Legislation Class Notes 2/6/04


Wrap-up of Jim Wright


Did he acquire the thing at below fair market value?  You could contest the finding.  They rely on the fact that he filled out a disclosure form saying that he got the well before he discovered than it had substantially more value than he paid for it.


The committee is reviewing the facts.  The person who gave the gifts had a direct interest in legislation.


What about normal social relationships?


Federal regulation of lobbying


There are criminal statutes, there are codes of conduct, and there are Senate and House rules on gifts.  The federal regulation of lobbying activity, however, can best be described as “lite”.


There are two approaches to lobbying: direct and social lobbying.  There is also mobilizing support, trying to get people to contact their Congressman.  Grass roots approaches are at least as prevalent as direct lobbying.  How come?  Why the change in emphasis?  Maybe it has to do with all the regulation.


Why is it more effective to do grass roots lobbying?  People will do what works, and grass roots lobbying tends to work.


Part of it is the perception.  Grass roots organizations can create the perception that you’re hearing from ordinary people all the time.  Members don’t just receive cookie-cutter postcards.  They look like they’re coming from individuals.  But the letters are being cranked out by a technology operation.  There is a barrage of what seem to be individualized phone calls or letters.


Within the first seven days of Clinton’s presidency, he got two orchestrated or not attacks about Zoe Baird and gays in the military.  It’s not just about polls, it’s about who gets heard from.  The best people at doing this are small businesses.  You can get letters to go out from lots of Mom ‘n’ Pop businesses.


One’s view of the value of lobbying is affected by how you view the legislative process and how a legislator should relate to her constituents.  If you think that a legislator is an agent rather than a trustee, should we be regulating lobbying, and why?  What might we be worried about by lobbying?  Lobbying could possibly lead to the appearance of corruption.  That’s the only basis for regulating lobbying that spawned the 1946 Act.  It turns out that the 1946 Act prohibited more or less nothing.  It’s worth asking whether disclosure alone can really be enough to regulating lobbying.  The assumption is that disclosure is a “disinfectant”.


They used to print a list of honoraria in the Washington Post.  They also would sometimes print other stuff.  What’s the effect of these stories?  Would it be negative publicity?  Do people pay attention to this stuff?


Is AIPAC embarrassed for being shown as able to get Senators to go places?  Not necessarily.  Disclosure might show that AIPAC is really powerful.


Federal Regulation of Lobbying Act


Who is covered under § 307 and 308?  There are a couple of phrases.  People collect money for the purpose of advancing or defeating legislation.  Is there anything on its face that covers direct versus grass roots lobbying?  The text says “directly or indirectly”, which would seem broad enough to cover people who act indirectly through constituents in a grass roots context.  But that’s not how the Supreme Court reads the language.


What does the Supreme Court hold on this issue?  It depends on “direct communication with members of Congress”.  That doesn’t appear anywhere in § 307.  Douglas points out that the Court is adding and subtracting words.  How come?  Are they trying to avoid a constitutional argument?  What would be that argument?  Would there be an abridgement of the First Amendment rights of the lobbyists?


You try to construe a statute so you can save its constitutionality.  Douglas is very irritated.  Douglas wants to call the whole statute unconstitutional.  If the Court can save the statute by narrowing or reconfiguring it, they will try to do that.


The distinction between direct and indirect lobbying is important.  The Court seems sensitive to this distinction.


We’re not going to look very closely at Harriss.  Lobbying used to be a lot less effective than it is today.


Lobbying Disclosure Act of 1995


Who qualifies as a lobbyist under the new law?  How different is it than what existed under 1946 statute?  It’s somebody who has a lobbying contact.  How much time do you spend?  What are you supposed to be doing?  You have to spend 20% of your working hours in a six-month period on lobbying activities, and then you have to register.


What is “principal purpose”?  That’s like their full time job.  What do we mean by principal or primary?  That’s 50% plus one.  20% is a lower threshold than 50%.  In the first six months of the new laws operation, the number of people who registered as lobbyists jumped.  Now it’s 25,000.  If you lower the threshold, you get a lot more people involved.


Say we had a law firm in Washington that did a lot of legal work for automotive manufacturers.  Several times a year, they are asked to make key lobbying contacts.  They are probably not covered under the 20% rule.  Should they be covered as lobbyists?  Is the 20% rule a per se rule?  Should it be?  Should we live with it?


What’s so bad about reporting every six months?  It has a cost.  Plus it will be open to public records.


It’s 20% to that client.  Is that important?  You could spend more than 20% of your time on lobbying but not for any particular client.


What type of activity is registration required for?  Seriously, what?


If you do stuff to try to do stuff or persuade people to do stuff, then situations may be covered in things like this.  Where, or what kind of information has to be disclosed about these lobbying contacts?  What kind of information doesn’t have to be disclosed?  Should we worry about the difference?  Congress drew a line.


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