EP. 12 — SHADOW LOBBYING

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Weston Wamp: In the last week, America has been shaken by the killing of George Floyd by a Minneapolis police officer. His simple plea — “I can’t breathe” — has echoed across our nation.

These past few months have been an intensely trying time for our United States, and as much as ever Americans need to be able to trust in our democratic system. 

We at Issue One stand in solidarity with the Floyd family and with those around this country peacefully exercising their First Amendment rights to free speech and assembly against injustice in our society. 

We are at a major inflection point as a people and a nation. Together, we must fix our broken system so that every American voice is heard.

Weston Wamp: I’m Weston Wamp, and this is Swamp Stories, brought to you by Issue One.

Rep. Dean Phillips: What I didn't anticipate is shortly after taking office, my staff getting calls from lobbyists essentially saying, "I know Representative Phillips doesn't take lobbyist money, but would it still be possible to schedule an appointment with him?" And if that doesn't tell you everything you need to know about what's wrong with the current construct of our system of governance and effect of lobbyists on legislation, nothing else does.

Weston Wamp: Minnesota Congressman Dean Phillips is part of an encouraging new breed in Congress, going out of their way to work across the aisle.

Rep. Dean Phillips: I am working with many, including Congressman Ben Cline, to try to at least begin exposing and limiting that revolving door, if you will, from Congress to lobbying. Including a new trend that tends to skirt the current disclosure laws that allows for strategic consulting services to somehow work around the lobbying disclosure regulations.

Weston Wamp: Let me give it to you straight: Over the last decade it has become commonplace in Washington for people who lobby the government to avoid registering as lobbyists, thus preventing the public from knowing who is paying them and for what purposes. They are able to do this mainly by carefully using loopholes in a law that was last updated 25 years ago. 

Rep. Cline: Oh gosh, the faith of the people in their institutions of government's at an all time low. It's of government's own making that the public has lost faith. And my goal as a representative is to try and restore faith, the people in their government and in their institutions. One of the ways in which we do that is transparency and openness.

Weston Wamp: That’s Congressman Ben Cline from Virginia, who is Phillips’ partner in a bipartisan effort to drain the swamp by fixing the dated rules that govern lobbying in Washington.

Rep. Cline: With lobbyists, the public feels that the playing field is tilted against them when there's somebody being paid to go in there and try and convince a member of Congress or a legislator to vote a certain way as opposed to your average citizen, who has to work 40 hours a week and raise kids and has a million other things going on.

Weston Wamp: Now, in order to fully understand how you go about fixing this problem, you’ve got to know how we got here. How did this particularly swampy part of Washington — with creatures swimming around in the murky — come to be? Well, that’s a longer story. And both parties are to blame.

This is Episode 12: Shadow Lobbying. 

Let me remind you of the first and most important lesson I learned in my life around politics: neither party has an exclusive on integrity. The easy thing to do in politics is pick a side and then argue from that position on every issue. The more difficult work is to go deeper. Learn how things came to be. See the nuance. Admit your own party’s failures — and then go about trying to fix it.

President Donald Trump: I’m going to expand the definition of lobbyist so we close all the loopholes that former government officials use by labeling themselves consultants, advisors, all of these different things and they get away with murder. Not gonna happen.

President Barack Obama: To close that credibility gap, we have to take action on both ends of Pennsylvania Avenue. To end the outsized influence of lobbyists. To do our work openly. To give our people the government they deserve.

Weston Wamp: The truth of the matter is that lobbying is complicated. It’s an activity that is protected clearly by the First Amendment of the Constitution, but lobbyists tend to get a bad rap. And often deservedly so, but there are lobbyists that do important work in the public interest too. It’s also been around forever. 

The stigma’s being what they are, lobbyists are often singled out as the problem because, well, it’s convenient. 

Picking on lobbyists is good politics, but it doesn’t always lead to good policy. Let me explain.

From 2007 to 2016 the number of registered lobbyists in Washington went from nearly 15,000 at its peak to less than 10,000. That’s good news right? The Obama administration magically made lobbyists disappear? Well, not quite.

When President Obama took office he signed an executive order preventing registered lobbyists from entering his administration. This order was roundly praised as good policy — reducing the influence of insiders and giving opportunities to outsiders.

Before the order, registering as a lobbyist wasn’t that controversial. But the order created a massive new incentive for those who wanted to be considered for an Obama administration appointment to avoid the “scarlet L” as they say — lobbyist. Those incentives for evading registering were only heightened when the Congress passed a law placing new restrictions on the gifts and travel that lobbyists could give to members of Congress. So naturally lobbyist registrations began to plummet.

President Trump later replaced Obama’s executive order with his own. The Trump order removed the restriction that prevents lobbyists from taking jobs in the White House as long as they didn’t work on policies that were related to their previous lobbying work. And it loosened the Obama-era restrictions on what White House appointees could communicate with employees of their former agency about. So now former Trump officials are joining the ranks of shadow lobbyists, whose numbers continue to grow — and frankly, they’re thriving. 

In 2020, as the world deals with the coronavirus pandemic, the swamp in Washington is far from drained, and it’s clear that the lobbying industry continues to play a big role.

So that brings us closer to the million dollar question: What is the definition of lobbying anyway?

Well, the 1995 Lobbying Disclosure Act, which was the last real effort to address lobbying transparency issues, says that a lobbyist is this: a compensated individual who makes more than one "lobbying contact" and spends 20% or more of his or her time during any business quarter on federal "lobbying activities."

Now, for people who make their living lobbying Congress — and are happy to be identified as lobbyists — this might be clear. But what about the folks who for political reasons don’t want to wear that scarlet “L”? Nearly anyone with a little creativity can keep their time lobbying below 20% — which is the threshold for registering as a lobbyist. How do you count your time? How do I count my time? Add the fact that enforcement is weak, and you’ve got a recipe for shadow lobbying run amuck. A whole group of people make a comfortable living by influencing Congress but they do it under the radar.

 If you google shadow lobbying you’ll quickly see Michael Cohen, the president’s former attorney, showcased as the poster boy. And rightly so. He was the definition of “influence peddler.” AT&T and other companies were paying him big bucks for “quote” consulting services. He never registered as a lobbyist. And we only know he worked for AT&T because it became public as part of his other legal troubles.

But if you scroll a little further down on that google search, you’ll find former Democratic Senator Evan Bayh and former Senate Majority Leader Tom Daschle. 

Don’t be fooled, shadow lobbying isn’t a Republican problem or a Democratic one. It’s a bipartisan failure.

And as such, it can only be solved with bipartisanship.

Rep. Cline: There's such a structure to the party divide that if you stray from it or try and bring in the other side, that that party infrastructure tends to rebel against it and tends to not look as kindly on those efforts.

There's just a natural tendency to work only within your own party. And I could see that from the minute I got here that the party structures were really calcified and hard to break out of. So working with just a couple of other members who tend to sit towards the center aisle. And yes, some of the ones who are trying to cross over and work in a bipartisan way, we've started sitting near the center aisle, Dean Phillips and some others, who just want to try and find solutions to problems rather than just gloss over them and not try for the broadest level of support possible.

Rep. Phillips: If initiatives don't have a bipartisan genesis, for the most part, they're not going to go anywhere. Our founders were intentional about creating a system of governance that made change difficult to achieve. And to those who really do care about getting things done, the only way to do so is to work across the aisle. I grew up in a household in which my parents told me that if two people always agree, you only need one of them. I want to learn from people with different perspectives, different backgrounds, different life experiences. I take joy in that. I wish more Americans would celebrate that rather than demean it.

Rep. Cline: It's another thing that our voters hate is that things are so polarized and we're so divided. They want us to work together to try, especially on the issues that are confronting this country. So when it comes to this pandemic, they want us to work together.

Weston Wamp: Cline points out that it’s in times like these when working across the aisle is the most essential. One of the reasons for that is because when the government spends big, lobbyists come out in force.

Rep. Cline: You’re right, it is a concern when the spigots turned on and the money starts flowing and the lobbyists just appear like so many, I'm trying to think of a nice way to say locusts, but I'll just say butterflies, that just appear out of nowhere to flock around a spigot of money that's flowing.

Rep. Phillips: One of the biggest challenges I think we face is somehow building the bridge between transparency, just providing facts and data and information so that our citizens and voters can at least ascertain truth, but connecting that to good governance and good ethics and best practices. That is one of the great challenges.

Weston Wamp: This is where we come full circle back to the need for lobbyists to own their trade because people have a right to know what’s going on.

Rep. Cline: If you're hired by a nonprofit to do lobbying for cancer research, that's a lobbyist, but their goal might be more noble than another who's lobbying for the tobacco industry. It's just a matter of it being open and honest and transparent so that the public can see, who's trying to influence these members of Congress, these legislators, who's trying to bend their ear and pull their vote their way so that they can understand what kinds of information our legislators are receiving.

I think the more open and transparent we are, the more confidence that our constituents that the people will have in their elected officials to make the right decisions and the decisions that reflect the views of the people, rather than the views of just the powerful or just certain interests.

Weston Wamp: Representatives Cline and Phillips aren’t just talking about the problem: they’re doing something about it. In the coming weeks, these two members of Congress will officially introduce a bill to tackle shadow lobbying head on.

The bill cuts to the core of the issue, and it would help paint a much more accurate picture of the people who are trying to influence elected officials. It tightens registration requirements, for example, that ensure shadow lobbyists are disclosed, and enhances the information required for reporting such work. It also identifies those that are supporting such lobbying work behind the scenes, including if former executive or legislative branch officials work for the lobbyists. 

This bipartisan bill also increases oversight — and enforcement — by shifting responsibility to the Department of Justice — which is a much needed change. 

At the end of the day, it’s pretty simple: average Americans should be able to see exactly who has the ear of their representatives. As the Supreme Court has said before, sunshine is the best disinfectant. And the rules need to actually be enforced by an authority that’s up to the job. 

As a point of privilege, I first met Rep. Cline nearly two years ago at a McDonalds in rural Virginia before he was even elected to Congress. We talked about his experience as a Capitol Hill staffer and state legislator — and while he is a conservative Republican like I am, I sensed a willingness in him to work across the aisle to improve transparency and ethics in government.

So when Issue One began reaching out to find members of Congress who were interested in working on an update to the Lobbying Disclosure Act, Representative Cline was one of the people on the list of possible leaders. So was Representative Phillips, who from day one as a member of Congress talked to anyone who would listen about the importance of political reform.  

As I was wrapping up interviews with both Phillips and Cline, they both spoke of a silver lining so to speak that they’ve noticed since the virus has shut down business as usual in Washington. 

Rep. Phillips: I'll tell you, Weston, one more thing I do want to reflect on is we talk so much about the money in politics and some of the reforms around it, whether it be lobbying or campaign contributions and the perverse incentive structures. But not enough people are talking about the time. My colleagues are spending 10,000 hours per week, 10,000 hours per week during normal times raising money. And what's so interesting is that during the COVID pandemic, most fundraising was halted altogether, which freed up 10,000 hours per week for members of Congress to instead connect with constituents, to speak with one another, to reflect, to read, to consider, to contemplate. And I felt it.

Weston Wamp: This has become an all too rare moment, where people who profoundly disagree on policy matters can take a second to breath, and look at solving issues that are important to them. 

Rep. Cline: Right now I've sponsored a bill related to the virus with Lucy McBath from Georgia to take away a match requirement for domestic violence shelters to have to match a dollar for every five they get from the feds on a program. That's a bipartisan bill with bipartisan support. We disagree a lot on some other issues. Second amendment rights. We disagree a lot, but when it comes to domestic violence, we both agree this is something we should do together, and we'll continue to work together to try and address those and other concerns as we go forward.

Weston Wamp: Now, look at that for a second. If you were to listen to cable news, and cable news alone, you would never think that two members of Congress on opposite sides of a polarizing issue could set those differences aside and work together on something that they can agree on. These types of policy collaborations across the aisle, across the ideological spectrum, can and should happen more often. 

Rep. Phillips: That reallocation of 10,000 hours a week is actually making us a better Congress, despite the fact that we're not even in Washington for the most part right now. But we're on the phone with one another, we are more engaged, we're more connected. And it makes me hopeful and optimistic once through a terrible crisis, like the one we're in, can actually present an opportunity for some remarkable reflection and perhaps change. And that's the hopeful spirit that I'm going to carry forward.

Weston Wamp: While the swamp can feel overwhelming at times, it’s stories like this — one of a problem and a solution, of a Republican and a Democrat — that we should all find encouraging. The swamp isn’t hopeless. It can’t be. The stakes are too high. There’s too much that’s worth fighting for. There are still many examples of citizen legislators fighting to restore the people’s faith.

On the next episode of Swamp Stories, we’ll keep the focus on lobbying. We’ll take a look at how some corporations may be aiming to profit off of a pandemic. Even bolstering their lobbying budget to boost their chances of getting taxpayer money.

Thanks for listening to Swamp Stories, presented by Issue One, the country's leading political reform organization that unites Republicans, Democrats, and independents to fix our broken political system. Please subscribe to the podcast and share it with your friends. Even better? Rate and review it on iTunes to help us reach more listeners. You can find out more at swampstories.org. I'm your host, Weston Wamp. A special thank you to executive producer, Ethan Rome, producers Evan Ottenfeld and Sydney Richards, and editor Parker Tant from ParkerPodcasting.com. Swamp Stories was recorded in Tennessee, edited in Texas, and can be found wherever you listen to podcasts.

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