Column: Should Payment for Legislative Testimony Be Disclosed?

11/20/2019
Yes, No, Maybe So | Ethics in the Legislature

By Nicholas Birdsong

You’ve been in office for two years now. Why haven’t you fixed our city’s potholes, lowered the cost of drugs and balanced the federal budget yet?

Unrealistic expectations aren’t that uncommon. Lawmakers are likely to have a difficult job trying to satisfy constituents who expect virtual miracles.

Among the most widespread of all unrealistic expectations is the idea that public officials should know the intimate details of every issue affecting a state and its residents. While many legislators are extremely knowledgeable, they lack omniscience.

The legislative process depends on constituents and their representatives engaging with public officials to explain how state action might affect their lives or businesses.

Recognition of the importance of open communication between a government and its people dates to at least 1628, when the adoption of the Petition of Right into the Magna Carta. This provision later formed the basis for the First Amendment right that ensures every American may petition the government to redress grievances.

Although that right is commonly framed as being in service of the people, elected officials benefit by gaining insights into the interests, motivations and concerns of voters. The collaboration grants individual legislators access to information that brings them closer to the otherwise impossible expectations of the office.

But, like most ideas, they get more complicated when put into practice.

Some lobbyists have employed a strategy of paying constituents to testify in public committee hearings without disclosure of the payments until long after consideration of an issue has concluded.

Critics of the practice argue that paid testimony presents a false impression of public opinion. As a result, legislators may be misled into taking a position at odds with the true wishes of their constituents.

Restricting the practice of undisclosed paid public testimony may be in line with existing rules that require lobbyists to identify themselves and who they represent.

Currently, 43 states include compensation as one of the defining characteristics of a lobbyist and may require their registration. Just over half have laws that may consider paid public testimony a reason to require registration and disclosure as lobbying activity. At least 21 states also explicitly forbid lobbyists from misleading legislators about a matter.

On the other hand, opponents of restricting paid public testimony have plenty of room to argue.

Some free speech advocates decry any additional restrictions based on the constitutional right to petition. They argue that reimbursements or small payments may enable people to show up and testify, but are insufficient to get someone to testify against their own beliefs and are unlikely to motivate someone to present a false appearance of public opinion.

The act of testifying occurs in full public view, which may negate any threat of apparent unethical conduct. In at least four states, committee testimony is exempted from the definition of lobbying or related registration requirements.

Anyone motivated to visit the capitol and speak about a bill probably has a personal or financial interest at stake. The underlying rationale of the testimony may matter more than the number of speakers who show up. The ultimate determination about how or if paid public testimony should be regulated may depend on whether legislators or the public feel they have been misled or manipulated by the practice.

Nicholas Birdsong is a policy associate with NCSL’s Center for Ethics in Government. Is an ethical dilemma keeping you up at night? Let Nicholas know, at nicholas.birdsong@ncsl.org.

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