JURIST Guest Columnist Peter Henning of Wayne State University Law School says that while lawmakers in Washington are floating new ethics regulations in the wake of the Abramoff lobbying scandal, they might do better to apply existing laws and work on developing a political culture that puts the burden on elected representatives and their staffs to act ethically and to disclose their contacts with lobbyists...
As is typical whenever a scandal touches Congress, the first reaction is to point fingers at others and demand a new law to keep our elected officials pure. Even before word of Abramoff's deal broke, Republicans introduced legislation that largely copies bills offered by Democrats to "reform" lobbying to prevent the next Jack Abramoff. The "Special Interest Lobbying and Ethics Accountability Act of 2005" would require enhanced disclosure of lobbying activities, curbs on gifts and travel paid for by private concerns, and extending from one to two years the ban on lobbying by former Members of Congress and their staff (and senior administration personnel to boot). Republican leaders in the House and Senate have launched a trial balloon proposing a complete ban on all privately-funded travel in an effort to show the commitment to "reform," as if free travel is the heart of the problem.
These so-called reforms focus primarily on lobbyists, with only minor tweaking of the disclosure rules for our Representatives and Senators. A free-travel ban might make it harder for lobbyists to reach a Congressman or Senator, but it is largely cosmetic and will have no real effect on the more important issue of access to elected officials and their staff. Will any of these changes stop a determined lobbyist from seeking to corrupt an Congressman who is willing to accept gifts? While greater transparency is hard to oppose, it is not clear that more paperwork or banning certain types of perquisites will alter the ways of our elected officials when lobbying is such an accepted part of the legislative system. One would hardly expect Congress to develop legislation without input from those who have an interest in the topic, and lobbyists can be an important source of information. One could imagine separating lobbying from election fundraising by prohibiting lobbyists from contributing to political campaigns as a condition of representing clients before Congress. Such a proposal would require a much more radical reworking of the campaign finance system than currently contemplated, undermining the benefits of incumbency that makes such a change unlikely. Short of that, the system is at risk for another Jack Abramoff, who would surely not have been deterred by even the modest disclosure requirements imposed by the legislative proposals.
Abramoff was caught committing crimes, and it is likely he will serve a substantial term of imprisonment. Federal criminal laws clearly are sufficient to deal with corruption at all levels of government, and the anti-bribery provisions will be applied again to Congressmen and members of their staff who joined Abramoff's corrupt spree. For a person bent on acting improperly, it is unlikely that a form requiring disclosure or a ban on free travel will be much of a barrier if criminal laws already on the books prohibiting bribery and lobbying within one year of leaving office were insufficient to stop Abramoff.
Indeed, are we so concerned about the lack of ethics of our elected representatives that we need a ban on all gifts for fear that the Republic will be sold out to the person with courtside seats for a Washington Wizards game? What is more important than enacting a new law regulating lobbyists or prohibiting free travel is the creation of a new culture in the Congress that puts the burden on our elected representatives and their staff to act ethically and to disclose their contacts with lobbyists. Instead of pointing the finger at Jack Abramoff and his cohort while protecting themselves from their own willingness to use lobbyists for personal and political gain, it would be better to ensure that Congressmen and Senators disclose who they accept gifts from and who they have solicited for campaign contributions. To the extent that there is a need for transparency, it should begin with Congressional disclosure of the dates of any contacts with lobbyists so that the timing of those meetings can be available for all to see. Campaign contributions can be manipulated by funneling them through friendly front-organizations, but the face-to-face meetings in the office or on the golf course are much more important for understanding the role of special interests.
Congress is like any business that deals with vendors and suppliers who try to gain favor with those who decide how to apportion the company's budget. The Federal Sentencing Guidelines set forth criteria for determining whether an organization has an "effective program to prevent and detect violations of the law." Perhaps Congress should consider doing as corporate America has done and adopt measures that give its members and employees benchmarks for what is acceptable behavior and a means of reporting wrongdoing without fear of retaliation that will trigger internal investigations untainted by politics. For example, the Commentary in the Guidelines chapter on Sentencing of Organizations states that a company must "communicate effectively its standards and procedures to all employees and other agents" through required training programs, and it must utilize " monitoring and auditing systems reasonably designed to detect criminal conduct by its employees and other agents and by having in place and publicizing a reporting system." Something as simple as an ethics hotline monitored by an independent office unaffiliated with either party would be helpful in making Congress responsible for policing itself.
Unfortunately, the so-called "ethics" process in Congress, particularly in the House of Representatives, has been hopelessly politicized. Ethics complaints against members are designed for political gain rather than as part of an effective compliance program. Perhaps it is time that Congress treated itself to the same rules as corporate America by taking measures to ensure that it acts properly in its dealings with outsiders who have an interest in its business. Ethics is not a means to gain political advantage, and the culture inside Congress needs to be reformed before we turn to regulating the enablers. Lobbyists are not solely to blame for the problems in Congress, so any reform must come from within rather than by adopting a new law.
Peter Henning is a professor of law at Wayne State University Law School and editor of the White Collar Crime Prof Blog.