Definition of lobbyist is quite good – what is needed is enforcement

Holman

No ifs, ands, or buts: President Obama’s lobbying and ethics reforms issued so far are changing the landscape of lobbying and public service. Some of the changes are so dramatic – such as the first-ever “reverse revolving door” restriction designed to screen out industry representatives and their lobbyists from capturing the agencies that regulate them – that K Street is up in arms, even threatening litigation. That kind of reaction does not come in response to “symbolic” reforms. Yes, these are genuine substantive changes – just ask the hundreds of corporate lobbyists who are involuntarily vacating their positions on advisory panels come Jan. 1 under orders from the White House.

But more can be done. And much to the uneasiness of K Street, much more is likely to be done.

When it comes to defining who is a lobbyist subject to registration, the current empirical thresholds for determining who must register are quite good. The problem is not the thresholds; the problem is in enforcement of these thresholds.

Lobbyists in the U.S. have been required to register since 1938 under the Foreign Agents Registration Act (FARA), as FDR feared Adolf Hitler was attempting to influence Congress not to enter the war. Domestic lobbyists were subject to registration in 1946 under the Federal Regulation of Lobbying Act. But very few bothered to register (including Hitler). The problem was that the early Acts relied on a subjective definition of lobbying – anyone whose “principal purpose” was to affect legislation had to register. It was up to lobbyists to determine their principal purpose, and for most it was the practice of law, teaching, or some other profession.

Peter Levine, then a staffer for Sen. Levin, developed a more quantifiable definition of lobbyist for the Lobbying Disclosure Act of 1995, which essentially remains in place today. So now a lobbyist who must register is one who:

  • Receives $2,500 in compensation, or makes $10,000 in expenditures, in a three month period;
  • Makes more than one lobbying contact with a covered official; and
  • Spends at least 20% of their time on lobbying activity in a quarter on behalf of any particular client, including the research, preparation and supervision of lobbying contacts.

The 20% threshold is designed primarily to address the “lawyer problem.” It captures attorneys who spend at least 20% of their time on behalf of any individual client conducting lobbying activity. Many attorneys spend the vast majority of their time working on litigation. But some will exert a significant lobbying campaign on behalf of a single client, and these attorneys are now captured under LDA.

With the new objective thresholds, the number of registrants shot up ten-fold, much more accurately reflecting the real number of influence peddlers on Capitol Hill as estimated in a study by GAO. [For an overview of this history, see “Making the Lobbying Disclosure Act Work As Intended.” (.pdf)

However, with passage of new ethics obligations imposed on registered lobbyists under the 2007 law, there are for the first time rules and regulations that lobbyists must follow. With these rules comes a possible incentive to avoid registration. As a result, we need to develop a better enforcement mechanism. One of the best such tools is requiring all covered officials to keep and disclose records of lobbying contacts – as the White House is now doing for its officers. Disclosure of visitor logs by public officials will enable the public and press to identify who is attempting to influence government, and cross check those names with the registration database. With this type of self-policing mechanism, if you are getting paid to influence legislation and show your face on The Hill or meet with executive officials, you better be registered and disclose your clients.

Of course, one expansion to the definition of lobbyist is in order: grassroots lobbying. Grassroots lobbying must be narrowly defined to avoid capturing regular citizens petitioning their officeholders and grassroots organizations protesting public policies. A very good definition was developed by a coalition of civic organizations in 2006 as “paid communications to the general public (not just to an organization’s own membership) to encourage the public to contact covered officials regarding pending legislation or regulations.”

This would capture business interests and others who pay a substantial sum for TV ads and direct mail intended specifically to lobby government. The amount of money spent by special interests on so-called grassroots lobbying is probably double that reported on direct lobbying.

The most influential lobbying powerhouses on The Hill embrace both direct and so-called grassroots lobbying to sway Congress and the White House. The public and legislators have a right to know who is spending how much to influence whom on which policies.

Craig Holman, Ph.D, is Public Citizen’s expert on lobbying and ethics.

Cross-posted on the National Journal’s Under the Influence blog.