Understanding Lobbying Disclosure, Part I

If you are someone who follows politics, you no doubt have seen stories chronicling the many dollars spent on lobbying in a given quarter or year.  What you may not know is where these totals come from and how they are calculated.

This is the first in a series of posts explaining the federal lobbying reporting requirements under the Honest Leadership and Open Government Act (unaffectionately known by its acronym, HLOGA).  Hopefully, these will help you better understand what is reported, what it really means, and how the information might (or might not be) useful in determining how the lobbying process works.

Please note that these features are intended as a primer for understanding lobbying disclosure and not as legal advice.  If you have specific questions about your personal or your organization’s lobbying disclosure requirements, please contact the House Office of the Clerk at (202) 225-7000 or the Senate Office of Public Records at (202) 224-0322.  Full Congressional guidance is available online at http://lobbyingdisclosure.house.gov/amended_lda_guide.html. This post is limited to discussing federal lobbying; state and local lobbying laws vary by jurisdiction.

So what is lobbying anyway?

Good question, and harder to answer than you might think.  Merriam Webster says that lobbying means “to promote (as a project) or secure the passage of (as legislation) by influencing public officials.”  In other words, lobbying in its most basic sense means trying to get your elected officials to do what you want them to do.

Of course, every American has a right under the First Amendment to petition the government on behalf of his or her interests, and millions do.  According to the dictionary definition of “lobbying”, if you call your Congressman or e-mail your Senator or sign a petition to the President to try to influence them, you are engaged in a form of lobbying.

But don’t worry.  You probably don’t need to file an expenditure report on your individual efforts to sway your elected officials.  That is left to (most of) us who get paid to do so.  For practical purposes, “lobbying” has become synonymous with professional advocacy.  This is also the most basic distinction Congress makes when determining who must register for lobbying reporting.  Organizations must file when they employ lobbyists and meet certain monetary and time thresholds in their lobbying activity.

Who is a lobbyist?

Congress sets forth three qualifications that designate an individual as a federal lobbyist.  We’ll break them down one at a time.  Please remember that an individual must meet ALL THREE criteria in order to require registration as a lobbyist.

1) A lobbyist is any individual who is either employed or retained by a client for financial or other compensation.

This standard is pretty straightforward: you are only a federal lobbyist if you get paid to lobby by a client or employer.  Any advocacy you do in your free time or pro bono does not count.

2) A lobbyist is any individual whose services include more than one “lobbying contact.”

“Lobbying contacts” include “Any oral, written, or electronic communication to a covered official that is made on behalf of a client” regarding federal issues, including policy, legislation, government contracts and appointments to certain federal posts.  For all intents and purposes, “covered officials” include all federal elected officials and most federal agency officials and employees.

It is important to note that there is no clock on when these contacts must occur.  Even if the contacts are months or even years apart, initiating a second contact can trigger a lobbying registration requirement.

However, many types of contacts are exempt from the definition of “lobbying contacts.” For example, contacts that are not intended to influence policy or contracts – meeting requests, bill or contract status inquiries, process and other technical assistance questions, as well as communications “required by subpoena, civil investigative demand, or otherwise compelled by statute, regulation, or other action of the Congress or an agency” – do not count as lobbying contacts.  Certain exceptions are intended to exclude individuals who might interact with the government in their normal course of business, but are not actively involved in trying to sway government action.  It’s also designed to prevent every low-level assistant and intern who might schedule meetings for their bosses from having to register as lobbyists.

And 3) A lobbyist is anyone whose “lobbying activities” constitute 20 percent or more of his or her services’ time on behalf of that client during any three-month period.

This too is designed to distinguish between individuals who engage specifically in professional advocacy from those who primarily handle other responsibilities.  So for example, if a company’s CEO comes to Washington for a day to visit with elected officials to request passage of a bill that would lower his organization’s regulatory burden, he likely would not have to register as a lobbyist despite making, and being paid for, “lobbying contacts,” since he is not meeting the time threshold.

But “lobbying activity” is not just the act of communicating with a covered official.  It also includes “any efforts in support of such contacts, including preparation or planning activities, research, and other background work that is intended, at the time of its preparation, for use in contacts, and coordination with the lobbying activities of others.”  This is important to understand when determining whether or not an individual has met the lobbying threshold.

When people talk about loopholes and “unregistered lobbyists,” are these exemptions what they’re talking about?

Yes.  HLOGA’s critics point out that anyone looking to avoid registration can do so easily by restricting his or her contacts to technical matters, and/or limiting their “lobbying activities” to 19.99% or less of their time for their client.

There are a number of reasons why individuals try to avoid registration.  Some simply don’t want the additional disclosure requirements.  Some want to avoid the stigma of the “Scarlet L,” for both PR and employment purposes.  After all, the Obama administration has a general practice of not hiring former federal lobbyists, though it does make exceptions.  Folks with an eye on going into public service would most often prefer not to have to register.

And finally, there are legal ramifications in some cases.  So-called “revolving door” laws prohibit covered federal officials and employees from lobbying for a certain time period after they leave government office.  The restrictions vary depending on factors like seniority and pay level.

The most oft-cited example of Scarlet L avoidance are former Representatives and Senators who take on “advisory” roles at large lobbying firms.  While House Members are prohibited from lobbying for one year and Senators for two, they can still provide great value to a lobbying effort by setting up meetings for clients with former staff and colleagues (requests that do not count as contacts), providing strategic advice on where and how to maneuver within the legislative process, or by simply doing enough other work that they do not meet the 20% thresholds.

But despite these concerns, the evidence seems to be that most lobbyists are, in fact, registering and filing reports.  A Center for Responsive Politics review shows that there have been more than 12,000 unique registered lobbyists who have actively lobbied in the first two quarters of 2013 alone.

 

Still to come: How, when, and where do lobbyists register?  How is lobbying income totaled?  What are the reporting requirements?  What is on the reports?  Plus (believe it or not) much more.

This entry was posted in Uncategorized by Andrew Bowman. Bookmark the permalink.

About Andrew Bowman

Andrew Bowman, legislative assistant at Drinker Biddle & Reath, specializes in legislative research and analysis for government relations clients across a variety of policy areas, including health care, education, and communications. He also has extensive experience with federal lobbying disclosure and campaign finance compliance. Prior to joining Drinker Biddle, Andrew served as an aide to Senator Chris Dodd (D-CT) for several years, and was active in the Senator’s 2008 Presidential campaign.

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