Thursday, December 22, 2005

Who Lobbies for the Rest of Us?

I don't think President William McKinley is remembered for much these days other than his 1896 defeat of William Jennings Bryan and his assassination in 1901. But you might give him at least a moment's thought for one other characteristic of his presidency: his insistence that he didn't want any lobbyists serving in his administration.

It seems such a quaint attitude now, doesn't it? We have become accustomed to the presence of lobbyists, not just as part of an administration, but in every nook and cranny of Washington. People serve in an administration, leave it to make more money lobbying, then return to serve the White House. They put in time on Capitol Hill, either as staffers or as members of Congress, then turn around to lobby their former colleagues.

And if they don't become lobbyists themselves, they marry them; any number of sitting members of Congress go home to spouses who work for private lobbying firms or represent particular special interests on Capitol Hill.

You've probably heard the term "revolving door" government; sometimes it seems as though we've moved on to "advent calendar" government, with a former lobbyist or someone with close ties to lobbyists popping up behind every little window you open.

Unfortunately, this is understandable. The constitutional right enjoyed by every citizen to "petition government for a redress of grievances" has become a career option, an industry that is making some people very wealthy. Lobbying has become a $3 billion-a-year industry. It has doubled in size over the last six years. Why shouldn't those who understand government, who have served in it and may serve in it again, try for their own slice of the pie?

Why has lobbying become a major industry? Because people and interests with money have discovered over the years that it can make a difference. Lobbyists have been remarkably successful in promoting lax funding rules for pension funds, for instance; that has been good news for companies with pension-fund obligations, but bad news for the rest of us. Their work has worsened the chronic under-funding of pensions and shifted more costs to the taxpayer.

Expenditures on health-care lobbying last year rose to $325 million, as health-care providers, insurers, drug makers, medical professionals and others all worked to make sure their interests were served as Congress took up their issues. Companies routinely help shape tax bills so that they pay less, even though this inevitably means that the ordinary taxpayer must pay more.

I don't want to overstate the connection between lobbying and legislative success. Obviously, many factors influence the success or failure of a given piece of legislation. It stands to reason, for example, that Republican-leaning lobbyists could have considerable success lobbying a Republican administration and a Republican-led Congress, since their shared philosophies and common interests often point in the same direction.

Yet all of these reasonable-sounding explanations are, in fact, part of the problem with the lobbying industry as it operates today. Sure, it makes sense for former members of Congress or former agency officials to lobby. And if a lobbyist is the best choice for an undersecretary position in a particular administration, why not let him take it? Certainly you shouldn't keep the wife of a member of Congress from choosing a lobbying career if she wants. And it only stands to reason that lobbyists would shower ideologically sympathetic lawmakers with campaign contributions and Super Bowl tickets as gestures of thanks.

But we're in trouble when the lobbying industry becomes so intertwined with public life that it's impossible to tell if legislation is a legitimate "redress of grievances" or something less savory.

We're in trouble because it then becomes easier for those with the money to buy access to get what they want, while many of the rest of us are shut out of the process. We're in trouble because it makes the entire legislative process suspect. Did this bill pass because it's best for the country, or because those with money had extraordinary opportunities to influence legislators that the rest of us lacked?

And finally, we're in trouble because, whatever the truth of the matter, ordinary Americans grow to suspect that our system, our democracy, does not in fact work for them. A lobbying industry that citizens believe can overwhelm anyone speaking to their needs puts the legitimacy of representative government in peril.

So it is time to enact meaningful lobbying reforms. No one anticipates returning to the strict moral code of President McKinley. But what lobbyists do regarding a particular bill or regulatory measure should be as transparent as possible - as easy to follow as going online to look up a weather report. The ties that lawmakers and regulators enjoy to particular industries and interests should be equally out in the open.

Those who like business as usual in Washington will complain that enacting such reforms will stifle the informal relationships that are essential to the functioning of government. I don't think so. But even if it's true, then so be it. The stakes have become that high.

Audio Version

Wednesday, December 14, 2005

It's Hard to Write Laws

When Congress hurriedly passed its first multi-billion dollar relief bill in the wake of Hurricane Katrina, only a handful of legislators were actually present. The measure was written by a few people, almost certainly not members of Congress themselves, and then passed by "unanimous consent." Most of our elected representatives were not even in Washington.

Knowing this, you might be tempted to think of it as yet one more example of how little input the rank and file enjoy on Capitol Hill these days. My own thoughts, however, run in a different direction: I'm impressed that they got it done so quickly.

If you're like most people, you probably imagine that when your representative has an idea for a new law, he or she sits down, writes it up — maybe using some legalese here or there — and sends it off for consideration. If only it were that easy.

In truth, drafting legislation is an immensely complex task with which most members of Congress — I hope this won't shock you — feel uncomfortable. This is because it demands technical and legal skills that are extremely difficult to learn while juggling all the other demands faced by members.

To begin with, the entire bill must relate to the appropriate section of the United States Code. Then, since it almost always affects existing law in some way, it must address the particulars of each law it will change, which means that every addition, change or deletion in existing law must be spelled out in detail. And all this must be done in specific language with legislative terms of art that have evolved over the past couple of centuries of American law-making. So entire offices in the House and Senate are filled with highly expert legislative draftsmen. It's no surprise that legislative aides who are adept at bill-writing are highly prized on Capitol Hill, or that mistakes creep into hastily drafted legislation and produce consequences that no one intended.

Yet the technical aspects of writing legislation are only the beginning of the challenges it presents. Congress is not like an operating room, or a "clean room" at a semiconductor plant, where all outside influences are shut out. If anything, it's just the opposite. It feels sometimes like a seething cauldron of egos, home-state concerns, grand designs, political strategies, and elbow-jabbing interests. And all of them are focused on one thing: the specific language that goes into the bills that affect them.

This makes sense, of course. Billions of dollars and matters of high principle rest on the placement of a comma, the use of "and" versus "or," the precise description of a geographic area, the inclusion or absence of a crop, a business or a group of people. Legislators know that lobbyists, constituents, the White House and their colleagues are all looking over their shoulder at the language that goes into a bill. This is, after all, where the rubber meets the road, where all the lofty rhetoric and fine ideals get translated into concrete action.

This is why writing legislation can often be excruciatingly difficult and take a long time. Politics is the art of the possible — and of building a majority — and when verbal agreements or unspoken understandings suddenly take shape on the page, many issues and divisions that before might have seemed manageable take on a reality that demands attention. Words matter, and how they are used can make a huge difference.

Judges and bureaucrats often complain about fuzzily written laws that leave a lot of room for interpretation, but this is frequently the price of getting a bill passed; the vaguer the language, the more likely it is to garner the votes it needs. There is a cost to this, of course: the less clarity there is in legislation, the less clarity there is in the law, which in turn gives judges and bureaucrats greater leeway to interpret it.

Yet legislation is how Congress addresses the most difficult public policy issues of the day. For every knotty problem — every funding decision, every intractable social problem, every political controversy or economic dilemma — someone has to translate human thought into painstaking language that, ideally, produces a solution.

Every once in a while, as it demonstrated by its immediate response to Katrina, Congress can do this quickly. But we shouldn't be surprised if, for the most part, it demands extraordinary skill on the part of someone far removed from the public arena, and asks for our time and patience as well.

Audio Version

Tuesday, December 06, 2005

Be Thankful the House and Senate are Different

As the U.S. Senate prepares to take up the nomination of Judge John G. Roberts to be Chief Justice of the United States, there are two things worth pointing out about the role your representative to the U.S. House will play in this matter. The first is that he or she has none; members of the House have no official role at all in approving presidential nominations. The second is that if it were up to the House, Judge Roberts would no doubt already be preparing for the Supreme Court's opening day in October.

That is because, in addition to the constitutional provisions that delineate the responsibilities of the two bodies — only the Senate votes on treaties and nominations submitted by the President, while legislation affecting taxes must originate in the House — there is a vast gulf between the two.

The Senate gives greater leeway to members of the minority party, partly by tradition and partly because Senate rules allow members of the minority party to gum up the works if they're unhappy. In the House, on the other hand, the majority party sets the terms of debate and, if it's cohesive, controls the outcome. Democrats in the GOP-controlled Senate have the opportunity to scrutinize Judge Roberts' record; in the House, they could basically only stand by and watch as the Republican majority did whatever it wanted.

This simple difference is part of the genetic makeup of our democracy. The framers of our Constitution not only gave the House and Senate different responsibilities, they envisioned them as playing divergent roles. The House, whose members are elected every two years from districts drawn (ideally) to ensure their familiarity with the people they represent, was expected to represent the concerns and passions of the American people and to distill the voice of popular opinion.

The Senate, with its six-year terms and members who represent an entire state, was intended to stand at a greater distance from ordinary citizens and to consider legislation with deliberation and forethought. As George Washington once commented, just as we pour coffee into a saucer to cool it, "we pour legislation into the senatorial saucer to cool it."

From this fundamental distinction flows a cascade of cultural differences that you can almost sniff in the air of each chamber. In the House, members take very seriously their closeness to the people. They understand their districts in minute detail — the makeup of the communities they represent, the political and social beliefs of the people who live there, the concerns of their local politicians and civic leaders, the issues that matter to local business people.

If you look at the daily schedule of a House member who is at home, you see it's filled with meetings with neighborhood associations or church groups, with sessions for individual constituents, with visits to this VFW hall or that county fair.

Senators, on the other hand, tend to meet with the state Farm Bureau or statewide Chamber of Commerce, and if they show up at an event, it's the state fair or a state convention.

This lends a faint touch of aristocracy about the Senate. House members like to joke that when one of their own becomes a senator, the first thing he or she does is buy a more expensive suit and start thinking about the White House. But then, senators play on a bigger stage: they command the attention of the metropolitan media in their state and even of the national press; they are forced by the nature of their duties to be generalists, rather than the specialists produced by the House committee structure; and they have more opportunity, because of the deference accorded individual senators by their chamber's rules, to weigh in on vital matters of state.

For the politicians, partisans and activists who pay close attention to Congress, these differences can be a cause for frustration or relief — depending on where they sit. If you like what Judge Roberts stands for, you might find the delay imposed by the Senate's procedures to be irritating. If you worry about how he might rule on the Supreme Court, you no doubt welcome the chance to learn more.

And that is where the genius of our bifurcated Congress lies. For wherever you line up at the moment, the one thing you can know for certain is that the partisan makeup of the two houses will change at some point in the future. Today's rush to judgment in the House will become tomorrow's echo of the popular will, while across Capitol Hill, today's onerous Senate delay will become a refreshing dose of "cooling" deliberation.

Audio Version

Thursday, December 01, 2005

Citizens Can Be Powerful Lobbyists, Too

There has been much worrisome news lately concerning the lobbying industry.

Revelations about the string-pulling of super-lobbyist Jack Abramoff have pulled aside a veil that many Washington players wish had remained in place. The upcoming start of the new Medicare drug subsidy has unleashed a health-care industry feeding frenzy, as various interests try to affect to their advantage how the regulations get written and carried out.

It is all enough to make an ordinary citizen think that the choicest fruits of our democracy are available only to those who can afford to hire people to harvest them.

So it might seem a strange time to suggest that you and your neighbors share some significant advantages when it comes to affecting the course of events in Washington. Yet it's true

The lobbying industry may have a leg up in some respects - money, contacts, professional smarts and a seemingly endless supply of Super Bowl tickets and posh restaurant reservations among them - but these are not the only things that count. In fact, they can be outweighed by ordinary citizens who are resolved to make the most of their own, simple strengths.

First among these is the fact that you are represented in Washington by a House member and two senators. In my experience, most members of Congress take very seriously their role in representing the needs and desires of constituents back home. Not only does this mean that you can get a foot in the door, it also means that - assuming they want to be re-elected - your representatives will be reluctant to ignore you. You start out with access that most lobbyists have to work to gain.

Beyond this basic constitutional fact, members of Congress also know that the folks back home are often in a good position to understand how a piece of legislation might affect them. They are ready to listen. So when your congressman comes home, it gives you an opportunity to meet in an informal way - over a cup of coffee, for instance - that most lobbyists can only envy.

Moreover, because members of Congress know they need to gauge the sentiments of the communities they represent, you and your neighbors possess a distinct advantage over well-funded lobbyists: if you speak directly and forcefully about how a bill might affect you and your family, you have a kind of credibility that lobbyists simply cannot match.

And because you live in your community, not in Washington, you have direct access to other players that no member of Congress can ignore. You can appeal to your local media - which most members of Congress consider more important than the national media. And you also have the chance to join or form coalitions with groups in your area to oppose or support legislation, and even to work for or against your representative in Congress.

Finally, you have a home-turf advantage. Most lobbyists live in or around Washington and come from places all over the United States - indeed, from all over the world. You, on the other hand, come from the same region as your House member and the same state as your senators. You have experiences, culture, slang, even friends and acquaintances in common.

This puts you a step ahead in what may be the single most important task for any lobbyist, professional or citizen: establishing a good ongoing relationship with a member of Congress. You may not always agree with one another, but if your representative knows that you have valuable insights from your local perspective or constructive arguments to add to what he or she is hearing from others, that goes a long way toward leveling the playing field.

I don't want to play down the influence that professional lobbyists enjoy. There are many thousands of them now, and most of them do their work with skill and diligence. But for an ordinary citizen who has something to say, this should be at worst a challenge, not a barrier. The deck is stacked against you only as long as you allow it to be.

Audio Version