State Lobbying in the Age of Abramoff

It has been interesting observing how lobbying works at the state level as the ODF situation has developed here in Massachusetts. The types of antics engaged in by those who log in their expense vouchers on K Street normally seem far away from most state capitals, but I expect that's because the level of scrutiny is much lower in the provinces than inside the Beltway.

It has been interesting observing how lobbying works at the state level as the ODF situation has developed here in Massachusetts. The types of antics engaged in by those who log in their expense vouchers on K Street normally seem far away from most state capitals, but I expect that’s because the level of scrutiny is much lower in the provinces than inside the Beltway.

At issue here in the Bay State is whether the legislature will approve an amendment to an economic stimulus bill that would take IT policy power away from the state’s own Information Technology Division (ITD) and transfer it to a politically appointed task force. The impetus for the amendment was the adoption last year by the ITD of a new technology policy that would involve the roll out of the OpenDocument Format (ODF) for use by the Executive agencies of the Commonwealth. The announcement of that policy provoked a strong reaction from some quarters, including Microsoft, which fears the loss of market share for its flagship Office productivity suite if proprietary and open source implementations of ODF become popular, as well as with some members of the community of the disabled, who are concerned whether products that support ODF will meet their needs.

The rationale for lobbying has always been that it is necessary to inform legislators, who must enact laws that cover the gamut of all possible issues, of relevant facts that can guide them in making good decisions. And, of course, the First Amendment right of free speech (which includes commercial free speech) has long been held to protect this type of speech as well.

So what have I seen so far on Beacon Hill, and how does it compare to what is being exposed in Washington?

The bottom line is that while the action has been spirited, I’m pleased to say that so far the game play appears to have been aggressive, but clean. Here’s a recap:

First, I have not heard even one suggestion from anyone of any fiscal impropriety of any sort. So to begin with, let me make it clear that I have no reason to think that anything (with the possible exception of the still-unanswered question of how the Globe story came about) has been done by anyone on either side of the issue that has been in any way legally improper or that would rise to the level of a “dirty trick.” This is not to say, however, that there has not been ample evidence of spreading much disinformation, both privately as well as publicly, as evidenced by some of the statements made in the public comment letters that can still be viewed at the ITD’s public website. Many of these letters assert, or repeat assertions about the ITD’s plans that at no time were ever included in its proposed policy.

Second, it also is clear that the legislators that have spoken publicly (and in all likelihood the great majority of those in the Massachusetts legislature) or that wrote comment letters to the Information Technology Division (ITD) have very little technical awareness or preexisting knowledge of the technical issues involved. Senator Pacheco, one of the principal actors in the drama and the Chair of the Senate Post Audit Committee, freely admits that he really knows nothing at all about either open standards or open source, much less what an document format really is.

Third, I am told that Microsoft was “all over” the relevant legislators well before representatives of ODF proponents, such as IBM and Sun, knocked on their doors. As a result, Microsoft got their version of the story out first, and IBM and Sun were in the position of having to displace the story line that Microsoft presented. Proponents of ODF, however, have made substantial progress since then in one-on-one meetings with important legislators.

One of the more intriguing questions is whether State Secretary William Francis Galvin came up with the idea of creating a Task Force to transfer greater policy power to his office on his own, or whether this was suggested to him by lobbyists who saw an opportunity to bait the hook. Given the existing reputation of he who is often locally referred to as The Dark Prince (Galvin), I have no reason to think that he needed any assistance in concocting this gambit.

Both sets of corporate adversaries have also tried to make the point that keeping them happy would not be a bad goal for Beacon Hill. Both IBM and Sun sent letters of support to the Governor’s office for the ITD’s position, and each letter recited the number of employees they have in the Bay State in pointed terms.

Microsoft, on the other hand (which had no development facilities in the Bay State before acquiring Ray Ozzie’s Groove Networks recently), has lately been running a set of rather odd ads touting its extensive “developer ecosystem” (i.e., its partner network) in Massachusetts, and trying to create the impression that somehow this network conveys great value to the Commonwealth (of course, IBM and Sun, which each have thousands of employees in Massachusetts, have partner programs as well). These ads – featuring the picture of Ray Ozzie himself – have been running in venues such as the Boston Globe’s editorial page, and in the Boston Business Journal.

One development that has provoked much comment and suspicion is whether Microsoft incited the community of the disabled to become as involved as they have in their own lobbying efforts. Many have leapt to the assumption that the trail for this activity must lead back to Redmond. In point of fact, however, the community of the disabled maintains a very active on-line network of communication, and actively follow accessibility issues. Given that many are also Massachusetts state employees, there is no need to assume that they were unaware of the ITD’s policy, or would not want to know what its implementation would mean to them.

As a result, while it is possible that their attention was directed at the inclusion of ODF in the ITD’s new policy, that is not at all a necessary, or even a likely, conclusion, and certainly should not be taken as a given absent some proof to that effect. Whether the disabled were delivered any misinformation as the accessibility issue heated up is a more interesting question, but not one that I can speak to. Thus far, I’ve seen and heard nothing concrete to that effect.

All in all, one could make the argument that in some ways the lobbying and related activities that the forces, both pro and con, have engaged in over the last six months have actually been a good example of how a lobbying effort can work, in its own, quirky, self-interested, and vexing way, if one is going to allow lobbying at all. What we’ve seen is that many legislators have received letters, been visited by advocates of both sides, have had the opportunity to attend two public meetings (one a hearing, and one an informational meeting), and have seen an amendment (thus far) in two different forms.

Moreover, the media and bloggers have paid sufficient attention to the issue that key legislators and state officers are being contacted by the press, which requires them to look into what the issues are and develop policy and positions.

And finally, a wide swathe of the public has become engaged in the process, and has had a chance to hear what both sides have said, how they have said it, and whether it makes sense. Those voters are watching what is going on, and note will be taken of who votes for what on Beacon Hill.

Of course, at the end of the day, the question is why the legislature became involved to begin with. After all, it already has a large and experienced technology infrastructure whose managers are charged with making cogent technology decisions and adopting appropriate standards. What reason is there for legislators to need to become educated about such technical issues at all?

Up to a point, there is a rationale, which relates at a high level to maintaining appropriate checks and balances, and ensuring that public monies are appropriately spent. This is why, for example, the State Auditors office is not performing its own cost analysis of the ITD’s implementation of ODF, but rather evaluating the ITD’s analysis to determine whether it was appropriately conducted, and whether its conclusions may safely be relied upon.

But imposing a task force of political appointees, only a few of whom would be required under the amendment in its current form to have any technical expertise at all, hardly seems to be the answer. This would be more in the realm of usurpation of power, rather than ensuring quality of decision making. And while lobbyists may have put those behind the proposed amendment onto the issue to begin with, it’s not necessary to assume that lobbyists engaged in the K Street practice of drafting the amendment as well.

So at the end of the day, here’s my score card: on the plus side, so far as anything I’ve read or been told so far, the lobbying has been pretty clean (as such things go), and when all of this is finally settled, the citizens and legislators will be better informed about intelligent IT policy than they were before. Hopefully, the original ODF decision will continue to hold, and ODF will not actually be implemented until the needs of the disabled are met — a positive result.

The public debate has also nudged Microsoft into offering its XML Reference Schema to Ecma. And while that offer was on conditions that would effectively require rubber stamp adoption by the Ecma working group formed to present it for a vote, it is still a first step towards opening up the formats upon which Office is based.

But on the negative side, the treatment of former Massachusetts CIO Peter Quinn has been inexcusable, and may cast a long shadow on the efforts of other state CIOs to adopt innovative and necessary IT policies. We can’t blame that on the lobbyists, though — the hatchet men of Beacon Hill were quite able enough to come up with these attacks all on their own.

The final question then is, What about the Globe story? Whether or not that can be traced back to Microsoft — or more likely a Microsoft lobbyist — is the question that will ultimately determine whether the lobbying efforts on Beacon Hill can lay a claim to meeting K Street standards.

If that proves to be the case, Jack Abramoff would be proud.