Private Ethics, Public Conduct: An Essay on Ethical Lobbying, Campaign Contributions, Reciprocity, and the Public Good
Susman, Thomas M., Stanford Law & Policy Review
The author of a recent book examining "Imperial Washington" observes that "some form of degenerative neuro-political condition has left government responsive to particular interests but deaf to the popular will." In posing whether the expression "Decline and Fall" is relevant today in our nation's capital, Cullen Murphy seems most struck by his failure to see a clear "boundary between public good and private advantage." He is not the first, and certainly will not be the last, to make this observation. 1
Many have looked at the forces shaping public policy and governmental decision-making in Washington, and most reviews have been critical. Books bearing titles like "Scandal," "Money Men," and "Parliament of Whores" leave little doubt of their authors' condemnation of the system as we know it. The list of lobbyists and public officials--starting with Jack Abramoff--who have been indicted and imprisoned in the past two years is eye opening. A recent investigation by the Center for Public Integrity, American Public Media, and Northwestern University's Medill News Service found that, between January 2000 and June 2005, members of Congress and their staff went on nearly 23,000 trips valued at almost fifty million dollars, all paid for by private sponsors, including corporations, trade associations, and nonprofit entities. (2) The Democratic take-over of the reins of power in the 110th Congress has been attributed in large part to the public revulsion at what has been aptly called a culture of corruption in Washington.
We know a lot about who did what to whom in creating this culture, and we have seen both houses of Congress rush to enact legislation to do something about it. (3) We even have a good idea of where the fundamental problem lies, and money has much to do with it, though many of the so-called reforms bear only a tangential relationship to that root of all evil. Each piece of reform is crafted individually and sometimes (though not often) carefully. But they do not fit together to form a coherent whole. Perhaps they never will. Both Congress and the lobbying profession seem to be developing two dimensional solutions to three dimensional problems, so it is little wonder that those solutions often do not work as intended.
In this essay I attempt to drill beneath the usual diagnoses of the problems in Washington and to explore the role of reciprocity as it applies to relationships between lobbyists and elected officials. I begin with recognizing the importance of lobbying in our democratic system and its constitutionally protected status. I then discuss why lobbying is more than a private activity carried out on behalf of private interests, but is inevitably and unavoidably imbued with public implications. Thus, when applied to the lobbyist, the ethical standards ordinarily used to guide private conduct must have an added component to accommodate the public impact of that conduct. With an understanding of the reciprocity principle, the plot thickens, for when public officials reciprocate for private favors, the benefits of the transaction are inevitably bestowed upon narrower interests. And, although gifts and travel and honoraria and other such tangible favors that lobbyists can provide to legislators can be banned, as the recently enacted legislation seeks to do, the ubiquitous cloud of campaign contributions and other campaign-related activities by lobbyists is not as easily dissipated.
I. LOBBYING AND LOBBYISTS
Despite lobbying's historic identification with corruption of governmental processes, most elected officials readily admit that it would be very difficult, as a practical matter, to conduct the public's business without lobbyists. (4) Lobbyists bring information to officials that they could not otherwise obtain; provide a counterweight to arguments by the executive branch or other interested parties; assist in identifying the consequences of proposed courses of action; and translate into relevant parlance everything from public opinions to demographic data to scientific developments. …