On Regulating The Love Affair Between Lobbyists And Law-makers

As predicted in this column on Monday the Trump indictment has turned out (a) to hinge on New York state law 175.10 on the falsifying of business records, and in order (b) to reach the threshold of a felony this will require the falsification to be directly linked to the committing of another felony crime. That indeed is the structure of the Trump indictment.

As also indicated on Monday, this linkage will be a problem for the prosecution since it is presidential laws that govern presidential elections, and not state laws. All of the 34 counts in the indictment relate to the alleged violations of 175.10 and – in the weakest part of the case – the indictment says that the second crime (essential to that felony threshold under 175.10) involves an alleged violation of New York election laws. But Trump wasn’t running for New York political office. He was running for President.

That weakness aside, a ready defence for the hush payments would be that Trump – like a good, but humanly fallible husband – was only trying to save Melania and the kids from public embarrassment. It wasn’t a politically motivated payment, oh dear no. If Trump can make that motivation seem even remotely credible, the whole case will probably collapse from a felony to a mere slap on the wrist misdemeanour, and one carried out for the noblest of reasons – Trump was only trying to protect his family!

Footnote: Given the goggle eyed reporting of this latest Trump spectacle, the mainstream media has learned nothing from its experience of being played by Trump for the past eight years. Trump coverage = ratings seems to still be the iron law of media coverage, regardless of how craven that coverage may be, no matter how much it enhances Trump’s power to remain a polarising figure in public life, and no matter how many donations flow into his campaign coffers as a result of all that gawping coverage.

Yes, Trump’s indictment is an unprecedented, historic indictment etc – but only for Americans. The rest of the world regularly prosecutes and conflicts its former leaders for crimes committed while in office. Did the media provide wall to wall coverage when Netanyahu , Berlusconi, Sarkozy etc. etc were indicted? Of course not. So… Why has our own state media also bought so slavishly into this myth of “historic/ unprecedented” American exceptionalism? Oh yeah, ratings.

As usual, much of the Trump coverage has involved journalists plainly getting high on their own supply : “He’s in his private plane, it's heading up into the air !” while even RNZ hosts burbled stuff like: “ You get the feeling something big is building tomorrow...obviously a historic event, but this is quite something!” In the end, it was the Onion that came up with the right, sarcastic response to the media’s self-abasement:

Explaining that the matter could at long last be put to rest, the nation’s major news outlets announced Thursday that this week’s indictment of the former president would finally close the chapter on media coverage of Donald Trump. “Now that he’s been indicted, Mr. Trump can’t possibly have any future in American public life, so we’ve decided to wrap things up,” said CNN CEO Chris Licht, noting that Trump would soon be arraigned in a Manhattan court on more than 30 charges of fraud, a development that seemed to represent the final nail in the coffin for entire news cycles centred around a man who has been out of office more than two years. “We followed the thread as long as we could, from the free publicity we provided him with during his first run for president to the shock we feigned when he attempted to overthrow an election. But after eight years of nonstop coverage, we feel it would be irresponsible of us as journalists to continue our exhaustive reporting on a story that has clearly reached an end.”

If only.

Regulating the Lobbyists

Given how many of us jump the fence from the press gallery to become political press secretaries, journalists should probably be the last people to be sounding the alarm about how too much hob-nobbing with people in power may be putting democracy in peril. Yet here we are.

Lobbying must be regulated, right? But not too onerously, it seems. If you believe PM Chris Hipkins, the public concern here is mainly a “perception issue” that can be addressed by making lobbyists surrender their parliamentary swipe cards and write their own voluntary code of conduct. Hmm. Personally, I think there are more than perceptions at stake if and when breweries, for example, get to directly influence the content of our liquor laws.

Besides, I’d thought Pike River had shown the risks involved in letting industries write their own operational standards. In this case, lobbyists will be lobbying each other about what should go into the lobbying code of practice. It all sounds very meta.

Beyond that...officials will be given a year or two to ponder the details and report back, with plenty of opportunities for further lobbying and track changes before we arrive at a final blueprint. If this was a good faith exercise, none of this would be necessary.

Australia for example, has a perfectly good and comprehensive code of conduct for lobbyists that our own officials will probably crib wholesale anyway. You can find a link here to the Aussie code, along with some useful definitions and explanations about its scope.

Such codes share basic ingredients in common. There is a mandatory register of lobbyists and their clients,with rare exceptions allowed for particularly sensitive commercial situations such as say, merger talks. On a weekly basis, the register would contain all the official contacts between lobbyists and Ministers/MPs.

The register need not include the “How you going, mate?” level of casual social interaction. The significant “sit down” meetings (involving officials) about draft legislation occur in formal settings, and a register of those kind or encounters could be introduced overnight.

Finally, other countries also require a restraint of trade “cooling off” period for Ministers and senior officials, to prevent them from instantly monetising their access to Cabinet documents that can contain commercial secrets, or even top secret security information.

Overall, it seems incredible that New Zealand courts can require a media celebrity to respect a restraint of trade period before starting a new job, but no such rules apply to Cabinet ministers or senior public servants. Within 24 hours, those ”perceptions issues” are almost the only thing to stop a Cabinet Minister from walking out of the Beehive and selling their inside knowledge (and experience sometimes, with drafting the legislation) to the highest bidder.

Caring, sharing

Why should we care? Well, back in feudal times when only earls and bishops and barons had the ear of the King, things tended to turn out badly for the peasants. Today’s concerns are not much different.There’s a reason why lobbyssis get paid so handsomely to influence the content, timing, and scope of the laws made by Parliament. This US research paper on the impact of lobbying found that with respect to taxation law, there is a return of $220 for every one dollar spent.

All that aside, lobbying need not always be seen in conspiratorial terms, as an inherently negative process. Arguably,governments can write better law if they can better understand its implications. Yet on any controversial public policy issue, there already tends to be an imbalance of p.r. resources between the groups involved. If, in addition, one side of the case enjoys privileged access to deliver a clause by clause, line by line commentary on upcoming legislation then democracy is not operating on anything like a level playing field.

Down the years, successive Labour and National governments have been happy to allow Parliament to become a free range grazing ground for lobbyists. There’s a clear self-interest involved. No doubt, some MPs would like to keep their future employment options open, and be able to freely monetise their experience once they leave Parliament.

In other words, it can be a pretty cosy shuttle between one’s gig in Parliament and one’s lucrative landing place in the private sector. The public is going to have its work cut out if it aims to significantly disrupt these kind of arrangements.

Riding that pony

Here’s one of the best songs about maximising your opportunities, regardless. From the mid 1960s, this is Lee Dorsey in top form, in front of a great audience:

Finally, here’s Dorsey with yet another slice of New Orleans r &b. This time, he’s doing a cover version of Chris Kenner’s biggest hit, in the midst of a crowd of British fans wearing bowties and boater hats while they sit there ya ya, waiting for their la la, ahuh.

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