Lobbying unorthodox lawmaking.

• Author: Bykerk, Loree

Introduction

When the 107th Congress (2001-02) passed the largest tax cut in American history, no hearings were held to consider the proposed bill. Observers of the legislative process might have expected an outcry over the failure of the committees to exercise due consideration of such costly provisions. Interest-group scholars might have expected protest from lobbyists accustomed to being heard on such bills. Instead, the silence was deafening.

Congressional scholars point to this and many similar cases as exemplifying unorthodox lawmaking. While deviations from the regular legislative process have always been possible and were sometimes used by strong congressional leaders in the past, they have now become the norm. Capitol Hill observers dispute whether the phenomenon is functional, how it arose, and what it means for Congress' legitimacy. Does it mean that government is less representative and less democratic? Or, perhaps, that Congress works better if lobbyists are confined to the lobby rather than invited to committee hearings to offer testimony. But even if that hypothesis is accepted, important questions remain: How do those interests that have lobbied the regular legislative process react to its absence? How have they adapted? How do these adaptations compare to their former access, input, and outcomes? In short, how does interest representation work in unorthodox lawmaking?

Specifying the Question

Congressional scholars Roger H. Davidson, Walter J. Oleszek, Barbara Sinclair and others portray the contemporary Congress as struggling to remain relevant under difficult conditions of budget deficits, intense partisanship, narrow majorities, and divided government. Specific strategies employed by congressional leaders to achieve that goal include using task forces to draft legislation or drafting it in the leader's office to by-pass committees, using no or only pro forma hearings, making post-committee changes to the language of a bill, making use of special rules in the House to shape bills, bringing bills directly to the floor, attaching language to omnibus bills or budget resolutions, and inserting new provisions to bills in conference reports. These strategies have become known as unorthodox, or irregular, lawmaking. Congressional scholars agree that use of these strategies began in 1981 but became significantly more common beginning with the 104th Congress (1995-96), and were accompanied by other changes that weakened the power and autonomy of standing committees and strengthened party leaders. (1)

Interest groups, one part of the legislative environment, are said to contribute to these more difficult circumstances in that their increased numbers and activities add to the pressure on Congress and make decision-making more difficult. (2) This suggests that shutting out organized voices may facilitate better deliberation and greater success in avoiding gridlock. In other words, Congress may improve its process and more effectively meet its legislative responsibilities by closing out the din of interest groups.

The dramatic growth of organized interest representation in Washington has been widely recognized. Every available measure indicates that the number of interests and their lobbyists plying national decision-makers has increased since the 1970s. More registered lobbyists, consultants, trade associations, corporations, public-interest groups, campaign contributions, issue advertising, and use of the Internet have elevated the volume of interested input. (3)

Studies of lobbying behavior indicate that presenting testimony at hearings and contacting members of Congress or their staff through office visits are the most common means of input. Nearly all organizations of almost every type use these two tactics. In addition, it is widely agreed that the most valuable contribution interests make to the policy process is information, particularly on topics where they have expertise. Hearings provide the only open, public record of the information presented and are thus of unique value in understanding the interaction of interests and Congress. (4)

There is a textbook, or orthodox, lobbying model in much the same way that there is a textbook, or orthodox, legislative model, and the former depends on the latter. Students are taught that lobbyists monitor their issue areas constantly, that is, they attend to cues of potential future action from many sources. Congress is the most common venue for the expression of interests because it is more open, members and staff are more accessible, it offers more opportunities for input, and it promises a better return on investment of effort over time. Monitoring can be more successful if information is widely available and the legislative process moves predictably and relatively slowly, giving lobbyists time to assess their positions, develop their arguments, and gather resources to present those arguments in the most effective forum. In the textbook Congress, that forum is the standing committee, or its subcommittee, where members and staff are interested, expert, familiar, and cultivated over time.

The primer for direct lobbying describes the particular care devoted to preparing the content of testimony in recognition that it creates a formal public record elaborating the meaning of legislation. Witness statements, questions, and responses will influence whether the bill becomes law and, if so, how it is interpreted by those who will execute it and others who may adjudicate it.

The increasing use of unorthodox lawmaking poses significant challenges for the textbook version of lobbying. Some recent studies of group behavior describe changes in lobbying that may, in effect, be adaptive behavior. Hugh Heclo, Burdett Loomis and others argue that organized interests have shifted their efforts to become part of the "permanent campaign." (5) Congress, like presidents, has become engaged in campaigning as an ongoing focus and is willing to use governing to serve campaign purposes. Groups have similarly shifted to promoting issue campaigns to influence the Washington agenda. Other studies point to increased use of coalitions and grass-roots lobbying. (6) However, one might expect these adaptations and others in response to all of the changes involved in unorthodox lawmaking. Furthermore, one needs to ask whether these behaviors are functional substitutes for representation of interests in congressional deliberations or whether they have some of the same dysfunctional effects associated with the permanent campaign. A properly functioning Congress represents, deliberates, crafts legislative remedies, and educates constituents. (7) Whereas campaigning is short-sighted, adversarial, and persuasive, governing must be far-sighted, collaborative, and deliberative. What, then, does unorthodox lobbying look like, if it exists, and does it contribute to more or less functional outcomes?

The Study Design

A brief analysis of data on Congress will clarify those aspects of unorthodox lawmaking likely to stimulate adaptive lobbying behavior. Data on committees, staff, resources, and procedures related to the legislative process will highlight the contours of unorthodox lawmaking. In addition, primary field research data collected from observing Congress, hearings, meetings, and interviewing lobbyists will be analyzed. Hundreds of hours of hearings and meetings observed and documented over a period of twelve years (1992-2004) provide a foundation for expanding available descriptions of lobbying.

Personal interviews with twenty-three professional lobbyists form the third data subset. These interviews were conducted in May 2002, March 2003, and March-May 2004; individuals were selected from prior contacts and additional references from the first and second sets of respondents. The length of these interviews ranged from thirty minutes to two hours (see Appendix A for the protocol of these interviews). Respondents include both consulting and in-house lobbyists as well as think-tank experts. All but seven of the twenty-three lobbyists have experience as House or Senate committee and/or member staff; three also have state-level experience. Ten are Republicans and thirteen are Democrats; one has been both. Nine are women; all are white. In this era of rapid turnover, the sample is highly experienced; almost half of the respondents have worked in Washington circles since the 1970s. This gives them long-term perspectives and a wealth of information on which to draw. Policy areas in which they work include taxation, health care, manufacturing, financial services, business, education, housing, family, the elderly, labor, energy, electrical power, consumer protection, non-profits, government process, intergovernmental issues, trade, firearms, insurance, hospitals, and pharmaceuticals. Admittedly, this pool does not include agriculture or foreign and defense policy, but it does include a wide array of interest advocates reputed to have done well in a more conservative climate as well as those reputed to be relatively disadvantaged. Respondents' groups span the spectrum from the largest, best-endowed organizations instantly recognizable by their initials to small, resource-strapped organizations unlikely to be recognized outside of a small circle.

The Contours of Unorthodox Lawmaking

Reductions in the number of congressional committees, subcommittees, and staff have shrunk the capacity of both the House and Senate to gather information. Through the mid-1970s, the House and Senate each had approximately 200 panels, including committees and subcommittees. Changes in the 103rd Congress (1993-94), and, more dramatically, in the 104th Congress (1995-96) brought the numbers in the House down to 1950s levels. Senate changes began with a 1977 restructuring but continued with significant reductions in the 104th Congress. In total, the two chambers dropped from 385 committees and subcommittees in...