Why is lobbying legal in the US?

Lobbying

Dieter Plehwe

Dr. Dieter Phlewe is a political scientist and research associate at the Social Science Research Center in Berlin (Modes of Economic Governance project group). His work focuses on comparative capitalism research, international political economy and neoliberalism. He was also an honorary member of the board of the Lobbycontrol e.V.

Lobbies try to influence politics and society. That’s legitimate. But there are enough reasons to take a critical look at the complex phenomenon of lobbying.

The definition of lobbyism is difficult because the phenomenon is diverse and constantly changing. (& copy picture-alliance, Blickwinkel)

More than half a million search results can be found on the Internet at the beginning of 2019 when researching the keyword 'lobbyism' with a relevant search engine. The top entry comes from Wikipedia:

"Lobbying, Lobbying or lobbying is a term taken from English for a form of representation of interests in politics and society, in which interest groups ("lobbies") try to influence the executive, the legislature and other official bodies mainly by cultivating personal connections. Lobbying also affects public opinion through public relations work. This is mainly done through the mass media. " (Emphasis in the original)

If 'lobbying' is about advocacy in politics and society, why is it primarily about 'personal connections' to the executive and legislative branches? What is new or different about the more anonymous work via the mass media than in the traditional understanding of interest politics? Personal relationships and the media have also played a role in the public relations work of associations in the past. An article in the lobby media of the lobby-critical association Lobbycontrol, on the other hand, problematizes the connection between lobbyism and democracy. The lobbies, i.e. interest representatives try to exert influence in politics and society, is legitimate and is already protected under the constitution with various basic rights in the Federal Republic and in many other countries. Particular mention should be made of the right to freedom of expression (Art. 5 GG), the right to demonstrate (Art. 8 GG), the right to organize (freedom of association / Art. 9 GG), the right to political participation (e.g. right to petition Art. 17 GG). At the same time, the buzzword lobbyism refers to inequality in society, to strong and weak interests. In addition to the problem of asymmetrical power and influence, the definition of lobby control also deals with problematic forms of influence. Covert exertion of influence, attempts at manipulation and corrupt practices are considered undemocratic, so they are no longer, at least not completely in accordance with the applicable norms of democracy: too much power from individual interests, too little transparency in the work of many interest groups, too one-sided influence towards bought politics, towards corruption.

Although many points of criticism of the unequal influence of interest groups are by no means new, the impression of a particularly strong increase in the influence of business lobbies since the 1980s shapes public perception and debate. In the course of the privatization of public companies, the liberalization of specially regulated industries, Europeanization and globalization, the weight of companies and business associations seemed to increase steadily. Trade unions and social associations got on the defensive. What is the truth of this widespread lobby criticism? Has there really been a major change in the system of lobbying and an increase in lobbying in Germany and Europe? How do the categories advocacy and lobbying differ? Which factors determine the change? How is it to be assessed? Is there cause for concern or does the model of pluralism of interests and influence for the common good still apply?

This dossier makes a contribution to illuminating the discussion about the complex phenomenon of lobbying, classifying it historically and making it more objective. At the same time, it is not denied that the discussion about democracy, unequal influence and lobbying power offers good reasons for a critical examination, because it is not least about competing basic values ​​of freedom, inclusion and fairness, because standpoints have to be taken, and because democracy is not simply given, but always has to be (further) developed.

The focus of the dossier is on the current circumstances and changes in advocacy policy. However, in order to understand the present, it is essential to look far back into the past, e.g. when analyzing structural changes in the economy. It is necessary to determine the causes of the change in the system of interest representation more precisely and to assess the effects in a differentiated manner. The first part of the dossier lays the foundations for a general assessment of advocacy and lobbying policy. The changes in the political system of the Federal Republic of Germany, the developments in the European Union, the structural change in the economy, the changes in the media and the public as well as the development of civil society and the new democratic movements play an important role. These different strands can also be viewed through the lens of democratic theory and discussed in greater depth. In the second part of the dossier, case studies are processed which illustrate and specifically explain the individual aspects of change in the national and European political system, in the economy, in the media and in areas of civil society. On this basis and provided with further references to sources and literature for deepening, it is possible to discuss what is justified or excessive in the prevailing criticism of lobbying and what options there are to provide remedial measures where this can be considered necessary.

The guiding principle behind the contributions to this dossier is the basic assessment that lobbying can only be discussed in connection with the system of lobbying, i.e. cannot be explained by generalizing individual cases. The field of lobbying is also not static, but changes depending on various factors, including due to

  • of legal and institutional changes in the political system (e.g. federalism reform or relocation of responsibilities in the course of European integration),
  • the composition of domestic and foreign actors,
  • the forms of influence (e.g. due to changes in communication-technical possibilities)
  • of shifts in the balance of power (e.g. between employers and trade unions).
A historical discussion is therefore necessary, in the context of which it is necessary to clarify whether and what is new about the phenomenon of "lobbyism" and how the possibly changed forms of interest representation are to be assessed.

Fundamentally, with and in the contributions, it is also emphasized that in the context of social conditions, different interests and forces always exist and act, partly against each other, partly with one another. This is useful for the democratic political system because important information is conveyed by and about interest groups. Lobby groups have expertise in a broad sense and the evaluation of issues from different perspectives is essential for the political discussion process. The exchange approach of lobby research emphasizes abstractly on the respective contribution of the social interest groups and the political actors. A distinction is made between access goods that lobby groups offer (e.g. technical expertise, information on industry interests, but also information about the implementation of politics, support from citizens or economic weight, e.g. number of jobs, tax contributions, etc.) and access that politicians / - internally (e.g. on negotiation arenas and decision-making bodies such as hearings, advisory groups or commissions, decision-makers in parties, parliaments and governments or negotiating delegations) (Michalowitz 2014). Different interest groups can compete, but they can also form coalitions. In addition to looking at individual lobby groups, it is becoming increasingly important to examine alliances on specific concerns, questions or topics (Klüver 2012). In the system of representation of interests, it makes a big difference whether different interests are represented in decision-making bodies and in the negotiation and decision-making process through to legislation (or its prevention) or whether certain interests are particularly strong or particularly privileged. A particularly strong representation of interest groups ("the winner takes all") encounters an opposition that cannot easily intervene in the process, ie is dependent on extra-parliamentary opposition politics and protests. Finally, it should be noted that not only lobby groups influence politics, but also vice versa, political forces in government and parties influence lobby groups or make lobby groups responsible for achieving political goals (Schmitter and Streeck 1999). In any case, however, a historical and relational development perspective emerges decisively against interpretations that conjure up omnipotence and powerlessness, in that powerful lobbies are generally interpreted as "conspiracies" that exercise uncontrolled power in society. It is an open question whether and to what extent a lack of transparency encourages such interpretations.

A threat to democracy or a pluralistic dynamic? The opposite poles of the assessment and conclusion on the subject of lobbying

In the state election campaign and in the federal election campaign, a hotel entrepreneur donates millions to two parties that soon form a coalition at the federal level. Shortly after the general election, the new government decided to lower the VAT rate for the major donor business. That actually sounds more like "lobbying" than like the rule of the people. A famous and momentous individual example from the recent history of the Federal Republic of Germany, because the process contributed to the fact that the FDP, subsequently mockingly referred to as the "Mövenpick Party", was no longer elected to parliament in the following election to the Bundestag. After all, this failure of the FDP at the five percent hurdle already speaks against the thesis of the carefree rule of certain lobbies. At least with a certain delay and for some of the actors - the CSU was also responsible for tax relief for hoteliers, but, unlike the FDP, did not come under the limelight of public criticism - too strong an influence on politics can backfire.

The media regularly reports on the influence of interest groups in politics. Most recently, in the dispute over the transatlantic free trade agreement TTIP between the United States and the EU, there was a dispute as to whether and to what extent industry-friendly elements such as the establishment of international private arbitration tribunals in this and similar agreements would improve democracy in Germany and the other member states of the EU, but also in the USA, undermine. The public reacted indignantly to reports about the limited opportunities for parliamentarians to find out about the state of the negotiations. Negotiations that were apparently conducted with a strong focus on the interests of the companies concerned and their associations.

The strong and one-sided consideration of economic interests and the difficulty of trade unions, consumer associations and weaker interest groups in bringing their interests to bear are at the center of criticism of lobbyism. To put it bluntly, the powerful interest groups and their lobbies are more and more often able to manipulate parliamentary democracy and the public in their favor and to disable existing checks and balances. Last but not least, professional service providers who have made political influence their business and who act strategically and in a variety of ways play an important role (Balser and Ritzer 2016). Conversely, in the age of privatization and the cultivation of partnerships with the private sector, politics also invites companies and other non-state actors to participate more ("governance"). Sascha Adamek and Kim Otto (2008) analyzed the extended access of business representatives in ministries and in this context write critically of a "bought republic". A member of the German Bundestag speaks of the lobby republic of Germany (Bülow 2010). Social scientists again raise the question of whether capitalism and democracy can still be reconciled (Streeck 2013), or even argue that we are already living in a post-democratic era (Crouch 2008).

On the other hand, reference can be made to the at least temporary failure of the TTIP negotiations, in the context of which a strong opposition from NGOs, trade unions and opposition parties successfully managed to make themselves heard. Business-oriented or economically liberal think tanks and groups such as ECIPE, Prometheus, or Novo even speak of an overwhelming power of NGOs. [1] The critical media reports and the lively public debate can with some justification be cited as evidence of the functioning of democracy. It is true that the protest against TTIP cannot simply be seen as the cause of the failure of the negotiations - what would have happened if Donald Trump had not become President of the United States? But at least against the background of this development, the image of the one-sided and growing power of business-related lobbies cannot be maintained without further ado.

The political scientist Manfred Mai, for example, refers to the growth and weight of civil society organizations and strong NGOs as evidence of the existence of counterweights to business lobbies (May, 2013, 310). The close interdependence between interest groups and political institutions is considered normal:

"Organized interests are embedded in the state structures. There are close connections at all levels between associations and parties. [...] Personnel interdependencies are the rule. In addition, many associations live in a symbiosis with institutions of the political-administrative system. At The associations of the respective policy area are involved in every piece of legislation. " [2]

The Dutch political scientist van Schendelen (2010) argues similarly for the Brussels lobby system. At the center of his analysis are the shift in power in the legislative process towards the European Parliament and the diverse possibilities for informal discussion and influence. In his view, problems and weaknesses result largely from ignorance and the difficulty of citizens and their representatives in finding their way in what is admittedly a very complex political system. However, there is no real obstacle to pluralistic opinion-forming and decision-making.

The lobby-critical side therefore refers to the structural inequality and problematic forms of influence, which, although not necessarily evidence of the crisis in the entire system, certainly provide reasons for considerable protest and intensify widespread disaffection with politics. Conversely, proponents of the pluralism thesis claim that the system works quite well on the whole, without denying any minor or major inconsistencies. That sounds like the subtle interpretation of the half-empty and half-full glass. However, the camps differ considerably in one respect, namely the question of the need for lobby regulation. Critics of the increasing lobbyism are united, for example, by the demand for a considerable strengthening of lobby regulation, e. B. a binding transparency register for lobbyists and further information rights (e.g. the provision of a legislative footprint, i.e. the documentation of the objectives of lobbyists' influence). In addition, the aim is to reduce one-sided influences, especially those of major economic interests. In contrast, the advocates of the pluralism thesis see less need for reform. According to them, it is less about preventing unilateral or illegitimate influence and more about the possibility of improving the legitimacy of the political system by increasing transparency. Measures to increase structural transparency are nevertheless also considered useful in order to make conflicts of interest visible and to reduce the risk of illegitimate influence (Schmedes and Kretschmer 2014, 325). Both perspectives have in common the demand for a binding lobby register.

So can and must not a clearer distinction be made between politics of interests that are compatible with democracy and those that endanger democracy? Can the lobbying discussion develop further criteria that make it possible to assess the state of development and the quality of the change in interest representation? Was the glass full or empty in the past? And can a new consensus develop accordingly with regard to the regulation of lobbyism and the forms of lobbying?

Lobbyist problems in the Berlin republic, or "everything was better in the past"?

When the "Berlin Republic" is mentioned in the German lobbying debate, a great contrast to the supposedly tranquil Bonn is often constructed (Schumacher 2006, weakened Gammelin / Hamann 2005). Today, an estimated 5,000 lobbyists work in Berlin, up to 25,000 are believed to be in Brussels. The financially strongest actors represent the interests of the private sector. Popular publications such as "Die Strippenzieher" by the two journalists Cerstin Gammelin and Götz Hamann bring together case studies and episodes that preferably highlight the new, extraordinary lobbying power of recently privatized companies or the telecommunications and energy industries. Even if some of the lobby strategies revealed, such as Volkswagen's resistance to the soot filter in the early 2000s, did not lead to success, the literature states a threat to the "autonomy of the state". General hazard scenarios of this kind fail to recognize important connections between politics, economy and society because they do not deal systematically with the relevant developments. Conversely, it is overlooked that the thesis that the state is endangered by interest groups is very old. Already in the Weimar Republic, but also in the Bonn Republic, the power of interests, not least of the trade unions ("trade union state"), was attacked by the conservative side (for example by Götz Briefs 1952 [3]). But what was different in the Bonn Republic?

In comparative research into associations, a distinction is made between (neo) corporatist regimes and pluralistic or voluntaristic regimes. The regime of the old Federal Republic was one of the typical corporatist systems, that is, striving to balance interests and aiming at a systematic inclusion of the various organized interests. On the other hand, the USA, for example, stands for a system that gives the various interests leeway without necessarily aiming for a balance (voluntarism). While in the Federal Republic not infrequently in tripartite forums representatives of the central organizations of companies, trade unions, welfare associations etc. negotiate with top representatives of politics, lobbyists and the state in the USA are often hostile to each other. At the same time, unilateral influence and ad hoc solutions are not considered reprehensible. A restriction of interest groups by the state for the common good is seen as a threat to freedom. While corporatist arrangements officially "muckle" in the public interest and there is an expectation that the individual members of the associations will submit to the overall interests, the individual interests are not very often taken into account in the voluntarist regime. There are also associations in the USA, but their members are by no means willingly subordinate to the associations or are easily disciplined. Conversely, interest groups and corporations have long been legitimate subjects of investigative research, public discussion and sometimes sharp criticism. After major scandals, a mandatory lobby register was introduced in the USA as early as 1995, which since then has ensured a high degree of transparency with regard to lobby expenditure and goals of all interest groups. In Germany, on the other hand, the insider negotiation style is still defended by parts of politics and many business associations, largely excluding the public, although the traditional (neo) corporatist regime has been disintegrating in many respects since the early 1980s, e.g. corporations at national and international level like to act independently at European level. With the takeover of government by the coalition of CDU / CSU and FDP in 1982 under Chancellor Helmut Kohl, the course in Germany was set in the direction of supply-side politics and deregulation and privatization projects were promoted. In the context of the dispute over the 35-hour week in the metal industry, the government openly sided with metal employers. Last but not least, in the course of the industrial action, she broke the tradition in decisions by the Federal Labor Office not to pay unemployment benefits to employees who were indirectly affected by the IG Metall strike (cold lockout). After the social courts overturned the decision in favor of the locked out workers, the government changed the legal basis in 1986 and excluded payments to workers indirectly affected by the strike for the future.

The traditional German regime of lobbying came under even more pressure due to the decision to complete the European internal market in the 1980s, because this considerably increased the dynamism of cross-border competition and also the previously protected sectors of public services (energy, telecommunications, railways ) recorded. The balance of interests in the context of industrial relations and public companies has been subordinated to the requirements of liberalization within the framework of the European internal market. The more decisions are made in Brussels arenas, the less German politicians can negotiate independently with the German (top) associations. With the uniform European act of 1987 (to complete the internal market) the traditional German system of interest representation was effectively undermined.

In other respects, too, the conditions in the old Bonn republic should not be idealized. There were already major lobby scandals in Bonn: the Flick affair and other party donation scandals, arms deals, close ties between the state and the energy industry. An example: When Ludwig Erhard (CDU) became Chancellor in 1963, he was looking for a boss for the Chancellery. Ludger Westrick, who was previously Erhard's State Secretary in the Ministry of Economic Affairs, was selected. Prior to his political career, Westrick was general manager of the energy company VIAG. The political scientist Theodor Eschenburg found out with simple research that VIAG had given its general director full leave of absence. Westrick cashed twice. [4]

At the center of lobby criticism in Bonn were the party foundations and their illegal party financing, party donations from companies. [5] Without further ado, the image of the good old Bonn republic, in which the interests of the general public were at the center of political action, cannot convince against a Berlin lobbying republic. There were also major disputes in the Bonn Republic, for example in energy and environmental policy or in the area of ​​internal security, e.g. during the census. The system of representation of interests has changed considerably since the unification, but important reasons for the double delimitation of lobby work can be found in the 1980s: parts of the corporatist regime in the field of economy and labor are shelved; The representation of interests is shifting to a considerable extent from the national to the European political system and influencing public opinion via the media, think tanks and professional PR agencies gained considerably in importance even before the Berlin Republic. Only the increased interference of new democracy movements and the increase in civil society lobbying did not develop until the 2000s, i.e. with a time lag compared to the differentiation of lobbying by associations and companies.

The result is a coupled European and national regime that does not fully correspond either to the ideal type of corporatist balancing of interests or to the strictly egoistic-voluntaristic type. The Mannheim political scientist Beate Kohler-Koch speaks of a European type of network governance of its own, in which elements of balance can be found despite the multiplication and fragmentation of the interest groups. Nevertheless, Annette Zimmer and Rudolph Speth rightly write that the concept of lobbying has been upgraded compared to the concept of interest representation (Zimmer and Speth 2015, 12 [6]): It is about an actually far-reaching change in interest representation and lobbying, a more complex, A more market-shaped, European and globalized, media-professionalized regime that is fought over with the participation of a large number of stronger and weaker actors, with weaker actors in suitable alliances and under certain conditions sometimes showing surprising strengths. However, the view of individual actors and conflicts should not distract from the fact that the Europeanization of politics in particular has in some cases considerably increased the asymmetry in favor of large companies and business associations. For small interest groups and also for small and medium-sized companies it is often not easy to find their way around in the European context.

Five explanatory contexts for the change in lobbyism and the democratic-theoretical perspective

In the five contributions of the first part, the authors go into more detail on the developments and changes that are indispensable for an appropriate discussion of lobbyism and the representation of interests in the present. The focus of the contributions is on the national political system, the European Union, the structural change of the economy, the development of the media society and the growing role of civil society, especially the new democratic movements. Overlapping is inevitable, but the respective focus enables the concentrated processing of important factors.

Kathrin Loer and Annette Töller examine the change in the political system in Germany in order to explain the changes in the interplay between political institutions and those involved in lobbying. The focus is on the increase in the use of external expertise in the legislative process, the associated increase in the importance of lobbying, the structural change in interest groups and a lack of transparency, which is increasingly driving the political discussion on lobby regulation in Germany. To the contribution

Dieter Plehwe's contribution goes into the growing importance of the Brussels arenas for negotiation and decision-making. The growing importance of the European institutions in many policy fields necessitates the co-evolution of European interest groups. Even before the growth of professional lobby service providers on a national level, the new lobby service provider branch established itself in Brussels. Specialized consulting and PR firms, law firms and think tanks have become an indispensable part of lobbying today. Possibly due to the greater complexity of the regulatory areas, but also due to scandals and the often criticized democratic deficit at EU level, the European system of lobby regulation is more developed than at the national level. A voluntary lobby register facilitates orientation and improves the conditions for research, especially since the Commission has set strong incentives for more binding information. To the contribution

Stefan Schmalz outlines the structural change in the economy that causes central developments in the interest representation system. From the emergence of the employers 'and employers' associations in the 19th century, through the corporatist structures in the old Federal Republic to the economic upheavals and the pluralization of interests after reunification. To the contribution

The work of advocacy is also being changed by the structural change in the media and the growing importance of television and the new social media. The variety of media facilitates access and makes control more difficult. The monopoly of public service broadcasting was in a sense also a requirement of the corporatist government. Uwe Krüger explains how power relationships and hierarchies play an important role in structuring the representation of interests in the new regime of media democracy. Last but not least, the influence of large corporations of the Internet age on the new social media raises new questions of lobby regulation. To the contribution

On the other hand, civil society actors grow fastest among lobby actors. With NGOs such as Transparency International, Mehr Demokratie, Lobbycontrol, Parliamentary Watch or even the small and large environmental NGOs, some powerful and sometimes influential actors have established themselves, which are seen as a counterweight to other lobbies. Christine Quittkat examines their development and discusses the ambivalence of civil society because, in addition to lobby-critical actors, NGOs controlled by companies and associations also become active. Overall, the rapid development of civil society actors and their participation at national and European level is an important indicator of the scope of the change in the system of interest representation. In order to assess the influence of NGOs, however, it is less necessary to examine the individual NGOs than to examine their role in frequently competing alliances and coalitions. To the contribution

Although the various facets and connections of lobbying in the political system, in the economy, in the media and in civil society are important and interesting in and of themselves, they gain their greater importance in the larger context: democracy. Interest groups as well as the media do not officially play an element of the separation of powers and, in cooperation with the media, play a significant role in the political process. The crisis of democracy, which is increasingly discussed in the European and national context, is not least brought into connection with the influence of lobbies. Hans Jürgen Bieling discusses the connection between lobbying and criticism of democracy in order to take a closer look at the individual aspects of the lobby discussion through the lens of democratic theory. After introducing the dimensions and processes of democracy, he discusses important democratic theoretical controversies: liberal versus social democracy, pluralism versus power elites, problems of legitimacy versus ungovernability and looks ahead to the current era, which is controversially discussed with the keyword "post-democracy" . To the contribution

Last but not least, against this democratic theoretical background, the concrete examples in the second part of the dossier offer the opportunity and illustrative material to discuss the problems and topics addressed in more depth and to assess them in a differentiated manner.

literature

Adamek, Sascha and Kim Otto: The bought state. How corporate representatives in German ministries write their own laws, Kiepenheuer & Witsch, Cologne, 2008.

Balser, Markus and Uwe Ritzer: lobbying. How the economy buys influence, majorities, laws, Droemer, Munich, 2016.

Briefs, Götz: Between Capitalism and Syndicalism. The trade unions at the crossroads, Lehnen, Munich, 1952.

Bülow, Marco: We snappers. On the power and powerlessness of the people's representatives, Econ Verlag, Berlin, 2010.

Crouch, Colin: Postdemokratie, Suhrkamp, ​​Frankfurt / Main, 2008.

Gammelin, Cerstin and Götz Hamann: The pullers: managers, ministers, media - How Germany is governed. Econ Verlag, Berlin, 2005.

Klüver, Heike (2012): Lobbying in the European Union. Interest Groups, Lobbying Coalitions and Policy Change. Oxford: Oxford University Press.

Leif, Thomas: From Symbiosis to System Crisis - Essay, in: From Politics and Contemporary History 19/2010

May, Manfred, governing with organized interests. Lobbyism in Transition, in: Handbook Government Research ed. Karl-Rudolf Korte and Timo Grunden, Springer Link p. 308

Michalowitz, Irina (2014): Why does EU politics need lobbying? The exchange approach as an implicit research paradigm. In: Dialer, Doris, Richter, Margarethe (Ed.): Lobbying in the European Union. Between professionalization and regulation. Wiesbaden, Springer VS, 17-28.

Schmedes, Hans-Jörg; Kretschmer, Heiko (2014): Interests, Transparency, Trust - and the Legitimacy of Politics. In: Thomas von Winter and Julia von Blumenthal (eds.): Interest groups and parliaments. Wiesbaden: Springer Fachmedien (publications of the DVPW section Government system and governance in the Federal Republic of Germany), pp. 311–333.

Schmitter, P. C./Streeck, W., 1999, The Organization of Business Interests: Studying the Associative Action of Business in Advanced Industrial Societies. MPIfG Discussion Paper 99/1. Cologne.

Schumacher, Hajo: The twelve laws of power. Angela Merkel's secrets of success, Karl Blessing Verlag, Munich, 2006.

Streeck, Wolfgang: Bought Time: The Postponed Crisis of Democratic Capitalism, Suhrkamp Verlag, Berlin, 2013.

van Schendelen, Rinus: The Art of Lobbying the EU: More Machiavelli in Brussels, Amsterdam University Press, 2010.

Vieregge, Henning: From party foundations to the role of the Konrad-Adenauer, Friedrich-Ebert, Friedrich-Naumann and Hanns-Seidel foundations in the political system of the Federal Republic of Germany, Nomos-Verlagsgesellschaft, Baden-Baden, 1977.

Zimmermann, Annette and Rudolph Speth: Introduction. From advocacy to “lobby work” in: dies., Ed., Lobby Work. Advocacy as policy-making.Wiesbaden, Springer VS, 2015, pp. 9-30.