Even distinguished former foreign secretaries such as Jack Straw and Sir Malcolm Rifkind might be forgiven for having forgotten the treaty of Guadalupe-Hidalgo. It is a notable document, and not only because it determined that California would be part of the US, rather than a province of Mexico. Its signing triggered one of the lobbying industry’s earliest controversies — telling, perhaps, in the week two parliamentarians were caught in an undercover sting offering to help fictitious corporate interests in return for cash.
Nicholas Trist was America’s lead negotiator on the 19th century treaty, and he believed he had not been properly recompensed for his services — which do, in retrospect, seem to have been considerable. After a 20-year campaign, he hired a Boston lawyer, Linus Child, to lobby Congress on his behalf. Child’s efforts bore fruit. His son told Trist: “I find that my father has spoken to . . . members of the House. Every vote tells, and a simple request to a member may secure his vote, he not caring anything about it.” Congress eventually agreed to pay Trist $15,000, then a considerable sum.
Trist, a hard bargainer, refused to pay the contingency fee he had agreed. The case went to the Supreme Court, which dismissed Child’s claim. A contract to lobby government, it said, was contrary to public policy and hence, like an agreement to sell sex, unenforceable in the courts. Paid lobbying, said Mr Justice Swayne, was “pernicious in its character”. But this was only the beginning of his denunciation. “If any of the great corporations of the country were to hire adventurers to procure the passage of a general law with a view to the promotion of their private interests,” he thundered, right-minded men “would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous”.
The 20th century eroded this austere view of the proprieties of political life. But the notion that politicians might themselves become professional lobbyists after leaving office remained unacceptable. When Harry S Truman ceased to be US president in 1953, he determined, according to biographer David McCulloch, that “his name was not for sale. He would take no fees for commercial endorsements, or for lobbying or writing letters or making phone calls.”
Truman had little personal wealth and had earned only modest public salaries, and the embarrassment of his poverty led Congress to make financial provision for America’s former presidents.
But by the time of Bill Clinton’s retirement, this pension and contribution to office costs was hardly necessary. Prime ministers and presidents could expect to become millionaires on leaving office, and lesser politicians sold access to their contact books for sums far exceeding what they had earned in public service.
The Court of the 1870s had taken the view that free speech and honest speech were two sides of the same coin. “The theory of our government,” ruled Swayne, “is that all public stations are trusts.” There was a corresponding duty on the citizen. “In his intercourse with those in authority, he is bound to exhibit truth, frankness and integrity.”
But in Citizens United in 2010, the same court held that the expression of views you were paid to hold was no longer “an infamous employment, steeped in corruption”, but an activity deserving of the protection awarded to free speech under the First Amendment. That contentious decision probably did not, in the end, seal the outcome of the 2012 election — though the tide of political donations that it unleashed will surely decide a presidential contest before long. Americans may look back on Justice Swayne as the wiser judge. “If the instances (of paid lobbying) were numerous, open, and tolerated,” he predicted, “they would be regarded as measuring the decay of the public morals and the degeneracy of the times.”
This article was first published in the Financial Times on February 25th, 2015.