The term “lobbyist” was first used in 1842 to describe people seeking to influence members of Congress. The name was descriptive because they’d hang out in the lobbies of the hotels where senators and representatives would stay when they were in session in Washington, D.C., which 176 years ago was far shorter than today.
Americans have grown to have contempt for lobbyists, but this contempt is somewhat misplaced. The bank robber Willie Sutton is said to have replied “Because that’s where the money is,” to the question, “Why do you rob banks?” Similarly, a lobbyist would answer “Because that’s where the power is,” to the question “Why do you lobby government?”
As government at all levels has grown more powerful, intruding into our lives and our businesses, so too have the power and importance of lobbyists—just ask Google, Facebook and Amazon. For years, these Silicon Valley tech giants could largely afford to ignore government. But now they have much to lose—or gain—by law, regulation, or government legal action that could shatter their business models or conversely, hobble potential competitors.
The Constitution’s First Amendment codifies our right to free speech:
“Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The lobbyist then, is a person who “petition(s) the Government for a redress of grievances” usually on behalf of others and usually for pay. And, while lobbyists labor under a myriad of federal, state, and even local laws and reporting requirements, banning the ability of people to lobby would quickly run afoul of the Constitution.
The right of the people to lobby as a given, does government itself have the right to lobby? This is an interesting question, and not at all a theoretical one.
In most states, especially states with tens of billions of dollars of tax money at stake at the state and local level, there is a large biosphere of lobbyists serving counties, cities, school districts and special districts. Their job is simple: represent the interests of the government entity who hired them to the state or federal level of government. Put more specifically, they work to get more money for their client, more ability to borrow money and raise taxes locally, more flexibility from state or federal law or rules, less oversight, and more power. Their chief messaging point is: LOCAL CONTROL.
But, what if local control is injurious to freedom? What if local control hurts the larger state economy? Just as important of a consideration as the prior two concerns: is it even appropriate for a local government to have a policy on labor law, or climate change, or international relations? If a mayor, city councilmember, or school board trustee wants to put forward a minimum wage policy, perhaps instead they should seek to run for state representative or Congress.
Returning to lobbyists hired by local government, ethics filings in Texas, the nation’s second-most-populous state, show that nearing the end of the 2017 biennial legislative session, local governments had spent about $41 million in tax money to influence legislation in the capital.
In one sense, this was money well-spent. The State of Texas spent about $116 billion in 2017. Spending a few tens of millions to influence how some of that $116 billion was spent appears to be a good return on investment. Further, lobbyists, members of the so-called third house (the house and the senate being the first two, unless you’re in unicameral Nebraska), also write bills and work to stop bills as well.
But beyond the issue of effectiveness, should one part of government have the right to petition redress of grievances to another level of government? To answer this question it is important to understand that government has no rights—only people have rights—government has powers.
When a lobbyist works for a corporation, a labor union, a special interest group, or even a wealthy individual, that lobbyist, and the person or group that hired them are participating in free speech. But when the same lobbyist is working for government, the same cannot be said. Government itself does not have a right to free speech.
In addition to the approximately $41 million spent on outside lobbyists by local government by mid-2017, there are dozens of local government employees who are assigned to lobby in the Texas state capital in Austin. For instance, the City of Austin itself spends about $1 million annually to lobby, employing a mix of city employees and contract lobbyists totaling some 14 people.
These lobbyists, employed with taxpayer money, typically use their influence with state lawmakers to advocate for greater spending, more taxing authority, and greater regulatory power, leaving 28 million individual Texans at a distinct disadvantage when it comes to getting their representatives’ attention.
Further, many of the outside lobbyists contracted by local government also have commercial clients. This multiplies their effectiveness as it equips the lobbyists with a wider array of influence tools, such as steak dinners, tickets to sporting events, and campaign donations targeted at state legislators or staff.
What, if anything, should be done to curtail the lobbying of government by government? About a dozen states have restrictions on state agencies lobbying the legislature, with Arizona Governor Doug Ducey issuing an executive order in 2016 to curtail the practice.
But, local governments are still largely allowed free rein to lobby. A simple two-sentence bill was introduced in the Texas House in 1997 to prohibit state political subdivisions from using taxpayer dollars to hire anyone whose main job was to lobby. Lobbyists crushed HB 2501. It’s time to try again.
Of course, restricting the use of taxpayer funds to lobby state government won’t end the ability of local government officials to influence the legislature. To the contrary, state lawmakers, statewide elected officials and even political appointees are very sensitive to local concerns.
When any elected member or key staff member from a local elected entity is concerned enough about an issue to contact a lawmaker or executive branch official, they are likely to pay attention—after all, keeping their constituency happy is how most politicians stay in office.
This commentary was originally featured in Forbes on September 29, 2018.