Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [44]
Enter the modern American lobbyist.
Lobbying, of course, is not new to the American republic. The moniker likely dates to President Grant, but the practice certainly predates him. Grant would sit with friends for hours in the lobby at the Willard Hotel “enjoying cigars and brandy.”35 Influence peddlers, or “those lobbyists,”36 as Grant called them, would approach him while he sat there. Grant’s sneer, however, suggests correctly that the relationship of these “peddlers” to democracy has always been uncertain, and for many, troubling. Georgia’s constitution explicitly banned the lobbying of state legislators in 1877.37 The Supreme Court tried to staunch at least one brand of lobbying three years before, in Trist v. Child (1874), when it invalidated contingency contracts for lobbyists. As the Court wrote,
If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption, and the employment as infamous. If the instances were numerous, open and tolerated, they would be regarded as measuring the decay of the public morals and the degeneracy of the times.38
“Degeneracy” notwithstanding, even without contingency contracts, the industry has thrived, especially as the reach of government has grown.
For most of the history of lobbying, the techniques of lobbyists, and their relationship to Congress, were, in a word, grotesque. Well into the twentieth century, lobbyists wooed members with wine, women, and wages. Congressmen were lavishly entertained. They frequented “cat houses” paid for by lobbyists.39 They kept safes in their offices to hold the bags of cash that lobbyists would give them.40 And late into the twentieth century, they were taken on elaborate junkets as a way to “persuade” members of the wisdom in the lobbyists’ clients’ positions.41 If the aim of the lobbyist, as Kenneth Crawford colorfully described it in 1939, was to “burn [the] bridges between the voter and what he voted for,”42 for most of its history, there were no obvious limits on the means to that burning.
Including flat-out bribes (which were not even illegal in Congress until 1853).43 Throughout the nineteenth century, and well into the twentieth, lobbyists paid “consulting fees” to members of Congress—directly.44 In the early nineteenth century, Congressman Daniel Webster wrote to the Bank of the United States—while a member of Congress voting on the very existence of the Bank of the United States—“If it be wished that my relation to the Bank be continued, it may be well to send me the usual retainers.”45 That example was not unique. Members of Congress would expressly solicit personal payments from those they regulated.46 Crawford quotes a letter from Pennsylvania Republican George Washington Edmonds to the official of a shipyard dependent upon government contracts: “As you undoubtedly know, a Congressman must derive some of his income from other sources than being a member of the House, and in this connection I would like to bring to your attention the fact that my secretary and myself have a company in Philadelphia. Please put us on your inquiry list for materials in connection with ships.”47
Yet when lobbying was this corrupt, perhaps counterintuitively, its effect was also self-limiting. Though these practices were not uncommon, they were still (at least after 1853) illegal. Lobbyists and members had to be discreet. There may have been duplicity, but there were limits. The payoffs could not be so obvious. And almost as a way to minimize the wrong, the policies bent by this corrupt practice had to be on the