Lobbying reform bill met with debate

Measure too lean, advocates claim

May 29, 2012

Written by CRIS BARRISH

The News Journal

As a persistent proponent of greater lobbying transparency in Delaware, state Rep. John Kowalko can’t stomach the recent mantra by lawmakers and the Markell administration that a disclosure bill that sailed through the Legislature this month will reform Delaware’s weak laws.

“It’s the “Where’s the Beef’ commercial. It’s pretending to be a filet mignon dinner, but I know what they are serving. It’s Hamburger Helper and that doesn’t sit well with me,” Kowalko said. “It’s not even an appetizer.”

The measure that Gov. Jack Markell calls “terrific” and plans to sign in the coming days would require lobbyists to publicly disclose every contact with a lawmaker or state official about pending bills or ones that get introduced within five days of such contact. While the information will be put on a website that residents can readily access, it’s only one of many steps that reform advocates insist Delaware needs to bring true accountability to lobbyists, their corporate bosses and the government officials they woo.

Critics of the way Markell and lawmakers have approached lobbying reform say it’s imperative that the state close loopholes that, for example, allow lobbyists to avoid identifying the lawmakers and bureaucrats whom they are spending money on, and let lawmakers leave their elective post and return the next day as a lobbyist.

Yet year after year since 2007, when The News Journal first exposed flaws in the system and a widespread practice of giving out tickets to sports and entertainment events to lawmakers, a handful of legislators have proposed several reform bills – only to be rebuffed by the majority of their colleagues. None of the measures have been publicly defeated in a vote by the House or Senate, though. They have died in committee, never got to a committee, or languished in limbo while waiting to be brought to the floor.

If some measures had passed, Delaware’s lobbying laws, regulations and practices would have fared better than 47th, nearly the worst in America, in the recent Public Integrity Investigation spearheaded by the nonprofit Center for Public Integrity in Washington, D.C.

“There are so many other issues beyond what Markell just did,” said James Browning, a registered Delaware lobbyist and regional spokesman for the good-government group Common Cause.

Browning and others are frustrated that the creation of a lobbying reform commission that would propose a comprehensive package of reforms never got to a Senate vote or even a committee hearing last year after passing the House without a dissenting vote.

Senate President Pro Tem Anthony DeLuca, however, would not respond to questions about why the commission bill went nowhere last year after unanimous support by the House. DeLuca controls when legislation gets assigned to a committee.

House Speaker Bob Gilligan and other state political leaders defended the disclosure bill that passed as a good start, saying it would pave the way for future reforms.

“It was a good bill, a good step forward. People will know who is lobbying for what,” Gilligan said. “And I expect there will be something introduced next year.

But others countered that Delaware continues to dawdle when it should be taking bold steps, and are dismayed that their efforts to revamp the system or just create a panel – a move often seen as a delaying tactic – still hasn’t passed.

“There’s a slam dunk case to be made for doing more,” Browning said. “If they don’t like the study commission, the question is how else to fix the system.”

Reform stalls

Delaware law requires lobbyists to register with the state’s Public Integrity Commission, list their employers and reveal the “subject matter’ they are focusing on, a description which can be as vague as “banking” or “real estate.”

They must file quarterly reports on spending in several categories such as entertainment and gifts, and identify any official on whom they spent at least $50 in a single day.

A 2007 investigation by The News Journal, however, found that lobbyists routinely shield the recipients of their largess from disclosure by holding cocktail parties or receptions where the cost of the “gift” to an official is less than $50.

The newspaper, which analyzed the state’s lobbying database of spending reports, found that over the previous 4‘ years, a total of $471,200 – nearly two-thirds – was spent on public officials who did not have to be identified. In addition, lobbyists representing big companies such as Astra Zeneca, Dover Downs and Verizon paid another $250,000 during that period for individual gifts greater than $50 for meals and entertainment such as golf outings and tickets to NASCAR races, Phillies games, society balls and Disney on Ice.

Lobbyists and lawmakers responded during the next fiscal year by spending even less for gifts over $50 and more for meals and parties where officials did not have to be identified.

Within months, such revelations about how lobbying really worked in Dover generated a handful of calls for reform, and several bills that aimed to bring more accountability to the system.

Kowalko, alarmed by the fact that so many former legislators were lobbying and that former House Majority Leader Wayne Smith had announced he was going to leave the Legislature and become president and lobbyist for the Delaware Healthcare Association, introduced a bill that would call for a one-year cooling off period before a lawmaker could become a Delaware lobbyist. Currently, 10 former state legislators and several other former municipal and county lawmakers prowl the halls of Dover’s Legislative Hall as registered lobbyists.

Rep. Deborah Hudson wanted a two-year ban that would also include top state officials and members of the governor’s executive staff.

Sen. Karen Peterson introduced a measure to ban all gifts.

Rep. Helene Keeley sought to have lobbyists disclose the names of nonprofit, community or trade groups on whose boards they serve.

Only Hudson’s bill even got a vote, passing the House unanimously, but her bid ended up in the Senate Executive Committee, controlled by then-President Pro Tem Thurman Adams, who made a practice of sending bills there to die a quiet, certain death.

Kowalko and Keeley resurrected their bills in 2009, without success. Keeley’s did pass the House, but it languished in Adams’ Executive Committee, and never had a panel hearing.

Markell, a former two-term state treasurer who became governor in January 2009, took some action on his own, issuing an executive order within days of taking office that forbids about 75 top officials – Cabinet members, division directors and his executive staff – from accepting any gift from a lobbyist.

The gift ban did not, however, cover tickets and meals at Chamber of Commerce dinners and other trade-association receptions, or any meal worth less than $40.

Markell said chamber dinners, receptions and cocktail parties that cost less than $40 per person would be permitted because “it’s important for my people to be out there dealing with them. In my opinion, there’s a big difference between a chamber dinner and a Phillies game or Disney on Ice.”

Recent efforts

Legislatively, though, nothing could get through the General Assembly for the governor to sign, but that hasn’t stopped some lawmakers from continuing to try.

In 2011, Sen. Michael Katz introduced a bill that among other provisions would require lobbyists to file additional financial information, such as their total salaries, office expenses and lodging costs away from home, as well as gifts to close relatives of state officials.

The measure also would have required lobbyists to retain all financial receipts and other documents for three years, and gave the Public Integrity Commission the right to require production of those documents for review or auditing. Currently, the two-person integrity office only checks the forms to make sure they are filled out on time and correctly.

Like Adams, who died in 2009, DeLuca performed what is known as a “desk drawer” veto on the bill, assigning it to the Senate Executive Committee which he chairs. It received no hearing and still languishes there.

Katz also tried to ban lobbyists from serving on state commissions or boards. He didn’t target any specific lobbyist, but that bill would have affected lobbyist Robert L. Byrd, who is a longtime member of the Delaware Economic and Financial Advisory Council.

That bill went to the Senate Judiciary Committee, chaired by Majority Leader Patricia Blevins, but again no action was taken.

Katz, an anesthesiologist who is serving his first term, said he’s disappointed that he couldn’t even get a committee hearing on issues he considers vital to democracy in Delaware.

“Sometimes its difficult for people to step up to the plate and really stick their neck out and want to take on these difficult decisions,” Katz said. “They are important decisions. I feel that’s why I’m there.”

Browning and Kowalko teamed up on the bill to create the study commission, modeled after a similar bill in Maryland . The bill sailed through the House 40-0 but DeLuca hasn’t even assigned it to a Senate committee.

DeLuca did not return a reporter’s calls about why that bill and other lobbying measures have had any success in the Senate.

Markell said he opposed such a panel because it would include at least three lobbyists, and was focused on signing the bill that just passed and getting the database up and running.

As to criticism that the administration is offering the public a paltry meal, Markell offered this: “I am not going to throw Representative Kowalko a bone by using a meat metaphor. But instead of having this thing on a menu that might not happen we actually served up legislation that will become law.”

‘Inertia’ in Dover

Sen. Peterson, a co-sponsor on the commission bill and Katz’s disclosure bill, said she believes the governor, in concert with DeLuca and Gilligan, have done all they are going to do to reform lobbying.

“They are going to say they dealt with the lobbying problem which of course is wrong because there’s a whole lot more to the problem than what was addressed,” Peterson said. “It’s a drop in the bucket but it’s not the whole bucket, not by a long shot.”

So why are lawmakers so reluctant to do more to change the way Dover has operated for decades?

Lobbyist Robert L. Maxwell, a former state lawmaker and top New Castle County official , theorized that many lawmakers are gripped by “inertia” because they are comfortable with the system.

Maxwell, who didn’t go into lobbying immediately after leaving the House, said many lawmakers believe they have a “First Amendment right” to step right into a lobbying job “like everybody else. They think, ‘Why shouldn’t they be able to lobby when they quit the Legislature.'”

As for having lobbyists disclose their salaries, Maxwell said many Delaware lawmakers believe the salaries of private employers should not be public, even for those whose jobs it is to shape laws to benefit their industry or company.

Nor do lawmakers want to be tarred as beholden to lobbyists for receiving gifts, so many will only go to events where the cost is below $50, he said. “If I tell them I am going to have to report you [for receiving a gift worth more than $50], they will say, ‘Maybe I won’t do it.'”

The bottom line, Katz said, is that all such machinations must cease.

“It’s very important to provide much greater openness and give the public a better idea of what is being spent to influence legislation,” Katz said. “It’s greasing the skids. This is how government waste is created, how we get influence peddling.”

Lobbying Legislation

Since 2007, when The News Journal revealed loopholes in Delaware law that lobbyists and their employers exploit to avoid disclosing which lawmakers they are spending money on to influence, several bills have been introduced to reform the system.

All have failed without coming up for a vote before both the House and Senate, except for Gov. Jack Markell’s bill that passed this month and provides for more disclosure of contacts by lobbyists with lawmakers and state officials about existing or pending legislation.

The following box includes recent lobbying reform efforts, the year they were introduced, the bill’s primary sponsor, what they included, and what the status of the bill is.

2007, Rep. Deborah Hudson: State legislators, heads of state agencies, Cabinet officials and members of the governor’s executive staff cannot be employed as a lobbyist for one year after their state employment ends. Status: Passed House 40-0 but Senate took no action.

2007, John Kowalko: State legislators cannot be employed as a lobbyist for one year after their state employment ends. Status: Cleared a House committee but never brought up for a vote in House and never reached Senate.

2007, Sen. Karen Peterson: Bans all gifts from lobbyists to members of the General Assembly and other state employees. Status: No action by Senate Executive Committee.

2008, Rep. Helene Keeley: Lobbyists must disclose name and address of every nonprofit, community, and trade group of which he is a council or board member. Status: No action by House Administration Committee.

2009, Rep. Kowal

ko: State legislators cannot be employed as a lobbyist for one year after their state employment ends. Status: Cleared a House committee but never brought up for a vote in House and never reached Senate.

2009, Rep. Kowalk

o: Lobbyists must disclose name and address of every nonprofit, community, and trade group of which he is a council or board member. Status: Passed House 38-0 but action taken by Senate Executive Committee.

2010: Sen. Michael Katz: Among other provisions, lobbyists must file additional financial information, such as their total salaries, office expenses, lodging expenses away from home, and gifts to close relatives of state officials. Lobbyist must retain all financial receipts and other documents for three years, and the Public Integrity Commission can require production of those documents for review or auditing. Status: Assigned to Senate Executive Committee, where no action has been taken.

2011: Sen. Katz: Lobbyists cannot be employed by or perform consulting functions for any state agency, commission or other public body. Status: Assigned to Senate Judiciary Committee, where no action has been taken.

2011: Rep. Hudson: State legislators, heads of state agencies, Cabinet officials and members of the governor’s executive staff cannot be employed as a lobbyist for one year after their state employment ends. Status: Assigned to House Administration Committee, where no action has been taken.

2011: Rep. Kowalko: Establishes a Study Commission to examine Delaware’ lobbying laws and recommend changes. The 13 members would be appointed by the governor, Senate President Pro Tem and Speaker of the House and include at least three lobbyists and four state lawmakers. Status: Passed House 40-0 in June 2011 but no action has been taken by Senate.

2012: Rep. Kowalko: State legislators cannot be employed as a lobbyist for one year after their state employment ends. Status: Kowalko withdrew the bill.

2012: Rep. Keeley: Lobbyists must disclose name and address of every nonprofit, community and trade group of which he is a council or board member. Status: Assigned to House Administration Committee, where no action has been taken.

2012, Senate President Pro Tem Anthony DeLuca: Lobbyists must disclose the bill, resolution, or regulation on which they are lobbying by making an electronic filing with the Public Integrity Commission within five business days of contact with a lawmaker or state official. The commission must make such reports available online. Status: Passed Senate 15-5 and House 26-12. Gov. Jack Markell plans to sign the bill in June. It takes effect in 2013.