Sunset in Harrisburg

Introduction

In the state where government of the people, by the people and for the people was born, the backdoor to the Capitol is wide open. Because of a recent decision by the Pennsylvania Supreme Court, there is no regulation of lobbyists in the House of Representatives. That means no registration, no reporting, and no accountability—a lobbyist could lavish a representative with expensive meals and gifts, or pass along a few tickets to the first Eagles home game played in the new Lincoln Financial Field in Philadelphia this fall, and wouldn’t need to report doing so to anyone. The only remaining checks are the internal ethics rules, which place sole responsibility for reporting gifts on the legislators themselves.

In 1998, the legislature approved, and then-governor Tom Ridge signed into law, lobby disclosure regulations similar to those of other states. They were to take effect in 1999. However two lawyer/lobbyists challenged the Lobby Disclosure Act as unconstitutional, claiming that it violated attorney-client privilege by requiring them to report on their activities as lawyers. The case went to the Commonwealth Court, where judges ruled in favor of the lawyers. Pennsylvania Attorney General Mike Fisher appealed the ruling, and in October of 2002 the state Supreme Court declined to hear the case, thus eradicating all existing regulations. Not long after, the Pennsylvania Senate adopted internal lobbyist regulations but the House failed to follow suit. Ever since, it’s been open season for lobbyists.

Barry Kaufman, director of Pennsylvania’s Common Cause chapter, called the Commonwealth Court’s ruling absurd. “[The] lawyers said they couldn’t tell the difference between practicing law and lobbying. If they can’t make that decision, maybe they’re in the wrong profession,” Kaufman said. “Lawyers all over the country seem to be able to make that distinction.”

Kaufman referred to the fact that no other court has ruled that lobbying regulations interfere with the separate practice of law, which he said the court “jealously guards their power over.” He noted that the author of the Commonwealth Court’s opinion, Judge James R. Kelly, had a history of opposing lobbying regulation. “When he was Senator Kelly … in 1976, he was on the conference committee that destroyed the regulations,” Kaufman said. “He clearly did not like this [1998] law.”

After the Supreme Court refused to hear the appeal, the Morning Call newspaper of Allentown called the decision “gutless.” In an editorial, the Lancaster Intelligencer-Journal said, “We don’t feel confident about this situation, and you shouldn’t either.”

But the significance of the decision resonated well beyond the state borders and even reached overseas, Kaufman said. He recalled that at the October 2002 annual meeting of the Council on Government Ethics Laws in Ottawa, many other attendees asked him about the case. “Delegates from South Africa, New Zealand, most of the [United] States, most of the Canadian provinces and others were just absolutely stunned that a court could come to that decision,” he said. “They were asking, ‘what the heck was your court thinking?'”

Amy Worden, Harrisburg bureau staff writer at the Philadelphia Inquirer, Pennsylvania’s largest newspaper, echoed Kaufman’s dismay over the situation. “It’s ongoing frustration,” Worden said. “Every day that we can’t find out who is buying influence around here is another day the public doesn’t find out.”

The passage of new legislation in the House of Representatives ultimately rests with that branch of the state government, but several parties agreed that a concerted effort is needed to produce any results. Sean Connolly, spokesman for Pennsylvania Attorney General Mike Fisher said, “[Fisher] urges the General Assembly to revisit the issue.” Barbara Grill, press secretary for Bill DeWeese, the House minority leader, said “we’re eager to take another look at the law.”

The office of Pennsylvania’s governor, Ed Rendell, issued a brief statement regarding the need for new disclosure laws. “The governor supports this in theory, but it’s not something we’re going to be looking into this year,” said Kate Philips, a spokeswoman for the governor.

Several lobbyists declined to comment on the absence of oversight, but Kaufman said he believed most would be in favor of new regulation. “As a general rule, they recognize the legitimacy of registration and regulation,” he said. “Most people in that group want to be perceived as professionals. Their main concern is that it be done in a way that gets the information collected and disclosed and is least burdensome on them.”