What the U.S. Congress Keeps Doing Wrong and Why

Friday, December 9, 2011

Page 6

IN MY OPINION (Column)

What the U.S. Congress Keeps Doing Wrong and Why

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Our founding fathers in writing the Constitution of the United States wisely provided that all legislative powers shall be vested in a Congress of the United States. The year was 1787. The Congress was to consist of a Senate and a House of Representatives. Members of both houses were to be elected by the people and not by lobbyists or other special interests. In the ensuing years, we got along reasonably well. Then why is it that today only nine percent of the public approve of the way Congress is operating and fifty-six percent of Americans think Congress is corrupt? The underlying reasons are complex and innumerable. They can, however, be summarized in two words: Money and Ego.

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It was California’s formidable (they didn’t call him Big Daddy for nothing) speaker of the Assembly who coined the phrase that money is the mother’s milk of politics. How true. With the advent of television, there is no way by which a winning campaign for political office can be conducted without money. Candidates rely upon lobbyists and others for political contributions. Are there strings attached? None unless the donors are hired by eleemosynary institutions. Funds are thus channeled to the candidates or office holders: If these funds are campaign contributions, there may be some justification for legitimacy. Once the candidate is elected, it is difficult to distinguish further contributions from out and out bribery.

Lobbying has become a multi million dollar business in the United States. There are more full time lobbyists assigned to Congress than there are senators and representatives. It is a budding business. It deals with big money , and it is shrouded in secrecy. When newly elected President Obama nominated former Senate majority leader Tom Daschle to a cabinet position, the public first discovered that since his defeat, he had been heavily involved in major lobbying activities. Same can be said for nearly all retired, resigned or removed members of Congress. Former Speaker, Dennis Hastert, became a millionaire. Former Speaker Newt Gingrich earned 1.6 million dollars in consulting fees (he denies being a lobbyist.) Pretty good pay for a non-PhD in history. All these parties are no doubt well paid lobbyists who then used their influence in persuading Congress to act in a manner on behalf of private business. Yes, it pays more to be retired from Congress than to be a member, and these parties use their influence upon former colleagues. Who pays for this? Private interests. Those who hire lobbyists. These are the parties who in fact manage the government of the United States. If the founding fathers had wanted lobbyists to legislate, they would have said so in the Constitution. But they didn’t.

An astounding number of members of Congress are charged and more of them convicted of sex crimes, or at least sexual misconduct. While this cannot be blamed on the activities of lobbyists, it is another reason for the widespread view that the members of Congress are corrupt and in need of replacement. Then why is incumbency such a factor in re-electing an incumbent? Because gerrymandering has created “safe seats” and the widespread belief is that while Congress is largely corrupt, one’s own congressman and senator is not.

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Insider trading has been criminalized in corporate laws. Is it any more legitimate when practiced in the halls of Congress? It is not just a loophole. It is a giant sink hole. (Representative Dennis Hastert had a net worth of less than $300,000 when he entered Congress. When he retired, he was close to $11 million.)

Perhaps the system can be cleaned up. Another Jack Abramoff can be avoided by careful pinpoint legislation. There is an analogy. No retired member of the governing Board of Governors of the State Bar can represent an accused State Bar member who is facing discipline for a certain period of time following his or her service at the State Bar. Input from affected members of the population may be essential to effectuate the laudable purpose of legislation. It should not create the situation of throwing out the baby with the bathwater. Carefully crafted legislation, ineligibility to serve as a lobbyist for a specific period of time following service in Congress are just two of the many safeguards which can and should be enacted.

Strengthening of the existing Ethics Committees is but a beginning in this badly needed reform movement.