The Return of Doolittle and Delay

By now you probably know the names of the members of Congress under investigation in the Abramoff case:

 

Prosecutors in the department"s public integrity and fraud divisions...are looking into Mr. Abramoff"s interactions with former House Majority Leader Tom DeLay of Texas, Rep. Bob Ney (R., Ohio), Rep. John Doolittle (R., Calif.) and Sen. Conrad Burns (R., Mont.)

To a campaign-finance reform wonk like me, this will be a familiar group of names. Back in the late-1990s, and for some time after, as the McCain-Feingold bill limiting soft money contributions gathered momentum, an alternative emerged that would have eliminated all restrictions on campaign contributions, and in return all contributions would be reported immediately on the Internet. Accompanied by the ritual quotation from Justice Brandeis that "sunlight is the best disinfectant," the proposal to replace regulation with disclosure was first introduced by Congressman Doolittle, with DeLay as his lead cosponsor of "Doolittle/DeLay." Ney did not cosponsor, but probably just because he ran the committee that the bill was referred to, where he supported it. Burns took the same position in the Senate, complete with the same quote from everyone"s favorite Massachusetts liberal.

To this day I encounter people from all points on the political spectrum who believe -- or wish -- that the problems of corruption and perceived corruption stemming from campaign contributions can be dealt with simply by empowering voters through disclosure, so that we can all decide for ourelves whether contributions influence official actions, rather than the cumbersome system of regulation and loophole-closing we"ve devised. As the McCain-Feingold law seems to spin down a rabbit-hole of incomprehensible regulatory hair-splitting over whether blogs might be misused as loopholes for big contributions, such a simple, self-correcting and open option seems more and more appealing.

The fact that the principal advocates for the disclosure-only approach are now revealed to be (alleged) crooks does not in itself invalidate the idea or cancel out its merits as policy. But the specific case, even if none of the named legislators is provably guilty of a felony, shows starkly the limits of such an approach.

First, note that it has taken the FBI several years now to even begin to piece together the relationships between campaign contributions and official actions in this case, with indications that the investigation might take several more years. And that"s with all of Abramoff"s boastful e-mails as a roadmap. How would an ordinary citizen be expected to understand whether a campaign contribution from, say, the Tigua tribe, should be a matter of concern?

And then there"s the even more interesting revelation in this case that what we often think of as "official action" might not be found where we think. Most efforts to connect campaign contributions to official actions would tend to look at congressional voting behavior or at legislation introduced or cosponsored. That"s the approach political scientists have traditionally taken, leading most of them until recently to conclude that money had little influence on official actions, and it"s the approach most researchers have taken in trying to make the case that money does distort public responsibilities. But the emerging DeLay/Doolittle/Ney case, based on what we know about it, shows that this might be a case of the proverbial search for the keys where the light is better. As far as I can tell, in the whole web of corruption involving Abramoff, Scanlon, the tribes, David Safavian, etc, there"s not one actual congressional vote or formally introduced piece of legislation to be found. (I"d welcome any corrections on that; my research staff is still on holiday.)

Instead, Ney and his colleagues operated by various methods that traditional approaches would never find, but which are plainly misuses of official power. They would try to slip provisions helping Abramoff"s clients into the conference reports on legislation at the last minute, such as the provision helping the Tigua into the Help America Vote Act in 2002. It"s often impossible to find the fingerprints on such provisions and they may well go unnoticed until after the bill has been signed. Or, they would use letters directed to subcabinet officials such as Interior Dept official Steven Griles. Although Griles seems to have been a cooperative ideological ally, even dispassionate civil servants jump at letters from members of Congress, even those that say no more than, "please look into this." And such letters are rarely public unless the member of Congress chooses to release them. As far as I know, a freedom of information act request to an agency asking for "all correspondence from Congressman X" is the only way to get them.

And then there is the most remarkable tactic of all, something like hiding in plain sight: Ney"s insertion of statements into the Congressional Record attacking the then-owner of the SunCruz gambling boat company when Abramoff and his partners were trying to buy it. No one doing a traditional analysis of congressional power would pay a moment"s notice to statements inserted in the Congressional Record, especially those not read on the floor. The Congressional Record is like a giant group blog, albeit of far less consequence. And yet, for someone relatively new to the U.S., as SunCruz owner Gus Boulis apparently was, the idea that the U.S. Congress seems to have officially condemned your business practices would probably be a hugely intimidating factor.

These appear to be large crimes, under any system of campaign finance regulation, and should be investigated and prosecuted as such. But they show that, even in the absence of large crimes, or especially in their absence, it will never be easy for citizens to make their own judgments about whether members of Congress are responding to citizens or contributors. And thus there is no alternative to some kind of regulatory system involving limits on contributions, and public financing. But we do need some new strategies in that area -- more on that soon.