By: Paul A. Miller, President, National Institute For Lobbying & Ethics
In 2005-2006 Washington was consumed with the Jack Abramoff scandal, which played out like a Vince Flynn novel. Today the lobbying profession is bracing for yet another potential scandal that could be far more devastating to the profession than Jack Abramoff was. We are talking about shadow lobbying activities of former General Michael Flynn and Paul Manafort. This time however, instead of Washington clamoring for lobbying reform, there is dead silence in Washington because at the end of the day, this scandal may not target the lobbying profession directly, but instead bigger fish with direct ties to the President.
The lobbying profession, Congress, and the public should be concerned by the reported activities of both Flynn and Manafort, not because of any connections to the President, but because their actions undermine the integrity of our process, the profession and the faith people have in our system of government. Shadow Lobbying isn’t new, but it is a growing trend. We saw a rise in this practice back in 2009 when then President Obama implemented lobbying restrictions meant to cut down the influence special interests (or lobbyists) had in Washington. It has continued with the Drain the Swamp efforts created by the Trump Administration. In an effort to clean up the system, the actions taken by both Administrations have actually made the process and system worse for all of us.
For the first time in a decade the number of federally registered lobbyists is at under 10,000. It’s not that people are deciding to retire in large numbers or leave the profession altogether. I’d argue more people are entering this profession than ever before. The simple reality is people are reclassifying what they do as not direct lobbying and thus they are no longer covered by the Lobbying Disclosure Act (LDA). I have been asked recently by several reporters why both the number of lobbyists and amount spent on lobbying have decreased. My answer to both is, they haven’t. The number of lobbyists and amount spent on lobbying really hasn’t changed. What has changed is how people are lobbying and how that money is being spent. More people are lobbying and more money is being spent, it’s just going unreported.
Senator McCain told a group of lobbyists during the Abramoff case that he was less concerned with the activities of Jack because he was a registered lobbyist and left a paper trail for investigators to follow. Senator McCain was more worried about those connected to Jack, who were lobbying, but skirting the law because of how they were doing it and not leaving a paper trail. Senator McCain was spot on then and his message applies today to both Flynn and Manafort.
In 2006 Congress wanted Abramoff’s hide. They also went after anyone associated with him. Many of these people went to prison for breaking the law and our profession paid the price through daily attacks, calls for banning lobbying, and passage of the Honest Leadership and Open Government Act (HLOGA). Yet, today it seems we are turning a blind eye to the actions taken by both Flynn and Manafort with little appetite to address the issue of shadow lobbying. Why is it that both Flynn and Manafort have been able to go back and register their clients and contacts after the fact? Why is it that they could collect millions in lobbying fees and when caught simply go back and register these clients and fees without penalty? If this was any “average Joe” lobbyist, we’d be reading in the paper about “Joe” being prosecuted to the maximum extent with all the wild press articles to go along with the case. Yet, as of today, neither Flynn nor Manafort have faced any repercussions. Some will argue that their actions are tied to a bigger case and my response is so what.
Lobbying has changed significantly since the Abramoff case and why it’s time for a top down review of the LDA. If the lobbying profession doesn’t take the lead on this, then we will continue to see legislation after legislation introduced that seeks to limit our rights guaranteed under the Constitution all in the name of good press and an election issue. We see it cycle after cycle. We saw it with President Obama and we say it with Drain the Swamp. Lobbyists will continue to be the scapegoats unless we are proactive and ask that the LDA be updated to keep pace with the changes in our profession. If we don’t, we will continue to see more and more cases like Flynn and Manafort. The difference being, unless you rise to the star level these two appear to be on, you won’t get the same preferential treatment they are getting. You might just be inmate number 00010112.
The solutions aren’t complicated, but they can be political. The National Institute For Lobbying & Ethics spent 2016 doing its own top down review of the LDA and issued very specific recommendations it believes needs to be made to the LDA in light of how lobbying is done today. In 2005-2006 there wasn’t enough time in the day to fight back against all the charges and legislative proposals due to Abramoff’s actions. Today, there seems to be little appetite in Congress to request a top down review. Like most things in Washington, we will wait for the real scandal to hit and then rush to our bully pulpits to cry foul and scream the system is rigged for special interest lobbyists. At the end of the day, it’s the lobbying profession and those of us who live by the rules who are punished and those who cheat the system get a pass.
Congress comes back in September to a full plate of issues to tackle. A review of the LDA doesn’t seem like it should be a high priority to most, but for those of us in the lobbying profession, it should be. I’m not advocating for new onerous regulations. What I am advocating for is updating an outdated LDA, which has loopholes that allow for shadow lobbying. Time to treat Flynn and Manafort like the rest of us would be treated had we taken the same actions. Time to hold Flynn and Manafort to the same standards we went after Jack Abramoff with. It all starts by doing a hard look at what lobbying is today and how it’s conducted. Time to change the LDA to make the system more transparent for the public, Congress and frankly the profession. If we wait, we pay the price.