Mary Clay Berry
Mary Clay Berry

Fellowship Title:

A Reform in Search of a Definition: Who is a Lobbyist Anyway?

Mary Clay Berry
March 10, 1976

Fellowship Year

"‘…The guys that get on top of things and really ride them for all they’re worth, they’ve got the horses.’

‘They also listen now and then to people who know what they’re talking about,’ Richmond said. ‘Even though they are lobbyists, and make their living that way,’"


WASHINGTON–Pushed by outside groups, circumstances, and an internal perception of the need to come to grips with lobbying, committees on both sides of Capitol Hill will this spring draft legislation which is intended to give the public a better idea who is lobbying Congress for whom and to what purpose. The emphasis will be upon disclosure, and rightly so, for any attempt to regulate lobbying activity is certain to run afoul of the First Amendment which gives citizens the right to petition their government. If lobbying disclosure bills reach the floor of either house, they are likely to pass for, after the shocks of Watergate and revelations of corporate bribery both here and abroad, a vote against lobbying reform would be almost inexplicable to a constituent.

The real question is whether the legislation which reaches either floor will be much of an improvement over the present loophole-ridden lobbying registration law. Writing lobbying reform legislation has so far proved to be a thorny problem for the committees and legislators involved, And the process is far from over.

Under prodding from Common Cause, the non-profit public interest coalition which spearheaded the fight for legislation that has radically altered the face of Presidential campaign financing this year, bills were introduced in both houses early in the 94th Congress that revised the narrow definition of a lobbyist in the present law and provided for a variety of disclosures by lobbyists, including the number and nature of contacts with Members of Congress. When this happened, a howl went up from the lobbying community, public and private interests alike. Estimates of the number of lobbyists here range from two to ten thousand. Lobbyists are a large lobby themselves.

“I have not heard one soul support the Common Cause bill,” Andrew J. Biemiller, director of the AFL-CIO’s Department of Legislation and one of the best-known and best-liked lobbyists in Washington, told the House Subcommittee on Administrative Law and Governmental Relations last year. “I do not know anybody who does.”

“Congress and the public have a right to know the identity and financial interests of those engaged in lobbying,” said Richard D. Godown, senior vice president and general counsel of the National Association of Manufacturers which for years refused to register under the existing law. But he went on to warn that disclosure provisions might violate citizens’ Constitutional rights and could produce “mountains of useless data”.

“There is something that I would just like you to know,” Joseph Browder of the Environmental Policy Center, a public interest lobbying organization, told members of the Senate Government Operations Committee, “…the Common Cause concepts that have gotten into this legislation…reflect the point of view of people who do not really participate in the development of legislation, but are mere observers, critical observers. But they do not really understand what is going on. They do not understand the democratic flow of information in an unstructured unautocratic way.”

Browder, whose irritation arose partly from his organization being told by the Common Cause people to stick to its own area of expertise, the environment, and not meddle in Congressional reform, was even more antagonistic at House hearings last fall. “We can’t afford to play ‘Student Government’ for Common Cause’s benefit just because they don’t know what’s going on,” he said.

There has been considerable lobbying, in the best sense of the word, on lobbying reform. Just like any industry facing the threat of Federal regulation by Congressional fiat, lobbyists have reacted by approaching the members and staffs of the committees handling the legislation with suggestions and offers of expert assistance, Their object is to draft a law they think they will be able to live with. The committee staffs, particularly in the Senate, have responded by drawing up a variety of bills which address themselves to problems raised by the lobbyists. The public interest lobbyists, the so-called “white hats” of the trade–Common Cause on the one side and groups like Ralph Nader’s Public Citizen on the other, have had a major impact. But others as diverse as the AFL-CIO and the U.S. Chamber of Commerce have also contributed to the process.

If most lobbyists blanched at the prospect of lobbying reform, many Congressmen rushed to embrace it, A bill introduced in the House in January 1975 quickly had 153 co-sponsors, more than a third of the membership. This bill required not only lobbyists but also Federal employees from the level of a GS15 on up to file reports of who they saw and talked with and about what. However, Congressmen were not nearly so enthusiastic about the suggestion that they, too, should log contacts with lobbyists, even though at least one member, Rep, Edward W. Pattison of New York, does something like this now on his own accord. One of the chief sponsors of the so-called Common Cause bill in the House, Rep. Tom Railsback of Illinois, said he would not mind keeping the records but added, “I think it might hurt the chances of the bill, frankly.”

“What is good for the goose is good for the gander,” said Sen. Charles Percy of Illinois.

The present lobbying registration law has no defenders, neither in the Justice Department which is supposed to enforce it but instead devotes most of its energies to urging voluntary compliance, nor among the lobbyists who ignore it or else construe it so narrowly that it is scarcely onerous.

Part of the problem is the law’s definition of who is a lobbyist. The authors of the 1946 Federal Regulation of Lobbying Act settled for the narrow definition of a lobbyist as a person or organization whose “principle purpose” is influencing the course of legislation. But they did not spell out the meaning of “principle purpose”.

This definition was furthered narrowed in 1954 by the Supreme Court which ruled in United States v. Harriss that the 1946 law applied only to lobbyists who receive contributions from others and who communicate directly and personally with Members of Congress. This rules out both lobbying through contacts with Congressional staff and letter-writing campaigns since neither involve personal communications with the Members themselves. The court also held that only persons whose substantial activity is influencing legislation and to whom contributions are made primarily for this purpose are lobbyists. This eliminates the Washington representatives of many trade associations as well as most Washington lawyers who are retained as lobbyists.

The 1946 law made no attempt to deal with persons and organizations who lobby the agencies downtown in an attempt to influence executive decisions, Nor does it deal with the lobbying of Congress by executive agencies, from the White House on down, something which is specifically forbidden by law although it goes on all the time.

Although there are criminal penalties for failing to file, the Justice Department has brought few prosecutions under the registration law. This is partly because, while the criminal penalties authorized by the act are the responsibility of Justice, the department is not specifically authorized to monitor lobbying activity. That is the responsibility of the Secretary of the Senate and the Clerk of the House of Representatives, However, neither office may conduct investigations, subpoena records, or file civil actions in Federal court to force compliance. There are not even any penalties for late or incomplete filings. Although both Congressional offices can refer questionable cases to the Justice Department for investigation, they regard themselves as little more than depositories for records. In fact, the only five investigations conducted by the Justice Department since 1972 were initiated by Members of Congress or journalists.

When lobbyists do file, their reports indicate little and are often downright misleading. Since Common Cause is about the only lobbying organization which attempts to comply with the spirit as well as the letter of the lobbying registration law, it also appears on paper to be the largest, best financed, and most active lobbying group. For example, in the last three months of 1975, Common Cause filed a report showing that it had received more than a million and a half dollars for lobbying and spent $317,397.96 of it. By contrast, the American Petroleum Institute, the chief trade association of the oil industry now gearing up for a major battle against divestiture legislation that is pending in both houses of Congress, said it took in $18,203 and spent $53,209 during the same period. And the American Bankers Association, facing the most sweeping banking reform proposals since the thirties, reforms which it adamantly opposes, said it collected and spent the same amount, $26,312.94, during those same three months.

No one is necessarily lying. The present law is simply a sham.

John Gardner of Common Cause has called it “ambiguous, riddled with loopholes and impossible to enforce”.

Harold R, Tyler, Jr., a Deputy Attorney General, says it “has not been a very effective piece of machinery”.

According to Alan B. Morrison, a registered lobbyist for Public Citizen, the law is “only slightly short of meaningless”.

“It is useless as a practical guide to conduct,” admits Richard Godown of the National Association of Manufacturers.

Changing the law is not easy, There has to be a balance between what the public needs to know in order to understand significant influences upon decision-making and the First Amendment right of people to petition their government.

One of the hard questions is just who is a lobbyist? One rule of thumb has to do with pay. But is a lobbyist a person who receives $250 or more during a three-month period for the purpose of lobbying? or $100? Or $500? Or even $1,000? And what about the person who is not paid, who uses his own money?

Biemiller suggested that a lobbyist is anyone who tries to affect the course of legislation, regardless of how much he or she is paid for doing it.

If financial remuneration is not a satisfactory criterion for identifying a lobbyist, can you do it on the basis of the number of contacts he or she has with a Member of Congress or a member of a Congressional staff? And how many contacts constitute lobbying? Eight? Twelve? Thirty? Twelve contacts during a three-month period, the standard set by one Senate proposal, is not enough to make a significant impact on a piece of legislation, according to Public Citizen’s Morrison. Many other lobbyists would agree with him.

It is also necessary to identify a “contact” or “lobbying communication”. Obviously, when a lobbyist calls upon a Member of Congress to talk about a specific piece of legislation, that is a “contact”, But is it also a “contact” when a senator gives a lobbyist a ride home during a rainstorm? When this happened to a labor lobbyist who was caught without umbrella or raincoat recently, the lobbyist and the senator discussed legislation in a general way. It was lobbying in the sense that about two-thirds of all Washington conversation is lobbying, but hardly intentional. After all, the rainstorm and the arrival of the senator were Acts of God as far as the lobbyist was concerned, however propitious.

And is it a “contact” when a House member bumps into a lobbyist he knows in the crowd outside the chamber door a few minutes before a big vote? Congressmen literally had to elbow their way through the lobbyists to get in to vote on the deregulation of natural gas prices recently. The lobbyists’ presence there was intentional, of course, But does that fleeting moment constitute a “contact”?

What about chance encounters in the hall, conversations at social occasions, or, to go to the other extreme, testimony before a Congressional committee (particularly if the lobbyist has been invited to testify)?

If you use the number of contacts as a means of establishing who is and who is not a lobbyist, what about the right of citizens to visit their own representatives? Should you make an exception for any lobbyist who is also a constituent of the Member he is visiting?

Then there is long-distance lobbying. During the hearings on both sides of the Hill, congressmen and senators expressed concern about identifying the source of letter-writing campaigns. Although Common Cause’s write-your-congressman approach to lobbying was sniffed at by at least one witness, there are numerous recent examples of organized lobbying-by-mail. Usually the source of these letters is obvious, as in the recent Mail-o-gram campaign against handgun legislation. These communications were inspired by the National Rifle Association which has lobbying-by-mail down to a computer science. Sometimes, as in the case of virulent attacks on proposed daycare legislation recently, the origins are obscure. The Real Estate Settlement Procedures Act of 1974 was amended six months after it went into effect because congressmen were deluged with letters from local bankers and real estate brokers complaining about the burdens the law placed upon them, Their trade associations deny that there was any organized letter-writing campaign involved but the letters were certainly effective.

Another complex question is what does the public have a right to know about a lobbyist’s contacts with legislators and their staffs, other than that these contacts occurred. One proposal is that lobbyists’ logs of contacts include a brief record of what was discussed. For an organization like the AFL-CIO which takes a position on almost all major legislation before Congress, detailed logging could be a burdensome undertaking. No doubt the labor unions could afford the additional secretarial work but smaller public interest groups such as the American Civil Liberties Union argue that they could not.

Unless congressmen were also required to log their contacts with lobbyists, there would be little way of checking up on a lobbyist’s list. However, keeping track of all the casual contacts that are possible on Capitol Hill presents difficulties.

Furthermore, detailed logs of contacts could be nearly meaningless. Ideally, a lobbying disclosure law should isolate the significant influences upon legislators, not catalog all the visitors a congressman sees. And without some sort of cross referencing with information such as campaign contributions, the mere disclosure of a contact between a legislator and a lobbyist is meaningless. This is why Public Citizen has urged that any new lobbying disclosure law also contain provisions to make the information disclosed useable.

The trouble is that lobbying is at once simple and complex. It has to do with a subtle quality called access. Very simply, access is a matter of who a Member of Congress or his staff sees and to whose advice they listen.

A person gets access to a congressman or a senator in a number of ways. Most constituents have access of sorts simply because they can vote for or against the legislator. But they don’t have equal access by any means. A representative of a local industry which employs a substantial number of a congressman’s constituents or the leader of a labor union which represents them has access because he may well represent a large number of votes. An expert on a specific subject, say a professor at a local university or a well-informed delegation of environmentalists, has access because the congressman needs information. An old friend or a member of that friend’s family or someone referred to the congressman by the friend has better access than someone the congressman does not know. And anyone to whom a legislator owes a favor has access. Politicians may have access because they have helped out the legislator or may be in a position to do so in the future. People who have contributed to a legislator’s campaign have access. So do those who have given him gifts although one issue on which there is general agreement is whether gifts, entertainment, free transportation and honoraria should be disclosed. The public clearly has a right to know about them.

But access is only the first step. Influence is another matter.

Most professional lobbyists maintain that they have access because they are a source of reliable and necessary information.

“Lobbyists are a source of expertise and information,” says Jo Ann Barefoot who used to be a lobbyist for the National Association of Realtors and now works for the Senate Housing and Urban Affairs Subcommittee. “People are never going to pay enough for in-house expertise.”

Congressmen agree. “As a legislator for almost three decades now, I use the services of lobbyists in my activities more than lobbyists come and see me,” said Sen. Lee Metcalf of Montana, a longtime critic of power companies. “One of my favorite lobbyists is the Montana Power Company. I do not think anybody would say I am subservient to the Montana Power Company, but when I want some information, I go to the Montana Power Company’s lobbyist, who is here in Washington, and ask him if he could find it out for me. With all justice, they have never given me false information.”

With reliability may come influence. Without reliability, access is easily lost. “Trust is the basis of successful lobbying,” says Lee B. Holmes, staff vice president of the U.S. League of Savings Associations and a Washington lobbyist for years. “If someone on the Hill can’t be trusted, you have to live with it, But down here, you’re through [if you can’t be trusted]. It’s a one way street.”

Lawyer-lobbyists, “hired guns” in Capitol Hill parlance, have a different kind of access although they are also dealing in expertise, Generally a lawyer is retained because of his contacts, a network of acquaintances and former associates that may go back years. Many a successful Washington lawyer-lobbyist was once counsel to a Congressional committee or an official in a federal agency. The firm of Patton, Boggs & Blow is now registered to lobby for the corporation which is building the Alaskan pipeline as well as most of the major oil companies operating in Alaska, because William C. Foster, once an aide to an Alaskan senator, is a member of that firm. The oil companies needed someone with Alaskan connections to help straighten out the land claims pending before Congress in 1971 in order to get pipeline construction started. That took both a knowledge of the Hill and knowledge of Alaska.

Lawyer-lobbyists frequently hide behind the cloak of lawyer-client privilege so that they are not easily identifiable as lobbyists, (This is not true of Patton, Boggs & Blow which is presently registered to represent 37 corporations and associations.) The Justice Department is anxious that any new legislation removes this cloak as far as a lawyer’s lobbying activities are concerned.

“Since there is no Constitutional underpinning for the lawyer-client privilege, we believe that we can take the lawyer-client privilege out of the ambit of this particular legislation so that a lawyer who is going to engage as a lobbyist is on notice that he has no claim or that the legislature concludes that he has no claim of lawyer-client privilege in this area,” said Deputy Assistant Attorney General John C. Keeney last year. “He is being treated as a lobbyist and not as a lawyer.”

“I’m just not sure I know the difference sometimes,” mused Sen. William Brock of Tennessee, whose question Keeney was answering.

Influence can also be a matter of campaign contributions and every lobbyist worth his or her salt knows this. An organization like the American Bankers Association which distributed more than $60,000 to Congressional candidates during the last election year pays particular attention to important legislators like Rep. Fernand St. Germain of Rhode Island who is chairman of the House Subcommittee on Financial Institutions. The American Bankers Association also gives a good deal of money to middle level members of the banking committees regardless of party since their votes may be crucial on some important issue. By contrast, freshmen members of the banking committees get little in the way of campaign contributions.

However, the bankers do hedge their bets and their Banking Profession Political Action Committee, the fictional political committee which handles campaign contributions for them, distributes money to congressmen who are not members of the banking committees as well. This is the principle of access at work. You never know where you will need it.

Assuming Congress is able to write a law that requires lobbyists to disclose who it is they represent and perhaps even who they talk to on the Hill (downtown lobbying will probably require separate legislation or voluntary logging of visitors by Federal officials as is presently done in a few agencies), will it be enforceable? This depends in large part upon who is authorized to monitor lobbying activity, Both the Justice Department and the new Federal Elections Commission have been suggested. The important thing is that monitoring and enforcing be done by the same agency.

Right now there are three committees in various stages of writing lobbying disclosure legislation. Because of a curious legislative situation in the House, two committees, Judiciary and Standards of Official Conduct, are both working on lobbying bills. The ethics committee held hearings on lobbying in 1970 when the rest of Congress was not sufficiently interested in the problem to get reform legislation moving and again last December, But the committee has a poor track record as far as legislation is concerned and an investigation of Congressional leaks to pursue. The Judiciary subcommittee has a staff-written bill on which it hopes to hold mark up sessions as early as late March. If the House Votes on a lobbying reform bill this year, it is likely to be the Judiciary bill. In the Senate, committee staff and lobbyists are still drafting a bill to use in their mark up sessions.

There seems to be a real desire on the part of Members of Congress to revise the 1946 law. Since it would be impossible, to say nothing of unconstitutional, to actually regulate lobbying, the only reasonable device is disclosure. But just requiring disclosure is not enough. It must be meaningful. In the past, disclosures of this sort have always been designed in such a way as to discourage anyone from actually using the disclosed information. Meaningless disclosure would be little better than the present situation.

Received in New York on March 10, 1976

©1976 Mary Clay Berry

Mary Clay Berry, a freelance writer, is an Alicia Patterson Foundation Fellow. With this newsletter she begins her study of the lobbying process in Washington, DC. The views expressed by the author in this newsletter are not necessarily the views of the Foundation.