THE LAW AND ETHICS OF K STREET
Lobbying, the First Amendment, and the Duty to Create Just Laws


Daniel T. Ostas


Abstract: This article explores the law and ethics of lobbying. The legal 
discussion examines disclosure regulations, employment restrictions, 
bribery laws, and anti-fraud provisions as each applies to the lobbying 
context. The analysis demonstrates that given the social value placed 
on the First Amendment, federal law generally affords lobbyists wide 
latitude in determining who, what, when, where, and how to lobby. 

The article then turns to ethics. Lobbying involves deliberate 
attempts to effect changes in the law. An argument is advanced that 
because law implicates the use of force and because law ideally reflects 
the values of a democratic society, seeking to slant the law to serve a 
client's narrow interests cannot provide an adequate ethical end for a 
lobbyist. On the contrary, a lobbyist has an affirmative moral duty to 
seek reasonably balanced and just laws. The article examines, refines, 
and defends this proposition in a number of settings. 

Introduction 

Lobbying can be defined as a deliberate attempt to effect or to resist change in 
the law through direct communications with public policymakers including 
legislators, legislative staff, and executive branch officials.' One can lobby on one's 
own behalf as a "citizen lobbyist" or as a paid agent for a client. Paid lobbying 
typically occurs within the context of a "public relations team."^ In the parlance 
of the public relations industry, the lobbyist is the "contact person,"^ responsible 
for cultivating and maintaining personal relationships of trust with relevant policy 
makers. Other team members include a "public-relations strategist" who coordinates 
team activities, a "legislative lawyer" who analyzes and drafts proposed legislation 
and other legal documents, a "grass-roots organizer" responsible for mass mailings 
and fund raising, and a "media person" who coordinates advertising efforts.'' 
The team's goals are to assure that the client's perspective receives a full airing, to 
advance that perspective by proposing affirmative legal changes, and/or to block 
legal changes proposed by others. 

Although it is difficult to get an exact count, there clearly are a lot of lobbyists in 
Washington.' Some ofthe most visible are employed with high-powered "K Street" 

© 2007. Business Ethics Quarterly, Volume 17, Issue 1. ISSN 1052-150X. pp. 33-63 


BUSINESS ETHICS QUARTERLY 

law firms.^ These firms often employ high-profile senior partners with marquee 
names and represent numerous clients, each for a fee.^ More typically, lobbyists 
are employed in-house, working on salary for a single client. Most of the nation's 
largest corporations and labor unions maintain permanent public relations offices 
in the District complete with in-house lobbyists.* Most business associations, such 
as the Business Roundtable, and professional associations, such as the American 
Medical Association, maintain headquarters in the nation's capital as well. In addition, 
there is no shortage of so called "public interest groups."' In the 1960s and 
1970s, many of these groups, such as Ralph Nader's Public Citizen, tended to be 
associated with politically liberal causes. Today, pubhc interest groups span the 
political spectrum with conservative groups having surpassed—in membership 
and influence—those associated with the political left.'" Of course, public interest 
groups, like most major corporations and business associations, typically employ 
public relations staff, complete with paid lobbyists. 

Although the practice of lobbying is often maligned, it is important to note that 
lobbying plays a growing, useful, and perhaps even necessary role in our democratic 
republic. The recent and quite legitimate growth in lobbying activities has been fueled, 
in part, by advances in communications technology. More substantively, the 
growth in lobbying directly links to the expanded scope of federal legislation and 
the complexity ofthe corresponding administrative regulations used to implement 
the legislative will." Reflecting on the need for specialized knowledge and expertise 
in a regulatory state. President John F. Kennedy wrote: 

Lobbyists are, in many cases, expert technicians and capable of explaining 
complex and difficult subjects in a clear, understandable fashion. .. . They 
engage in personal discussions with members of Congress in which they can 
explain in detail the reason for positions they advocate.... Because our congressional 
representation is based on geographical boundaries, the lobbyists 
who speak for the various economic, commercial and other functional interests 
of this country serve a very useful purpose and have assumed an important 
role in the legislative process.'^ 

Hence, as President Kennedy emphasizes, lobbying has virtues and lobbyists play 
an important role in a representative government. 

Notwithstanding President Kennedy's optimism, today, the public is more likely 
to look at the practice of lobbying with a degree of suspicion. Perhaps this simply 
reflects a more politically cynical time. For example, in a 1964 poll, 76 percent 
of Americans said that they trusted government to do the right thing "just about 
always" or "most of the time."'' When the same question was asked in 1994, the 
number dropped to 21 percent,''' with about half of the respondents stating that the 
federal government was "controlled by lobbyists and special interests."'^ The public 
concern is not just with unsavory tactics employed by paid lobbyists on K Street, 
but more fundamentally with the ability of thefinancially well heeled to shape the 
law to serve their private interests rather than the public good. 


THE LAW AND ETHICS OF K STREET

Concern about lobbying is also expressed among lobbyists themselves. For example, 
in a recent study,fifty practicing lobbyists reflected on the ethical challenges 
faced by their industry.'* Several expressed deep concerns about the corrupting 
influence of money and the unequal access that money buys in our political system.'^ 
Several others questioned the presence of unprofessional conduct including 
widespread instances of untruthfulness, unresolved conflicts of interests, and a 
general willingness among both lobbyists and clients to seek private gain at the 
expense of the public good.'* Still others lamented a general public distrust of the 
lobbying system and noted the corrosive effect that distrust has on the functioning 
of democracy." In short, concerns with lobbying seem to be both widespread and 
deep-seated, and concerns are expressed by both the public at-large and among 
practicing lobbyists. 

A thorough examination of all the issues surrounding lobbying is beyond the 
scope of any single article; however, by examining one or two issues in detail, progress 
can be made. To this end, part I of this article surveys the major federal laws 
regulating lobbying activities and discusses the widespread legal freedoms enjoyed 
by both citizen lobbyists and paid lobbyists under current interpretations ofthe First 
Amendment. Part II then offers insights into the ethical exercise of those freedoms. 
In particular, it examines whether a paid lobbyist is ethically free to seek changes in 
the law that serve the client's interests, narrowly defined, or alternatively, whether 
the act of lobbying implies a social duty to cooperate with government officials in 
an effort to create reasonably balanced and just laws. Finding a duty to cooperate, 
the article examines how this duty could be implemented in differing contexts. The 
article begins with the legal framework. 

/. Legal Framework 

Several federal statutes directly address the practice of lobbying, including the 
Lobbying Disclosure Act of 1995^° and the Ethics Reform Act of 1989.^' The former 
seeks to reduce both corruption and the perception of corruption by shedding light 
on lobbying practices.^^ The latter addresses the so called "revolving door" between 
government service and lobbying, requiring a "cooling-off" period during which 
former government employees are prohibited from certain lobbying contacts.^' 
Other relevant laws include rules addressing bribery and gratuities.^'' In addition, a 
recent Supreme Court case, Nike, Inc., v. Kasky," provides insights into the law of 
fraud as it impacts on public relations activities. Of course, to the extent that any 
of these laws and judicial opinions restricts lobbying, the First Amendment will be 
at issue. The analysis begins with the Constitution and then discusses each area of 
lobbying law in ttim. Part I closes with a summary. 

A. Lobbying and the First Amendment 
The act of lobbying implicates no less than three First Amendment protections: 
free speech, freedom of association, and the right to petition government for the 


BUSINESS ETHICS QUARTERLY 

redress of grievances.^* When people lobby, they typically associate with a group 
so as to speak with government officials about matters of public concern. It is not 
surprising, therefore, that most, if not all, governmental efforts to restrict lobbying 
activities must be justified on constitutional grounds. 

Of the various rights implicated by lobbying, free speech clearly plays the 
leading role. Businesspersons, including lobbyists and their clients, enjoy First 
Amendment rights to free expression.^' Under current Supreme Court interpretation, 
the extent of these rights depends on whether the lobbying activity is deemed 
to be "commercial" or "non-commercial."^* If lobbying were deemed "commercial," 
then the "Central-Hudson test,"^' a so-called middle-ground standard for 
constitutional review would apply.'" Under this standard, regulations of otherwise 
lawful and not misleading speech must "directly advance" a "substantial government 
interest" and be "no more extensive that necessary" to meet that interest.^' 
Restriction of non-commercial speech, by contrast, would be even more difficult 
to justify, with content-based regulations receiving full strict scrutiny. Under this 
standard, the lobbying regulation must be the "least restrictive means" to achieve 
a "compelling government interest."'^ Because lobbying involves connmunications 
with government officials with an eye toward affecting the law, it would almost 
certainly characterized as non-commercial, triggering strict scrutiny and making 
content-based regulations very difficult to justify. 

Heightened scrutiny can also be triggered by the freedom of association. Association 
rights become relevant in a lobbying context whenever a disclosure statute 
or other lobbying regulation dissuades people from joining a group. For example, 
in NAACP v. Alabama,^^ the state sought to compel disclosure of the association's 
membership list. The NAACP argued that revealing the list could prove dangerous 
for its membership. The Supreme Court struck down the disclosure requirement 
reasoning that "state action which may have the effect of curtailing the freedom to 
associate is subject to the closest scrutiny."^" 

The First Amendment right to petition government is also relevant in lobbying 
cases. Historically, "petitioning" referred to a particular way of asking for and 
receiving consideration of an issue.^^ Citizens in early America would submit petitions 
and Congress was constitutionally bound to respond. '* Today the right is a bit 
of an anachronism. In fact, by the mid-nineteenth century, petitioning had proved 
impractical and the practice disappeared." Yet, the right to petition retains its relevance 
to public relations activities as a supplement to free speech doctrine. After 
all, lobbyists express grievances to government, and if lobbying can be characterized 
as "petitioning," then lobbying takes on the qualities of political speech, rather than 
commercial speech, which, in tum, would trigger strict scrutiny. In fact, several U.S. 
Supreme Court decisions have expressly incorporated the right to petition into the 
doctrine of free speech.'* Hence, the right to petition addresses lobbying, but as a 
supplement to speech doctrine, not as an alternative to it. 

Taken collectively, the rights to speech, association, and petition suggest that 
most laws that regulate lobbying will trigger some form of heightened scrutiny. 


THE LAW AND ETHICS OF K STREET

As Justice Blackman directly stated in his concurring opinion in Regan v. Taxation 
With Representation,^"^ "lobbying is protected by the First Amendment.""" Of course, 
heightened scrutiny does not necessarily mean that a lobbying regulation is unconstitutional. 
Some lobbying regulations are constitutional. For instance, in Regan the 
court upheld a federal regulation denying tax-exempt status to organizations that 
do a lot of lobbying, reasoning that the government does not have to subsidize free 
speech.'" Similarly, various regulations requiring public disclosure of paid lobbying 
activities at both the state and federal levels have typically been upheld.''^ For 
example, in U.S. v. Harriss,^^ a constitutional challenge to an early federal disclosure 
law, the Supreme Court expressly mixed together free press, speech, and petition 
rights to trigger First Amendment analysis, then relaxed the scrutiny emphasizing 
that disclosure does not prohibit speech but collects information.''^ The Court recognized 
that protecting the integrity of the political process is vital, concluded that 
the regulation was narrowly tailored, and then upheld the statute.''' 

In sum, the case law illustrates that lobbying is indeed protected under the First 
Amendment. The right to lobby, properly conceived, is a mix of rights, possibly 
implicating the rights of association, press, and religion, but resting primarily on 
the right to free speech, bolstered with references to a right to petition. Direct prohibitions 
on the content of political speech will almost assuredly fail constitutional 
scrutiny. If the lobbying activity is deemed to be commercial in nature, rather than 
political, or if the regulation affects only time and place or requires disclosure, then 
a middle-ground constitutional test will apply. Yet, even under this test, the regulation 
will need to be carefully tailored to tread lightly on the First Amendment so 
as to survive a constitutional challenge. 

B. Lobbying Disclosure Laws 
Congress enacted the first comprehensive federal lobbying disclosure law about 
a decade ago by passing the Lobbying Disclosure Act of 1995 (LDA).''* Section 
1601 of the Act sets forth its purposes in three congressional findings: 

Congress finds that— 

(1) responsible representative government requires public awareness ofthe 
efforts of paid lobbyists to influence the public decision-making process in 
both the legislative and executive branches of the Federal Government; 
(2) existing lobbying disclosure statutes have been ineffective because of 
unclear statutory language, weak administrative and enforcement provisions, 
and an absence of clear guidance as to who is required to register and what 
they are required to disclose; and 
(3) the effective public disclosure of the identity and extent of the efforts 
of paid lobbyists to influence Federal officials in the conduct of Government 
actions will increase public confidence in the integrity of Government.'" 
The first and third finding emphasize that disclosure is essential to reduce both 

corruption and the appearance of corruption too often associated with lobbying. 


BUSINESS ETHICS QUARTERLY 

Thefindings reference concern with "paid lobbyists," including both lobbyists on K 

Street who work for a fee and lobbyists who work "in-house" on salary for a single 

organization. The ideas, of course, are that sunshine is the best disinfectant and 

that a public who suspects corruption needs information to see who is doing what 

with whom. The secondfinding emphasizes that federal disclosure laws preceding 

the LDA were ineffective. 

Prior to 1995, there were two primary federal disclosure regulations: the Foreign 
Agents Registration Act of 1938 (FARA)''« and the Federal Regulation of Lobbying 
Act of 1946 (Lobbying Act of 1946)."' FARA was enacted to reduce the impact 
of Nazi propaganda on American foreign and domestic policy.^" In 1966, it was 
amended to focus on business lobbying,'' requiring lobbyists who represented 
foreign clients, including foreign corporations, to register with the U.S. Attorney 
General within ten days of contacting any federal official with the intent to affect 
government policy." The Lobbying Act of 1946 was more ambitious in scope, requiring 
the disclosure of lobbying activities on behalf of both foreign and domestic 
clients. The Act, however, was poorly drafted and narrowly interpreted." Ultimately 
it covered relatively few lobbyists. In fact, during the first three decades following 
enactment, there were only six prosecutions and one conviction under the Lobbying 
Act of 1946.^'' One commentator estimated that prior to passage of the LDA in 
1995 and considering all federal disclosure laws combined less than 10 percent of 
federal lobbying activities were being disclosed.^' 

With enactment of the LDA, Congress sought to dramatically increase both 
the scope and the effectiveness of the pre-existing laws. Section 1602 of the LDA 
provides key definitions.'* It defines a "lobbying contact" as a communication 
with a "covered official" with regard to public policy. It then defines a "lobbying 
activity" as an action "in support of a lobbying contact." "Covered officials" include 
legislators, legislative staff and executive branch officials. Lobbying contacts 
trigger registration requirements; lobbying activities must be disclosed.'^ In short, 
the scheme is fairly comprehensive and seems to be much better drafted that the 
legislation it replaces. 

Due to the LDA, today it is much easier to estimate the money spent on federal 
lobbying than it was just ten years ago. As evidence, consider the recent comments 
of Joan Claybrook, president of Public Citizen, a public interest group that monitors 
governmental activities.'' Claybrook recently commented that approximately 
60 percent of registered lobbyists represent corporate interests, but that they spend 
well in excess of 90 percent of the money.*" She then noted that in a recent two year 
span the pharmaceutical industry spent in excess of $180 million lobbying the federal 
government. Among the pharmaceutical industry lobbyist were "front groups" 
called the United Senior Association and Citizens for Better Medicare. Claybrook 
then emphasized that access to this information was the direct result of the LDA 
passed in 1995.*' Prior to that time, the data simply was unavailable. 

Of course, disclosure will not solve all of society's concerns with lobbying.*^ So 
long as money buys access, society must always remain concerned that the playing 


THE LAW AND ETHICS OF K STREET

field is uneven. And disclosure is not cost free; it takes time to fill out reporting 
documents, and someone has to collect, organize and store the records. But given 
the current concerns with special interests groups dominating Washington, it would 
seem that disclosure is unambiguously a step in the right direction. Perhaps as equally 
important, the Supreme Court has held that disclosure requirements do not violate 
First Amendment rights.*^ Hence, disclosure provides at least one constitutional 
tool for directing lobbying activities.*'' 

C. Lobbying and the Revolving-Door of Post-Government Employment 
A second area of federal law affecting lobbying involves post-government 
employment restrictions. It has been a common practice for government officials 
who leave public service to take employment as lobbyists, lobbying before the executive 
agencies or legislative committees on which they previously served.*' The 
practice is unsightly for a number of reasons. First, it accentuates the perception 
that Washington is an insider's game from which ordinary citizens are excluded. 
Second, and perhaps more importantly, it suggests influence peddling. Government 
officials who know that they may soon leave government have an economic incentive 
to give favors to potential employers.** The appearance of a potential quid pro 
quo is particularly troublesome. 

Congress addressed this so-called revolving-door problem in both the Ethics 
in Government Act of 1978*' and the Ethics Refonn Act of 1989.*^ Passed in the 
wake of Watergate, the Ethics in Government Act of 1978 was the first legislation 
introduced by the Carter Administration. Among other things, it provides for a 
one-year "cooling-off' period during which executive branch officials of GS-17 
or higher are prohibited from lobbying contacts with employees of the agency for 
which the official worked.*' The Ethics Reform Act of 1989 expanded the revolving-
door prohibitions to include the legislative branch. It provided, among other 
things, for a one-year cooling-off period, during which former members must not 
lobby members or staff of either chamber,™ and a one-year cooling off-period during 
which congressional staffers must refrain from contacting the employing member or 
committee for which the staffer previously worked." In addition, former members, 
legislative staff, and certain executive branch officials are prohibited for one year 
from certain lobbying contacts on behalf of foreign governments.'^ 

As soon as these revolving-door reforms were enacted they were attacked 

as inadequate." It seems that the restrictions have a number of "loopholes." For 

example, while former members and staff are restricted from certain "lobbying 

contacts," the legislation permits "lobbying activities." Under the statutory scheme, 

permissible lobbying activities include any and all public relations tasks other than 

the direct contacts associated with lobbyists as "contact person." Hence, former 

members and staff can effectively skirt the regulatory scheme by directing lobbying 

strategy, promoting grass-roots campaigns or coordinating media activities, while 

allowing others to make the personal contacts of former colleagues, committees, and 

departments.''' One study published in 1993 and critical ofthe practice showed that 


BUSINESS ETHICS QUARTERLY 

about half of all top committee aides leaving Congress since 1988 were engaged as 

lobbyists." Similarly, an April 1993 issue of Congressional Daily reported that of 

the 121 members leaving Congress foUovi'ing the 1992 election, forty were akeady 

involved in lobbying just three months later.'* Keeping the issue before the public, 

the 1992 presidential debates featured discussions of lobbying reform, partieularly 

with regard to the influence of "foreign lobbyists,"" and on his inauguration day. 

President Clinton signed an executive order applying more stringent lobbying re


strictions to his top 1100 political appointees.''* 

On the first day ofthe 103rd Congress, Senators David Boren and John McCain 
introduced a bill intended to close the loopholes in the post-government employment 
regulations. Senate Bill 420 proposed to reform the Ethics Reform Act of 1989 by 
lengthening the various cooling-off periods, expanding the list of officials to whom 
the restrictions apply, and broadening the scope of restricted practices to include 
activities in support of lobbying.™ The Bill passed the Senate in 1993 but failed in 
the House. ^ Thus far, the Bill has not been reintroduced. 

In short, the Ethics Reform Act of 1989, complete with its "loopholes," remains 
the law of the land with regard to lobbying employment restrictions. In spirit, the 
Act recognizes the need to remove the appearances of and incentive for corruption 
caused by post-government employment practices. However, the letter of the Act 
is weak, and post-government employment lobbying remains common. 

D. Other Laws Affecting Lobbying 
Although registration/disclosure and post-govemment employment provisions 
provide core elements of the legal fi-amework regulating lobbying, other laws are 
applicable as well. Of particular interest to lobbyists are a set of laws defining and prohibiting 
bribery and another set regulating the giving of honoraria, gifts, and gratuities. 
Also of interest are legal rules relating to truth telling, including the laws of perjury 
and fraud. Each of these issues, as it applies to lobbying, is discussed in tum. 

1. Gifts, Honoraria, Bribery, and Unlawful Gratuities 
Lobbyists interact with government officials in various settings and in a number 
of ways.*' Sometimes they meet over meals or at banquets and other soeial engagements. 
At times the government official may be a guest speaker. In these and other 
settings, gifts may be given and meals paid for. Care must taken not to run afoul 
of congressional rules regarding gifts and honoraria or the more generally drawn 
statutory prohibitions against bribery and the giving of unlawful gratuities. 

First consider rules regarding gifts and honoraria. Congressional rules set monetary 
limits on gifts. Senate rules provide that members, officers, and employees may 
accept gifts valuing up to fifty dollars with a total of one hundred dollars from any 
one donor.*^ House rules bar gifts of any value." These rules, however, have many 
exceptions, which some in the press have labeled "loopholes."*^ In a similar vein, 
the Ethics Reform Act of 1989 seeks to eliminate the appearance of impropriety 
associated with unsightly honorarium. One commentator writes: "We got rid of 


THE LAW AND ETHICS OF K STREET

 41 

honorarium in 1989. It used to be that a member of Congress could be asked by 
the Trucking Association to come down the street and give a breakfast talk for ten 
minutes and get paid $2000, which he puts in his pocket."*^ Again, the issues seem 
to be corruption and, perhaps as importantly, the appearance of corruption. 

Two federal criminal statutes, one prohibiting bribery and the other unlawful 
gratuities, are relevant in the public relations context as well. The bribery statute 
prohibits giving, promising, or offering "anything of value" to a member of Congress 
or other public official with the "intent to influence any official act."^*" The anti-
gratuity statute prohibits the giving of "anything of value" to a public official "for 
or because of any official act performed or to be performed" by the public official. 
The gratuity statute was at issue in U.S. v. Sun-Diamond Growers of Califomia.^^ 
Sun-Diamond, which lobbied on behalf of producers of raisins, figs, and nuts, was 
indicted for giving the Secretary of Agriculture gifts valued at about $6000 (sports 
tickets, meals, and a crystal bowl). The indictment did not allege a quid pro quo 
(as would be required for bribery), but it did specify that at the time of the gifts, 
the Secretary was considering matters in which the fruit and nuts growers had an 
interest. The District Court jury convicted Sun-Diamond of violating the anti-
gratuity law, the D.C. Circuit reversed on the basis of faulty jury instructions, and 
the Supreme Court upheld the reversal.^* The case illustrates the imprecise nature 
of the anti-gratuity statute and the corresponding need for professional judgment 
to avoid the appearance of impropriety. 

Navigating around bribery and anti-gratuity statutes becomes particularly tricky 
whenever a lobbyist is discussing campaign contributions. In their oft-cited book. 
Lobbying Congress: How the System Works, Bruce Wolpe and Bertram Levine describe 
the dilemma.*' They write: "Bribery is the most serious crime that can afflict 
the legislative process. A lobbyist must never discuss a financial contribution in the 
context of legislation. Telephone conversations and meetings must be parsed into 
separate discussions, to keep these matters fully divorced."* Of course, in many 
situations this advice is more easily given than followed. It would seem that avoiding 
impropriety or the appearance of impropriety in the presence of vague and seldom 
enforced criminal statutes and under the corrupting influence of pecuniary self-
interest would require both moral courage and seasoned professional judgment. 

2. Truth-Telling 
Another interesting issue surrounding lobbying involves the law and ethics of 
telling the truth. Lobbyists provide information to policymakers. The question arises 
as to the legal consequences of lying, concealing or obfuscating. Of course, if the 
information is given under oath, then federal perjury laws become applicable. But 
most information is not under oath. Perhaps a fraud standard would apply, but even 
here there are difficulties. For example, common law fraud can be defined as an 
intentional or reckless statement of material fact reasonably relied upon causing 
injury." Under this standard, it appears uncertain that a legislator who is lied to 
would have standing to sue because he or she arguably would suffer no injury. In 


BUSINESS ETHICS QUARTERLY 

fact, there does not appear to be any federal law that directly prohibits a lobbyist, 

either paid lobbyist or citizen-lobbyist, from lying to a legislator. 

It is unclear as to how prevalent intentional misdirection and obfuscation is within 
the lobbying industry. The differing opinions of two lobbyists frame the debate.'^ 
One lobbyist offered a fairly optimistic view: "You can't lie; what you've basically 
got is your word and reputation."'^ The more pessimistic stated: "In my experience, 
both corporations and nonprofits can be untruthful in their lobbying efforts. And it 
isn't just about withholding damaging information. It's about actively presenting 
distorted or dishonest infonnation. I worry that it has become appropriate in D.C. 
for lobbyists to flat-out lie."''' 

The issue of truth telling arose recently in the widely publicized case of Nike, 
Inc., V. Kasky. '^ Although the Kasky case does not involve lobbying, it highlights 
the potential for deliberate misrepresentations in public-relations campaigns in 
which lobbying may be a component. Nike's management conducted a public-
relations campaign that included letters to newspapers, university presidents, and 
athletic directors stating that Nike did not use sweatshop labor or other unsavory 
labor practices.'^ Kasky, a concerned citizen, sued pursuant to a false advertising 
statute.'' Nike demurred, arguing that because the communications were "noncommercial," 
any application of a content-based restriction, including the false 
advertising regulation in question, would be barred by the First Amendment.'* In 
essence, Nike claimed a constitutional right to lie in public-relations campaigns. 
Both the trial judge and California Court of Appeals sustained Nike's demurrer." 
The Supreme Court of California reversed and remanded in favor of Kasky. '^ The 

U.S. Supreme Court first granted and then declined certiorari."" Ultimately, the 
case was settled for $1.5 million, with the money donated to a Washington public 
interest group that monitors labor practices.'"^ The sum represents less than Nike's 
average daily advertising budget.'"^ The case was never subjected to discovery nor 
tried on the merits.'"^ 
The Nike case illustrates the difficulty in regulating the truthfulness of assertions 
made within public-relations campaigns. Ultimately, the case turned on whether 
Nike's speech was characterized as commercial or non-commercial; a question 
upon which the California Court of Appeals and California Supreme Court differed. 
Lobbying, by contrast, would seem to reside squarely in the non-commercial camp 
and under current law, non-commercial speech, particularly politically motivated 
speech, receives considerable constitutional deference. In short, if it is constitutionally 
difficult to regulate the truthfulness ofthe content of a letter to a school athletic 
director, then it would seem even more difficult to regulate the truthfulness of a 
letter to a Congressperson. In this light, the truthfulness of lobbying activities will 
have to depend on the lobbyist's desire to preserve his or her reputation for honesty 
and on personal ethics, perhaps monitored by non-governmental organizations and 
the press, rather than on direct legal regulation. 


THE LAW AND ETHICS OF K STREET

E. Summary 
The above survey of the law demonstrates that lobbyists have been entrusted 
with wide latitude in determining who, what, when, where, and how to lobby. This 
is largely true because of the societal respect afforded to First Amendment liberties. 
Whether one characterizes the right to lobby as a free speech right, a right to 
petition the government, or as an amalgam of the two, it is clear that lobbying and 
lobbyists enjoy First Amendment protections. Hence, the government is constitutionally 
constrained in regulating lobbying. 

The legal analysis also demonstrates that the various substantive areas ofthe law 
that address lobbying are more often than not conflicted, gap riddled, and/or poorly 
enforced. For example, revolving-door legislation provides for cooling-off periods, 
but currently applies only to direct lobbying contacts and not to other public-relations 
activities. Hence, the revolving door remains ajar, leaving both an incentive for and 
the appearance of inside dealing. Similarly, bribery law makes it illegal to give, offer, 
or promise anything of value in exchange for a public favor; yet, regulators routinely 
leave government to work for companies that they previously regulated. Although 
not technically a bribe, the economic incentives to act with favor for one's future 
employer would seem hard to resist. In addition, there appears to be no federal law 
that directly prohibits a lobbyist from lying to a legislator. 

For better or worse, the primary means of regulating lobbying activities currently 
resides in public registration and disclosure statutes. Perhaps sunlight is indeed the 
best way to assure public confidence in the lobbying process. Although disclosure 
regulations do not directly address the issues of who, what, when, where, or how, 
the public information that reporting provides could have much the same effect. 
In the end, whether a lobbyist cooperates with the policies that underlie lobbying 
regulations or feels free to exploit regulatory loopholes and constitutional freedoms 
will largely depend on his or her personal values and ethics. It is to these questions 
of ethics that the discussion now turns. 

//. Ethical Framework 

Several attempts have been made to specify the ethical norms associated with 
the practice of lobbying.'"' One particularly thorough and insightful study, recently 
published by the Woodstock Theological Center at Georgetown University 
(Woodstock Study), develops and defends seven principles (Woodstock Principles) 
designed to give ethical guidance and advice to practicing lobbyists.'"* Although the 
Woodstock Study does not purport to give the final word on the subject, it offers a 
useful survey of ethical issues together with a framework upon which to base further 
analysis. The present discussion begins with a brief presentation and a general 
assessment of the Woodstock Principles collectively, and then uses this discussion 
as a base from which to focus on a single query. Is lobbying an appropriate venue 
for self-interested competition through which a lobbyist seeks to shape the law for 
private gain, or does a lobbyist owe a civic duty to cooperate with public officials 


BUSINESS ETHICS QUARTERLY 

to advance the public good? Before tuming to this query, the discussion begins with 

the Woodstock Principles generally. 

A. 
The Woodstock Principles: A General Assessment 
The Woodstock Study resulted from a three-year effort by a team of researchers 
sponsored by the Woodstock Theological Center, a non-profit research institute.'"^ 
The self-described mission of the Center is "to engage in theological and ethical 
reflection on topics of social, economic, and political importance."'"* The Center 
conducts seminars and conferences, and supports research that has led to a series of 
articles and books examining the ethical dimensions of public policy issues. Previous 
works published by the Center include: Ethical Issues in Corporate Takeovers 
(1990), Ethical Considerations in Business Aspects of Health Care (1995), and 
Ethical Issues in Managed Health Care Organizations (1999)."" The Woodstock 
Study on lobbying cites three motivations: (1) lobbying is increasingly prevalent 
and important, (2) public distrust of lobbyists is currently high and growing, and (3) 
lobbyists need standards of professional conduct parallel to those provided by the 
"American Medical Association and the American Bar Association.""" Ultimately, 
the Woodstock Study seeks to offer ethical advice and counsel that practitioners 
will find useful in resolving ethical conflicts. 

The Woodstock Study is organized and presented in four parts.'" The first part 
is "empirical," with the authors reporting thefindings of numerous interviews and 
focus-group discussions conducted with Washington lobbyists."^ Part two then 
organizes this empirical information, asking such questions as who is doing what 
with whom and to what result?"' In part three, the authors briefly discuss four ethical 
traditions: (1) Aristotelian "virtue ethics," (2) "rule-oriented ethics" derived from 
"Hebrew Scripture;" (3) a "prophetic tradition" oriented to helping the "poor and 
powerless;" and (4) a "democratic tradition" emphasizing individual equality.''" The 
authors then use these four traditions to evaluate current lobbying practices. In part 
four, the authors propose "action;" in particular, they offer a set of seven principles 
intended to provide practical guidance to members ofthe lobbying industry.'" 

Each of the seven Woodstock Principles has several subparts. The principles, 
without the subparts, provide: 

1. 
The pursuit of lobbying must take into account the common good, not 
merely a particular client's interests narrowly considered. 
2. 
The lobbyist-client relationship must be based on candor and mutual 
respect. 
3. 
A policymaker is entitled to expect candid disclosure from the lobbyist, 
including accurate and reliable information about the identity of the client 
and the nature and implications of the issues. 
4. 
In dealing with other shapers of public opinion, the lobbyist may not 
conceal or misrepresent the identity of the client or other pertinent facts. 
5. 
The lobbyist must avoid conflicts of interest. 

THE LAW AND ETHICS OF K STREET

6. 
Certain tactics are inappropriate in pursuing a lobbying engagement. 
7. 
The lobbyist has an obligation to promote the integrity of the lobbying 
profession and the public understanding ofthe lobbying process."* 
Taken collectively, the Woodstock Principles are very comprehensive. In fact, 
when read in conjunction with their subparts, they address virtually every contingency 
facing the lobbying industry. For example. Principle 6 states that "certain 
tactics are inappropriate." The details are found in four subparts. The second 
subpart condemns "attacks on a person's character" (character assassination); the 
third forbids the use of "phantom issues" (red herrings) to divert attention from 
the actual effects of legal changes."^ Although both character assassinations and 
red herrings could be effective, neither is appropriate. Thus, even if the Principles 
seem vague, when read in conjunction with the subparts, they become both clear 
and comprehensive. 

On first blush, the Woodstock Principles may read like bold and unsupported 
assertions. Note, however, that these "assertions" were produced through a self-
conscious process whereby data was collected, organized, and reflected upon with 
open dialogue throughout. The assertive quality of the Principles derives most 
directly from the evaluative step of the study. In that step the authors identify and 
accept four "ethical traditions," including a "prophetic tradition" to "speak on 
behalf of the poor and powerless,"' '^ and a "democratic tradition" that emphasizes 
"equahty of voice in resolving disputed public questions, and concrete equality 
of opportunity in the pursuit of a meaningful life."'" It would seem that once one 
accepts these traditions as axiomatic, all that remains are the pragmatic questions: 

(1) how best to resolve conflicts among traditions so as to identify proper goals, 
and (2) how best to achieve those goals once identified. In this light, the articulation 
and embrace of specific traditions, such as prophetic and democratic, and the 
potential for ignoring other traditions, such as utilitarian or libertarian, seemingly 
plays a crucial role in the advice given. 
In summary, the Woodstock Study provides a very comprehensive set of principles. 
Of course, these principles do not carry the force of law and ultimately 
their persuasiveness depends on the strength of the arguments articulated in support. 
Simply asserting that a lobbyist should do one thing and not another will not 
suffice. One needs to inquire into the basis of any such assertion. To this end, the 
following section examines the first Woodstock Principle in some depth, exploring 
the source and scope of a lobbyist's duty to use lobbying as a means to advance 
the common good. 

B. Duty to Create Reasonably Balanced and Just Laws 
The present inquiry into lobbying ethics now focuses on a fundamental question 
with regard to a lobbyist's civic duties. Is lobbying an appropriate venue for 
self-interested competition through which the lobbyist seeks to shape the law for 
private gain, or does a lobbyist owe a civic duty to cooperate with government officials 
to advance the public good? To advance the analysis, this section fashions 


BUSINESS ETHICS QUARTERLY 

a debate, beginning with an expansive view of a lobbyist's civic duties, followed 

by a restricted view, and concluding with an assessment and partial synthesis of 

the competing views. 

The debate assumes throughout that a paid lobbyist has a duty of fidelity to do 
the client's bidding and that a lobbyist should be loyal to that duty. However, the 
analysis also recognizes the truism that a client, as principal, cannot ethically authorize 
a paid lobbyist, as agent, to take an action that the client could not ethically 
take. Hence, if the client owes a duty to cooperate with public officials, then so 
too does the paid lobbyist. This is true whether the lobbyist comes from K Street 
or is employed in-bouse. In this light, tbe paid lobbyist's civic duties are at least 
as broad as the client's civic duties if the client were to lobby on his or her own 
behalf and one can speak of the civic duties owed by the various types of lobbyists 
interchangeably. Recognizing this truism removes agency issues and focuses attention 
on the civic duties owed by people of influence and power regardless of their 
status. Although the ethical issues surrounding the agent-principal relationship can 
be interesting, the more fundamental question inquires into the ethical issue owed 
by the principal, or alternatively, by the citizen-lobbyist. The discussion begins with 
the expansive view of those duties. 

1. The Woodstock View: Lobbyist as Public Citizen 
The Woodstock Principles unambiguously support the notion that a lobbyist 
owes a robust civic duty to promote the "common good" of society. Principle 1 
boldly asserts: "The pursuit of lobbying must take into account the common good, 
not merely a particular client's interests narrowly considered."'^" The authors support 
this assertion by explaining that a "genuine commitment to the common good 
.. . by clients, lobbyists, and policymakers, is essential if the integrity of American 
democracy is to be preserved."'^' 

The Woodstock authors also recognize the natural human tendency to seek self-
interest. Reflecting on the social aspirations and moral values that underlie law, 
the authors insist that lobbyists must cooperate with the spirit of the law and help 
public officials promote the common good. They write: 

In a culture that celebrates the pursuit of self-interest and individual and corporate 
success, the spirit of law, which properly looks to the common good, 
directly conflicts with the operative tendency to shape and apply existing rules 
in a way that favors private and partisan interests. This traditional conflict 
which is inseparable from politics explains why civic virtue is so important 
in public life. Civic virtue disposes those who make and influence public 
decisions to think, speak, and act on behalf of the commonweal.'^^ 

The above quote suggests that there is something unique about the spirit of the law 
that requires both cooperation with public officials and self-imposed restraints on 
the pursuit of self-interest. 

Reflecting on the nature of law, there does seem to be something of ethical 
significance afoot. In the marketplace, businesspeople are expected, and typically 
even encouraged, to compete on such things as product quality, price, and cus



THE LAW AND ETHICS OF K STREET

tomer satisfaction. The buyer is encouraged to get the lowest price, the seller to 
seek the highest. As a matter of public policy, the focussed pursuit of self-interest 
in a marketplace is generally a good thing, not bad. By contrast, when lobbying 
for legal change, a single-minded pursuit of self-interest untempered with concern 
for the common good seems inappropriate. It seems inappropriate in part because 
law imphcates the use of force, not choice, as one would find in a marketplace. It 
also seems inappropriate because ideally law reflects, or at least seeks to reflect, 
the social aspirations of a democratic society. Given these distinctive qualities of 
law, perhaps when lobbying for legal a change, marketplace norms of self-dealing 
become out of place. 

First, consider the ethical implications associated with the use of force or violence. 
Recall that this article began by defining lobbying as a "deliberate attempt 
to effect or to resist changes in the law."'^' Law, of course, is backed by force. If 
one disobeys, a police officer may arrive at one's door armed with both billy club 
and cuffs.'^^ Force, in turn, requires justification, and it would seem that the selfish 
pursuit of material self-interest is unlikely to suffice. To justify force against one's 
fellow man, one needs a higher principle than one's own self interest. 

Legal philosophy offers various justifications for the use of legal force. Consider, 
for example, the justification offered by a natural law perspective. Natural law 
philosophy asserts that one cannot separate legal and moral inquiries.'^^ Moreover, 
when person-made law and moral law conflict, one must reform person-made law to 
conform to morality. Natural law presupposes that there are moral principles of right 
and wrong and insists that person-made laws conform to these principles. Of course, 
a lobbyist who adopts a natural law perspective would not be free to use the law as a 
competitive weapon for personal gain. Instead, moral judgments and a corresponding 
concern with the common good would guide his or her lobbying efforts. 

Although the natural law perspective remains a minority view, most legal philosophers 
admit that law has, or at least should have, some justifying referent beyond the 
exercise of pure power.'^* Consider, for example, legal pragmatism.'^'' Pragmatists 
view law as an instrument of social pohcy, with policy goals identified through an 
open dialogue with all affected stakeholders.'^* Both the goals and the laws designed 
to achieve those goals are re-evaluated in the light of experience. If a given 
law fails to achieve its goal, or the goal changes, then the law is changed. '^' Law 
takes on an organic quality, ever evolving. The process is somewhat complicated, 
messy, and imprecise; but ultimately, it is rooted in creative moral reflection, open 
dialogue, and democratic consensus. This democratic process gives law legitimacy 
and justifies the use of force to exact obedience. 

The Woodstock Study seems to embrace a pragmatic view of law. With regard 

to the regulatory process, the authors write: 

Public policy formation is a fallible but self-correcting process whereby 
ordinary citizens and their elected representatives seek to rise above private 
interests and desires to discern what is good for the country as a whole. 
This enlarged, public-spirited mentality is the hallmark of genuine political 


BUSINESS ETHICS QUARTERLY 

thinking. It is an essential part of civic virtue and a basic requirement for a 
sustainable democratic society."" 

Reflecting legal pragmatism, the above quote offers an optimistic view of both 
government officials and the content of most regulatory laws. This view, consistent 
with the "Public Interest Theory" of regulation, casts both law and regulators in 
positive lights.'^' Regulators regulate in the public interest and regulations reflect 
the aspirations of a democratic society. In such a world, lobbyists are expected to 
cooperate with the regulatory process. 

Although few political philosophers have directly addressed the topic of whether 
a citizen has a duty to help government officials create reasonably just laws, there 
is a fairly sizeable literature addressing the duty to obey law once it is enacted.''^ 
Most political philosophers support a duty to obey reasonably just laws. Most often 
this duty is defended with some variant of social contract reasoning.'" John Rawls 
takes a different tack, grounding an obligation to obey law, not to a hypothetical 
social contract, but to a fundamental duty to support reasonably just institutions."'' 
Of course, if a duty to support just institutions generates an obligation to obey laws 
once enacted, then this same duty would seem to support an obligation to create 
reasonably balanced laws as well. In this bght, responsible businesspeople should 
see themselves as partners who cooperate with government officials in setting 
regulations. The lobbyist who accepts the norms of cooperation and partnership 
works with government officials with an eye on the common good. 

In sum, the authors of the Woodstock Study side squarely with the proposition 
that lobbyists (both paid lobbyists and citizen lobbyists) have an ethical obligation 
to lobby in favor of reasonably balanced and socially minded laws. This obligation 
derives from the unique character of law. Although businesspeople typically are 
encouraged to seek self-interest in the marketplace, the lobbying for legal change is 
a not a proper venue for wholly self-serving action. This is because law implicates 
force, not choice, and because ideally law embodies social aspirations. Recognizing 
both the public interest underpinnings of regulatory law and a fundamental duty to 
support just institutions, lobbyists are expected to consider the public good when 
engaging in lobbying activities. 

2. An Alternative View: Lobbyist as Advocate 
Perhaps the chief alternative to the Woodstock view is to claim agnosticism and 
to fall back on the procedural justice of client advocacy. In this light, consider the 
words of Thomas Susman, a partner in the K Street law office of Ropes & Gray and 
former chair of the American Bar Association's Committee on Legislative Process 
and Lobbying. Recently asked to comment on the Woodstock Study, Susman challenged 
the workability ofthe first Woodstock Principle, and particularly the notion 
of a "common good." He stated: 

I have trouble with the concept that there is an immutable common good 

that provides a measurable guidepost for lobbying activity. I think it fair to 

propose that members of Congress remain faithful to the goal of promoting 


THE LAW AND ETHICS OF K STREET

the common good, as well as the well-being of a constituency. But is it my 
job, as a lobbyist, to determine whether the common good is best served by 
cheap power provided by hydroelectric plants that can make electricity more 
readily available to the poor, or by maintaining pristine waterways? I think 
that's Congress's role, not mine.'" 

In essence, the above comments reflect an "advocacy model" of lobbying, wherein 
the lobbyist has little or no direct concern with the justice of the view being advocated. 
Apparently Susman would be equally at ease lobbying for or against the 
hypothetical hydroelectric plant he cites with little or no reference to what he perceived 
to be the common good. Other practicing lobbyists seem to share this view. 
Eor example, one lobbyist succinctly states: "My job is to advance the interests of 
my association or client. Period."'^* The quote fails to recognize any concern with 
the legitimacy of the client's interests. Again, the idea seems to be that Congress, 
much like a judge in a court of law, will protect the common good and the lobbyist 
is free to promote the client's selfish pursuits supposedly checked by an equally 
aggressive advocate lobbying for the opposing side. 

An advocacy view of lobbying also seems to pervade the Code of Ethics promulgated 
by the American League of Lobbyists (ALL), a self-described "national 
professional association dedicated exclusively to lobbying.""^ Comparing the ALL 
Code with the Woodstock Principles several interesting contrasts appear. Most strikingly, 
whereas the Principles are permeated with civic duties and commitments to the 
common good, such references are completely absent in the ALL Code. Contrasts 
also appear in sections dealing with the client relationship. The Woodstock authors 
insist that clients cannot authorize agents to behave in unethical ways. Hence, they 
note that a lobbyist must use independent judgment and refuse "to undertake an 
assignment or continue with an assignment from a client [unless the lobbyist is 
satisfied that] the client is committed to acceptable ethical standards.""^ By contrast, 
the ALL Code envisions no such censoring role, stating only that "a lobbyist should 
vigorously and diligently advance and advocate the client's or employer's interests, 
and, to the extent possible, should give the client the opportunity to choose between 
various options and strategies.""' 

The advocacy model of lobbying, as reflected in Susman's quote and articulated 
more fully in the ALL Code, seems to assume that self-interested competition between 
competing interest groups can lead to acceptable social results. Consistent 
with the "Pluralist Theory" of regulation popular in the 1950s, the idea is that so 
long as all stakeholders are heard, no single stakeholder need be concerned with the 
public good because the process will generate a socially acceptable outcome.'"" In 
such a world, lobbyists are free to focus solely on how to change the law to serve 
their own interests, with no direct duty to seek socially balanced laws, and K-Street 
lobbyists are free to espouse Susman's brand of social agnosticism. 

The difficulty with the pluralist view, of course, is that affected stakeholders 
sometimes do not take part in the lobbying process. Beginning in the 1960s, political 
scientists writing under the rubric of Public Choice explained how the logic 


BUSINESS ETHICS QUARTERLY 

of collective action leads to the systematic over-representation of some interests 
groups in favor others.'"" It seems that lobbying has costs and these costs will only 
be worthwhile to an individual or group if the benefits of lobbying are direct and 
substantial to that individual or group. According to Public Choice Theory, this 
economic logic results in a set of regulations that systematically favors the politically 
well organized with narrow interests at the cost of the common good. In this 
light, the pluralistic view seems at least somewhat naive.'''^ 

Economists offer a particularly pessimistic view of the regulatory process under 
the so-called Capture Theory. '*^ According to the Capture Theory, businesspeople use 
regulatory law to secure private gain, most notably through erecting barriers to entry 
that secure economic rents. '"^ They achieve these gains, in part, by controlling the 
flow of information that government officials receive through lobbying.'"' Influence 
is also achieved through the perverse incentives created by the so-called revolving 
door of regulation whereby regulators are drawn from firms whom they regulate and 
retum to those firms upon completing their term of pubhc service.""" According to 
the Capture Theory, these perverse incentives together with the control of information 
provided by lobbyists result in a set of regulations (e.g., rate controls, product 
standards, licensing requirements) that mirror those created by economic cartels."" 

The social science views associated with Public Choice and the Capture Theory 
have dominated the regulatory literature over the past thirty years or more. Reflecting 
on these theories one is struck by the cynical view of law that they espouse. Under 
either theory, much of regulatory law lacks social purpose or moral underpinning. 
Law is simply a command of the sovereign and backed by force. When combined 
with the traditional economic assumptions regarding self-serving and rational 
behavior, the models predict that lobbyists will use legal reforms to secure private 
pecuniary ends, rather than to serve the common good. 

Of course, both Public Choice and the Capture Theory offer positive descriptions 
of how the regulatory process works, rather than normative prescriptions of 
how it ought to work. The models suggest that given the logic of collective action, 
some stakeholders are more likely to be heard than others. The difficult normative 
question for a lobbyist is what should be done if one finds oneself in a position of 
advantage. It seems that so long as all sides of an issue are represented, advocating 
one's self interest without direct reference to notions of the common good may 
be ethically defensible. Perhaps this is what both Susman and the authors of the 
ALL Code had in mind. But what if, given the logic of collective action, no one 
is arguing for the other side? In such situations, is one ethically free to exploit the 
regulatory process for private gain? Ultimately the answer to this ethical question 
depends on the factual nuances ofthe particular case and specific context in which 
the lobbying occurs. The discussion now turns to these issues. 

3. Finding a Synthesis: The Relevance of an Adversarial Context 
Comparing the Woodstock perspective with the advocacy model discussed in the 
previous section, perhaps one can find a degree of truth in each. Consider first the 


THE LAW AND ETHICS OF K STREET

Woodstock proposition that unbridled competition is inappropriate in a lobbying 
context. According to this view, unbridled competition may make ethical sense in 
the economic realm where the seller's desire for the highest price is checked by 
the buyer's desire for the lowest. It may also make sense in a court of law where 
counsel represents both sides. But in a lobbying context, where all sides may not be 
heard, pursuit of unbridled self-interest may appear to be an exercise of power and 
privilege. From the Woodstock perspective, ethical self-restraint and commitment 
to the common good are not a matter of choice for lobbyists; they are indispensable 
to the functioning of a democratic society. 

The Woodstock argument is bolstered by the notion that law encompasses an 
element of force. In essence the lobbyist is seeking to use the law io force a fellow 
citizen to behave in ways he or she otherwise would not. This use of force requires 
ethical justification. Comparing the natural law and pragmatic justifications associated 
with the Woodstock view with the positivistic power perspective associated 
with Public Choice and the Capture Theory, the former must be preferred. To 
legitimize political power and the use of force, one needs either moral principles 
or democratically determined social values. Power cannot be its own justification. 
In this light, the Woodstock proposition that a lobbyist "must take into account the 
common good" seems well supported, and perhaps even undeniable. 

Yet, the practical questions remain as to how the "common good" is to be both 
identified and achieved. This, in turn, may depend on context. Several authors 
have argued that the advocacy rules contained in the Model Code of Professional 
Responsibility, adopted by the American Bar Association (ABA) in 1969, or Model 
Rules of Professional Conduct, adopted by the ABA in 1983, could be adapted 
to the lobbying industry. One author has suggested selective incorporation of the 
ABA advocacy rules designed to guide "non-adjudicative proceedings."'"** Another 
has proposed adapting ABA conflict-of-interest rules to the lobbying context.'"' 
The suggestion in each of these proposals is that the practice of law is sufficiently 
similar to lobbying to adapt the rules of the former to the latter. The difficulty with 
this comparison, however, is that law is practiced within an adversarial context, 
this may or may not be true with regard to lobbying. 

The judicial system is unabashedly adversarial. The system provides for an attorney 
acting the part of zealous advocate on both sides of the issue at hand. The attorney 
is ethically renuss if he or she falters even slightly in the dogged pursuit ofthe client's 
interests. The system has been crafted to achieve a legitimate synthesis of views. All 
parties argue before an impartial judge and/or jury, putting forth evidence and challenging 
the evidence put forth by tbeir adversaries. A record is kept and an appeal is 
possible. Ex parte communications with either judge or jury are strictly forbidden. 
Cumulatively, the system represents an ethical and civilized way to handle disputes 
and controversies. It provides a mechanism for defending the rights and interests of 
all parties and typically provides reasonably just results. Given the fairness of the 
process, zealous advocacy of self-interest appears entirely appropriate. 


BUSINESS ETHICS QUARTERLY 

The problem with analogizing the practice of law to the practice of lobbying is 
that lobbying is not always conducted in an adversarial setting. Often there is no advocate 
representing the other side ofthe issue. In addition, communications between 
lobbyist and legislative staff are not subject the rules of evidence and may be very 
informal and private. Ex parte communications are common. There is no guarantee 
that the public official will be unbiased, no formal record, and no formal means for 
appeal. All these distinctions suggest that the notion of "zealous advocacy," which 
may be a virtue in a court of law, may become a vice in a lobbying context. 

This is not to mean that the advocacy model offered by Susman and ALL 
Code is wholly misapphed to the practice of lobbying; rather, it suggests that one 
needs to take into account the context in which specific lobbying activities are 
occurring, and tailor one's pursuit of self-interest accordingly. In some contexts, 
for example, all parties are represented and evidence is presented in open forums 
under the spotlight of public concern. Here, advocacy of self-interest, rather than 
advocacy ofthe common good, is probably permissible and perhaps even required. 
For example, consider the public nature of current lobbying efforts aimed to open 
(or close) Alaskan reserves for gas exploration or the current public debate over 
embryonic stem cell research. In such highly publicized and open debates, a lobbying 
model that encourages both sides to argue in opposite directions and leaves 
it to Congress to serve as the ultimate arbiter of the common good makes sense. 
In such contexts, there is no need for a lobbyist to be directly concerned with the 
common good, because, as in a court of law, the system produces reasonably balanced 
and just laws. 

In other lobbying contexts, however, the notion of individual advocacy and the 
corresponding lack of concern with the common good cannot be defended. For 
example, suppose a legislative body is considering modifying the licensing requirements 
for morticians and that morticians have a trade association complete with a 
legislative liaison and an in-house lobbyist. The morticiansfind that they are the only 
ones lobbying the legislature. The press and public have no interest and legislative 
staff members addressing the licensing standards have relatively little information 
or expertise. The morticians quickly discover that they have an opportunity to use 
the licensing requirements to restrict entry into the industry and thereby generate 
monopoly rents. In other words, it is in the group's economic interests to set the 
standards at a higher level that would be dictated with sole reference to health and 
other public concerns. The question is whether the morticians are ethically permitted 
to seek the higher standard? The answer, of course, is a resounding "no." 
Notwithstanding Public Choice and Capture Theory predictions that they will do 
so, citizens do not have the ethical authority to use the public policy process to 
subvert the common good. Freedom of occupational choice is seen as a good, and 
restrictions on that freedom can only be justified with reference to another good 
such as public health, not with reference to the private desire of a vested interest 
group to reap selfish material gains. 


THE LAW AND ETHICS OF K STREET

The above examples illustrate that the advocacy model articulated by Susman and 
the ALL Code carries ethical weight only in an adversarial setting. In adversarial 
settings such as a court of law or possibly in high profile lobbying settings such 
those involving Alaskan oil or embryonic stem cell research, the lobbyist, like the 
lawyer in a courtroom, is expected in argue only one side of an issue. In adversarial 
contexts, zealous advocacy is the norm. But absent the adversarial context, as 
in the mortician licensing example, arguing for only one side while ignoring the 
duty to create reasonably balanced and just laws becomes indefensible. In such 
settings, any lobbyist who claims that his or her ethical obligations are limited to 
the single-minded advance of a client's narrow interests engages in self-delusion 
or self-serving rationalization, not defensible moral reflection. 

How then is the lobbyist to identify the common good? At times, perhaps a 
commitment to the common good may be met with sole reference to the procedural 
values associated with the advocacy norm—full and open dialogue with all 
affected stakeholders. This notion of public dialogue as a means of moving toward 
the common good lies at the heart of the civic republican movement popularized 
in the 1980s.'^° The commitment to dialogue may very well presuppose substantive 
values as well, such as human flourishing, peace, and goodwill that can provide the 
teleological goals that the dialogue seeks.'^' The procedural commitment can also 
be substantive in the sense that it recognizes the inherent worth of others.'" But if 
there is no one with whom to dialogue, then what is the lobbyist to do? Without an 
opportunity for meaningful dialogue, it would seem that the lobbyist must reference 
a substantive vision of the common good directly and lobby for a legal change that 
has the best chance of achieving that vision. 

Alternative visions of the common good have been debated for centuries.'" To 
a classic utilitarian like Bentham or Mill the common good was best conceived as 
an aggregate sum of pleasure (Bentham) or happiness (Mill) of all the members 
of a society."" A liberal such as John Rawls, by contrast, would likely scoff at the 
teleological basis ofthe utilitarian conception, arguing instead that the common good 
refers to the conditions that promotes and supports cooperation toward privately 
defined and idiosyncratic pursuits.'^^ A natural law thinker Uke John Finnis, though 
more sympathetic to teleological ends than the liberals, would eschew the single 
metric offered by utilitarianism and ground the common good in such pluralistic 
values as friendship, peace, and human flourishing.'^* In short, there is a variety of 
perspectives on how best to conceive of the notion of common good and no single 
vision is likely to emerge. Moreover, even if an agreement of what constitutes the 
common good could be achieved, how one would achieve that end in a lobbying 
context, or any other context for that matter, would seem equally problematic. 

This epistemological difficulty of identifying the common good, together with the 
practical problems of deciding how best to achieve the common good once identified, 
suggests that the term may be of little or no practical use. Yet this overstates 
the case. When compared to the alternative, an admonition to pursue self-interest, 
an orientation toward the common good fairs better. First, note that the term "self



BUSINESS ETHICS QUARTERLY 

interest" may be just as difficult to define as the term "common good." One's 
self-interest, properly understood, is not limited to seeking short-run pecuniary gain. 
In fact, the notion of self-interest is as multidimensional, temporal, and potentially 
idiosyncratic as is the term common good.'" Second, note that one's self-interest 
is inextricably linked to the welfare of others. This is true in part because human 
beings are social animals and we need others to live a full life. It is also true because 
we value the welfare of others for its own sake. For example, in the opening passage 
of The Theory of Moral Sentiments, Adam Smith, surely an advocate of the judicious 
pursuit of self-interest, noted man's natural sympathy for others. Smith wrote: 
"How selfish soever man may be supposed, there are evidently some principles in 
his nature, which interest him in the fortunes of others, and render their happiness 
necessary to him, though he derives nothing from it except the pleasure of seeing 
it.'"^^ Conversely, most, if not all, formulations ofthe common good admit that the 
term must account for the self-interest of constituent members.'^' Hence, although 
the notion of a connmon good is controversial and multifaceted, so too is the notion 
of one's self interest. In this light, the notion that a lobbyist should orient his or her 
lobbying activities toward achieving reasonably just laws is neither vacuous nor 
impractical. It provides a useful orientation to lobbyists, even if it fails to provide 
certainty and precision. 

In summary, one can fmd value in both the Woodstock Principles and the advocacy 
model. Ultimately, the Woodstock assertion that lobbyists must justify their 
actions with reference to the common good seems irrefutable. Lobbying implicates 
force; the use of force requires justification. Justification can only be made with 
reference to the common good embedded in moral principle or with reference to 
democratically determined social goals. How a lobbyist promotes the common 
good depends on context. In adversarial settings where all stakeholders are fairly 
represented in an open forum complete with impartial government officials, the 
advocacy of self-interest is both expected and defensible. The absence of such a 
setting requires self-restraint and generates a social obligation to lobby in favor of 
reasonably balanced and just laws. 

Conclusion 

This article has sought to advance understanding of some of the legal and ethical 
issues associated with lobbying. The legal analysis demonstrates that lobbyists 
have been entrusted with wide latitude in determining who, what, when, where, and 
how to lobby. This is true, in part, because the law embraces a societal respect for 
the First Amendment liberties. Moreover, the analysis demonstrates that the various 
substantive areas of the law addressing lobbying are often vague, gap riddled, 
and/or poorly enforced. Revolving-door legislation purports to provide cooling-off 
periods during which former government employees must abstain from lobbying; 
yet, gaps in the statutes permit the practice to go on largely unabated. Bribery and 
anti-gratuity statutes prohibit the giving of anything of value in exchange for public 


THE LAW AND ETHICS OF K STREET

favors; yet, regulators routinely leave government to work for the companies that 
they previously regulated, creating both the perception of and the incentive for corruption. 
In addition, there does not appear to be any direct legal prohibition against 
a lobbyist intentionally lying to a public official about public policy matters and 
any attempts to enact such prohibitions are likely to be unconstitutional. 

Given the general lack of legal restraints, the self-restraint imposed by personal 
ethics takes on heightened importance. To advance our understanding ofthe ethical 
dimensions of lobbying, the article discussed the Woodstock Principles in some 
length, explored an alternative advocacy model, and offered a synthesis of the two 
visions. The ethical analysis advanced and defended a proposition that lobbyists 
owe an ethical obligation to cooperate with public officials in the creation of reasonably 
balanced and just laws. The analysis also suggested that the appropriate 
means to achieve reasonably balanced laws depend on the context in which lobbying 
activities are conducted. In adversarial settings in which all stakeholders are 
heard in a relatively open forum, the lobbyist is free to seek private gain. However, 
in settings where the lobbyist enjoys sole access to the government official, direct 
consideration of the public good is required. These propositions were supported 
with reference to competing legal philosophies and alternative social science theories 
of regulation. Finally, the analysis demonstrates that these ethical conclusions 
do not depend on the status of the lobbyist, applying equally to salaried lobbyists 
working in-house, to K-Street lobbyists working for a fee, and to private citizens 
who lobby on their own behalf. 

Notes 

1. See Lobbying Disclosure Act of 1995,2 U.S.C. §1602 (1995) (defining lobbying in a 
manner consistent with the text). Reportedly the use ofthe term "lobbyist" begins with President 
Ulysses S. Grant. Grant's wife, Julia, did not like his drinking, so the president often drank at 
the Willard Hotel not far from the White House. Those seeking an audience learned that the best 
place to catch him was in the hotel lobby. Grant soon complained that these "lobbyists" were 
interfering with his afternoon toddy! See Ron Smith, Compelled Cost Disclosure of Grass Roots 
Lobbying Expenses: Necessary Government Voyeurism Or Chilled Political Speech?, 6 KAN. J.L. 
& PUB. POL'Y 115,119 n.34 (1996). 
2. See Michelle Grant, Legislative Lawyers and the Model Rules, 14 GEO. J. LEGAL ETHICS 
823, 823-24 (2001) (asserting that an effective legislative campaign requires the combined 
efforts of a professional, well-coordinated and specialized team). 
3. See James M. Demarco, Lobbying the Legislature in the Republic: Why Lobby Reform 
is Unimportant, 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 599, 613 (1994) (noting that term 
"contact person" is a term of art within the lobbying industry). 
4. See Grant, supra note 2, at 823-24 (identifying the roles on a public relations team as 
that of "strategist, lobbyist, legislative lawyer, grassroots organizer, and media person" and then 
focussing on the role of the legislative lawyer); Demarco, supra note 3, at 614—15 (discussing 
grass-roots organizing and fund raising). 
5. The enactment of federal lobbying disclosure laws in 1995 has made it easier to count. 
See generally infra part LB. (discussing the new regulations). As of 1996, 15,000 lobbyists had 

BUSINESS ETHICS QUARTERLY 

registered under the new law. See BRUCE C. WOLPE & BERTRAM J. LEVINE, LOBBYING CONGRESS: 
How THE SYSTEM WORKS 7 (2d ed. 1996). Under the 1995 law, only the lobbyist as "contact 
person," or his or her firm, must register. Registry then triggers a duty to report related "lobbying 
activities" performed by strategists, media professionals, grass roots organizers, and legislative 
lawyers. See generally Grant supra note 2 (discussing lobbying activities). Including these supporting 
people, Steve Forbes estimated that in 1996 Washington's lobbying industry employed 
67,502 persons. Steve Forbes, Lobbyists: Their Gain Is Our Loss, FORBES, July 15,1996, at 23. 
Forbes notes that the total calculates to 125 per Congressperson, quadruple that of the 1960s. 

Id. 

6. The term "K Street" refers to a street address in Washington. The influence of K Street 
firms in Washington's political arena is roughly analogous to that of Wall Street firms in New 
York's financial district. 
7. See WOLPE & LEVINE, supra note 5, at 1. 
8. See id. at 2-A. 
9. A "public interest group" has been defined as an organization that does not "benefit 
selectively either the membership or activists of the organization." Id. at 3 & n.2 (citing 
KAY SCHOLZMAN & JOHN TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 29 
(1986)). 
10. Id. at 3. 
11. See Demarco, supra note 3, at 611-12 (noting that social legislation is often broadly 
stated with the details being provided through administrative rulings and orders). 
12. Issues of Democracy: Advocacy in America, in 3 (no. 2) ELECTRONIC JOURNALS OF 
THE U.S. INFORMATION AGENCY 3 (June 1998) (quoting from 1956, prior to Kennedy's election 
as president). 
13. SeeDavidL.BoTen,ARecipefortheRefonnof Congress,21 OKLA. CITY U. L. REV. 1, 
1 (1996). The poll was conducted by the Center of Political Studies at the University of Michigan. 
The key question was: "Do you trust government to do the right thing (a) just about always, (b) 
most of the time, (c) only some of the time." Id. at 1 n.l. 
14. Id. at 1 n.l (asking the same question in 1994). 
15. Mat 2. 
16. See WOODSTOCK THEOLOGICAL CENTER, THE ETHICS OF LOBBYING: ORGANIZED 
INTERESTS, POLITICAL POWER, AND THE COMMON GOOD 2-13 (2002) [hereinafter WOODSTOCK 
STUDY]. The Woodstock Study is discussed in detail in part II.A infra. 
17. The comments were gathered through a series of interviews and focus group sessions 
and quotes were published verbatim with the promise of anonymity. Id. at 1 (discussing the 
method used to collect the comments). 
18. The quotes are given without editing; however, the authors provide headings to help 
organize the various comments. For example, eight quotes appear under the heading 'Truth Telling," 
id. at 34, three under "Conflicts of Interests," id. at 6-7, and twenty-one under the heading 
"Professional Standards," id. at 5-6. Individual comments often conflict. Under the topic of 
Truth Telling, one practitioner stated: "You can't lie; what you've basically got is your word and 
reputation" Id. at 3. By contrast, another said: "In my experience, both corporations and non-
profits can be untruthful in their lobbying efforts. And it isn't just about withholding damaging 
information. It's about actively presenting distorted or dishonest information. I worry that it has 
become appropriate in D.C. for lobbyists to flat-out lie." Id. at 4. 
19. See id. at 9-10. 
20. Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (1995) (codified 
at 2 U.S.C. §§1601-12(1995)). 

THE LAW AND ETHICS OF K STREET

21. Ethics Reform Act of 1989, Pub. L. 101-194,103 Stat. 1760 (codified at 18 U.S.C. §§ 
207-08 (1989)). 
22. See infra part I.B. 
23. See infra part I.C. 
24. See infra part I.D. 
25. See infra part I.D. 
26. "Congress shall make no law respecting an establishment of religion, or prohibiting 
the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the 
people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. 
CONST, amend. I. 
27. Although the Supreme Court has never directly stated that there is a constitutional right 
to lobby, established doctrines that protect business speech, both political and commercial, have 
much the same effect. See Andrew P. Thomas, Easing the Pressure on Pressure Groups: Toward 
a Constitutional Right to Lobby, 16 HARV. J.L. & PUB. POL'Y 149 (1993) (arguing that there is, 
or at least should be, a strong First Amendment right to lobby). 
28. The scholarly literature addressing the constitutional issues surrounding commercial 
speech is quite large. For an particularly articulate and useful introduction see Arlen W. Langvardt, 
The Incremental Strengthening of First Amendment Protection for Commercial Speech: Lessons 
from Greater New Orleans Broadcasting, 37 AM. BUS. L.J. 587 (2000) (tracing a twenty-five year 

history of commercial speech jurisprudence and exploring current trends). 

29. The reference here is to the Supreme Court precedent that originally articulated the 
middle-ground test for commercial speech. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. 
Comm'n, 447 U.S. 557 (1980). See generally Langvardt, supra note 28, at 598-602 (discussing 
the Central Hudson test). 
30. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 
U.S. 748 (1976) (establishing a First Amendment right to commercial speech); Cent. Hudson at 
562-63 (1980) (articulating a rubric of "intermediate scrutiny" applicable in commercial speech 
cases); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (reaffirming and applying the Central 
Hudson framework). 
31. See Daniel G. Webber, Jr., Proposed Revolving Door Restrictions: Limiting Lobbying 
by Ex-Lawmakers, 21 OKLA. CITY U.L. REV. 29, 36-44 (1996) (discussing the appropriate standard, 
the necessary governmental interest, and the tailoring required to constitutionally justify a 
variety of lobbying restrictions). 
32. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803 813 (2000); Consol. 
Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530,540 (1980); see also Buckley v. Valeo, 424 U.S. 
1 (1976) (per curium). Although commonly cited for the proposition that fighting corruption is a 
compelling interest and that certain campaign contribution limits can be sufficiently tailored to 
address the problem, Buckley also reaffirms the proposition that regulations restricting business 
political speech receive strict scrutiny. 
33. 357 U.S. 449 (1958). 
34. Id. at 460-61. Although NAACP v. Alabama did not directly discuss a lobbying statute, 
the case illustrates that association rights can activate strict scrutiny even in the absence of a 
speech claim. 
35. See Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress 
of Grievances: Cut from a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 26-34 (1993). 
36. See Stephen A. Higginson, A Short History of the Right to Petition Government for 
the Redress of Grievances, 96 YALE L.J. 142, 142-45 (1986) (noting that the right of petition 
provided a means for citizens to control the legislative agenda). 

BUSINESS ETHICS QUARTERLY 

37. See id. at 143 (attributing the demise of petitioning to a flood of abolitionist petitions 
and the unwillingness of an antebellum Congress to honor the petitioners' rights to a legislative 
response). 
38. See, e.g., McDonald v. Smith, 105 S. Ct. 2787,2793 (1985) (petitioning right subsumed 
into free expression right) (Brennan J. concurring). See generally Annotation, The Supreme Court 
and the First Amendment Right to Petition the Government for a Redress of Grievances, 30 L. 
Ed. 2d 914-25 (providing a survey of case law). 
39. 461 U.S. 540 (1983) (upholding a federal regulation that denied tax-exempt status to 
organizations that do a lot of lobbying and reasoning that the federal government does not have 
to subsidize free speech). 
40. Id. at 552 (Blackman J. concurring). 
41. W. at 538. 
42. See Steven A. Browne, The Constitutionality of Lobby Reform: Implicating Associational 
Privacy and the Right to Petition the Government, 4 WM. & MARY BILL RTS. J. 717, 729-37 
(1995). 
43. 347 U.S. 612 (1954) (addressing the constitutionality of the Federal Regulation of 
Lobbying Act of 1946). 
44. Id. at 625-27. 
45. Id. 
46. Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (codified at 2 
U.S.C. §§ 1601-12 (1995) [hereinafter LDA]. 
47. Id at § 1601. 
48. Foreign Agents Registration Act of 1938, 52 Stat. 631 (codified as amended at 22 
U.S.C. §§ 611-21 (1990 & Supp. 1996)). 
49. Federal Regulation of Lobbying Act of 1946, Pub. L. No. 79-601,60 Stat. 839 (codified 
as amended at 2 U.S.C. §§ 261-70 (1994)). The senate report drafted in support of the LDA of 
1995 lists two other federal disclosure statutes: the "Byrd Amendment" which requires disclosure 
of lobbying activities associated with federal grants and two sections of the HUD Reform Act. 
See S. Rep. No. 103-37, at 2 (1993). 
50. See Mark B. Baker, Updating the Foreign Agents Registration Act to Meet the Current 
Economic Threat to National Security, 25 TEX. INT'L L.J. 23,24-25 (1990) (noting that although 
FARA was initially focus on Nazi propaganda , it was used to monitor communist propaganda 
throughout the Cold War). 
51. See Charles Lawson, Shining the 'Spotlight of Pitiless Publicity' on Foreign Lobbyists ? 
Evaluating the Impact of the Lobbying Disclosure Act on the Foreign Agents Registration Act, 
29VAND. J.TRANSNAT'LL. 1151,1162(1996). 

52. See S. Rep. No. 103-37, at 9 (1993). 
53. Id. at 'i-A. The director of the Joint Committee that drafted the Lobbying Act acknowledged 
that it was "less than precisely-drafted legislation." Id. at 3 n.2. To avoid a Fourteenth 
Amendment vagueness challenge, the Supreme Court narrowly interpreted the Act. Id. at 3 (citing 
U.S. V. Harriss, 347 U.S. 612 (1954)). In essence, the Supreme Court interpreted lobbying 
to mean "direct communications with member of Congress on pending or proposed legislation." 
Id. As such, there were significant "gaps" in the disclosure requirements. Id. 
54. See Smith, supra note 1, at 116 n.4. 
55. See Stacie L. Fatka & Jason Miles Levien, Note, Protecting the Right to Petition: Why 
a Lobbying Contingency Fee Prohibition Violates the Constitution, 35 HARV. J. ON LEGIS. 559, 
570 n.58 (1998) (tracing the estimate to Senator Levin). 

THE LAW AND ETHICS OF K STREET

56. LDA, supra note 46, § 1602. 
57. See generally supra notes 2-5 and accompanying text (discussing the distinction between 
contact activities and support activities). 
58. See Fatka & Levien, supra note 55, at 571 n.63 (summarizing the LDA registration 
and reporting requirements). 
59. Claybrook's comments were given at a forum on lobbying ethics sponsored by the 
Woodstock Theological Center, October 24, 2002. The comments are available on the world 
wide web at www.georgetown.edu/centers/woodstock/report/r.fea72.htm (accessed April 18, 
2004) [hereinafter Woodstock Forum]. 
60. Id. 
61. Id. 
62. See supra notes 13-19 and accompanying text (discussing and documenting social 
concerns with lobbying). 
63. See supra notes 42—45 and accompanying text. 
64. Current registration requirements are fairly comprehensive, requiring paid lobbyists, 
including in-house employees as well as K Street specialists, to register, identify clients, and 
list government contacts. See Fatka and Levien, supra note 55, at 571 n. 63. Regulations do not 
require a citizen-lobbyist, such as a private individual who writes his or her Congressman, to 
register. This omission probably has less to do with concerns over the constitutionality of requiring 
registration of non-paid lobbyist than with the relative impracticality of requiring registration of 
such people and the relatively minimal nature of these lobbying activities as compared to those 
of Fortune 500 companies and other large organizations. 
65. 5ee Webber, .jMpra note 31, at 34. 
66. See Wendy L Gerlach, Amendment of the Post-Government Employment Laws, 33 
ARIZ. L. REV. 401,412 (1991). 
67. The primary focus of Ethics in Government Act was financial disclosure. Id. at 407. 
Section 207 of the act addresses post-employment lobbying restrictions. See Ethics in Government 
Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified in 18 U.S.C. § 207 (1978)). 
68. Ethics Reform Act of 1989, Pub. L. 101-94, 103 Stat. 1760 (codified at 18 U.S.C. §§ 
207-08 (1989)). 
69. See Gerlach, supra note 66, at 407 n.56. 
70. 18 U.S.C. § 207(e)(l). 
71. M. § 207(e)(2). 
72. Id. § 207(f), (c)(2)(ii). 
73. See Webber, supra note 31, at 32-33 (citing several critics both inside and outside 
Congress). 
74. Id. at 33. 
75. M. at 34. 
76. Id. at 34 n. 26 (citing the Congressional Daily, Apr. 21, 1993, at 1). 
77. Id. Adding fuel to the fire, a best-selling book published in 1990 explained how Japanese 
businesses influenced U.S. trade policy through the use of former U.S. government officials as 
lobbyists. Id. (referring to Agents of Influence by Pat Choate). 
78. Id. The executive order specified a lifetime ban on lobbying on behalf of a foreign 
government and a five-year ban on lobbying before the appointee's former agency. Id. 
79. See Boren, supra note 13, at 14-15 (discussing the proposed reforms). 
80. Webber, supra note 31, at 30. 

BUSINESS ETHICS QUARTERLY 

81. There are several "how-to" guides for lobhyists describing the daily practices of lohhying. 
See, e.g., DONALD E. DEKIEFFER, HOW TO LOBBY CONGRESS: A GUIDE FOR THE CITIZEN 
LOBBYIST (1981); WOLPE & LEVINE, supra note 5. 
82. WOODSTOCK STUDY, supra note 16, at 42 (citing Senate Rule 35, cl. l{h)). 
83. Id. (citing House Rule 51). 
84. Id. 
85. Woodstock Forum, supra note 59, at 9 (reprinting comments hy Joan B. Claybrook, 
president of Public Citizen). 
86. WOODSTOCK STUDY, supra note 16, at 42. (citing 18 U.S.C. § 201(b)(l)). 
87. 526 U.S. 398(1999). 
88. Id 
89. WOLPE & LEVINE, supra note 5, at 50-51. 
90. Id. 
91. See JANE P. MALLOR ET AL.. BUSINESS LAW: THE ETHICAL, GLOBAL, AND E-COMMERCE 
ENVIRONMENT 160 (12th ed. 2004). 
92. The quotes come from the WOODSTOCK STUDY, see supra notes 16-19 and accompanying 
text. 
93. WOODSTOCK STUDY, supra note 16, at 3 (also quoted in note 18 supra). 
94. Id. at 4. 
95. 539 U.S. 654 (2003) (per curium) (dismissing a previously granted writ of certiorari as 
improvidently granted). The facts are rendered more fully in the opinion offered hy the Supreme 
Court of California. See Kasky v. Nike, Inc., 45 R3d 243 (Cal. 2002). 
96. 45 P3d 243, at 248. 
97. Id. at 247 (bringing the claim pursuant to the Caiifomian Business and Professions 
Code that grants private citizens standing to sue). Kasky alleged that Nike had made false and 
misleading statements, including claims that workers were "paid on average double the local 
minimum wage .. . and that their working conditions [met local] regulations governing occupational 
health and safety." Id. at 248. 
98. Id 
99. Id at 248-49. 
100. W. at 247. 
101. 539 U.S. 654 (2003) (per curium) (declining to review on the technical grounds of 
standing, ripeness, and judicial efficiency). 
102. See Adam Liptak, Nike Move Ends Case Over Firms'Free Speech, N.Y. TIMES, Sept. 
13, 2003. 
103. In 1997, Nike reported annual revenues of $9.2 billion, with advertising and marketing 
expenditures totaling almost $1 billion, approximately $2.7 million dollars per day. See 45 P.3d 
243, at 247. 
104. The Nike case garnered a lot of attention. Almost three dozen briefs (including thirty-
one amicus briefs) were presented to the U.S. Supreme Court. Those speaking in support of Nike 
emphasized the chilhng effect that the California Supreme Court decision could have on public 
discourse. One of Nike's lawyers noted that the case "genuinely frightens businesses because 
even innocent mistakes made in important public debates can get you sued." See Liptak,, supra 
note 102 (quoting Thomas Goldstein). 
105. For example, the American League of Lobbyists (ALL) maintains a web site complete 
with a "Lobbyists' Code of Ethics." The homepage notes that ALL was established in 1979 with a 

THE LAW AND ETHICS OF K STREET

mission "to enhance the development of professionalism, competence and high ethical standards 
for advocates in the public policy arena, and to collectively address challenges affecting the first 
amendment right to 'petition the government for redress of grievances.'" See www.alldc.org. (last 
visited May 25, 2004) [hereinafter ALL]. 

106. See WOODSTOCK STUDY, supra note 16. 
107. Woodstock Senior Fellow Edward B. Arroyo, S.J., coordinated the research team responsible 
for the hook. Other team members were James L. Conner, S.J., theologian; Robert W. 
Gardner, journalist; Philip A. Lacovara, lawyer-lohhyist; and Michael H. McCarthy, philosopher-
ethicist. Id. 
108. W. atvii. 
109. Id. 
110. Id 
111. M. at viii-ix (outlining the process). 
112. Id. at 2-13 (collecting and printing scores of anonymous quotations from practitioners). 
113. Id. at 23-37 (discussing lobbying in a historical and social context). 
114. M. at 17-19. 
115. Mat84-89. 
116. Id 
117. Id. at 88-89 (the suhparts to Principle 6 list and briefly explain four tahoo tactics). 
118. W. atl8. 
119. Mat 19. 
120. Id at 84. 
121. Id. 
122. Id. at 94. 
123. See text accompanying note 1. 
124. The relevance of the police force is not limited to criminal cases, hut to civil cases too, 
as refusals to pay civil judgments lead to contempt citations that motivate police involvement. 
125. For an introduction to natural law reasoning see JEFFRIE G. MURPHY & JULES C. 
CoLEMAN, THE PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 13-22 (1984). See 
generally Manual Valasqez & F. Neil Brady, Natural Law and Business Ethics, 1 Bus. ETHICS 
Q. 83 (1997) (distinguishing and discussing four natural law traditions: historicist, proportionist, 
right reason, and traditionalist). 
126. One difficulty with natural law philosophy is its inability to demonstrate that principles 
of right and wrong are clearly defined and universally held. See Steven R. Salbu, Law and Conformity, 
Ethics and Conflict: The Trouble with Law-Based Conceptions of Ethics, 68 IND. L.J. 101, 
110 (1992) (commenting on an "inability of natural law to convince either that there is one truth 
or that we can know what that truth is"). This hmitation does not mean that a justifying referent 
cannot he found. Beyond the formal moral reasoning of natural law, justifying referents might 
include custom, procedural or process values, and instrumental social objectives. See Daniel T. 
Ostas, Deconstructing Corporate Social Responsibility: Insights from Legal and Economic Theory, 
38 AM. BUS. L.J. 261, 264-77 (2001) (considering various justifications for law and legal force). 
Steven Pepper argues that a form of legal realism that denies that law has any basis other than 
power dominates legal education today. See Steven L. Pepper, Counseling at the Limits of the 
Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1552-54 
(1994-1995). Of course, the legal realism commented on by Pepper seeks to describe the law as 

BUSINESS ETHICS QUARTERLY 

it is, not as it should he, and the proposition in the text that most legal philosophers admit that 
law should have an external referent is no douht correct. 

127. See generally Symposium, The Revival of Pragmatism, 18 CARDOZO L. REV. 1 (1996) 
(collecting various distinct hut complementary perspectives on legal pragmatism). 
128. See RICHARD A. POSNER, OVERCOMING LAW 4-15 (1995) (descrihing a puhlic "conversation" 
that encompasses hoth social ends and the appropriate legal means to achieve them). 
129. See Steven D. Smith, The Pursuit of Pragmatism, 100 YALE L.J. 409, 444-49 (1990) 
(describing the pragmatic method as an "exhortation to skepticism" as to hoth the ends sought 
and the means used to achieve them). 
130. WOODSTOCK STUDY, supra note 16, at 83-84. 
131. See STEVEN BREYER, REGULATION AND ITS REFORM 1-11 (1982) (articulating the 
central tenets of the Puhlic Interest Theory and outlining the implications of the theory for a 
number of regulatory settings). 
132. For a collection and reprinting of fourteen oft-cited works addressing the topic see THE 
DUTY TO OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS (William A. Edmundson ed., 
1999). 
133. See M.B.E. Smith, Is there a Prima Facie Obligation to Obey Law?, in THE DUTY TO 
OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS 75, 77-93 (William A Edmundson ed., 
1999) (noting that philosophers have analyzed the moral duty to obey law with reference to social 
contract theory, utilitarianism, and a "natural duty to support just institutions"). 
134. See JOHN RAWLS, A THEORY OF JUSTICE 334-37, 350-62 (1971). 
135. Woodstock Forum, supra note 59, at 7 (reprinting comments of Thomas M. Susman). 
136. WOODSTOCK STUDY, supra note 16, at 11. 
137. See ALL, supra note 105. 
138. WOODSTOCK STUDY, supra note 16, at 85. 
139. ALL, supra note 105, at 3. 
140. See Steven P. Croley, Theories ofRegulation: Incorporating the Administrative Process, 
98 CoLUM. L. REV. 1, 31-32 (1998) (discussing the "Pluralist Theory" of regulation). 
141. Seminal works include MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC 
GOODS AND THE THEORY OF GROUPS (1965); and JAMES M . BUCHANAN & GORDON TULLOCK, 
THE CALCULUS OF CONSENT (1965). See generally Croley, supra note 140, at 34-40 (providing 
citations to the recent literature). 
142. Croley notes that Public Choice theorists reject Pluralist Theory. He writes: "[S]ome 
public choice theorists consider their main project to be exposing the naivete of pluralist political 
scientists and economists." Croley, supra note 140, at 33. 
143. See generally George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. 
& MGMT. SCI. 3 (1971) (providing the seminal work). 
144. See Richard A. Posner, The Social Costs of Monopoly and Regulation, 83 J. POL. ECON. 
807 (1975) (explaining how regulations can create barriers to entry and generate anti-competitive 
returns). 
145. See Donald J. Kochan, "Public Use" and the Independent Judiciary: Condemnation 
in an Interest-Group Perspective, 3 TEX. L. REV. & POL. 49, 81 (1998) (arguing that lobbyists 
are particularly adept at controlling information when issues are complex). 
146. See supra part l.C. (arguing that current regulations purporting to limit the practice are 
largely ineffective). 

THE LAW AND ETHICS OF K STREET

147. 5ee Posner, iM/jra note 144; ^eea/w Richard A. Posner, Theories of Economic Regulation, 
5 BELL J. ECON. & MGMT. SCI. 335, 344 (1974). 
148. See Grant, supra note 2, at 835-37. 
149. See Kenneth R. Button, The District of Columbia Conflict of Interest Rules and Lawyer-
Lobbyists: A Troubled Marriage, 8 GEO. J. LEGAL ETHICS 961 (1995). 
150. See Timothy L. Fort, The First Man and the Company Man: The Common Good, 
Transcendence and Mediating Institutions, 36 AM. BUS. L.J. 391, 396-99 (1999) (discussing the 
central tenets of the republican movement). See generally Cass R. Sunstein, Beyond the Republican 
Revival, 97 YALE L.J. 1539, 1541-67 (1988) (identifying four "republican commitments" 
to procedural fairness that reinforce the quest for the common good); Frank Michelman, Law's 
Republic, 97 YALE L.J. 1493, 1504-07 (1988) (arguing that common good can be arrived at by 
actual consensus through dialogue). But see Richard A. Epstein, Modem Republicanism-Or the 
Flight From Substance, 97 YALE L.J. 1633 (1988) (arguing that purely procedural guarantees of 
equality and commitment to dialogues are insufficient to guarantee decisions and actions that 
support the common good). 
151. See Fort, supra note 150, at 399-400 (offering this argument as part of a critique of 
the civic republican movement). 
152. W. at 400. 
153. See generally Kevin P. Quinn, Sandel's Communitarianism and Public Deliberations 
over Health Care Policy, 85 GEO. L.J. 2161,2171-83 (1997) (exploring alternative conceptions of 
the common good); Daniel P. Sulmasy, Four Basic Notions of the Common Good, 75 ST. JOHN'S 
L. REV. 303, 303-08 (2001) (same). 
154. See Quinn, supra note 153, at 2174 (noting that for Bentham, " there was no community 
.. . other than an aggregation" of individuals); Sulmasy, supra note 151, at 304 (associating 
Bentham and Mill with the idea of an "aggregative common good"). 
155. See Sulmasy, supra note 153, at 307 (offering a similar observation). See generally JOHN 
RAWLS, A THEORY OF JUSTICE 22-27 (1971) (offering comments on classic utilitarianism). 
156. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 85-91 (1980) (arguing that 
the "basic forms of good" include "life," "play," "aesthetic experience," "friendship," and "knowledge"). 
157. See generally Gerald B. Wetlaufer, The Limits of Integrative Bargaining, 84 GEO. L. 
REV. 369, 373 (1996) (discussing several distinctive ways in which the term self-interest can be 
used); Lawrence E. Mitchell, WASH. & LEE L. REV. 1477, 1482-83 (1993) (exploring nuances 
incumbent in the term self-interest). 
158. ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 9 (D.D. Raphael & A.L. Macfied 
eds., Oxford University Press 1976) (1759). 
159. See Salmasy, supra note 153.