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A Code of Lobbying Ethics

Tom Spulak, a well-respected congressional lawyer and a former House General Counsel (as well as a former colleague of mine at Shaw Pittman), wrote this recent piece on the “assault on lobbyists.”   Of particular interest to me is his suggestion that lobbyists could adopt a voluntary code of conduct that would prohibit questionable and/or controversial practices, such as providing campaign contributions to elected officials.

I think that this is a promising idea which is worthy of more public discussion.  It should be noted that Section 214 of the Honest Leadership and Open Government Act of 2007 expresses the sense of Congress that the lobbying community develop “proposals for multiple self-regulatory organizations” to, among other things, develop standards for lobbying and provide ethics training to the lobbying community.   Other than some occasional discussion over the last couple of years, there has been little response to date from the lobbying community to Congress’s call for action.

One possible objection to a voluntary code of ethics is that those who subscribe to it will be subject to a competitive disadvantage.  To alleviate this fear, there needs to be some formal recognition of the code.  For example, suppose the House and Senate Ethics Committees were to recognize a code of ethics for lobbying that would apply to both lawyers and non-lawyers. The ethical code for lawyers would be enforced by the bar, and for non-lawyers it could be enforced by a separate professional organization.  Under this regime, lobbyists who agreed to comply with the ethical requirements would be certified by the Ethics Committees as “professional policy advocates” and could so represent themselves in the course of their practice.  The Ethics Committees could de-certify individuals upon notification from the bar or professional organization of a rules violation.

No one would be prohibited from lobbying for failure to subscribe to this ethical regime, but both Members and executive agencies might think twice before dealing with uncertified lobbyists (and perhaps registered lobbyists who were not certified would be required to so state when they made lobbying contacts).  This regime would be consistent with the sense of Congress expressed in HLOGA.  It would also seem to mitigate the potential competitive advantage that would otherwise be enjoyed by unethical lobbyists.  Finally, it might cause some rethinking in the administration about the wisdom of branding all registered lobbyists as inherently unethical.

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