admission to exclusive Capitol Hill facilities, such as the congressional gym and dining rooms. Such perks grant a level of access that normal lobbyists and average citizens do not have and amount to government assistance to individuals choosing to parlay their public service into a lucrative lobbying career.
Another perk is the Identification Badges given to former lawmakers, which allow them to quickly pass through heightened post-September 11th security and other restricted Capitol Hill locations, facilitating easy interaction with members and their staffs.
If a former member of Congress decides to cash in on their public service and go through the revolving door, Congress should not aid in such endeavors. A member should be required to turn in their Identification Badge upon registering as a lobbyist and all special privileges should be suspended for the duration of serving as a lobbyist.
3. Improve scrutiny and disclosure of waivers from conflicts of interest granted to executive branch officials seeking private-sector employment.
Conflict of interest can occur when a public official negotiates future private-sector employment while on the job, if that potential employer has a vested interest in the work being done by the official. Ethics laws and regulations forbid public officials from seeking personal gain through official actions, but only the executive branch is subject to an unambiguous prohibition against negotiating future employment from businesses with a vested interest in the public official’s work. An executive branch official may receive a waiver from this conflict of interest prohibition from the agency director. The waiver is not entered into the public record.
Such waivers have been granted in a questionable and secretive manner by political appointees. For example, Health and Human Services Secretary Tommy Thompson granted a conflict of interest waiver on
Though the Scully scandal has since prompted the Bush Administration to review any further waivers through the White House counsel, these waivers remain easily obtainable and still are not made public record.
The process for granting waivers from conflict of interest restrictions to seek private employment should be standardized for all executive agencies and subject to review by the central Office of Governmental Ethics (OGE). Waivers should not be granted unless OGE determines that the conflict of interest is too insubstantial to taint the official’s judgment or otherwise unavoidable under emergency circumstances. OGE should keep all records relating to the request and approval of waivers and promptly make these records publicly available.
4. Apply the same executive branch conflict of interest restrictions to members of Congress and their senior staff seeking private employment.
While federal law prohibits an employee of the executive branch from seeking future employment with an organization that has a vested interest in the employee’s work, ethics rules on negotiating future employment are not as strict for members and staff of the Senate, and even less so for the House. Both the Senate and House rules advise members and staff to recuse themselves from official actions of interest to a prospective employer while job negotiations are underway. But that is about as far as congressional ethics go in regulating this conflict of interest.
In negotiating future employment as a lobbyist while still serving in government, members of Congress and senior staff are warned not to be unduly influenced by the prospects of lucrative job offers, but they may nonetheless go ahead and negotiate jobs and salaries. Though recusal from participating in official actions where a conflict of interest occurs is suggested in both the Senate and the House, it is not mandated. While a recusal is rare, the flow of congressional officials into the ranks of private lobbyists every year is not.
Lucrative salaries and benefits from special interest groups can be very tempting. For example, in 2005, Rep. James Greenwood (R-Pa.) stepped from public service overseeing the drug industry into a $650,000 a year salary (plus benefits) position as president of BIO, a trade association of biotechnology businesses. Rep. Billy Tauzin (R-La.), after playing an influential role moving the Medicare prescription drug bill, moved himself into heading PhRMA the same year, the lobbying arm of the prescription drug industry, for a reported $2 million salary.
These salary levels for private sector lobbyists can cast grave aspersions on the integrity of an official’s public service, if the official is negotiating employment while in government. It appears that the House and Senate ethics committees are not keeping tabs on who in Congress is negotiating for outside employment.
Recusal from official actions in which a conflict of interest arises with job negotiations should be mandatory for members of Congress and senior congressional staff, unless waived in writing by the ethics committee as an insufficient conflict to affect the integrity of the official’s services to the government. All negotiations for future employment by members and their senior staff, as well as any waivers received for potential conflicts of interest, should be made public record.
Section III: Improving Lobbying Disclosure
1. Require electronic filing and a searchable, sortable and downloadable database.
The House and Senate offices that administer the LDA have failed to fully implement the law’s electronic reporting requirements, which specifies that they develop “computerized systems designed to minimize the burden of fi