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Shades of gray in the greening of Congress 'Abramoff and bribery, code talk and earmarks'

WASHINGTON – Whatever final configuration the 109th Congress gives to lobbying reform, the dominant theme of those reforms has become obvious. Congress is willing to hinder the public’s right to political participation before it will hinder its own ability to collect money and concentrate power. It is willing to regret and correct the gullibility of tribes before it will reform established practices of its own that are far more sophisticated, far more offensive to the intangible trust in good-faith citizenship that bequeaths American democracy and far more nearly criminal. To all appearances so far, it is willing to risk the electoral gallows in November before it will police its own presence in the gray area between bribery and legitimate political contributions.

Former Republican lobbyist Jack Abramoff and his henchman-in-chief, Michael Scanlon, are bound for prison, in part for trying to bribe congressional members. A similar fate remains possible for a handful of congressional members, senior staff and federal officials.

Bribery is defined as providing money or services in return for favor, in this case legislative favor. But it can be a difficult charge to prove, for the link between the legislative favor and the conveyance of money or services must be direct enough to convince a jury.

The cases mentioned above are exceptional, and others like them that are still to come will still be exceptions among the 535 members of Congress, their staffs and the federal officials they deal with. More ominous is that a literal host of lesser offenses has exposed a virtuosity in Congress at gutting the spirit of a law while operating just inside its letter.

The leading offense here is not money in politics. The Constitution guarantees the freedoms of speech, assembly, association and petition; the Supreme Court has held that political contributions, though they can be limited, are a Constitution-protected form of free expression. These are permanent features of the American state as we know it, meaning among other things that money will have a place in its politics for as long as the res publica lasts. Taken altogether, they make for a powerful protection of American democracy.

But they also provide standing incentives for politicians to attract money in return for legislative favor. Absent congressional self-governance of those constitutional, court-protected incentives, these precepts do something else again: they define bribery out of existence. Political contribution is free expression, never bribery; the earmark or other favor is responsive policy-making, not a reward for money rendered. The leading offense here, among congressional members with a proven ability to overturn the intent of law without violating its letter, is that Congress will not overhaul its own ethics as a pervasion of bribery sifts the institution.

For instance, under the law one cannot define the following scenario, played out countless times in and around Washington, as bribery: a business person, or anyone with a direct stake in getting legislation before Congress, attends a fund-raiser for a congressional member and makes a monetary contribution to his or her campaign. The lawmaker exchanges some words with the contributor on the issue he or she cares about, in the process providing the name of the lead staff member in that area. The next day, the stakeholder gets on the phone and tells the congressional member’s lead staff on the subject area in question, “I just had breakfast/lunch/dinner with your boss” – code for “I just made a contribution to your boss’s election campaign.” Knowing the code, the staffer follows up on the call by getting the issue in question on the congressional member’s agenda. The congressional member hasn’t done anything in direct return for a donation made of the donor’s own free will, the staff member technically doesn’t know about the donation and the contributor was exercising the freedom to express a political preference. But an item is now on the congressional agenda that wouldn’t have been there without a knowing exchange of money.

So is it bribery to make a donation and code talk an issue onto a congressional member’s radar screen? Not by definition. There’s a world of difference between getting something on the agenda of Congress and actually moving it through Congress into law, as James Thurber reminds us.

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Professor Thurber, director of the Center for Congressional and Presidential Studies at American University in Washington, considers political contributions less problematic than “earmarks.” Thurber would save his strong suspicion for an occasion where, for instance, the code talker in the example above ended up getting an “earmark” – an appropriation to the contributor or in the contributor’s interests, from the federal treasury, directly requested in law by the congressional member who received a donation from that particular contributor. “There it gets quite close to the line of bribery in my opinion,” Thurber said. “But I’m not one to say the whole system is driven by it.”

In 1974, when Thurber worked for the late Democratic senator from Minnesota, Hubert Humphrey, earmarks numbered about 350. Now they number in the tens of thousands, he said. Interest groups have learned that earmarks are a good way to get money out of Congress, and they’ve hired lobbyists to help them – approximately 100,000 Washington lobbyists, by Thurber’s estimate, counting the great majority who are not officially registered as lobbyists but who ply the trade of lobbying.

Earmarks are the recognized essence of pork-barrel politics. Always before and increasingly now, earmarks are a way for congressional members to demonstrate they “bring home the bacon” to their constituents, by inserting funding for a project into a bill that is usually unrelated to it. Congress almost never debates the average earmarks. But they make it into appropriations bills anyway because other lawmakers have their own earmarks to worry about. The gentlemen’s agreement is not to question other members’ earmarks. That way they all become law, usually by unanimous consent instead of a roll call vote, and almost everyone is happy. Earmarks are behind the explosion of lobbying fees and activities around Washington: $2.1 billion for direct lobbying in 2004, averaging out to almost $5 million per year per member of Congress.

The adventures of Abramoff and company have convinced many observers outside Capitol Hill that money in such amounts leaves plenty of room for bribery. As for Congress, Thurber considers it a “Congress on the gallows,” in denial, blindfolded and about to swing from the rope of voter wrath. “I think they’ve got major problems in terms of behavior.”

Out in the communities, no one is tracking the total dollar amount invested in the grass-roots lobby of building coalitions and representing issues and producing and distributing information ($10 billion is Thurber’s rough estimate of annual spending on this more indirect approach to lobbying Congress). The reason for all the activity is more of a piece with American democracy as, for instance, James Madison understood it in the 10th essay of the Federalist Papers, on the “mischiefs of faction.” By faction, Thurber notes, Madison meant interest groups. Among the mischiefs, did he mean to include money?

With Americans sharply divided on a host of vital issues, interest groups are fighting it out for every vote, both within Congress and without. They can spend as much money as they can raise, for the Supreme Court has ruled that the limits on contributions do not apply to spending. But at the end of the day it’s a majority vote, not the preponderance of contributions, that makes the difference.

All this leads Thurber to philosophical reflections on the subject of reciprocity, the concept of giving back in return for something given. Research has proved reciprocity one of the great motivators in human life, he said. As often as not, it’s the reason money changes hands in politics. It’s a reason people contribute to politicians who support their views, and it’s a reason politicians provide favor to people who agree with them and treat them right. It’s a debt of genuine gratitude, a feeling incomparably more enriched than the mechanical trading implied in the old saw, “You scratch my back and I’ll scratch yours.” It’s a big part of what many experienced operators consider the key to the political city that is Washington: relationships.

And if the intent of politicians, lobbyists and ordinary citizens, all with dearly held views, is to leverage reciprocity into relationships that are productive for their cause, then bribery is not being defined out of existence – because it really doesn’t exist in such relationships.

Hmm. So what would a proper definition of influence-peddling look like?