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Lobbying reform takes a look at tribes

WASHINGTON -- Congressional efforts to reform lobbying law for tribes
kicked into high gear at a Feb. 8 hearing of the Senate Committee on Indian
Affairs.

Committee Chairman Sen. John McCain, R-Ariz., took pains to state at the
outset, and again at the close, that the political disenfranchisement of
Indians and curtailment of tribal sovereignty are not on the agenda. "I
understand that there is a widespread fear in Indian country of losing a
seat at the table" of the political process, he said, just as tribal
lobbying becomes effective.

W. Ron Allen, treasurer of the National Congress of American Indians, which
represents more than 275 tribal governments, repeatedly warned the
committee against disenfranchising tribes. "The main issue, as I've said,
is that tribes cannot be disenfranchised." In written testimony, he added:
"This is about the fundamental right of Indian tribes to participate
equally in the political process in all of the ways that are available to
them," and implied that historic infamies like the Cherokee Trail of Tears
and the Dawes Allotment Act (which served to dispossess tribes of millions
of acres of land) might not have happened if tribes had been permitted to
participate in the political process in the 19th century.

Allen joined another panelist, National Indian Gaming Commission Chairman
Phil Hogen, in noting that tribes are uniquely subject to Congress.
Therefore they'll try to influence congressional members. "They're learning
how to do it," Hogen said.

But in the complex political environment of Washington, they'll need
assistance, like just about everyone else in America now to judge from
McCain's reference to 34,000 lobbyists. And because they all represent
competing interests, laws have evolved that are designed to give citizens
and their lobbyists as fair a chance as anyone else at influencing
congressional members.

But like a great many other laws passed prior to the 1980s and even after,
the Federal Election Campaign Act of 1971 left tribes out. In implementing
and enforcing the law, the Federal Election Commission has made rulings on
tribes in light of the 1971 enactment. The four leading results of the
commission's rulings are that 1) tribes are defined for election purposes
as "persons" but not as "individuals," and so are not subject to any
aggregate limit on their political contributions; 2) tribes are not
Political Action Committees "because their major purpose is not to
influence the election or defeat of candidates"; 3) recipient organizations
record tribal political donations; and 4) "Because Indian tribes do not
typically incorporate, are not labor organizations, and are not national
banks, the prohibitions ... on these entities making contributions do not
extend to Indian tribes."

Taken altogether, these characteristics make tribes unique entities to the
FEC. As casino earnings have rippled through Indian country and disgraced
lobbyist Jack Abramoff's criminal misdeeds have publicized their potential
use in politics, charges have surfaced that tribes are defeating the
purposes of election law.

Various panelists at the hearing worried that tribes can influence
elections as no donation-limited individual could, however affluent; their
donations can be hidden because only the recipients record them, and donee
recording practices have not been standardized; and they can serve as
conduits for prohibited donations -- from corporations or banks, for
instance. (Larry Noble, executive director of the Center for Responsive
Politics, didn't actually level the latter charge, but insisted that
because recipient-kept records are "not as clean," it's not clear that it's
not happening. For that matter, he said that standardization of political
donor tracking records is a national issue, by no means limited to tribes.)

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Allen replied that tribes are in compliance with election laws and have no
objection to transparency and disclosure regarding their donations. Tribes
are not opposed to reforms that enhance the integrity of elections and
lobbying, he added in writing.

James Thurber, director of the Center for Congressional and Presidential
Studies at American University, offered a three-part redefinition of tribes
under federal election law. (In later remarks, he seemed ready to redefine
the role of the FEC itself: "The FEC has been a failure.")

Thurber recommended that tribes be defined as Political Action Committees,
but PACs that would reflect the unique nature of tribes. The PAC definition
should be arrived at in consultation with tribes, he said.

In addition, transparency should be required of tribes by law, so that
their political donations take place in full view. To achieve this,
recipients (or some other entity) would have to record the tribe's
donations under an identifying number. Thurber gave the example of the
Abramoff client-tribe whose donations were recorded under 87 different
names. Allen reminded the committee that tribes typically donate under one
name, but donees may record them under different names. Still, Thurber's
point held: without a number or other standard identifier on the source
donation, it is difficult to track tribal donations.

Finally, Thurber advised against capping tribal contributions with an
aggregate limit, as other "persons" (but not individuals) as defined by the
FEC would face. The lack of an aggregate limit on donations would
acknowledge tribal sovereignty, cultural character and the relationship of
tribes to the federal government, he said.

Interviewed after the hearing, Allen responded favorably to Thurber's
three-part recommendation. He took issue only with the idea of defining
tribal governments as PACs for purposes of political donation, but added
that if one follows Thurber in thinking of PACs as uniquely tribal -- why
call them PACs at all?

Defining tribes as traditional Political Action Committees "would
disenfranchise our tribes, would disenfranchise our people," he told the
committee. In written testimony, he explained this view fully: "First, PACs
are not a good cultural fit for Indian country. The purpose of PACs is to
encourage individuals with common interests to pool their resources and act
collectively. In many ways, this is what the tribal government already
does. Historically and culturally, resources are held collectively with the
tribal government, which has a responsibility to provide for the best
interests of the community. Tribal members rely on their tribal governments
to represent the interests of the tribe in interactions with the federal
government. This is one reason why voter turnout has historically been low
in Indian country. Tribal governments making donations on behalf of the
tribe and its members is consistent with the relationship between a tribal
government and its members."

The committee heard testimony from two FEC officials, Chairman Michael
Toner and Vice Chairman Robert Lenhard. Under McCain's persistent
questioning, both said clear direction from Congress in regulating tribal
political donations would be valuable to the FEC. Lenhard may not have been
speaking of tribes only when he said it is reasonable for Congress to
consider whether the "aggregation of wealth" in America has distorted
political influence so as to expand the FEC's regulatory regime.

The morning featured many references to Abramoff, who awaits sentencing for
his misuse of lobbying fees from a handful of tribes. Indian country at
large has taken the point of view that these tribes were his victims, not
henchmen; and no tribe or other client of Abramoff's is known to be in
legal jeopardy. In remarks after the hearing, Allen said of the Abramoff
debacle, "The anomaly shouldn't establish the law, or set the rule."