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When Sen. John McCain (R-Ariz.) sent Sen. Barack Obama (D-Ill.) a snarky letter questioning his commitment to lobby reform last week, the Washington press corps pounced on the story of two high-profile senators publicly sniping over one of the biggest inside-the-Beltway issues to confront Congress in years. But lost in the coverage — indeed, lost in the letters McCain and Obama traded — was that the senators’ reform proposals are virtually identical. It’s not surprising. Policy minutiae aren’t nearly as sexy as a flame war between two of the Senate’s stars. Still, for all the puffing and posturing that’s gone on concerning lobby reform, there’s been little debate over the substance of the bills. All of the proposals being discussed chiefly focus on rules governing member travel, gift acceptance, and the so-called revolving-door issues — and all leave the elephants in the room, enforcement mechanisms and campaign finance, unmolested. With so few substantive differences between the competing bills, it’s no wonder, say lobbyists following the debate, that lobby reform has become more about personalities and politics than passing a rational set of regulations. “This is the worst possible environment to be constructing this in — in this [political] maelstrom,” says Kenneth Gross, a partner at Skadden, Arps, Slate, Meagher & Flom and the co-author of the Ethics Handbook for Entertaining and Lobbying Public Officials. GIFTING AND RE-GIFTING Of the six main proposals floating around Congress, four have been formally introduced by House and Senate Democrats and by Republicans McCain and Rep. Christopher Shays (Conn.). But the proposals that are likely to find traction are the ones still being drafted separately by the Republican House and Senate leadership. Those two efforts are being spearheaded by Rep. David Dreier (Calif.) and Sen. Rick Santorum (Pa.), respectively. Oddly, it is the Dreier and Santorum proposals that differ from each other the most.
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The biggest disagreement between the Dreier and Santorum bills is over gifts that lawmakers would be allowed to accept from lobbyists. The Santorum bill would ban gifts from lobbyists outright (as would most of the other proposals), whereas the Dreier measure would limit such gifts to $20 per item and impose a $50 annual cap. The gift ban is the reform that most threatens the status quo (after all, what is a lunch and bar tab at the Capital Grille picked up by a lobbyist if not a gift?), and the one that’s shaping up to be the most contentious, both on Capitol Hill and K Street. The history of the gift ban dates back to 1995, when the original Lobbying Disclosure Act was passed. Opponents of the gift ban are keen to note that when the 1995 bill was being drafted, it was the House that proposed an outright ban on gifts and the Senate that found the idea untenable. Ultimately, the House adopted the Senate’s scaled-back version, capping gifts at $50, which ushered in the era of $49.99 lunch specials and greens fees. Eleven years later, the legislative roles have reversed. In opposing the gift ban, Jo Maney, press secretary to Dreier, trots out a moldy argument first made in 1995 that “you couldn’t accept a T-shirt from your local high school” without running afoul of a gift ban. And though the proposals banning gifts currently outnumber those seeking to preserve them, the election of Rep. John Boehner (R-Ohio) as House majority leader appears to be shifting the momentum back toward gifting. Boehner, who has described himself to The Washington Post as “cozy with lobbyists,” has taken to promoting the Dreier package and publicly defending lobbyist-sponsored gifts and travel. Earlier this month on NBC’s “Meet the Press,” Boehner told host Tim Russert that he has his doubts about eliminating corporate and lobbyist-funded travel for lawmakers and likened such rules to members being “treated like children.” Lobbyists, of course, are one group who are hopeful about the direction in which the gift rules seem to be traveling. As Tom Susman, a partner at Ropes & Gray and chair of the ethics committee of the American League of Lobbyists, puts it, a gift ban would lead to “unnecessarily awkward dividing lines between lobbyists and members.” CHECKING THE BILLS Beyond the gift ban, it’s likely that the battle over lobby reform won’t be a winner-takes-all proposition. Rather, the final bill will likely be some kind of amalgamation of the competing proposals. Here is a brief analysis of the plans currently under consideration and an assessment of their chances: 1. Dreier’s House Republican leadership proposal is picking up the most steam and was slated to be the topic of the House Republicans’ retreat last weekend. As noted, the plan would limit lobbyist gifts to $20 per gift and $50 per year. It would also ban privately funded travel, extend the lobby ban for staffers and ex-members from one year to two, and increase the frequency of lobby disclosure filings, though details have not yet been released. Odds: Because the measure was significantly boosted with the election of Boehner as majority leader and with the backing of House Speaker Dennis Hastert (R-Ill.), it would be a mistake to bet against most of it becoming reality. 2. Santorum’s Senate Republican leadership plan has been slow in picking up support, in large part because it’s been overshadowed by competing Republican plans — i.e., Dreier’s plan on the House side and longtime lobby-reform advocate McCain’s on the Senate side. Santorum’s proposal is among the most restrictive, banning all gifts and privately funded member travel, creating conflict-of-interest rules for members negotiating private sector jobs while in office, banning lobbying by members’ spouses, and requiring increased reporting of lobbyists’ campaign donations. Odds: Look for Santorum’s plan to die quietly, with those who think the proposal too harsh joining the Dreier camp, and those who generally support Santorum’s goals allying themselves with McCain, who is offering a bill with many similar provisions and has more populist and reform bona fides. 3. McCain and Shays‘ bill was introduced last year to little fanfare but now seems poised to take center stage in the lobby reform debate. The measure, which was written before the Abramoff scandal hit fever pitch, is the mildest of the six proposals. It would require members to pay fair-market value for trips taken with lobbyists and mandate full disclosure of all travel as well as gifts exceeding $20. It would extend the lobby ban for staffers and ex-members from one year to two and institute conflict-of-interest rules governing outgoing members’ private sector job negotiations. Odds: Though it doesn’t have the backing of the Republican leadership, it has two factors working in its favor: the virtue of being the first Republican plan and the credibility of its chief backer, McCain. 4. The congressional Democratic plan being hyped by Senate Minority Leader Harry Reid (D-Nev.), Obama, and House Minority Leader Nancy Pelosi (D-Calif.) would ban gifts and travel paid for by lobbyists, extend the lobby ban from one year to two, and institute conflict-of-interest rules for members negotiating jobs with private sector employers. It would also address “dead of night” provisions — language inserted into bills without the chance for proper review — and provide members ample time to read bills before voting on them. Odds: With very little to distinguish this proposal from others, and the weakness of Democrats in the House, look for its provisions and supporters to be tied up with some kind of bipartisan bill — likely that of McCain or Santorum, as most Democrats would find Dreier’s proposal too soft. 5. Democrats Sen. Russell Feingold (Wis.) and Reps. Martin Meehan (Mass.) and Rahm Emanuel’s (Ill.) bill, introduced last year, would ban all gifts and lobbyist-funded travel and require members to pay fair-market value for travel on chartered or private planes. It also would extend the lobbying-ban period from one year to two and create conflict-of-interest rules for members and staffers negotiating private sector jobs while in office. Unique to this proposal is a requirement that lobbyists disclose the dates of all meetings with members. Odds: Without the backing of leadership, this bill appears likely to move nowhere, although its requirement mandating disclosure of lobbyist-member meetings is likely to be adopted in a surviving bill. 6. Democratic Reps. David Obey (Wis.), Barney Frank (Mass.), David Price (N.C.), and Tom Allen (Maine)‘s bill, introduced last year, would ban any member travel with lobbyists, require a 24-hour review period before bills come up for a vote, and limit votes to 20 minutes. The bill does not address gifts. Odds: Like McCain’s proposal, this bill was introduced before the Jack Abramoff guilty plea and does not address key areas, such as gifts, disclosure, and the revolving door. But it goes further than all the other bills in reforming institutional mechanisms of Congress that many contend enable lobbying abuses. Look for those who have pledged support for this bill to migrate to other plans, but don’t be surprised if Democrats try to shoehorn some of the bill’s institutional reform proposals into those other measures — a move that the Republican leadership is likely to resist.


Andy Metzger can be contacted at [email protected].

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