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PRIVATE ETHICS, PUBLIC CONDUCT: AN ESSAY ON ETHICAL LOBBYING, CAMPAIGN CONTRIBUTIONS, RECIPROCITY, AND THE PUBLIC GOOD
Thomas M. Susman*
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 nations 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 officialsstarting with Jack Abramoffwho 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 Universitys 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 Democ* B.A., Yale University 1964; J.D., University of Texas 1967. Mr. Susman is a partner in the Washington office of Ropes & Gray LLP, where he has practiced law and lobbied for over 26 years. Prior to that he served as counsel and chief counsel of the U.S. Senate Judiciary Committee and its subcommittees for 12 years and, before then, served in the Office of Legal Counsel in the U.S. Department of Justice. He is co-editor of the American Bar Association's Lobbying Manual, chair of the Ethics Committee of the American League of Lobbyists, and taught Lobbying and Legislative Process as an adjunct professor at American University's Washington College of Law. 1. CULLEN MURPHY, THE FALL OF AN EMPIRE AND THE FATE OF AMERICA (2007). 2. Jim Morris, Privately Sponsored Trips Hot Tickets on Capitol Hill, CTR. FOR PUB. INTEGRITY, June 5, 2006, http://www.publicintegrity.org/news/entry/252/. This surely understates the value of these trips, since, for example, travel on a private plane has been assessed

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ratic 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 lobbyings 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 publics 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
at first class rates rather than actual cost. 3. The President signed the Honest Leadership and Open Government Act of 2007 on September 14, 2007. Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735 (2007). 4. See, e.g., ROBERT C. BYRD, 2 THE SENATE, 1789-1989: ADDRESSES ON THE HISTORY OF THE UNITED STATES SENATE 407 (Mary Sharon Hall ed., 1988).

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translate into relevant parlance everything from public opinions to demographic data to scientific developments. And the information flows in both directions: lobbyists interpret for their employers and clients the direction in which Congress may be going on a particular issue, what options remain available with respect to a specific piece of legislation, the potential impact of decisions, and what might be done to effect a desired change in direction. Finally, lobbyists help hold public officials accountable for their actions. These are all good: good for Congress, good for business, and good for the public. But even if lobbying were not responsible for so many good things, lobbyists and lobbying would still be difficult to control. After all, the First Amendment expressly provides a right to petition the Government for a redress of grievances and prohibits Congress from making laws that restrict that right unless, of course, there is an overriding public purpose to be served by a restriction reasonably tailored to attain that goal. And even if the Constitution did not speak specifically to lobbying (that is, the right to petition the government), lobbying should nonetheless remain at the core of a modern democracy. Issues are too complex, the public too dispersed, and competing voices too cacophonous to rely exclusively on town hall meetings and citizen action to keep elected officials informed of constituent interests. So, though it may have the potential to corrupt official decision-making, lobbying is constitutionally protected, it is useful, and it can be central to effectuating government by and for the people. II. PUBLIC IMPACT, PUBLIC GOOD In his thorough book on lobbyists, journalist Karl Schriftgiesser discusses how Congress had attempted to distinguish good lobbying from bad lobbying, recognizing that the former is the kind the Founding Fathers wanted to protect in the Constitution, whilst the latter is the product of the old fashioned pressure boy lobbyist who sought to coerce or corrupt Congress on behalf of private clients. Schriftgiesser quotes an article in the popular press that sought to tell readers how to distinguish between the two:
The basic test of the goodness of lobbying is truth. . . . Lobbying that is not for truth is bad . . . [while] lobbying on behalf of the rights of all men as individuals under fair competition to choose, to earn, to own, is ethical. Lobbying against such rights is bad. . . . .... Anyone should be free to teach, preach, or lobby for objective truth, including established American ideals. But lobbying for special advantages for laborers, farmers, businessmen,

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races, or religious sects, as classes, is antisocial, radical, and bad.5

Lest the reader scoff at this outmoded and unrealistic description of lobbying, note that it is part of a long tradition, touching both law and religion, that continues today. One of the early pronouncements was by the Supreme Court in 1875. The Court refused to enforce a contract for compensation of a lobbyist that was contingent upon enactment of legislation to settle a claim against the United States. The Court recognized that activities intended to reach only the reason of those sought to be influenced . . . rest on the same principle of ethics as professional services rendered in a court of justice.6 But agreements for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the passage of a private claim, without reference to its merits . . . were . . . contrary to the plainest principles of public policy.7 Notes the Court:
If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interest, the moral sense of every right minded man would instinctively denounce the employer and employed as steeped in corruption, and the employment as infamous.8

Fast-forward to 2002 and to the Woodstock Theological Centers report on The Ethics of Lobbying.9 The first principle of ethical lobbying advanced by the Center is that [t]he pursuit of lobbying must take into account the common good, not merely a particular clients interest narrowly considered.10 According to the authors:
If the result of a public policy, for example, is that it supports racial discrimination, or unduly burdens the poor, or leaves children unprotected, or violates civil liberties, or creates unjust distribution of social benefits and burdens, or threatens the environment, then we know that it is wrong and must be opposed.11

Although these are worthwhile goals, the active lobbyist is given precious little to work with in these various well-intended efforts to identify good lobbying or to tie ethical lobbying to pursuit of the common good.12 Limited government, limited resources, and protection of individual rights and private
KARL SCHRIFTGIESSER, THE LOBBYISTS 230 (1951). Trist v. Child, 88 U.S. 441, 450 (1874). Id. at 451. Id. WOODSTOCK THEOLOGICAL CTR., THE ETHICS OF LOBBYING: ORGANIZED INTERESTS, POLITICAL POWER, AND THE COMMON GOOD (2002). 10. Id. at 84. 11. Id. at 20. 12. I do not overlook both pro bono lobbying by lobbying and law firms, nor the important work of nonprofit organizations in advocating for these common-good objectives. These efforts still remain in the minority, however; pro bono lobbying is quite scarce, and nonprofit organizations are limited by the tax code in the amount of time they can devote to legislative advocacy.
5. 6. 7. 8. 9.

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property all mean that unfettered pursuit of the common good (however that may be defined) is not likely to be something on which lobbyists could readily agree or for which they would be paid handsomely. Does this mean every lobbyist to herself? Not really, even setting aside the myriad of existing laws governing our conduct. Lobbyists need to recognize that, by definition, what we do affects public decisions and ultimately has impact on others. The rules of the courtroom do not apply to the halls of Congress, for while judicial decisions may have precedential value, they do not ordinarily directly affect those who are not parties to the case. Not so when it comes to legislation. Every new statute affects individuals or businesses across the land. Every amendment to the criminal code, the patent laws, the tax code, or the civil rights statutes impacts our lives in one way or another. Even a minor earmarked appropriation reduces the dollars available for other programs in other locations. It is not that I expect lobbyists to change their ways because of the broader implications of their conduct. Lobbyists have responsibilities to their individual clients and employers. And having competing interests tends to yield the healthiest debates and best assists decision makers in sorting through complex and challenging issues. Foreign governments, multinational businesses, and even the most eccentric or unpopular causes all are entitled to representation in Washington. It is up to the lobbyist to present the facts and arguments fully and forcefully and honestly. It is up to the elected representative to make a decision and to take the action that best responds to her conscience and that strikes the right balance between national needs and potentially competing constituencies. III. RESTRICTING LOBBYISTS FAVORS The grossest form of corruption, and one about which we have heard much in recent years with the sentencing of both legislators and lobbyists to prison, is the quid pro quo. The lobbyist gives gifts or bestows favors, and in exchange the official introduces a bill, writes a letter, sponsors an amendment, enters a statement in the Congressional Record, or makes a phone call to a government official. Jack Abramoff gave gifts and meals and trips and golf games to members and their staff in return for favors; hes in jail. Duke Cunningham took cash for providing assistance to a government contractor; hes in jail too. The law fully addresses bribes and illegal gratuities, so we dont need to be distracted by crimes.13 Congress has also, over the years, tightened rules governing honoraria, gifts, travel, entertainment, meals, and outside income for its members.14 Every

13. See generally Samuel J. Buffone & James B. Christian, Criminal Prosecution of Lobbyists for Offering Gratuities to Legislators, in THE LOBBYING MANUAL 469 (William V. Luneburg & Thomas M. Susman eds., 3d ed. 2005). 14. See generally Robert F. Bauer & Rebecca H. Gordon, Congressional Ethics: Gifts,

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few years the limits are adjusted, or prohibitions are enacted. Many loopholes permitting lobbyists to provide favors to members and staff were closed in the 2007 ethics and lobbying reform legislation.15 No meals paid for by lobbyists. No corporate jet travel with lobbyists on board. No member-recognition events at national party conventions. No complimentary sky boxes at concerts or sporting events or golf outings. Yes, there is still room for dining with lobbyists as personal friends (who do not get reimbursed or take a business deduction for the meal). Yes, lobbyists can mingle with staff at widely attended events. And there is still room for members to receive caps and mugs and recognition plaques.16 But certainly the array of goodies that can be bestowed by lobbyists on members and staff to curry favoritism or secure access has been drastically curtailed. All to the good. Enter the two wild cards that threaten toand some would say inevitably willpervert the governmental process: reciprocity and private financing of political campaigns. The first is hard-wired into human nature; the second is certainly deeply imbedded in our political system. These issues troubled Senator Paul Douglas who over fifty years ago captured the essence of the problem:
Today the corruption of public officials by private interests takes a more subtle form. The enticer does not generally pay money directly to the public representative. He tries instead by a series of favors to put the public official under such a feeling of personal obligation that the latter gradually loses his sense of mission to the public and comes to feel that his first loyalties are to his private benefactors and patrons. What happens is a gradual shifting of a mans loyalties from the community to those who have been doing him favors. His final decisions are, therefore, made in response to his private friendships and loyalties rather than to the public good. Throughout this whole process, the official will claimand may indeed believethat there is no causal connection between the favors he has received and the decisions which he makes.17

Thus Douglas reveals the heart of the reciprocity principle. IV. RECIPROCITY PRINCIPLE What is this reciprocity principle? In 1971, psychologist Dennis Regan conducted an experiment in which his assistant and a subject were asked to rate
Travel, and Income Limits, in THE LOBBYING MANUAL 405 (William V. Luneburg & Thomas M. Susman eds., 3d ed. 2005). 15. Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735. 16. The House Committee on Standards of Official Conduct provides a ready reference for the remaining exceptions to the gift and travel bans. See H. COMM. ON STANDARDS OF OFFICIAL CONDUCT, 110TH CONG., HIGHLIGHTS OF THE HOUSE ETHICS RULES (2008), available at http://ethics.house.gov/media/PDF/2008%20Ethics%20Highlights.pdf. 17. PAUL H. DOUGLAS, ETHICS IN GOVERNMENT 44 (1952).

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paintings for what the subject believed to be an art appreciation project. Sometimes Regans assistant gave the subject a soft drink during a break; other times he did not. In some instances Regans assistant treated the subject kindly; in others he was surly. After each trial, the assistant attempted to sell raffle tickets to the subject. Predictably, the subjects who received a drink bought more raffle tickets than those not receiving one. More intriguing was Regans finding that subjects receiving a drink bought tickets even if the assistant was unfriendly. The subjects sense of obligation was controlling even when the assistants disposition was off-putting. Thus the reciprocity principle was born. Professor Robert Cialdini examined this and other important behavioral studies in his monograph Influence.18 Cialdini observes of this study that [f]or those who owed [the assistant] a favor, it made no difference whether they liked him or not; they felt a sense of obligation to repay him, and they did.19 Cialdini also discusses other relevant aspects of the reciprocity rule; for example, [a] person can trigger a feeling of indebtedness by doing us an uninvited favor,20 and [a] small initial favor can produce a sense of obligation to agree to a substantially larger return favor.21 Another consequence of the rule is that we feel an obligation to make a concession to someone who has made a concession to us.22 Reciprocity echoes throughout the halls of the Capitol, the tables of nearby restaurants, and even the witness stand at the federal courthouse. Theres the infamous remark attributed to former Representative Bill Nichols (D-AL), My door is open to everybody, but for those who came out early morning in the rain to demonstrate that you support me, my door is a little more open. And theres the courtroom testimony of Abramoff associate Nick Volz, When I was on Capitol Hill, I was given tickets to sporting events, concerts, free food, free meals. In return, I gave preferential treatment to my lobbying buddies.23 It is not as if the only reason lobbyists spend time with members of Congress is in the hope of establishing relationships or doing favors that can later benefit clients. True, often gifts, entertainment, travel, and contributions to campaigns, leadership PACs, and favorite charities may be motivated out of something beyond charitable instincts or commitment to good government. That being said, lobbyists also have an existential desire to be, or at least to be seen as, a first-string player in the game of politics.24 The corporate tycoon in

ROBERT B. CIALDINI, INFLUENCE: SCIENCE AND PRACTICE (4th ed. 2001). Id. at 23. Id. at 30 (emphasis added). Id. at 33 (emphasis added). Id. at 37. Thomas Susman, Reciprocity Underlies Lobbying Scandals, THE HILL, June 28, 2006, http://thehill.com/op-eds/reciprocity-underlies-lobbying-scandals-2006-06-28.html. 24. Senator Douglas also used this analogy: There are, moreover, men who view political campaigns much as others regard horse racing. These men find the process itself interesting and will back their favorites from a sense of personal loyalty. DOUGLAS, supra note

18. 19. 20. 21. 22. 23.

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New York or the movie starlet in Los Angeles may not be able to do anything to benefit the host of an intimate dinner or the organizer of a black-tie gala. But, like that of the cabinet member or congressional committee chairman in Washington, their presence at an event stirs interest among guests, adds excitement to the evenings conversations, and confers social status on the host. Reciprocity is not an evil instinct or a negative force by nature. The Golden Rule, versions of which have been found in religious and moral codes throughout history and across cultures, is an expression of this principle. Most cultures and religions endorse exchanges of gifts or good deeds as manifestations of civility and good manners. When expressed in the governmental arena, however, reciprocity can be dangerous. When the lobbyists gift or favor, no matter how modest, is bestowed on an individual lawmaker, the officials reciprocation may have a wide-spread, long-lived, and potentially more costly impact.25 V. FINANCING CAMPAIGNS In 2005, the Federal Election Commission reported that financial activity of 2004 presidential candidates and national conventions totaled more than $1 billion, 56% more than comparable activity during the 2000 campaign.26 The average cost of a federal congressional campaign is more than one million dollars. Though reaching new heights, the importance of money in political campaigns is not a new phenomenon. Ohio Senator Mark Hanna made his infamous statement in 1895: There are two things that are important in politics. The first is money, and I cant remember what the second one is.27 Little wonder, then, that a lobbyists active involvement in a congressional campaignthrough contributing, bundling, organizing, hosting, advising, serving in an official capacity, and the likecarries the potential (some would say danger) of triggering reciprocal favors by the officeholder. In fact, some observers consider reelection the primary goal of legislators, so helping a candidate get elected or reelected may be the most effective way of wielding political influence.28 Hence, no matter how successful Congress might be at purging

17, at 70. 25. This discussion assumes the special interest model of politics, where special interests invest in lobbying and initiate the favor-giving in search of a return on that investment. Scholars have recently introduced the reverse model, no doubt also accurate at times, under which legislators pursue issues in such a way as effectively to shake down the groups. See Edward J. McCaffery & Linda R. Cohen, Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. REV. 1159 (2006). 26. Press Release, Fed. Election Commn, 2004 Presidential Campaign Financial Activity Summarized (Feb. 3, 2005), available at http://www.fec.gov/press/press2005/2005 0203pressum/20050203pressum.html. 27. Helen Dewar, For Campaign Reform, a Historically Uphill Fight, WASH. POST, Oct. 7, 1997, at A5. 28. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 5-6 (1974). Oilman Roger Tamraz, who gave $300,000 to the Clinton presidential campaign, testified be-

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gifts and meals and travel from the currency of exchange in Washington and beyond, political campaigns will continue to provide a multifaceted outlet for lobbyist activities that will inevitably and even unconsciously trigger reciprocal action by the elected official. Not everyone appears concerned over whether campaign contributions or participation in campaigns by lobbyists might provide the lobbyist or the lobbyists clients an edge in influencing public policy. Some have expressed an even greater concern over the threat that, without the business lobbyists ability, for example, to harness campaign largesse on behalf of candidates, business lobbyists would be unable to stem potentially tyrannous public policy advocacy by the majority.29 The result may not be a more level playing field, but one tilted away from and skewed against the banks, energy companies, and technology innovators in the IT and pharmaceutical businesses. Perhaps, in this new world free of lobbyists influence, the power of the media would also be magnified, further harming the country. Though I do not dismiss this viewpoint lightly, I disagree with it. As money becomes less influential, the value of information will increase. Moneyed interests will still usually have an edge over others in developing, collecting, assessing, and presenting information to policy-makers. At the same time, while populists may once have been justified in fearing the power of media giants, the Internet and other forms of new technology provide unlimited avenues to reach the public and decision-makers directly, diminishing the effect of any dominant media messages. Moving forward, then, we must ask: what can America practically and effectively do to reduce the influence of the reciprocity principle on elected officials by lobbyists who have available the entire panoply of campaign fundraising activities? There are at least three alternatives: completely eliminate private money from federal congressional elections; insulate campaigns from lobbyists by limiting lobbyists ability to participate in the campaign process; and impose maximum transparency by continuing the process of enhancing disclosure of the role of lobbyists in campaigns and fundraising. I will address each in turn. VI. PUBLIC FINANCING OF CONGRESSIONAL ELECTIONS There have long been credible arguments for public financing of campaigns as the only way to ensure integrity in government and remove actual and
fore a congressional committee that he had not registered to vote. When asked whether his participation in the political process has been limited to campaign contribution, Tamraz replied: Well, I think this is a bit more than a vote. Bruce Morton, Money in Politics Through the Years, CNN ALL POLITICS, Oct. 7, 1997, http://www.cnn.com/ALLPOLITICS/ 1997/gen/resources/moneytrail/chronology. 29. See NIEL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 97 (1994) (identifying majoritarian influence and bias as well as special interest influence and bias).

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potential improper influence from politics.30 Opponents stress that private campaign contributions serve important purposes and that such a drastic change would carry unintended and unwanted consequences for the public and governmental institutions. This essay will not endeavor to repeat all of the reasonable and occasionally persuasive arguments on both sides of this issue, nor will it try to referee this long-standing debate. Even those who strongly advocate such a monumental change in our system recognize that such a change will not occur soon. Therefore, we must explore the two remaining options for addressing what I consider to be the undesirable, albeit inevitable, role of private campaign money in empowering lobbyists. VII. REMOVAL OF LOBBYISTS FROM THE CAMPAIGN PROCESS The constitutional rights of lobbyists are not limited to petitioning government; we also have the First Amendment right to freedom of speech. As interpreted by the Supreme Court, that right includes not only speaking out in favor of candidates for public office, but also putting our money where our mouths are.31 Lobbyists also have a right to freedom of association. Surely this covers our ability to associate with a candidates campaign committee and participate in campaign activities. But maybe a lobbyists constitutional protections are not so ironclad. As observed in a 1994 Senate committee report addressing special gift rules applicable only to lobbyists:
[I]t seems appropriate to single out registered lobbyists . . . for special treatment, because this category includes people who are, by definition, in the business of seeking to influence the outcome of pubic policy decisions. Because registered lobbyists . . . are paid to influence the actions of public officials, . . . their gifts are uniquely susceptible to the appearance that they are intended to purchase access or influence.32

Let us suppose that Congress conducted a thorough inquiry into campaign finance activities and the special access and potential for influence that participants in campaigns inevitably have with candidates once elected. Further, suppose Congress then reached the conclusion that this potential for access and in-

30. I sidestep partial measures that have often been debated, such as substantially reducing the costs of campaigns by requiring broadcast media to provide certain amounts of free airtime for candidates. This would reduce, but not eliminate, the potential influence that lobbyists have in campaigns. 31. Buckley v. Valeo, 424 U.S. 1, 34 (1976) (per curiam). That does not mean that candidates for office have any obligation to take our money. Before a person can donate to the Obama for President campaign, he or she must check a box confirming the truthfulness of the statement: This contribution is not made from the funds of an individual registered as a federal lobbyist or a foreign agent, or an entity that is a federally registered lobbying firm or foreign agent. Obama 08, https://donate.barackobama.com/page/contribute (last visited Apr. 1, 2008). 32. S. REP. NO. 103-255, at 4 (1994).

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fluence was unfair, undesirable, and undermined the integrity of Congress by presenting the opportunity for, and the appearance of, corruption. Could Congress constitutionally tell lobbyists to make a choice: remain active lobbyists and get out of the campaign business, or actively participate in campaigns, but forego lobbying? I think so. It is even possible that this logic could lead to banning, lowering, or otherwise limiting campaign contributions that could be made by registered lobbyists.33 According to an August 2007 Gallup poll, this proscription would sit comfortably with a large majority of the electorate: More than three-quarters of Americans say that raising campaign money from contributions made by Washington lobbyists is unacceptable . . . .34 VIII. DISCLOSURE OF LOBBYISTS RELATIONSHIPS WITH CANDIDATES A third option that may be pursued in concert with the others lies in maximizing disclosure of all aspects of the lobbyists relationship to the candidate.35 Disclosure has been upheld by courts in both the lobbying and campaign finance arenas as being useful in improving the electorates ability to hold public officials accountable and in deterring corruption or avoiding the appearance of corruption.36 Confidentiality, fairness, concern for avoiding the discouragement of members from meeting with advocates for unpopular causes, and other good reasons counsel against requiring disclosure of every contact or communication between a lobbyist and member of Congress.37 But these reasons do not counsel against full disclosure of the lobbyists role in giving or raising money or otherwise participating in a political campaign. The recently enacted lobbying and ethics reform legislation contains a new, required semiannual filing by lob33. As might be expected, states have taken various approaches to addressing concerns about the potentially corrupting mixture of campaigning and lobbying. See generally Trevor D. Dryer, Gaining Access: A State Lobbying Case Study (June 15, 2007) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=986640. The California ban on lobbyist contributions, if the lobbyist is registered to lobby the office for which the candidate is running, has been upheld against First and Fourteenth Amendment challenges. Inst. of Governmental Advocates v. Fair Political Practices Commn, 164 F. Supp. 2d 1183 (E.D. Cal. 2001). The tendency of lobbyists to take advantages of loopholes is widely documented. See Elizabeth Williamson, Getting Around Rules on Lobbying, WASH. POST, Oct. 14, 2007, at A1. 34. Frank Newport & Joseph Carroll, Most Say that Presidential Candidates Should Refuse Lobbyist Money, GALLUP, Aug. 29, 2007, http://www.gallup.com/poll/28543/MostSay-Presidential-Candidates-Should-Refuse-Lobbyist-Money.aspx. The poll also found that two-thirds of Americans say that candidates who accept money from Washington lobbyists cannot change the way things are done in Washington. Id. 35. One study of lobbying in California concluded, based on interviews with lobbyists, that disclosure is likely to be a more effective prophylactic against corrupting influences by lobbyists than banning their contributions. See Dryer, supra note 33. 36. William V. Luneburg & Thomas M. Susman, Lobbying Disclosure: A Recipe for Reform, 33 NOTRE DAME J. LEGIS. 37, 37-39 (2006). 37. See id. at 49.

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byists reporting political committees established or controlled by the lobbyist; political contributions over two hundred dollars; and the date, recipient, and funds expended to pay the costs of an event honoring or held by a covered official.38 The same statute requires the candidate to report the involvement by any lobbyist in providing bundled contributions to her campaign.39 It is too soon to determine the efficacy of these requirements, but additional disclosures of lobbyist-campaign relationships may ultimately prove useful. CONCLUSION One journalist recently commented on Googles lobbying efforts in Washington:
[T]heyre playing the imperial Washington game by time-honored rules. Google started a political action committee. Thats a fund executives and other employees can contribute to. Lobbyists use the money to make contributions to the campaigns of lawmakers who support their cause, because to really get things done in the Imperial City, you need ideas, you need friends, and you need money.40

Is the only answer to the reciprocity principle a ban on all favor-currying with public officials? Perhaps, but not in our lifetime. Even if there were a complete prohibition on gifts, entertainment, meals or trips to elected officials, there would still be the avenue of campaign contributions and fundraising activities, an avenue protected by the First Amendment. The answer may lie in taking money out of politics through public financing of federal elections. Of more immediate potential are the regulatory proscriptions to enforce a clearer and widerseparation between lobbying and campaign cash. And, overlying these other approaches, as Congress has for some time recognized, is disclosure to provide some sunlight as a political process disinfectant.41 James Madison recognized the inevitability that factions or special interests, as we know them, would organize to influence government decisions.42 He could not have imagined that these interests would so penetrate political campaigns that elected officials could often wind up, knowingly or not, owing more to lobbyists and their principals than to their constituents. This is a sure recipe for biasing, if not corrupting, government processes. And it is a recipe for submerging the public good to private gain. We are still a vibrant democracy whose government was established by

38. Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 203, 121 Stat. 735, 742-44. 39. Id. 204, 121 Stat. at 744-46. 40. Jill Barshay, Playing the Lobbying Game, AMERICAN RADIOWORKS, http://americanradioworks.publicradio.org/features/congress/b1.html (last visited Apr. 1, 2008). 41. See Luneburg & Susman, supra note 36, at 43. 42. THE FEDERALIST NO. 10 (James Madison).

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and for the people. When Benjamin Franklin was asked upon leaving the Constitutional Convention whether the delegates had created a monarchy or a republic, he famously answered, A Republic, if you can keep it.43 The challenge is ours to ensure that lobbying and campaigning do not work together to undermine independent decision-making by legislators and subvert the public good. We can do it. We can keep it.

43. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 85 (Max Farrand ed.,

1911).