Wisdom supplanted by wile
Lobbyists: imagined dragons, or a problem like Maria?
Image: imagine.
I was already formulating a comment, three in fact, just upon reading the title. By the time I’d finished reading the article, it was more a response that was called for. Here it is.
First, the article. Click here (Lobbyists 2: Perversion at its lowest by Fay Reid).
There are fundamentally three sources of inspiration for what I, and Fay, do and don’t do.
1. The first of these is regulation, or law, and, in particular, law that is beyond our reach, which is most of them. What that means is explained anon. So, if the law forbids something or sanctions it, then that is a rule I abide by, or flout at the risk of being penalised. This we’ll call immutable law. That does not mean it will never change but its terms are fixed for all legal subjects, if not all time.
2. At the other end of the scale are my moral considerations. These are imposed by no law but by my conscience. I do and leave that which I hold it to be right and proper to do and leave. For some, their moral considerations are inspired by biblical texts; for others their moral considerations comprise entirely, or virtually so, contravention of the law. For example, there are those who abide wholesomely by the Ten Commandments, which comprise what is commonly called God’s law and therefore cannot be punished, per se, by Man. “That man’s bad,” Meg tells More in A Man For All Seasons. “There’s no law against that,” replies More. Roper intervenes: “There is! God’s law!” “Then,” More responds, “God can arrest him.” That man turns out to be the man who perjures himself to secure More’s execution and his own attorney-generalship of Wales. Whether God did or did not arrest Sir Richard Rich, is unknown. If no one bar God can arrest you, however, you are acting under a moral consideration.
3. Now, in between these two is a field of somewhat undefined scope, whose bounds are dependent on two subjective factors:
(i) the extent to which the actor is able or prepared to enter the field in question in order to alter its state; and
(ii) the material extent of the actor’s morality; it’s one thing to hold moral considerations, but a bit different to live by them. In fact, the mafia live by a code of moral standing, which they call omertà; but mafias’ modus operandi tends on the whole to pay scant attention to the writ of law. How they operate, therefore, is almost exclusively under moral considerations (our second category: what they believe to be right), regardless of how immoral others might view their morals. Mafia also operate for a part under this third category – the laws they can change (I’ll make him an offer he cannot refuse).
This field we’ll call mutable law. The change can be one susceptible of application to a future law, or it can be applied to current law, or it can be particularised to a specific instance of enforcement.
Hence, morality is a governor of what I do and don’t do only so far as my morality extends. E.g. prostitution is legal in many places, but some people refrain from engaging prostitution services not because they cannot afford them or because they have no need for them but because they find prostitution a matter that is morally repugnant. They do not avail themselves of something that is perfectly legal (one might also cite smoking or even, at the limit, going to church) because that something is viewed by them as morally questionable.
It must be added that, where an actor acts as part of a community, this can greatly strengthen, or, by contrast, weaken, moral resolve. One feels emboldened by the fact that others are of a similar mind. Nevertheless, if put to it, each member of the community in question would likely stand by the moral stance expressed by that community, but perhaps only where their membership of the community were patent.
Mutable law is law that can be changed and, as stated, it can be changed in three respects: the law as it will come into effect, changing it as it is, and changing how current law is enforced. Enforcement is a matter that ought, in truth, to lie outside the scope of legislators. The separation of powers requires (generally) three arms of the law: legislature, executive and judiciary. Overlaps are inevitable: where members of the executive have a say in passing laws; or the executive organises the judiciary. The test of whether separation is satisfied is therefore one of degree. For the French philosopher Montesquieu (The Spirit of Law, 1748), it was important that the sources of legitimation for each of the powers should be independent, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. It is abhorrence of tyranny (or unfairness) that militates in favour of a separation of powers. Lobbyists are an element that has a part to play, ostensibly, in the branch known as the legislature. It is worth bearing in mind, however, the possibility that lobbyists have a certain influence in the application of laws by the judiciary, or legal enforcement generally. In other words, the mafia’s offer he cannot refuse, as a threat to LEA, may be a mirror image, but is just as cogent as the lobbyist’s facilitator payment to framing the law as it is (for LEA subsequently to enforce it; or not).
How a legislature passes a law is a matter that is less obvious than might first seem. Quite where the law providing for the death penalty for damaging Westminster Bridge came from, I’m unsure. But it cannot have been a product of even-minded cogitation to enact a death penalty for damage to property, or so one might have thought. The law against homosexuality in Scotland was repealed in 1981. There had not been a prosecution of a homosexual in Scotland since before the war. But, I would not venture that there were no homosexuals in Scotland in the intervening period. Perhaps they were very discreet … Clearly, enforcement policy in that time aligned prosecution practice with England and Wales (whose law had been changed in 1967), despite the fact that Scotland’s law had not in fact yet followed that in England and Wales. One thing is for sure in the law: it lags, and, where it doesn’t, it can be zealously pre-emptive.
Laws are inspired by a mischief, which is something that needs dealing with. Laws can miss the mark spectacularly, producing what are known as cobra effects, taken from an Indian rule that placed a financial bounty on cobras in an effort to reduce their numbers, which resulted in people breeding the snakes, instead of killing them. But, if the mischief that is identified is a lack of work in certain parts of the country, the path to be pursued in ensuring enough work there can be one of many that offer themselves: subsidies to employers to create work, education, travel infrastructure, skills development. Where do you start?
The first start is generally the government office that deals with the relevant policy area and, if there are several, one has to decide how much input comes from which. In some areas, however, expert knowledge is required. How, exactly, do you decide what the statutory thickness of a brake block needs to be? Best is to ask the people who make and use them. If there are several and their views differ, how do you decide which one’s views to follow? Well, you need to get them to agree an independent assessor, or to argue their case, just as counsel in court do. Courtrooms adhere to a certain formality, and this is often seen as them taking on highfalutin airs and graces, but the purpose of the formality is to level the playing field: the procedures and processes are there to ensure that everyone gets treated the same. They are tools, of course, and, like all tools, they can be misused. What lobbyists do is act as a sort of legal counsel who is not constrained by the formality of a courtroom.
The term lobbyist stems less from hotel lobbies than from the lobby, or gathering area, in front of an assembly hall in which legislators do their work, and in which lobbyists would hover, hoping to catch the eye of such and such a member of parliament before they went into the house. Any discussion of lobbyists, their acts, their clients, their interests, their effectiveness and their rewards, demands an approach from one of two directions, neither of which is clear-cut: (i) the position that they are an unwarranted means used by the rich and powerful to persuade law-makers to do their bidding; (ii) the position that any party with an interest to pursue should not be prevented from delegating another to present his case for him.
The separation of powers is a theory which posits that the power to make laws, the power to administer laws and the power to enforce laws should all be separate from each other. Montesquieu went further: not that these powers should be exercised separately but that the individuals exercising them should be separate too. There is one power that is not included among legislature, executive and judiciary, and that is money. Because, like it or not, money is present in each of the first three, and its power is great.
The quid pro quo that is offered to procure a senator’s vote is generally uncertain. Even with disclosure requirements, the cogency of a disclosure is questionable: the value of a gift in kind, for instance; or services in kind; back-scratching; all done behind closed doors and with unidentified individuals who gain an unidentified benefit, if indeed benefit it is, from an undisclosed subject of discussion, that may or may not come to realisation. And, what, then, does one do with the disclosed information? Tax the recipient? What if the persuader was cash and given in countable amounts – and the decision went against the giver?
Gifts and facilitations smoothen the way of commerce, but are not how the way is prepared, because a gift is uncertain as to its value and its terms and conditions, because it’s a gift. If you want to prepare the way, you need not a gift, but a contract.
We have yet to devise a check or balance that curbs the power of money while simultaneously enhancing the benefits that derive from benevolence. We have one on work: whilst the more one works, the more money one has with which to enjoy one’s freedom from work, it remains true that, time being a constant, the more one works, the less there is a point to working, for the less time remains in which to exercise one’s augmented potential to enjoy the freedom thus gained.
For money, the point of disbursal is tri-directional and it’s worth considering what it is that influences into which path money flows: to invest or save for the future, to spend on necessities, to spend on luxuries (a luxury is not something that is luxurious, but simply anything that is beyond necessity). Plus, our income knows a fourth category of disbursal – loss/gift. To the individual, it makes no difference whether money is lost or given away. The benefit to the giver is – financially – the same, aside, that is, from the feel-good factor, and that is a crucial element, to which no financial value can be put. What makes you feel good? And, what makes you feel bad? More concretely, do you think that, if you blocked legislation that could benefit a few rich people, in favour of legislation that benefited many poor people, that would make you feel good? And, if so, would it make you feel better if you broadcast your decision for all the world to hear? What if you were told you could not broadcast your decision, that nobody would ever know of it? How good would you feel then?
The gift category, for a lobbyist, is no gift: it is investment. The feel good comes from hitting the nail squarely on its head. They cannot know they will hit home, so they up the odds of doing so, by increasing the money at stake. That is a function in which all checks and balances are absent: in a society in which corruption is abhorred, one might think that augmenting the benefit from cowing to the lobbyist would simply augment the affront when it is refused. I think that, instead, it augments the chance of acceptance. When parties to a court dispute meet to negotiate, they’re often accompanied by their counsel. I wonder whether politicians who meet with interest-group lobbyists are likewise accompanied — by their own lobbyist. Or, perchance, whether they trust their own instincts as to what is right and wrong.
Investors in a project concerned by the legislation you blocked earlier may complain that other projects for other businesses were not blocked, so they propose to withdraw their investments and instead move into other assets. Or a company says it will up its generosity towards social projects from 0.015% of its income to a whopping 2%. Investors raise a question at the AGM: does the chairman have the slightest idea why they invest in his company? I don’t know whether that’s a question that has been asked of the chairman of the Budweiser brewery of late but, if it has, I’d be interested to know the response.
Who influences whom, in whose behalf? In lobbying, working out who has a direct interest in matters can be difficult; who has an indirect interest can be nigh-on impossible. Take Paris, the City of Light. What would it be without its famed Eiffel Tower? Well, it would be what it looked like before 1889. Built as part of celebration of 100 years since the French revolution, it was constructed on the Field of Mars under the careful supervision of its namesake, Gustave Eiffel (its designers were Maurice Koechlin and Émile Nouguier). That it would be his tower and no other that was selected from the competition submissions was a lucky stroke of fate. Indeed, lucky, but assisted. Shortly before the competition rules were published, Monsieur Eiffel paid a private, Sunday-afternoon visit for thé to Édouard Lockroy, the minister for trade, whose department would publish the rules. Eiffel’s was a singular design, well advanced even by then, and the rules got published the next week, under which every design known to that point was effectively disqualified, and only Eiffel’s could continue to actually be built. The structure caused consternation, being sued over at the time for blocking a view that, today, commands a premium precisely because it’s blocked by the tower. Oscar Wilde, when asked why he visited the tower daily for lunch despite hating it, responded that it was the only place for lunch in Paris where he didn’t need to look at the Eiffel Tower. It’s the most-visited fee-paying monument in the world, and my father once drew it in the air to get directions from a Paris policeman. But, I can say with virtual certainty: it’s a product of corruption.
In all of this, nobody, but nobody, raises the question of whether it is right to block or table legislation, or, rather, whether it is self-serving. May I sit in your seat, so that I can chat to my niece during the flight? will likely get a more favourable response than May I sit in your seat because I want to? And what if, after swapping seats, you see niece and aunt, both, putting their earphones on? In politics, there’s never no reason. And that’s probably because no one has a monopoly on right. Politics is the practice of doing what is politic, or expedient, and its definition includes nowhere the notion of doing what is right.
It’s interesting to consider how, by what means, one could curb the practice of lobbyists who make the rich richer, and still preserve the work of those who present a little known case that is nonetheless deserving. The legal profession tries to distinguish itself by defending the guilty but testing the state’s case for cogency; by acting for poor and rich alike, simply arguing the writ of the law. They’re bound by ethical rules and professional practice bodies. But lobbyists are not even defined. How do you regulate people who use their powers of persuasion to influence laws? How do you stop legislators taking advice from people who know — aren’t people who know precisely those from whom they should take advice?
The answer to the question How do you solve a problem like Maria? was, assuredly, easier to find than that to these conundrums, although we do have a lead: just like Maria’s, we know the legislators’ names. Cars are registered so that they can be taxed, and that often tells us the driver; if we can’t find lobbyists, we can certainly find legislators. If we can link named legislators, their disclosures, plus the matters on which they vote and, having abolished secret ballots, the beneficiaries of the matters on which they vote … will it be freedom that we are any step closer to achieving?
If there’s no monopoly on right and politics serves expediency, we, the people, have long since, in our modern systems, acquiesced to the idea that politics does not do that which is right; it does what people tell it to do. And it does most effectively that which the people with most to give in exchange for doing what it’s told to do, tell it to do.
Wisdom supplanted by wile. When wasn’t it ever thus?
When the days are cold and the cards all fold
And the saints we see are all made of gold;
When your dreams all fail, and the ones we hail
Are the worst of all, and the blood’s run stale,
I want to hide the truth, I want to shelter you;
But, with the beast inside, there’s nowhere we can hide:
No matter what we breed, we still are made of greed
This is my kingdom come, this is my kingdom come.
(Alex da Kid, Ben McKee, Dan Reynolds, Wayne Sermon and Josh Mosser.)