While there is debate on who said it – Mark Twain or NY Judge Gideon J. Tucker, the commentary still rings true, in particular at the state and local level: “No man’s life, liberty or property are safe while the legislature is in session.”
Which means that when you want to see how influence peddling is going these days, taking a look at what information state legislatures require lobbyists to reveal or allow to keep secret. It can be very enlightening - and troubling.
That’s what James Browning, a former head of Common Cause in Maryland, and his colleagues at F Minus have been doing for a few years, as they seek greater transparency about lobbyists. This has allowed F Minus to also hunt for questionable acts and conflicts-of-interests – in which lobbying firms might work both sides of an issue. An example: F Minus has found communities in Florida seeking help to get rid of PFAS - “forever chemicals” that have polluted their water. At the same time, their lobbying firm is also helping industry fight those efforts.
F Minus recently released a study of states, grading them on various measures of transparency that reveal or obscure the work of lobbyists. The key questions they aim to answer: what issues are the lobbyists working on; what position are they taking on these issues; and who is paying them to lobby on these issues?
Of the 50 states surveyed, only 18 states required registered lobbyists to actually cite the name of the bill they are lobbying on for each of their clients. Those states are : California, Colorado, Delaware, Idaho, Iowa, Kentucky, Maine, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, Ohio, Rhode Island, Washington, and Wisconsin. In Florida the bill number is required only for state House bills but not for Senate bills. the study found.
Ok, so at least you know what bills are the focus of a lobbyists work, right?
But that isn’t really enough for meaningful transparency.
Only eight states: Colorado, Iowa, Massachusetts, Montana, Nebraska, New Jersey, Rhode Island, and Wisconsin – require the lobbyist to state the position they are taking on a bill. So you could see in the filings in the 18 states – a pitiful number if you ask me – that a lobbyist is interested in a particular bill for a particular client. But you would have to intuit in 10 of those 18 states – California, Delaware, Florida, Idaho, Kentucky, Maine, Maryland, New York, Ohio, and Washington, what that client wants from the legislature considering that bill, since the lobbyist doesn’t have to state a position on the bill.
Overall, those eight states that are more transparent: Colorado, Iowa, Massachusetts, Montana, Nebraska, New Jersey, Rhode Island, and Wisconsin, require public filings from lobbyists that show what Browning and F Minus view as essential information that can help reveal conflicts of interest. Those states require enough information from lobbyists so that the public can see what bills the lobbyists are following, what position they are taking on those bills, and who is paying them. So the potential for a conflict-of-interest is out in the open. But as Browning’s work also has shown, despite transparency that may reveal conflicts, little to nothing is being done to compel the lobbying firm to pick a side and stick with it - instead allowing them to represent clients who oppose a bill that other clients of the same firm support.
The F Minus analysis was conducted in 2024, but Browning says it is essentially up-to-date. Open Secrets, a different non-profit that also tracks government secrecy and lobbying, did its own study about lobbying, issued in 2022, which you can read here.
Browning began researching lack of transparency among lobbyists in 2014, two years after the mass killings of students and teachers at the Sandy Hook Elementary School in Connecticut. What he was finding was that pro-gun rights lobbyists were also working to attract public school systems as clients. He thought that was an odd pairing.
He wasn’t able to get funding for that research, but he continued to pursue the notion that a lobbying firm, in particular at the state and local levels, could be found to be representing clients on opposing sides of an issue.
The National Institute for Lobbying & Ethics, based just outside of D.C. in Fairfax , Va., offers guidance for lobbyists facing the potential of a conflict among clients.
The organization, which holds periodic training programs for lobbyists about compliance with laws, suggests that when a potential conflict arises, the lobbyist doesn’t necessarily have to choose between competing clients, but instead can inform them of the potential for conflict and see if they are ok with it.
“A lobbyist should not continue or undertake representations that may create conflicts of interest without the informed consent of the client or potential client involved,” the Institute suggests.
Law firms, by contrast, often will refuse a case if there is a conflict with another client. But it’s not a slam dunk. The American Bar Association’s rules for professional conduct also offers law firms an out: if they inform their clients of the conflict and the client doesn’t object and consents in writing, then they can go ahead and represent competing sides.
Could a state legislature put in place a ban on the ability of lobbying firms to represent clients of opposing sides of an issue? That could be a solution, but an unlikely one. It could be construed as violating rights of free speech and the right to petition the government – key components of the Constitution’s First Amendment.
Which leaves many opportunities for unregulated conflicts-of-interest, which can be hard to ferret out in the many states that don’t require much transparency from lobbyists. Browning, speaking to me about the forever chemicals conflict he found in Florida:
“Tax dollars are going to a firm that is also preventing legislation that would help clean up PFAS,” he said. “This is a perverse situation.”
But it is also an opportunity for state and local governments to flex their financial muscle. They could inform these lobbyists that they won’t hire them if their firms are working on the other side of an issue, such as representing companies that have poisoned drinking water with forever chemicals that their communities are facing daunting expenses to try to clean up..
“There is real leverage there,” Browning said.
Browning believes there are multiple opportunities for governments and industries to persuade lobbying firms they should become more transparent about their work, avoid conflicts – and take a side.
He said he had met recently with some top corporate lobbyists in Oregon, and they heard him out. They told Browning they would start to look at ways to resolvs some of the concerns he raised about transparency and conflicts-of-interest.
“It takes a massive effort to push through a bill that annoys a big part of the lobbying corps, but it is doable, “ Browning told me.
Stay tuned.
If you want to learn more about forever chemicals and the struggles of communities that have been harmed by them, two different chapters address forever chemical challenges in my book Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back.
The stories of Michael Hickey, who discovered poisoned drinking water in his hometown, Hoosick Falls, N.Y., and Diane Cotter, who found forever chemicals in firefighter turnout gear that was supposed to protect them from harm, offer both chilling and inspiring tales of how individuals can, in fact, make a difference in their communities - and across the nation. You can order the book directly from The New Press, my publisher, using the Backroom30 as a discount code.