Let’s salute the judge who ruled that lobbyists are a blight on the business of politics

There was a great piece about lobbying and lobbyists in the Financial Times a week or so ago.

It was presented under an enticing headline:

Lobbyists pervert politics and earn their infamy

It recalled a time when a contract to lobby government, like an agreement to sell sex, was ruled  unenforceable in the courts. At least, not in American courts.

The writer jogged his readers’ memories on something he suspected even distinguished former foreign secretaries such as Jack Straw and Sir Malcolm Rifkind might have forgotten – the treaty of Guadalupe-Hidalgo.

It is a notable document, and not only because it determined that California would be part of the US, rather than a province of Mexico. Its signing triggered one of the lobbying industry’s earliest controversies — telling, perhaps, in the week two parliamentarians were caught in an undercover sting offering to help fictitious corporate interests in return for cash.


Readers then were introduced to Nicholas Trist, who was America’s lead negotiator on the 19th century treaty. He believed he had not been properly recompensed for his services and, after a 20-year campaign, hired a Boston lawyer, Linus Child, to lobby Congress on his behalf.

Child’s efforts bore fruit. His son told Trist: “I find that my father has spoken to . . . members of the House. Every vote tells, and a simple request to a member may secure his vote, he not caring anything about it.”

Congress eventually agreed to pay Trist $15,000, then a considerable sum.

Trist, a hard bargainer, refused to pay the contingency fee he had agreed.

The case went to the Supreme Court, which dismissed Child’s claim. A contract to lobby government, it said, was contrary to public policy and hence, like an agreement to sell sex, unenforceable in the courts.

Paid lobbying, said Mr Justice Swayne, was “pernicious in its character”.

But this was only the beginning of his denunciation. “If any of the great corporations of the country were to hire adventurers to procure the passage of a general law with a view to the promotion of their private interests,” he thundered, right-minded men “would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous”.

Alas, this austere view of the proprieties of political life have long since been eroded.

The Court of the 1870s had taken the view that free speech and honest speech were two sides of the same coin. “The theory of our government,” ruled Swayne, “is that all public stations are trusts.” There was a corresponding duty on the citizen.

“In his intercourse with those in authority, he is bound to exhibit truth, frankness and integrity.”

But in Citizens United in 2010, the same court held that the expression of views you were paid to hold was no longer “an infamous employment, steeped in corruption”, but an activity deserving of the protection awarded to free speech under the First Amendment.

That contentious decision probably did not, in the end, seal the outcome of the 2012 election — though the tide of political donations that it unleashed will surely decide a presidential contest before long.

Americans may look back on Justice Swayne as the wiser judge. “If the instances (of paid lobbying) were numerous, open, and tolerated,” he predicted, “they would be regarded as measuring the decay of the public morals and the degeneracy of the times.

Alf was minded of the good judge on learning that we taxpayers are  funding a lobby group with an itch to have cigarettes sold in plain packaging and which is working hand in glove with the Maori Party.

Questions about this dubious arrangement are being raised by the Taxpayers’ Union.

The union says it

… believes that questions need to asked about why a lobby group, working with the Maori Party on a political campaign around tobacco plain packaging, is largely taxpayer funded. This morning’s front page of the New Zealand Herald covers the latest efforts to build political pressure to introduce a plain packaging law.

Taxpayers’ Union Executive Director, Jordan Williams, is grumping about this carry-on.

“While civil servants operate under a duty of political neutrality, the Ministry of Health and others are awarding substantial sums of taxpayer money to health and environmental lobby groups to push particular political agendas.”

“It is wrong for special interest groups such as ASH to be using taxpayer money for political campaigns. ASH’s factual inaccuracies about the impact of plain packaging on smoking consumption in Australia suggests that they are operating outside any of the usual public sector control requiring balanced and evidenced based public statements.”

The villain of the piece is ASH, a disagreeable bunch of zealots in Alf’s experience.

Its most recent annual return filed with the Charities Register (according to Jordan Williams) shows that more than 90% of ASH’s funding comes from the taxpayer.

Williams deserves support from all of us when he says:

“We all support funding for front line and addiction services such as Quitline. What we don’t support is funding to political organisations to operate campaigns with taxpayer money.

“Here a taxpayer funded group is working with a political party to promote one of its key policies.

If the shoe was on the other foot and the Government was funding property groups to campaign for RMA reform, the Maori Party would be justifiably outraged. This is no different.

Indeed, taxpayer-funded lobbying undermines democracy. Come to think of it, as Judge Swayne said, all lobbyists might usefully be stamped out although this might do Jordan Williams out of a job, which would be unfortunate.

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