The Great Lobbying Fix

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Memories of the philanthropic shenanigans of Jack Abramoff and the Capital Athletic Foundation, Tom DeLay and his Celebrations for Children as well as the DeLay Foundation, Rick Santorum and his Operation Good Neighbor Foundation, Ted Stevens and his eponymous foundation, Bill Frist and his World of Hope fundraiser, Alan Mollohan and his eponymous charity, and countless other politicians and lobbyists have obviously become dim with time and distance. If history counts for anything, the press—and all of us—should have raised a jaundiced eye at these ostensibly “minor” modifications in the rules governing lobbyists’ contributions to charitable events.

Revising the post-Abramoff Congressional ethics and lobbying rules enacted last fall, the new Congressional guidelines “fixed” a requirement that would have required corporate lobbyists to report their minor contributions, ticket purchases, and table sponsorships for charities associated with members of Congress (or covered members of the Executive Branch as well). The 2007 rules required registered lobbyists to disclose contributions made to 501(c)(3) entities established or controlled by sitting pols.

Now, the language has been modified. If a legislator like DeLay or Santorum were to direct a lobbyist or other covered entity (say, an industry trade association) to donate to a member’s charity, that must be disclosed. But, “in contrast, a contribution following a mere statement of support or solicitation does not necessarily constitute a reportable event” (p. 21 of the Lobbying Disclosure Act Guidance).

Let’s see, can you imagine that legislators might figure out ways to issue statements of support for their charities that allow lobbyists to avoid mandatory disclosure? Unless “lobbyist A” and “legislator B” are genetically unable to navigate their way through loopholes, they’ll figure it out. Do you think that lobbyists can read the tea leaves to figure out which charities members of Congress want them to support—even if the lawmakers don’t personally drag them by their nose rings to the charities?

But what about entities associated with legislators but are not specifically “established, financed, maintained, or controlled by a covered Legislative or Executive Branch official”? The Guidance provides an example of how to find a loophole:

Example 7: Senator “Y” and Representative “T” are “honorary co-hosts” of an event sponsored by Registrant “R” to raise funds for a charity, which is not established, financed, maintained, or controlled by either legislator. “Y” and “T’s” passive allowance of their names to be used as “co-hosts,” in and of itself, is not sufficient to be considered “honored or recognized.” The purpose of the event is to raise funds for Charity V, not to honor or recognize “Y” or “T.” Nor are these facts, in and of themselves, sufficient to treat the event as being held “by or in the name” of “Y” or “T.” Supplemental facts might require reporting the cost of the event. (p. 22)

My goodness! If a legislator can’t figure out how to construct a relationship with a nonprofit, camouflaged with enough veils to avoid being seen as having “established, financed, maintained, or controlled” the organization, that would be a legislator with exceptionally limited imagination. And such a legislator could probably find a loophole-oriented lobbyist to help him or her figure it out.

The limited press coverage of this Congressional lobbying rules “fix” focused on clarifications to allow lobbyists and industry trade associations flexibility reporting purchases of tickets to charity events honoring legislators. No one, not the Senate Secretary, the House Clerk, or the charities themselves, wanted to have to plow through lists of $100 tickets from lobbyists where legislators participated as “invited guests” or received plastic plaques.

But, in the revised lobbying guidelines, the changes regarding what constitutes a legislator’s charity are much more significant, potentially backsliding to a pre-Abramoff lobbyist and corporate free-for-all of politicians’ nonprofits serving as venues for special interests to buy favor and face-time with powerful Congressional decision-makers.

According to a Skadden Arps expert on lobbyists’ contributions, “That has the effect of limiting virtually all disclosures…I can’t even imagine a convention event (sic) been listed.” How prescient! These changes in the lobbying rules occur just before the Republican and Democratic party conventions. It was in 2004 at both parties conventions where charity fundraisers associated with Tom DeLay, Blanche Lincoln, and Saxby Chambliss, among others, raised eyebrows and attracted complaints—and got DeLay and Lincoln, at least, to deep six their “charity” fundraisers.

Under these new rules, they wouldn’t have had to worry. Perhaps DeLay might have had to construct his “Celebrations for Children” a little more deftly, but the others would have been just fine. Lobbyists and corporations could have made contributions with the side-effect of purchasing influence and face-time with legislators and decision-makers behind the all-purpose cloak of charitable fundraising.

Here’s a prediction: Watch the upcoming national conventions. The kinds of “charity” fundraisers linked to members of Congress that attracted so much negative attention in 2004 may well blossom and multiply under the umbrella of these new rules. And the lobbyists will find their ways to making “legal” charitable donations to the politicians’ charities without much trouble.