Two Congressional committees inquiring into lobbying activities have recently turned their searchlights upon the lobbies registered under the Lobby Act of 1946 and those indirect lobbies known as “educational foundations.” KARL SCHRIFTGIESSER, who reviews the findings thus far, is a journalist and biographer who has served on the editorial staffs of the Washington Post, the New York Times, and Newsweek and is note devoting full time to his writing. His biography of Henry Cabot Lodge. The Gentleman from Massachusetts, appeared under the Atlantic — Litte, Brown imprint, as does his latest volume, The Lobbyists: The Art and Business of Influencing Lawmakers, which appeared in early September.
by KARL SCHRIFTGIESSER
SEVERAL of the witnesses before Senator Paul Douglas’s committee inquiring into the state of ethics in government have touched upon an ancient problem. More than one expert has alluded to the vast number of pressures which are continually applied to our lawmakers. Former Secretary Ickes growled in a fine old curmudgeon style about the situation, only, as might have been expected, he came right out and said he was talking about lobbies and lobbyists.
The word lobbyist crept into public usage in the age of President Jackson, a period we like to think of as far more unbridled than our own. From the beginning it had a most unsavory connotation — Walt Whitman linked the lobby agent with “bawling office-holders, kept editors, bribers, compromisers . . . the lousy combings and born freedomsellers of this earth.”
The legislative history of the nineteenth century is replete with instances of lobbyists corrupting individual legislators, and sometimes whole legislatures, plying them with wine in Washington’s or Albany’s fancy houses, paying their gambling debts, and otherwise taking care of the boys if they voted right. More than once they became such nuisances that Congress had to take official cognizance of them and even remove some members who succumbed to their wiles. In the 1870s Justice Swayne of the Supreme Court castigated the entire profession while slapping down one lobbyist who had the temerity to go to court to collect his promised fee.
In 1905 a solemn, stubborn young man with a beard wrote into the records of a New York legislative inquiry a textbook on lobbying in Albany as it had developed in the practices of the great insurance companies. Charles Evans Hughes’s probing shocked the nation with its revelations of corruption. Out of it came a series of laws designed to regulate lobbying before state legislatures. Wisconsin, Massachusetts, and New York led the way.
But the national Congress, perhaps wary of the First Amendment with its guarantee of the right of petition, long hesitated to take official cognizance of the swarms of lobbyists whose presence on Capital Hill had been a serious problem, and sometimes a national disgrace, since the passage of the first tariff act in 1789. The lobbyists got so bold in 1913, however, that President Woodrow Wilson publicly read the riot act to them. Not long thereafter a House committee, prodded by scandalous revelations in the old New York World, conducted an investigation which showed how the National Association of Manufacturers had improved on a wider scale the bold techniques first perfected by the insurance companies. The committee findings again shocked the nation, but Congress took no legislative action to place the lobbyists under restraint.
After the era of normalcy came the New Deal, and the Roosevelt administration sought to pass legislation breaking up the holding companies. Seldom had Congress been bombarded as it then was with letters, messages, and telegrams against the proposed measure. Senator Hugo Black, in one of the bloodiest legislative battles Capitol Hill has ever known, exposed their lobby-inspired origin and went on to bring other powerful lobbies into the open.
At this time both the Senate and the House were individually moved to take action. A bill for the regulation of lobbying passed the Senate but not the House. Senator Black moved up to the Supreme Court; the country moved into the second phase of the New Deal and then into war. In spite of the turmoil and concentration on the war effort, there were those who found time to deal with the growing necessity of “streamlining” Congress.
It was Governor “Fighting Bob” La Follette who, in 1905, had engineered Wisconsin’s pioneer lobby act, the basis of most of the thirty-eight state lobby acts. Now, as the war ended, his son, Senator Robert La Follette, and Representative Mike Monroney quietly wrote into the Legislative Reorganization, of which they were co-authors, a special section, known as Title III or after its passage and signature in June by President Truman, the Regulation of Lobbying Act of 1946.
Although it attracted comparatively little attention at the time, its passage was an historic occasion. By virtue of it. lobbying became the official concern of Congress for the first time since the establishment of the Republic. In effect, although it uses the hated word lobbying only in the title, the act legalized the profession that is as old as legislation itself.
A study of the brief and quiet debate that preceded its passage shows that it was in no way designed as a repressive measure. It was not intended to suppress or forbid lobbying, nor does it. It merely assumes that Congress has a right to know the identity of those who come before it to petition for a redress of grievances, and a right also to know the source of their expense accounts and the ultimate use of them. In order to achieve this information and have it handy at all times for reference, the act calls for the registration with the House and the Senate of those individuals or groups whose principal purpose is to “aid” in the “passage or defeat of any legislation by the Congress,” or to “influence directly or indirectly the passage or defeat of any legislation by the Congress.”
Individuals, organizations, clubs, leagues, guilds, foundations which collect money for this principal purpose, or spend it to influence Congress directly or indirectly, must let Congress know about it. And the information must be printed periodically in the Congressional Record — where, presumably, all may see it. There is nothing in the act restraining individuals from voluntarily writing letters, signing petitions, personally seeing their Congressmen or appearing before committees. But if they do so as paid agents they must register, tell the names of their employers, the source of their funds, the purpose for which they spent the money, and the legislations they were hired to lobby for or against. Organizations of all kinds, except newspapers, must list the source of their funds if they spend them to influence the legislative process “directly or indirectly.” Violators are subject to a $5000 fine and a year in jail.
During the first year and a half in which this act was in force, the lobby surface was barely scratched. But after the Department of Justice set up a special bureau to enforce the act, registrations began pouring in. At last count there were thirty-nine known lobbyists for every ten members of Congress!
From the start there were objections to the act on many grounds, mostly from lobbyists. One of the main objections was the legalization of the word lobbying. Most lobbyists would prefer to be called by some such euphemism as “legislative agents” than to be known as a lobbyist.
More serious were the objections to the act on the legalistic ground that it infringes on the right of petition. In a recent decision Federal Judge Henry A. Schweinhaut of the District of Columbia ruled that the section of the act which calls for the registration of lobbyists and the reporting of their financial backing “may stand alone.” The act is not “on its face unconstitutional,” the court ruled.
It was Judge Schweinhaut’s opinion that the law compelling registration of a lobbyist who “shall engage himself for pay or any other consideration” for the “purpose of attempting to influence legislatio” was clear and definite. He then said that the act “does not abridge constitutionally guaranteed privileges . . . since it leaves everyone free to exercise those rights, calling upon him only to say for whom he is speaking, who pays him, how much, and the scope in general of ids activity in regard to legislation. This the Congress should, and in the Court’s opinion, does have the right to demand.”
The “principal purpose” clause has also been widely attacked. The first head of the lobby unit of the Department of Justice was Irving R. Kaufman, who later became the Federal Judge presiding over the famous A-bomb spy case. He interpreted the clause to mean that when any person (“individual, partnership, committee, association, corporation, and any other organization or group of persons” in the act’s definition) seeks to influence legislation directly or indirectly, and collects and spends money for that purpose, lobbying becomes a “principal purpose no matter what the original reason for the organization’s existence might be. Judge Schweinhaut’s ruling did not cover this section, and no other court has yet ruled upon its validity.
It was partly because of the alleged ambiguities of the act, but to a far greater extent because President Truman harped so persistently upon the evils of lobbying during the Eightieth Congress, that Congress decided once again to investigate lobbying. A Senate bill to this effect, introduced early in 1949, was lost in committee. A somewhat similar bill was introduced by the late Representative Frank Buchanan of McKeesport, Pennsylvania, a staunch Fair Deal Democrat. This bill apparently had the Administration’s blessing and resulted in the creation, late in 1949, of the House Select Committee on Lobbying Activities. Under Mr. Buchanan’s chairmanship the committee was ordered to “study and investigate all lobbying activities intended to influence, encourage, promote, or retard legislation.” Anti-Administration forces insisted that it also investigate all lobbying activities “of agencies of the Federal Government.”
To look at “all lobbying activities” being carried on by private interests and governmental agencies — this latter was admittedly aimed at Secretary of Agriculture Brannan and his farm plan and at Federal Security Administrator Ewing and his federal health program — would be a herculean task. It meant examining not only the hundreds of registered lobbies and lobbyists but also looking into affairs of an untold number of organizations which, honestly or dishonestly, held themselves immune from the provisions of the act.
Not only was the ordered scope of the investigation overwhelming but its very nature was such that no committee could carry out the mandate without embarrassing Congress itself. For, it is obvious, there can be no lobbying without a legislature, nor can lobbyists exist without legislators to influence. Congress was in the position of the party of the second part.
In the face of these serious limitations the Buchanan Committee was forced to exercise its judgment in selecting the lobbies to be investigated out of the hundreds from which it might choose, and it had to tread warily lest not only its own but the Administration’s feelings be hurt. Much criticism was, therefore, directed at the committee, particularly from conservative quarters, because of its allegedly partisan approach. The Republican minority on the seven-man body was never able to turn the probe, as it sought to do, into an exhaustive inquiry into “governmental lobbying” in behalf of controversial aspects of the Fair Deal program. On the other hand the Democratic majority was able to concentrate on lobbies that had spent millions of dollars for the direct or indirect purpose of influencing Congress against Fair Deal measures. Only the most naïve observer would have expected anything otherwise. Particularly in an election year.
THE committee concentrated on lobbying by big business and made its most extensive and detailed inquiry into the activities of the real-estate and housing lobby, which had been a particular target of President Truman during the 1948 Presidential campaign. At the same time it did look into some ethically important side issues, such as “contingent fee lobbying,” the practice of lobbying for handsome fees contingent upon the passage or defeat of a particular piece of legislation. And it did call before the committee an imposing array of political scientists, many of whom have devoted years to the study of pressure groups and their effect upon the legislative process. Their animadversions, as published in a 162-page pamphlet entitled “The Role of Lobbying in Representative Self Government,” make informative and interesting reading.
In picking upon the real-estate lobby — the National Association of Real Estate Boards specifically the committee was able to paint a realistic picture of an organization with nation-wide affiliations and strong lobbying headquarters in the national capital, with hundreds of thousands of dollars at its disposal, perfecting the art of bringing pressure to bear on Congress for its own ends. It showed the realtors (as an almost perfect example of the modern lobby) at work in the small town, in the big city, and on Capitol Hill, high-pressuring the elected representatives of the people.
It showed how what might seem to the uninitiated to be a genuine outburst of public opinion can be built up all over the country, sometimes through highly unethical means (including the subsidization of some sections of the press), through the latest techniques of propaganda, until it has all the appearances of a public demand. It showed, too, how this “outburst” is bought and paid for by a comparatively small group of real-estate owners and managers. At the same time it showed how labor unions and the so-called consumer groups used almost identical means in behalf of those who stood to benefit by the defeat of the real-estate group. In the interplay of two such organized groups, one is reminded of the sage observation of the philosopher William James. “We are all ready to be savage in some cause,” he said. “The difference between a good man and a bad man is the choice of the cause.”
Detailed though it was, the committee’s revelation of the real-estate lobby contained little that was new. After all, the big lobbies — real estate, organized medicine, meat packers, and the like — which work directly to influence legislation are, thanks to the 1946 Lobby Act, readily identifiable. It was in the field of indirection, in the intangible realm of ideology, that the committee raised its biggest controversy.
The Lobby Act specifically demands information about those who lobby indirectly as well as directly. The Buchanan Committee peered into this “dark corner suspected to be dirty with a powerful flashlight and did not like what it saw. (That is, the Democratic majority didn’t; according to its dissenting report the Republican minority was not disturbed.) It found that indirect lobbying, skirting as it. does the “constitutionally guaranteed privileges” of the Bill of Rights, is a problem as delicate as it is difficult for all who are concerned with the problem of ethics in government.
The committee found, and cited statistics in proof, that the over-all business of lobbying is, in Representative Buchanan’s words, a “billion dollar business.” Millions of these billions are spent by Washington lobbyists to influence legislation directly and can be counted through the machinery of the existing Lobby Act. But who knows how much is spent, and by whom, and whence it comes, for indirect lobbying? And how far can Congress constitutionally go to find out?
In its preliminary attempts to answer these questions the Buchanan Committee called in (sometimes by subpoena, which was defied by three witnesses on constitulional grounds) such organizations as the Committee for Constitutional Government (the second highest spending lobby registered with Congress), the Public Affairs Institute, the National Economic Council, Inc., the Civil Rights Congress, and the Foundation for Economic Education. It asked these tax-exempt organizations some searching questions about their backers, their “educational” and ‟research” activities, and their expensive and extensive efforts at the ‟indirect influencing of legislation.”
Although the ideological intent of each differs, these right-wing, left-wing, and middle-ground groups have one thing in common: the influencing of public opinion on matters of public interest. With the exception of the CCG, the organizations in question claimed they do not directly approach Congress on legislative matters, but the committee showed conclusively that they direct the greater part of their funds and energy to bringing indirect pressure in behalf of legislative matters that concern the interests of their financial backers.
Those on the right get their money from wealthy individuals, from some of the largest corporations in the country, and, to a lesser extent, through the sale of their publications. Those in the middle receive their funds from middle-ground labor unions. Those on the left presumably get it in those mysterious realms whence comes the financial support of other Communist-front organizations.
They all use this money for what they call ‟educational” or “research” purposes, which means they prepare and publish books and pamphlets, often called reports, on such vital problems of the day as rent control, Point Four, housing, or taxation. These presumably factual reports they distribute as widely as the largess of their “angels” allows, sometimes at cost, sometimes free, and in some instances by the millions of copies. They send them to libraries and schools, to service clubs, to doctors, lawyers, dentists. With few exceptions they do not say who or what these “foundations” or “committees” are. The Buchanan Committee showed that more often than not the anonymous backers are big corporations which are apparently willing to spend hundreds of thousands of dollars annually aiding these “institutions.” One corporation and its officers have given one “foundation” as much cash as several labor organizations together put into the backing of the Public Affairs Institute.
As publishers of books and pamphlets they claim immunity from any kind of regulation under the freedom of the press provision of the First Amendment. As propagandists they claim similar freedom on the same ground. Most of them make a deliberate effort to steer clear of any apparent tinge of lobbying, not only because it serves their purpose better to be known as “educational” institutions, but because they would lose their tax-free status if they registered under the Lobby Act.
The Buchanan Committee thought they should register because it felt that their principal purpose was not so much to “educate” as it was to influence the Congress indirectly on legislation. The committee was convinced that the fundamental purpose of their publications was to make Congress listen. And some of the organizations, having succeeded in getting Congressmen to listen, were able to send out thousands of pamphlets free under Congressional frank.
This indirect lobbying, the committee suggested, was a far more serious problem for Congress than the direct lobbying in Washington. It concluded that every organization which collects any appreciable amount of money and spends it for the purpose of indirectly influencing Congress should not be exempt from naming its backers and revealing how much they gave and how it was spent.
To this suggestion at least one executive secretary of an educational “foundation gave an honest answer. He said it would put a crimp in such organizations because once their identity was known the backers would snap shut their purses. Corporations would not like their stockholders to know that they were spending money this way. It would spoil the “foundation” racket. But another director of an institution — one backed mainly by labor support — said he believed in full identification for all.
The committee finished its work nearly a year ago, but thus far Congress has done nothing about lobbying, direct or indirect. The subcommittee on ethics in government, however, has been listening to much testimony on this subject. It has a wide field for investigation if it decides to explore the never ending problem of the pressure group and seeks an answer to the question, What are the limits of lobbying? Or, What is indirect lobbying and how far can Congress go in regulating its activities?
One suggestion towards answering these questions is the creation of a permanent joint committee whose purpose would be to watch lobbying continually, to check on the information filed, to see that the information is always available to press and public, and to enforce the provisions of the Lobby Act. Such a body would have the power to trace indirect lobbying to its source whenever it felt Congress was being unduly influenced by the propaganda of a pressure group supported by unseen funds.