A Lobbyist By Any Other Name: Registration Requirements In The LDA
Lobbying is often portrayed as a profession held by those who inhabit the shadows of Washington, waiting to corrupt politicians and exert unseemly influence on America’s legislative bodies. The startling lack of regulation and accountability for lobbyists through the late twentieth century was a major contributor to this undesirable reputation. Even in 2019, after several attempts at reforming the multi-million dollar industry, basic questions remain unanswered. These include perhaps what should be the most basics of all questions posed on the topic: what specifically qualifies someone as a lobbyist?
Although some may wish otherwise, lobbyists do not walk around D.C. with scarlet ‘L’s pinned to their blazers and they never have. States, beginning with Massachusetts, passed initial lobbying laws in 1890 and 22 states had them before the first major domestic federal lobbying law was passed in 1946; lobbying by foreign nationals was addressed by the Foreign Agents Registration Act (FARA) in 1938. The Federal Regulation of Lobbying Act (RLA) of 1946 intended to bring lobbyists into the light by required them to disclose how much they spent and were paid and who they gave to or received money from in the process of attempting to influence legislation. The lynchpin of the statute, like that of most of the laws in the 22 states at the time, was the idea that publicizing lobbyists activities would limit the amount of money expended in an effort to influence legislation. However, while the law attempts to delineate who must register as a lobbyist and report their activities and who need not, the definitions are broad and conflicting. The sections (305, 307 and 308) intended to so in fact “…do not afford a conclusive definition of who is a professional lobbyist.” The act of lobbying the government is protected by the First Amendment which states that there is the right “to petition the Government for a redress of grievances,” so it is understandable that Congress was hesitant to write the definition of a lobbyist too narrowly and risk it being swiftly struck down by the Supreme Court. Unfortunately, the broad diction found in the aforementioned sections extended to the rest of the bill, which was described in 1947 – a mere one year after it passed – as “…neither carefully drafted nor fully considered.”
Perhaps the most glaring error of the RLA was that it failed to define “lobbying”; in fact, the term never appears in the statute. Additionally, the broadly written definitions led to a Supreme Court ruling, United States v. Harriss, which interpreted the RLA in a way that implied “…compliance is more in the nature of a voluntary action than one clearly required by a criminal statute.” Ultimately, the RLA would stand as the country’s sole major piece of legislation aimed at regulating domestic lobbying activities for nearly fifty years. By 1993, it was widely believed that far more lobbyists should have been registering as such than were doing so, and the American public was clamoring for reforms of the industry.
In an effort to shed some light on the lobbying practices occurring throughout Washington and bring unity to the multiple competing registration and disclosure standards, Congress drafted the Lobbying Disclosure Act (LDA) of 1995. With it, Congress hoped to produce a more ‘comprehensive’ registration and disclosure system. To accomplish these things, they would have to strike a balance between protecting the first amendment rights of lobbyists, while supporting the right of the American people to know who is attempting to influence the legislative process.
First, the LDA needed to define what specifically triggers the need for someone to register as a “lobbyist,” using that specific term which the RLA omitted in 1946. The statue also needed to give clear, proper definitions to the concepts of ‘lobbying contacts’ and ‘lobbying activities,’ as well as delineate the government actors who do and do not qualify as ‘contacts,’ and the actions that qualify as “political activities.” Under the RLA, disclosure was required, but the LDA would need to produce more stringent guidelines about when and what reports would be filed and with who. The more specific the LDA was written, the more effective it would be in addressing dissatisfaction with the RLA disclosure and registration requirements. In short, the goal of the LDA was to do everything the RLA had attempted and failed to.
The Lobbying Disclosure Act was introduced by Senator Levin of Michigan and had seven cosponsors consisting of four Democrats and three Republicans. The bill repealed and replaced the RLA, passing the Senate 98-0, and the House by voice vote. It was signed into law by President Clinton on December 19, 1995. Senator Bob Dole said the LDA “tightens up the registration and disclosure requirements for the Washington-based lobbyists, without infringing upon the rights of ordinary citizens at the grassroots to petition their Government.” Senator John Glenn added that it countered “the perception that Congress in particular is beholden to special interests and that ordinary people cannot rise above the din of lobbyists having special access to and currying favor from Members of Congress or top officials in the executive branch.”
The LDA set out a plethora of definitions for terms previously interpreted too broadly, too loosely, or not at all. Under the bill, an individual qualifies as a “lobbyist” if they make two or more “lobbying contacts” on behalf of a client or organization and spend 20% or more of their time on “lobbying activities” for that client or organization during a calendar quarter (three months). A “lobbying contact” is any communication, i.e. email, phone call, meeting, with a Covered Legislative or Executive official intended to influence legislative or executive action. Covered Legislative officials are any Member of Congress or Congressional staffer, while Covered Executive officials are the Executive Office of the President (EOP), individuals on the Executive Schedule, members of the Senior Executive Service (SES) and Schedule C political appointees. “Lobbying activities” are defined as lobbying contacts and efforts supporting the previously defined contacts, i.e. research, strategy, arranging meetings. Additionally, the need for a firm to register is triggered by either the activity of an individual employee of a lobbying firm or organization, or if a firm or individual receives more than $3,000 in calendar quarter from a client for lobbying activities or total expenses for lobbying activities are more than $12,500 per quarter.
In addition to defining key roles and activities relating to lobbying, the LDA included executive branch officials as necessary reported lobbying contacts for the first time. Senator McCain described this inclusion as an acknowledgment that “the members of the executive branch are subject to the same lobbying, and the same influences because decisions of enormous consequence are made in the executive branch.”
The Lobbying Disclosure Act sought to close significant inadequacies from the Regulation of Lobbying Act, and thereby increase transparency and accountability in lobbying. However, by defining the terms in the manner the legislation did with specifics, such as 20% or more of time spent on lobbying activities, without developing enforcement mechanisms or adapting to changes in the way individuals influence lawmakers the LDA opened the door for rampant exploitation of grey zones. In 2002, lobbying was D.C.’s third largest enterprise with approximately 15,000 full-time professional lobbyists registered with Congress; the estimate of actual lobbyists in D.C. was placed close to 91,000 people. Congress was once again fishing for lobbyists with a net whose holes were too large.
In the years following the passage of the LDA, it became clear the legislation failed to provide strong enough coverage for a wide variety of lobbying functions. These areas include the development of a strategic game plan, management of lobbying campaigns, communications related to advertising and the internet, grassroots mobilization including polling, earned media and paid media, coalition building and maintenance, as well as survey research, policy analysis, and opposition research. The LDA also stumbled by tying the definition of a lobbyist to spending 20% or more of an individual’s time fulfilling ‘lobbying activities.’ Many who would otherwise have met the criteria, had the aforementioned activities been captured in the LDA scope of lobbying activities, did not feel they needed to register. The bill also failed to provide strong enforcement mechanisms to ensure individuals who should be registering were and are accurately reporting all relevant activities. In short, if an individual states they spend less of than 20% of their time on lobbying activities they need not register because a lobbyist must meet all three sections of the criteria as listed in the LDA; there are virtually no mechanisms in place to confirm or negate adherence to the 20% rule as it is self-reported. In the first 15 years (1996-2011) that the LDA stood as law, “there ha[d] been no formal enforcement actions filed and only three formal settlements.” These deficiencies inadvertently led to the rise of shadow lobbying, and the controversial label of ‘strategic advisor.’
Shadow lobbyists perform all manner of lobbying activities, including those listed in the previous paragraph that slip through the cracks of the LDA’s definition of lobbying activities - but are certainly in the spirit of the definition. Political scientist Tim LaPira described shadow lobbyists as,
“…any professional who is paid to challenge or defend the policy status quo, to subsidize policymakers with information, or to closely monitor intricate policy and political developments that are not readily available to the public—or those who offer expertise, knowledge, and access in support of these activities—yet who do not register as lobbyists.”
Individuals may purposefully not register to evade being registered as a lobbyist, or they may mistakenly believe they do not meet the necessary criteria; in either scenario, individuals who meet the above definition and do not register are engaging in ‘shadow lobbying,’ and dodging the LDA registration requirements. Only 5 years after the LDA was passed, the number of shadow lobbyists was estimated to be around 76,000 people.
Some individuals serve as ‘strategic advisors,’ and the argument over whether they should be registering as lobbyists under the LDA is more controversial. Often strategic advisors have held covered positions in the legislative or executive branch that prevent them from lobbying on certain issues, or to certain bodies for a period of time after they leave said covered position. While some studies looking at former Members of Congress who engage in work as strategic advisors found that the individuals should be registering, others vehemently argue that there is a fine but definite line between lobbying and government relations and that strategic advisors generally operate on the government relations side.
The Lobbying Disclosure Act was an important effort at regulating the lobbying industry, however, ultimately it was far less effective in reality than Congress had intended. Additionally, after the Honest Leadership and Open Government Act passed in 2007, many problems with defining and regulating lobbyists were exacerbated. Over 15,000 cases of possible LDA non-compliance were referred to the U.S. Attorney for the District of Columbia between 1995 and 2017, but only nine progressed to any form of consequence for individuals involved and no criminal convictions were produced. The LDA did provide a clearer definition of who is a lobbyist than any statutes before it, but the definition is far from comprehensive, lacking enforcement, and must be adapted to the modern age of the internet, new forms of advertising, and the ever-changing rules of the influence game.