Disclosure in the Information Age

By Jeffrey H. Birnbaum
Monday, February 20, 2006; D01

Republicans and Democrats have trouble agreeing on anything these days. But leading thinkers in both parties have one simple notion in common: Citizens should be able to find out easily who's lobbying their elected representatives.

That doesn't sound controversial, but it is. As things stand, it's near impossible to learn who has lobbied a lawmaker and how much that lobbyist has raised for the lawmaker as a way of trying to close the deal.

Two former chairmen of the Federal Election Commission -- Republican Trevor Potter and Democrat Scott Thomas -- are speaking out about the need for fast, complete disclosure of both lobbying and campaign giving.

A growing number of people in both parties are pushing for a mega-disclosure provision as part of an effort to revise the capital's ethics laws.

"We can't get a clear picture now what lobbyists are doing," Thomas said. "The main thing we need to do is to plug some of the obvious gaps."

"We need more information," Potter agreed. "There is appeal for that point of view on both sides of the aisle."

The legislative process isn't an exciting subject. In the 19th century, the German Prussian politician Otto von Bismarck said, "Laws are like sausages. It is better not to see them being made."

But Bismarck didn't have a BlackBerry. We live in an information age. Citizens are accustomed to seeing all sorts of things at incredible velocity. Legislation may not be pretty, but it certainly has more concrete impact on peoples' lives than much of the trivia that clutters the Internet these days.

How does it make sense that we can go online to see a satellite image of a neighborhood in Los Angeles, but we can't find out how the pharmaceutical industry pressured Congress to keep drugs prices high?

It doesn't.

Now, in the great tradition of silver linings, Jack Abramoff has given Congress the opening it needs to change all that and bring disclosure out of the 19th century.

Congressional leaders are moving -- though slowly -- to pass something that shows how serious they are about warding off the kind of corruption that Abramoff pleaded guilty to several weeks ago. Enhanced disclosure looks as if it will be central to whatever they approve.

Thomas and Potter have a few ideas about how to make that happen. In essence, they want to bring Google into Congress's smoke-filled rooms.

At the moment, disclosure is fragmented and incomplete. The former FEC members would correct both of those problems and then connect all the facts they collect through a readily searchable and widely available system online.

That won't happen overnight. As I've written before, lobbying disclosure, as currently practiced, is a contradiction in terms. Lobbyists don't have to say much more than who their clients are, what issues they're working on and how much they're being paid. They report rarely -- only twice a year -- and are perfectly within their rights to conceal anything they do that doesn't relate to direct lobbying, which excludes grass-roots activity, the biggest part of lobbying these days. Grass-roots lobbying organizes voters back home to lobby lawmakers in Washington.

Campaign fundraising is more fully disclosed yet still has holes. Dollars that go to candidates are reported but not the activities of the most important players -- the fundraisers. Donations that are bundled together by interest groups escape clear detection, as do the money-raising efforts of single-issue groups that regularly fill the airwaves with ads.

The data that do exist are scattered and hard to combine. Lobbying reports are filed separately with the House and the Senate, and only the Senate's documents are viewable online. Foreign lobbyists' records are at the Justice Department. Campaign finance reports are mostly housed at the FEC, but some are also at the Internal Revenue Service (for the big-money "527 groups").

In addition, lawmakers' financial disclosure forms and, separately, their reports on privately paid travel, are filed on paper and in different locations on Capitol Hill.

The jumble is so confusing that nonprofit organizations and for-profit businesses have sprung up to try to make some consolidated sense of it all. PoliticalMoneyLine.com, the Center for Responsive Politics and the Center for Public Integrity are among the best of these.

But Potter and Thomas think that government should do the work. They advocate that all these components be disclosed more fully, frequently (monthly or quarterly) and via the Internet so that any voter can type in a few key words and find out in real time who's pressing whom for what in the nation's capital.

For example, a person who types "Rep. X" could find out how much a lobbyist for Interest Y has contributed or raised for the lawmaker (including for Rep. X's pet charities), the number of lobbying visits the two have had with each other, and the value of gifts or trips they've exchanged.

If Rep. X can defend her actions with her constituents in the face of such disclosures, more power to her. But in the end, the voters can decide based on a much greater range of information than they have access to now.

Potter, a partner at the law firm Caplin & Drysdale, calls this a "very conservative" proposal since government would not be intervening by limiting anyone's behavior, but rather would allow an open, well-informed market to decide the fate of a congressman.

His call for "complete transparency" is shared in principle if not in detail by such well-known Republicans as House Majority Leader John A. Boehner (Ohio), House Ways and Means Chairman Bill Thomas (Calif.), and Sen. John McCain (Ariz.), whose ethics proposal contains a leading version of the mega-disclosure plan.

McCain would disclose grass-roots lobbying for the first time and require lobbyists to list on their reports how much they've given to or raised for lawmakers and their pet projects.

Scott Thomas, who is of counsel at the law firm Dickstein Shapiro Morin & Oshinsky, has long supported tough regulation in this area, which is the Democratic position. But he worries that proposals to restrict privately paid travel and meals will inevitably be watered down. As a fallback, he would be happy to see Congress pass a "thorough and timely" disclosure regimen.

"Disclosure is going to end up being the real key when it's all said and done," he said. "That's going to be the real guts of monitoring the lobbying process."

The approach has problems, of course. One is determining how much detail to force lobbyists and lawmakers to reveal. Might it be adequate for a lobbyist to say he met with a lawmaker's office or a congressional committee rather than with a specific person? Most experts say that's a reasonable position and one that wouldn't put a chill into the constitutionally protected right to lobby.

An even bigger question is how to avoid what Potter calls "garbage in, garbage out." Federal employees would have to closely oversee the thoroughness and accuracy of the data entered. That sort of scrutiny is now spotty at best and would have to be upgraded.

Millions more dollars would have to be allocated for the purpose, and an agency would have to be chosen or created to guarantee the integrity of the effort overall. The agency would then have to be given real policing powers, something that is now woefully lacking.

That won't be easy for lawmakers or lobbyists to accept. Then again, no one -- not even optimists like Potter and Thomas -- believes that cleaning up Washington can come without pain.

Maybe Congress will be able to bring disclosure only into the 20th century. But that would be an improvement.

Jeffrey Birnbaum writes about the intersection of government and business every other Monday. His e-mail address iskstreetconfidential@washpost.com. He will be online to discuss proposed lobbying law changes at noon tomorrow athttp://www.washingtonpost.com/business.