Over the past four decades, large corporations have learned to play the Washington game. Companies now devote massive resources to politics, and their large-scale involvement increasingly redirects and constricts the capacities of the political system. The consequence is a democracy that is increasingly unable to tackle large-scale problems, and a political economy that too often rewards lobbying over innovation.
Much public opinion on the subject of political influence suffers from a confusing and counterproductive mix of hopeless idealism and fatalistic cynicism. On the one hand, many people think that if only we could get special interests out of politics, then we would have a government run by perfectly rational Solomonic lawmakers, capable of divining the true public interest and making wise and uncorrupted judgments. On the other hand, they look at the political system and think that most politicians are at once craven and venal, ready to sell their votes for the promise of a hosted fund-raiser or, even more cheaply, a few thousand dollars in PAC contributions.
The reality is, of course, more complicated, but it’s also much more interesting. Like everyone else, politicians are motivated by a mix of both noble and not-so-noble intentions. There are good politicians and not-so-good ones, but any attempt to cut them off from societal pressure is a betrayal of both the idea of representative democracy and the potential for the collective intelligence that widespread participation in the political process allows for. The Washington lobbying community is full of many bright policy minds, and the expertise and knowledge that the business community can provide makes for a more informed policymaking process.
Any attempt to directly limit the participation of corporate lobbyists in the political process runs immediately into the practical problem that efforts to limit political influence have always encountered. If corporations (and other actors) are determined to influence the political process, they will find a way. If the history of political influence regulation has taught us anything, it should be this: those determined to participate in the political process will find ways to do so.
There are, however, three genuine problems that do need fixing, and that can be fixed in ways that work with, not against, the realities of politics.
The first problem is the balance of power. When corporate interests spend $34 for every $1 diffuse interests and unions combined spend on lobbying, it is not a fair fight. If we want a political system that is capable of responding to broad societal interests, we want a political system in which a broad range of societal interests are capable of presenting their most effective case. When large corporations are the dominant actors in Washington, policy attention will almost certainly reflect their priorities.
Take drug companies. In 2004, the industry won the passage of Project BioShield, which allocated $5.6 billion in federal funding to stockpile drugs to combat a potential bioterrorism attack. Yet, even after the bill was passed, drug companies were not entirely satisfied; they wanted protection from loss in developing bioterrorism vaccines. It was a telling sign of just how emboldened the industry had become.
The second problem is the asymmetry of information and the related complexity. When government actors are forced to rely on outside lobbyists for policy expertise, and when that expertise is provided largely on behalf of a narrow set of actors, this is likely to distort outcomes.
Additionally, policy complexity makes it easier for the corporate actors with the most resources to make quiet changes with little to no scrutiny. Tax policy is a good example of this influence. As the authors of a 2005 presidential advisory panel report on tax reform noted about the 15,000 changes to the tax code between 1987 and 2005,
Each one of these changes had a sponsor, and each had a rationale to defend it. Each one was passed by Congress and signed into law. Some of us saw this firsthand, having served in the U.S. Congress for a combined 71 years, including 36 years on the tax-writing committees. Others saw the changes from different
perspectives—teaching, interpreting, and even administering the tax code.
Almost all of these were small provisions in larger bills. Few received anything close to public scrutiny. As the report acknowledged, this approach has had negative consequences: “In retrospect, it is clear that frequent changes to the tax code, no matter how well-intentioned, ultimately undermine the integrity of the code in real and significant ways.” The tax code is now almost four million words long.
The third problem is particularism. Companies are increasingly oriented toward narrow, rent-seeking outcomes. Parochial intra- and inter-industry battles take up an increasing amount of Washington bandwidth, and the growing investments in particularism crowd out the capacity of the political system to address larger problems. University of North Carolina at Charlotte professor Ken Godwin and colleagues have argued that corporate lobbying can be modeled as a two-stage game. First, companies join together in order to get an issue onto the agenda, aware that it often takes a large coalition to break the threshold of attention. Then, once the issue gets serious consideration, companies break off and advocate for themselves.
What may be good for some powerful companies is almost certainly bad for the economy as a whole. One chemical company’s lobbyist summarized the process: “In the beginning most of us cooperate to get Congress’s ear, but in subcommittee it’s every man for himself.” Another lobbyist provided a similar perspective on lobbying the bureaucracy: “When EPA is considering a new rule, we [the firms in her industry] stick together. In the end though, I need to have the final rule written for [her firm], not for [her firm’s major competitor].”
These problems are all related, and any attempt to deal with one without dealing with the others is likely to fail. Sticking with the rule of threes, I propose three types of solutions. As with the problems, the solutions are interrelated. They would be most effective as a coherent program. Piecemeal application would almost certainly be far less successful.
Solution #1:
Let Everyone Have a Lobbyist
I take very seriously James Madison’s argument in Federalist No. 10 that the problem of factions is inherent to all political systems, and that any attempt to limit the faction participation is a cure worse than the disease. I share his faith that the best way to deal with the problem is for faction to counteract faction and to, in his term, “enlarge the sphere.” Let everyone have their say, and hope that something resembling the public interest emerges from the dust.
Of course, this approach depends on a rough balance of power. If unions and diffuse interest groups had roughly the same resources as business interests, we might reasonably expect that the two forces would keep each other roughly in check. This, however, is not the case. As we’ve seen, corporate interests now spend thirty-four times what diffuse interest groups and unions combined spend on lobbying. Not a single corporate lobbyist I interviewed for my book The Business of America Is Lobbying identified a diffuse interest group or a union as the primary opponent on an issue on which he or she was lobbying. Faction is not, in fact, now counteracting faction.
This is not likely to change on its own, for two reasons. One is the simple fact that it is relatively easy for businesses to mobilize politically since they can, with just a few executive decisions, allocate some of their already-existing resources to political activity. And now that a growing number of business leaders have become convinced that politics matters, there is very little to stop them from continuing to spend substantial sums. Interested citizens, by contrast, must find a way to overcome the collective action problem, pulling together resources and commitments, and then sustaining those resources and commitments over time. This is difficult to accomplish.
Secondly, the nature of much political conflict, in which a particular policy affects a handful of companies greatly while affecting most citizens only marginally, means that individual companies and industries have the most concentrated stakes, and therefore the biggest incentive to remain vigilant and active. Businesses have both the means and the motive to spend heavily. Both their stake in political outcomes and their ability to mobilize resources are far greater than the average citizen. Fixing the participatory imbalance will require government to make an active investment. There is clearly a market failure.
Is there a public interest in fixing this imbalance? One analogy is to our legal system. Indigent criminal defendants are given court-appointed lawyers because we have decided that everyone should have the right to a lawyer when they interact with the justice system. Why does the same principle not apply to politics? Doesn’t everyone whose interests are materially affected by the political system deserve the right to a lobbyist?
Certainly, there are difficulties in determining who has a legitimate claim for lobbying representation, and how much representation they deserve. But here’s one way it could work: Groups advocating for a diffuse interest would have to demonstrate that their perspective was shared by a threshold percentage of citizens, and that the existing lobbying community was not adequately representing this viewpoint. Imagine a three-stage process. First, an underrepresented perspective would have to gain a certain number of signatures (perhaps 25,000) and advocates of the perspective would need to demonstrate that they were being outspent by at least a threshold ratio (perhaps 4 to 1), and that a diffuse group of citizens were affected. Then, that perspective could be included in a regularly occurring poll that the government conducted to test for widespread support in the country. If a threshold percentage of citizens (perhaps 25 percent) agreed with the perspective, a federal subsidy would be awarded so advocates of that position could hire a lobbyist. Subsidies could be awarded based on the level of support and the ratio by which advocates for that position were being outspent by powerful interests. A more aggressive version of this proposal would require well-funded interests on the other side to fund their opposition, in order to guarantee a fair fight.
Alternately, rather than award a direct subsidy to the underrepresented perspective, the federal government could create an Office of Public Lobbying, maintaining a team of public lobbyists who would then represent different public interest clients before the government. Zephyr Teachout has made the case for such an institution, noting that “Congress could hire, at a fraction of the expense paid to lobbyists, advocates to represent a range of opinions on any proposed legislation, and stage trial-like debates between them.” Serving as a public lobbyist might be a very appealing job for a congressional staffer whose boss lost an election or retired, or a congressional staffer just looking to do something different for a few years. Many congressional staffers may not necessarily desire to represent corporate interests, but they want to stay in Washington and remain active in public policy. Working as a public lobbyist could provide an appealing alternative to a K Street job, while giving a voice to a set of societal interests that currently lack a voice in Washington. It might also provide an alternative to working for a nonprofit because it would provide more variety and job security. Additionally, an Office of Public Lobbying could actively work to identify underrepresented voices, utilizing social media and other low-cost methods to tap into diffuse public concerns and give them a voice.
Solution #2:
Let Everyone In On the Lobbyists’ Secrets
In 1946, Congress passed the Administrative Procedure Act, which created “uniform procedures for rulemaking, adjudication, and transparency on federal agencies.” Now most executive-branch agencies have a structured rulemaking process. Before a rule can be finalized, all interested parties have a chance to comment. Those comments are public, and agencies respond to those comments in a public way. While there is certainly additional lobbying that takes place beyond formal commenting, the comments provide a useful way to see who is participating and whose concerns are being heard. All agencies post these comments online.
Lobbying Congress, by contrast, remains as haphazard as it has ever been. While organizations do have to file quarterly lobbying disclosure reports, these reports are vague. They may list specific issues, or they may not. Organizations lobbying do not have to disclose which offices they visited, nor do they have to disclose the positions for which they advocated or the draft legislation they left behind.
What if Congress passed a Congressional Lobbying Procedure Act that created a set of uniform processes for congressional lobbying? Such a system could take advantage of modern technology and require that any advocacy be posted within forty-eight hours on a central website. Each report would contain a short summary of the meeting, who attended, and what was advocated for.
Any white papers, draft legislation, or other leave-behinds would need to be posted in electronic form as well. The website would also serve as a repository for all arguments and advocacy. A series of clicks would take any interested member of the public to a corpus of arguments for or against particular public policies, creating a central clearinghouse.
Such a website could also make it much easier for citizens to offer input and register their opinions in an organized and traceable way (as opposed to the current sporadic and haphazard barrage of emails and phone calls, which may or may not get a response). Organizations like the Madison Project and POPVOX have done impressive work exploring how the Internet could provide a forum for wider citizen participation in the legislative process, and both offer valuable frameworks for going forward.
This hypothetical Congressional Lobbying Procedure Act would change lobbying in several ways. First, it would level the playing field between corporate interests and diffuse interests. It would make lobbying less about hiring armies of well-connected lobbyists who can spread out all over Capitol Hill and more about developing convincing arguments and summaries that would inform congressional offices.
It would also become easier for diffuse interests to know what corporate interests are actually arguing, which would allow them to respond to those arguments in a timely matter (and vice versa). Ultimately, this website could serve as a kind of policymaking marketplace of ideas, where different interests would have the opportunity to respond to each other in real time. It could harness the competitive nature of lobbying in service of accountability, would provide an instant source for all arguments on all sides, and would help congressional staffers new to an issue to know where they could find more information.
Such a process could also potentially reduce particularistic lobbying efforts. By bringing real-time transparency to attempts to insert narrow provisions into legislation, this system could alert watchdogs as these attempts happened, allowing them to blow the whistle and bring public scrutiny to deals that largely depend on nobody else paying attention to them. This could make members of Congress more wary of working to advocate particularistic benefits. In turn, lobbyists would be able to anticipate the consequences of such narrow asks. They would know that the risks would be high and the likelihood of success low. This would make them much less likely to make such asks in the first place. This could also have the effect of reducing lobbying, especially particularistic lobbying. This is, admittedly, optimistic, but it at least points in the right direction.
If lobbyists were able to put fewer particularistic policies in place, it would be harder for them to demonstrate to their corporate bosses the bottom-line benefits of lobbying. It would reduce the number of purely selective benefits in corporate lobbying. As lobbying moved more toward collective benefits, fewer companies would want to foot large bills to lobby. An added benefit of lobbying becoming less particularistic is that legislation could become simpler. There would be less need to address the narrow concerns of every single company with a lobbyist. It would be easier to move toward more coherent policymaking.
Such a system could also alter the information asymmetry between lobbyists and corporate managers. I’ve argued that one of the key reasons why corporations spend more on lobbying is because managers do not get to observe what lobbyists do and how their actions do or do not move the policy needle. Lobbyists can claim that they had substantive meetings with members of Congress and overstate their influence. If corporate lobbyists had to document everything that they do to try to influence political outcomes, managers would be in a better position to evaluate their lobbyists’ activities. Doing so might allow savvy corporate managers to conclude that most of what they spend on lobbying is, in fact, wasted. They might spend less on lobbying. In principal-agent literature in economics, transparency is commonly seen as a way for principals to overcome information asymmetries and thus reduce their costs.
Solution #3:
Let Lawmakers Have Enough Expert Staff So That They Don’t Need Lobbyists
A third approach would give Congress more of its own policy capacity. As I have argued, one of the reasons why lobbyists have become increasingly central to the policy process is that the policy capacity of the government, and especially Congress, has declined over time while policy complexity and specialization have increased. Congressional staffers are always scrambling to play intellectual catch-up. They have to turn to lobbyists to explain increasingly complex policy to them. This gives lobbyists a tremendous advantage.
There are a number of potential ways to reduce congressional dependence on lobbyists. One is simply to improve the working conditions and salaries of congressional staff, making it a more attractive job for senior-level people. Rather than toil in anonymity at relatively low pay with long, unpredictable hours, congressional staffers should be given more acknowledgment, better pay, and more favorable working conditions. If congressional offices paid staff better, they could afford to attract and retain more top policy talent, and make it less likely that congressional staff would use their time on the Hill to plot their exit, potentially cozying up to lobbyists who might someday make them rich.
In most congressional offices, working conditions could be improved dramatically. Hours could be better, and staffers could be allowed to take more credit and ownership for the work that they produce. Members of Congress could acknowledge that while they set the general direction and priorities for the office, an entire team of people represents the constituents of each district, and all members of the team deserve public credit. While the private sector is likely to continue to be able to pay people more, elected officials ought to acknowledge that who they hire has an enormous impact on how well they can serve their constituents, and be willing to invest in good people. (Some of this may seem like Management 101—but Congress could use a heavy dose of Management 101.)
Congress could also improve its independent policy capacity externally. Already, Congress has institutions designed to help it. The Congressional Research Service (CRS) and the Government Accountability Office (GAO) are both valuable resources, and they play an important role in providing independent expert advice and research. But both are severely underfunded and understaffed. The most straightforward approach to improving congressional capacity may be simply to significantly expand the budgets and institutional reach of these two agencies.
Another possibility would be to tap into the knowledge and expertise that resides in American universities. House and Senate offices could officially partner with local universities, particularly public policy schools and law schools. Professors could serve as expert advisers. Universities could incentivize participation by giving formal credit to faculty who lend their expertise and lead students to help make national policy. Students could get excellent training serving as policy researchers and legislation drafters for congressional offices. Shouldn’t helping to improve the quality of public policy for the country be at least on par with publishing academic articles in small peer-reviewed journals? One approach in this direction comes from the Congressional Clerkship Coalition. More than 100 law school deans have urged Congress to create a “congressional clerkship” program that would be a legislative analog to the judicial clerkship program, giving young lawyers more legislative experience and congressional offices more legal help. But while legislation to create the program has passed the House twice and enjoys widespread bipartisan support, it has not made it out of the Senate.
Heather Gerken and Alex Tausanovitch have suggested funding “policy research consultants” who would be available to congressional offices:
What we have in mind is the lobbyist equivalent of public-interest law firms. The aim would be to allow legislators to hire “research consultants” who can provide information during the major stages of decision-making as well as during the period in which the bill is amended. These independent consultants would have a semi-permanent status, and thus able to offer the “long-term commitment” that bears fruit in the lobbying world. They would be able to assist members with thinking through issues before they even get on the agenda of a particular committee, and they would be able to put their time and effort into developing good policies over the long-term.
Congressional offices would be able to choose whomever they wanted as their consultants. They could, for example, choose lobbyists from the oil industry, but as Gerken and Tausanovitch argue, they would have no reason to do so, since they already get plenty of policy support from the industry, which happily provides it for free. Rather, these research consultants would allow them to get the legislative subsidies that they couldn’t get elsewhere.
Though executive branch agencies tend to have better salaries and working conditions and are able to attract more policy expertise, even they are increasingly having a hard time maintaining the levels of internal expertise necessary to make policy in complex environments. They also suffer similar pay gaps and could benefit from more policy resources.
The basic thread of all these capacity-building reforms, however, is the same: in order to make the best policy, government needs the best people, and a lot of them. If key policymakers don’t have the resources to adequately evaluate policy and have confidence in their observations, they will be forced to rely excessively on those interests who have the most at stake.
How These Solutions Would Work Together
Perhaps the best way to understand how these reforms work together is to see how they solve the possible objections that could arise from applying the reforms piecemeal. The most obvious objection to the Madisonian approach of enlarging the sphere is that Washington lobbying is already exceedingly competitive, and this competition is a source of gridlock. Wouldn’t more competitive lobbying mean even more gridlock? This is a legitimate concern, especially if it means that congressional offices became even more overwhelmed by an onslaught of lobbying than they already have been. But moving lobbying into an online public conversation and giving offices more of their own policy capacity would help to better channel the lobbying activity. Rather than being overwhelmed by all the arguments and advocacy, congressional offices would have the expertise and knowledge to sort through the information and pressures more productively. Moreover, the capacity of an online platform to organize the information would help staffers, who often lack the time to stay organized. It would remind them of the bigger picture, rather than just the concerns of whomever they met with last.
The limitation of real-time online lobbying is that the corporate interests with the most resources could simply overwhelm this process, like they overwhelm every other process. They could invest more resources in shaping the intellectual environment and more resources in responding to the opposing concerns. While the platform would have some leveling effects, they would not be nearly enough. In the absence of other reforms, this would almost certainly be the case. But if the government could take active steps to level the playing field by subsidizing diffuse interests, this would be less of a problem. If lawmakers had more capacity to evaluate the information without the help of lobbyists, this would also be less of a problem.
Even with expanded government policy capacity, government actors would still need the help of outside interests. They might need less help, but they would still require some assistance to develop, vet, and, especially, build external support for policy initiatives. After all, the “legislative subsidy” that lobbyists provide isn’t only about policy expertise. It also covers the entire policy process. Without making some attempts to level the imbalance of lobbying resources, it would still be difficult for congressional offices to advance causes that lacked organized lobbying resources. Government intervention to balance the playing field could help. Moving lobbying online and creating a repository of policy arguments could also help, because it would give congressional offices more resources on which to draw.
Another critique of this build-more-capacity approach is that expertise is never neutral, and just because members of Congress had access to more policy capacity wouldn’t necessarily mean that they wouldn’t simply use it in service of whatever narrow ends they might already be working toward, and to pick and choose studies that supported their existing beliefs. This is certainly a fair critique. Dreams of a perfectly rational, scientifically minded technocracy never end well, but all else being equal, more expertise and more policy capacity are almost certainly better than less. Certainly, there would be members of Congress who would be unaffected, but ideally this approach would push policymaking in a smarter direction. It would provide policymakers with the resources to stand up to industry “experts” whom they might have reason to doubt but lack the topic knowledge to confront.
In short, this package of reform works best as a coherent program. One strength of this program, as compared to many other reform programs, is that it embraces politics, rather than attempting to sublimate it. It is built on the premise that more lobbying and more political engagement is better, and more money and more resources (rather than fewer) ought to go into shaping public policy, and argues that it is possible to channel political competition in a constructive way. It also does not treat members of Congress as venal, corrupt individuals who are incapable of standing up to moneyed interests. It acknowledges that they would like to serve a broader public interest, and could do so more effectively if they had some additional help.
