Biased Pluralism, the Tragedy of the Commons
and the Demise of American Democracy
“…society appeals to an individual exploiting a commons to restrain himself for the general good–by means of his conscience.” —from ‘Tragedy of the Commons", by Garrett Hardin
By this time, the particulars of former lobbyist Jack Abramoff’s now-decade-old crimes have been well-documented, fully aired and even Hollywoodized. He’s served his time and continues to pay his debt to society in the form of sizable restitution.
That said, not everyone feels obliged to extend Abramoff forgiveness—an altogether personal and defensible position. (At this point, I reserve the weight of my derision for the system itself which, on the day of Abramoff’s sentencing, barely slowed to slap its own wrist. The usual legalized bribery meet ‘n greets in the form of Congressional fundraising events proceeded that very evening.) Suffice to say, Jack Abramoff remains a polarizing figure in many quarters.
This interview endeavors to move the ball forward, soliciting Abramoff’s observations on the business of lobbying today. After all, his activities led in large part to the law federal lobbyists presently operate under, the Honest Leadership and Open Government Act of 2007 (HLOGA), amendment to the Lobbying Disclosure Act of 1995 (LDA). More on this later.
Interested readers are also urged to reacquaint themselves with the historical particulars of the affair (as this interviewer did), including interviews with 60 Minutes’ Leslie Stahl, Edmond J. Safra Center for Ethics, Harvard Law School Professor Lawrence Lessig, Russia Times (RT) and C-Span2 AfterWORDS as well as Abramoff’s own book, Capitol Punishment (2011).
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Norm: Good afternoon Jack and thank you for joining us.
Jack: My pleasure.
Norm: Perhaps you’ll indulge me for a moment with a preamble.
Norm: There was a study released last year by Princeton and Northwestern University professors Martin Gilens and Benjamin Page respectively, which sought to examine empirically-derived political data from the period 1981 to 2002, specifically 1,779 enacted policies over that period. (Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens; Perspectives on Politics / Volume 12 / Issue 03 / September 2014, pp 564-581; Copyright © American Political Science Association 2014).
We won’t delve statistical analyses and methods here except to say the study was peer-reviewed. The key finding was that the 90th percentile of the population (by income) was fifteen times more likely to have its preferences reflected in policy decisions than was the 50th percentile. This led Gilens and Page to conclude that average citizens have “little or no independent influence” on the policy-making process. In short, we inhabit an oligarchy with only the barest democratic façade.
The good news is that 1) we now have an empirical protocol for quantifying relative influence as a function of socio-economic status and 2) we possess rigorous academic confirmation of a reality which registers a big ‘duh’ with the average Joe. As this is not a televised interview, I’ll note for the reading audience your jaw didn’t exactly hit the ground either. Nonetheless I’ll ask you anyway. Are you surprised at just how lop-sided and anti-populist these findings are?
Jack: I am not surprised at all. In almost every human endeavor, the elite have more impact and influence than the average person. Political influence in the United States can be acquired either by dedicating time and effort to making your voice matter, or by buying that influence and impact. Those who are more wealthy have more discretionary income and those among that group that are politically inclined are more able to expend those resources than the rest of us. Similarly, those activists who have politics in their blood have more time than the rest of us to spend impacting policy.
Norm: I should note that the academic community was caught off-guard for the most part by these findings as they suggest a heretofore-aberrant form of democracy that travels under the moniker ‘biased pluralism’. Perhaps you could recommend to the American Political Science Association a good lobbyist to get democracy back on track.
Jack: I’ll see if I can find them someone [laughs].
Norm: You’re on record as not being a big fan of publicly funded elections. Could you elaborate on your misgivings with this approach?
Jack: The money in the system that I believe needs to be removed is the money spent by people seeking some special favor or interest from the government, and their advocates, otherwise known as lobbyists. My belief is that, if you want something for yourself from a public servant and give that public servant money or something of value, then you have, in essence, bribed that public servant.
So, if I could wave a magic wand and change the campaign finance system, I would eliminate the ability of lobbyists and their clients to give any money at all within the federal system, including Super PACs. If someone wants to give money for any other reason, including admiration of a candidate’s positions on issues other than those that impact that donor’s pocketbook, I have no problem with their giving whatever they want.
The truth is, of course, that virtually all big dollar donors on the Left and Right have a quid pro quo in mind. Removing them from the system would dramatically reduce the amount of money in politics. I favor this over publically funded elections for several reasons. Primarily, I don’t believe public funding has any chance of becoming law. The Right is against it – as they generally oppose expansion of government, and since it would, at some level, put the decisions to fund campaigns in a public official’s hands. That is anathema to conservatives.
Even if this could somehow become the law, I would be opposed because the folks most likely to benefit from public funding would be the cadre of political consultants. You would find hundreds of shadow candidacies springing up, as consultants and lobbyists rushed to rake in the new bucks.
Finally, I am personally opposed to forcing someone to fund ideas that they find abhorrent. Of course, one could argue that most people fund things they find abhorrent currently, but that does not make it right.
Norm: In ‘Capitol Punishment’, you zero in on the profound moral confusion plaguing the system: “Contributions from parties with an interest in legislation are really nothing but bribes. Sure, it’s legal for the most part. Sure, everyone in Washington does it. Sure, it’s the way the system works. It’s one of Washington’s dirty little secrets–but it’s bribery just the same”.
Forgive me, but this seems more like a dirty big secret whose roots may extend beyond the system, springing from the culture itself. In the 1987 movie Wall Street, Gordon Gekko famously asserts ‘greed is good’ in true upside-down fashion. Have we lost touch with what constitutes the unconscionable?
Jack: If bribery was the only sinful behavior our society embraced, we would be living in a very different world. The hallmark of modern society is our ability to convince ourselves that aberrant behavior is normal and acceptable. We see this is almost every facet of our lives. With bribery, the sophistry is fascinating. Because our politicians are not accepting bags full of cash, they somehow feel they are not being bribed. Worse, if most members of Congress were compelled to take a lie detector test querying whether they thought they were being influenced by the money they receive, they and their denials would pass with flying colors.
Norm: In your CSPAN interview, you expressed surprise at how unconcerned our elected officials appear to be at the abysmal 11% approval rating of Congress as an institution. Might it be because the incumbency reelection rate is 96%? (Source of both stats: Politifact.com, November 11, 2014). How can we send the institution of Congress packing when we’re so enamored of our own local hero?
Jack: I think the problem is that most people view politics much like they view the weather: it stinks, but there’s not much we can do about it. People have come to the conclusion that the nation is too big and the forces that impact our policies too powerful that their voices are now too small to matter. They are wrong of course. But that depressing attitude has now become the default reaction that permits the powerful to run roughshod over our lives. The only way people can push back, they feel, is polling negatively against Congress as an institution. It’s very sad, especially since it doesn’t have to be like this.
Norm: You suggest a radical approach for separating power from money. HLOGA’s cooling-off periods (between public and private sector employment) are, in your opinion, simply not enough. Rather, Congress and their staffs should be precluded forever from entering the lobbying business. Such patrician forbearance seems more apropos to Plato’s Republic than the Land of the Wagging Styrofoam Index Finger. So I must ask, respectfully, are you pulling our index fingers? Everyone knows philosopher-kings never clinch the nomination.
Jack: Could it be achieved? Of course. Will it be achieved? Probably not because there is no well-funded movement to make it a reality. In our nation, things don’t just happen. They happen because smart, powerful and motivated people push them. I have been pushing a political plan to make some of the changes that are needed, but that plan requires funding to fight the battle in Washington.
Most of the people who dedicate resources to politics are terrified by the proposals we have presented, so they are not going to help. There are very few who have resources and are willing to spend them to change the system. Until there are resources, there won’t be change, sadly. To change this playing field, we first have to take control of it.
Norm: Would you care to guestimate what percentage of Congress endures the indignities of public office for the chance to spin through the revolving door into the highly lucrative influence game at some later point or is the Senate gym just that darned well-appointed?
Jack: It’s hard to estimate that percentage, but it’s far higher than it should be. When I was lobbying, it seemed like 90%, but now I’m not sure. One of the problems for future lobbyists – otherwise known as Congressmen – is that there are so many of them already out there lobbying. Since most Congressmen are used to pampered treatment and consider business development unsavory, many are not good business generators. Without the business, the lobbying jobs are more difficult to get. Maybe they should run training seminars for Congressmen to teach them how to get business and otherwise prepare for their next career. I’m kidding of course!
Norm: Black humor is allowed. I understand you observe a strict Orthodox kosher diet. Hopefully my analogy’s not too unpalatable. But let’s say someone enters my hamburger joint whereupon I suggest they try my new jumbo burger in lieu of the anemic single-patty burger they typically order. The customer agrees. I’ve successfully ‘peddled them upstream’ to a higher price and higher calories. Have I exerted undue influence or merely practiced good salesmanship? What was Willy Loman but a door-to-door lobbyist?
Jack: Of course we are all salesmen at some level. A kid convincing her parents to let her use their car; a spouse convincing her mate that her parents need to feel welcome over the weekend; an employee seeking a raise from a boss. We are all constantly selling and selling is lobbying
Norm: Ninety years ago, Edward Bernays’ Crystallizing Public Opinion explored techniques for compelling Americans to buy loads of stuff which invariably ended up stacked in their garages. Indeed without two-car garages the economy might have stalled decades ago. There seems to be something quintessentially American, if not downright patriotic, about buying and selling—an activity which you equate to lobbying. Shop influence ‘til you drop?
Jack: It’s not just an American phenomenon. It’s human nature. The reason lobbying is seen as American is because we enshrined the right to lobby –petitioning our government– in our founding charter. Most other nations had periods where petitioning their sovereign resulted in beheadings. In America, just as eventually it became nearly impossible to succeed at a criminal or civil court proceeding without the assistance of an attorney, petitioning the government became difficult without the services of a lobbyist. Like attorneys in court, lobbyists know the rules of procedure and the deciders better than the average person. In America, assisting people petitioning the government because an industry called lobbying, but not just in America. Europeans posit the delusion that they don’t have lobbyists, that no one in their nations can come in from the outside and influence their public servants. It’s absurd and untrue.
Norm: Speaking of free markets, I think a lot of small government folks would cheer your observation that lobbying is more about defense than offense, that is, getting the government off a client’s back as opposed to winning them an unfair advantage.
Jack: First, I believe that most lobbying is good lobbying. I define good lobbying as lobbying where the lobbyist does not use money to create an unleveled playing field. Bad lobbying is a small percentage of the lobbying at a federal level. Most lobbyists in Washington don’t have the money to play the game in a pernicious way. Thus, they are left fashioning their petitions based on the merits of their arguments, as it should be. As for offense or defense, because of entropy it’s generally easier to destroy than build. In the lobbying context, stopping something from happening is much easier than making it happen, mainly because there are usually ten ways to stop something for every one way of getting it done.
Norm: Resuming the marketplace theme, I’m a baker. I get up at 5 am, ply my wares and drop into bed exhausted at 9 pm. Lacking the time and energy frankly to ‘petition the Government for a redress of my grievances’, I form a Bakers Association with my fellow merchants. We hire an agent to press our professional (read: special) interests on Capitol Hill. This agent then proceeds to lay awake at night imagining—if not even contriving—our industrial-grade grievances.
But hang on. Since when did the commons become little more than a big piñata to be swung at by a hundred self-interested rolling-pins? Why is it not enough simply to be an American? If everyone re-baselined back to unleveraged citizenry instead of hiring seditious agents to obtain a leg up, would we not have something more akin to majoritarian pluralism?
Jack: We could all be ‘simply Americans’, without anyone needing to protect our interests, if the government was not involved in every aspect of our lives, making decisions that impact our livelihoods and lives. Also, we could all be ‘simply Americans’ if everyone agreed to do it. We don’t live in such a society. We live among human beings, not angels. Some of us are going to be aggressive and use any means we can to get what we want, usually at someone else’s expense.
I write in my book about a fictional picture-frame-making company suddenly confronted with legislation that would put it out of business. After presenting the narrative, I ask whether the business should just ignore the new law and fold up or try to lobby to protect itself. It’s not the business-owner’s fault a new law is on its way to destroy his enterprise. Therefore, how can he be blamed for hiring a lobbyist?
Moreover, I ask, which lobbyist would serve his interests best? The lobbyist who is an expert in picture frames, or the lobbyist who plays golf each week with the Senator coming after their industry? The problem is not the picture frame company. Nor is it the lobbyist. The problem is the Senator, not to mention a government so gargantuan and overextended that there is no shortage of work for the tens of thousands of lobbyists traversing the byways of Washington DC.
Norm: Under majoritarian pluralism isn’t influence always ‘undue’ as the former more effectively averts a tragedy of the commons scenario?
Jack: Influence is a tool, like cash or a gun. It can be used for good or for evil. We don’t live in a society so simple that the removal of lobbyists will give birth to heaven on earth. Lobbyists are a symptom of the problem of too much government. Of course, half the nation believes there’s not enough government. This lack of cohesion enables the lobbyists to find plenty to do.
Norm: It’s fascinating how this debate invariably circles back on ideology. Is there an unexploited Tea Party issue lurking in here somewhere?
Jack: Absolutely. More government means more lobbyists. Limited government means less. The ideological implications are undeniable.
Norm: In the wake of the Obama Administration’s 2009 Executive Order 13490 which precluded lobbyists from the Administration while unleashing a de-registration trend, opinions differ on just how material this unregistered phenomenon became.
For example in my recent interview with Public Citizen’s Craig Holman, he suggests the exodus has been vastly overstated. Whereas James Thurber of the Center for Responsive Politics is more critical, saying, “most of what is going on in Washington is not covered” by the lobbyist-registration system. In your opinion, to what extent has lobbying, in effect, gone off-balance sheet?
Jack: First, let me mention that, while as a lobbyist, I disdained the work that Craig Holman and Public Citizen did, now that I am reformed, I realize Craig and his colleagues are real heroes. They are one of the only groups that has any real impact in this space. Craig is not only a great guy, he’s also one of the most effective lobbyists I know – and I mean that as a compliment!
But yes, I think lobbying is far too off-balance sheet. Even the act that regulates the lobbying industry –the LDA –and the changes provided in HLOGA still allow people who are lobbying to legally avoid registration. That’s how former US Senator Tom Daschle was able for so long to lobby and not register. That’s how former House Speaker Newt Gingrich was able to proclaim with a straight face that he wasn’t a lobbyist, when he was lobbying Congress on the Health Care Act—as an historian! Most of the work done for clients is not actual lobbying. It’s strategizing, preparing, researching, etc.
As for the Obama rules prohibiting lobbyists from entering his Administration, I have a few thoughts. I was against this, because if you are trying to put together a talented group of public servants, you cannot exclude lobbyists, since they are often far more knowledgeable about issues than are the public servants. My approach would be that, once you enter the Administration, you can’t return to the lobbying world.
Norm: So, a one-way, one-time revolving door? And yes, agreed. Craig Holman is a true warrior for the undivided public interest.
Jack: Exactly. That would enable those who are talented to enter and really serve the public. Those who want to enter the government to burnish their lobbying credentials – so they can charge more when they exit – would be precluded. This would only work with forced recusal from any matter that you lobbied on previously.
Also, you would have to outlaw huge payments that companies make to their employees before they enter the government – an advanced bribe. This was the case with the current Secretary of Treasury, Jacob Lew, who had a provision in his Citibank contract that he was due a mammoth bonus should he leave for a highly placed government job. The only thing more aggravating than that abuse was how those in the media who otherwise are concerned with corruption ignored this one for fear of offending Obama and their friends on the Left.
Norm: There’s another untagged carp in the lake, the unlobbyist who isn’t even a deregistered or former lobbyist, but rather a single-shingle wannabe in a cheap suit working an undisclosed business development contract. Of the tin men in his midst, veteran lobbyist Howard Marlowe recently had this to say:
“We in the lobbyist profession register, and the public and media can at least find out who we work for, what the issues are that we’re hired to work on, and what we’re getting paid.”— Howard Marlowe, 35-year Washington lobbyist, Bloomberg, April 3, 2014
Law360 was even blunter:
“More nefariously, some [unlobbyists] may not register simply because they doubt they will ever be caught.”—from ‘Criminal Referral of Alleged ‘Unlobbyist’ Is A Wake-Up Call’, Law360, July 31, 2014
Extending the analogy, let’s say this old guy with a cane bamboozles people into thinking he’s a retired granddad with loads of spare time and an unerring sense of civic duty—except he invariably has sales literature stapled to the back of his grandfatherly appeals.
HLOGA seems to impute ethics transgressions onto clients and Congressmen, and not just to the unlobbyist who sucks them in. What I’m asking is, are Congressmen obligated to vet and toss bogus lobbyists out on their ears for flogging thinly disguised (and implicitly undisclosed) economic interests?
Jack: I am uncertain whether there is a legal obligation for Congress and their staff to check the registration of lobbyists. Frankly, we need a new law that requires registration as soon as someone makes even one lobbying contact for pay. The requirements for registration in the Foreign Agents Registration Act (FARA) are far more explicit than for LDA.
Norm: Rather than chase the high-profile Senators and Congressmen whom you found to be rather lazy and self-absorbed, you wooed the hard-working staffers instead who remain, let’s face it, the nuts and bolts of legislative production. This afforded you a powerfully incentivized ‘Trojan Horse’ workforce until such time as they came to work for you directly. Is it fair to say you essentially turbocharged the revolving door back in the day?
Jack: Yes that’s fair to say. You see, the insiders’ class has an unparalleled ability to move seamlessly from government to the lobbying world. These folks know all the players from the time they were in government, and, believe me, they get their calls returned. They are better able to get favors granted than outsiders and have every advantage possible. Stopping the revolving door would be devastating to the insider lobbyists and would do a lot to level the playing field.
Norm: You suggest smart lobbyists quickly figure out the latest reforms and devise techniques to get around them. Are we dealing with a whack-a-mole dynamic, that is, any reform bill can at best be effective for a few years after which fresh reforms become necessary?
Jack: There is never going to be a perfect law in this arena, because there are legitimate concerns that are opposed and have to be considered. Free speech is at odds with undue influence here. We can’t destroy our rights to free speech, but we must deal with undue influence. So, every remedy will likely need updating and adjustment as it is implemented. That’s okay. We live in a society of adjustment. Just take a look at our tech advances. We are constantly readjusting.
Norm: As you brought up technology, there’s much talk of traditional lobbying moving to a more technology-driven and social-media-based model. What effect do you see technology having on the future of lobbying in America?
Jack: Until and unless this system is reformed dramatically, while there will be a role for social media and technology enhancing the lobbying, it won’t change the paradigm that powerful insiders will control the playing field. They will control the social media and tech role in politics as well. Social media and tech are tools, every bit as much as polling and phone banking are tools. The tools will change, but the powerful will stay in power, until there is systemic change.
Norm: F. Scott Fitzgerald would be offended Jack if I didn’t press you a bit on how your second act is faring. Hopefully you have good news and fresh initiatives to report.
Jack: Norm, I’m just trying to do my best on the playing field I’m on today. I am doing what I can to speak about these important issues and to encourage citizen action, but I am limited in my ability to make things happen because I am not a man of resources these days. That’s okay, though. One of the biggest lessons I had to learn through my scandal was that it’s all right to lose. In the old days, I never lost and wouldn’t even consider losing as acceptable. That is an arrogance at odds with my faith and being a good citizen, but in those days, it didn’t matter to me. Today, I realize that I might lose, including on this issue. I hope we can do something, but if not, I am working hard on saying: ‘It’s okay’.
Norm: Thank you Jack. It’s been a pleasure. I wish you all the luck in your future endeavors.
Jack: Thank you, Norm.
