Gaming The System

03/03/2009 12:37 am ET | Updated May 25, 2011

The New York Times (in editorials on February 22 and March 2, 2009), along with so many others, including most Democrats and many Republicans, lament "the shameless back-scratching of lobbyists and lawmakers." The Times demands tougher lobbying reform and political corruption laws. This kind of thinking, while well intentioned, is naïve and unrealistic.

Under the current system, it is not surprising that the best and brightest--and hence, the best compensated--lobbyists seem to wield the most influence on behalf of the interest groups--from Asian textile tycoons to environmentalists--whom they are paid to represent. The most effective lobbyists are those who are able to gain the greatest access to lawmakers and regulators--because they are often friends, former colleagues, or major campaign contributors--and are also talented in making the most compelling Jack Abramoff once did.

True lobbying reform can only be accomplished by banning all political nonprofit groups--some 501(c)3s, all 501(c)4s, 527s, as well as all other political-action committees; and by financing the election of all federal, state, county, and municipal officials with public funds, (which would probably be unconstitutional). In the unlikely event that these extreme measures ever passed muster, they still would not eliminate a basic law of human nature: a legislator (like the rest of us) would be more inclined to take a call from a friend than from a stranger.

But why single out the art of lobbying--which is specifically protected by the First Amendment's "right to petition Congress"? It is unfair and inconsistent not to eliminate the many other methods by which people game the system.

The wealthy can hire the very best lawyers to write contracts, protect a trademark, provide tax advice, and mount a robust defense in civil and criminal court. The poor, however, are assigned overworked, poorly paid public defenders, who probably did not graduate from the best law schools. That is intrinsically unfair, but there are no cries to reform the gaming of the legal justice system.

The wealthy often hire the best tutors, send their children to the best schools, make generous contributions to colleges, and take advantage of something called "legacy." They game the system so their kids have a better shot at getting the best education, which is also intrinsically unfair and unjust.

And, of course, the wealthy can game the health-care system by buying access to the very best specialists and medical facilities when illness strikes.

Gaming the system is pervasive in the news and entertainment businesses. Many children of famous journalists and actors/actresses seem to find their way into their parents' chosen professions. For example, if there are 50 people applying for a job as a cub reporter in the news room, it helps if your father or mother is a famous journalist who knows the editor in chief. Many of those 50 applicants may have done an equally good job if they had been hired, but they never got the chance to shine, because the system was gamed.

As for calls to toughen the political corruption laws, this is quite unnecessary. The toughest law of all is already on the books. It's called public and private honest-services fraud. (This law allows prosecutors to deviously circumvent the 1999 U.S. Supreme Court decision that declared a specific quid pro quo must be established for a bribery conviction.) Although I have extensively studied honest-services fraud, I cannot define it, nor can many law professors and defense attorneys. The unconstitutionally vague honest-services fraud potentially permits federal prosecutors to indict any American citizen--in a public or private capacity--for any reason they conjure up. It is the Department of Justice that has gamed the system.

It may come as a surprise, but the most prominent and recent example of this law's abuse is former super-lobbyist Jack Abramoff--who was coerced into pleading guilty mostly to honest-services fraud. He is, of course, the poster boy for political corruption in Washington. But when all of the evidence was carefully examined, I--a hard-core liberal--determined that the charges against him were false, falsified, or overblown. (For example, on September 26, 2004, The Washington Post published a story accusing Abramoff of surreptitiously shutting down a tribal casino in east Texas just so he could appear the next day and promise to get it reopened for a multi-million-dollar fee. This sensational story was nothing more than a deliberate falsehood.) Nevertheless, Abramoff--hardly a saint, but not the arch criminal mastermind portrayed by the press and prosecutors--continues to serve as a handy symbol for political corruption. Apparently, the complex truth about Abramoff is too inconvenient.

If political corruption laws become too draconian--which is where they are headed--only fools, the mediocre, and the inept will dare run for public office.

Gary S. Chafetz is the author of the recently published book, The Perfect Villain: John McCain and the Demonization of Lobbyist Jack Abramoff.