arrowSection 3.4 - Government Employees

This topic is monitored by Moritz Law Professor Terri L. Enns

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The Regulation of Lobbying

Background

Lobbying at the federal level is regulated by the Lobbying Disclosure Act of 1995. 1  Congress passed the Act to strengthen an earlier lobbying law enacted in 1946, and to increase public confidence in the integrity of the federal government by requiring more detailed public disclosure of the activities engaged in by paid lobbyists. The Lobbying Disclosure Act does not seek to prohibit lobbying activities in any way; rather, its aims are to make the public more aware of lobbyists' efforts to influence the decision-making process in both Congress and the Executive Branch. The Act mandates that lobbyists register with Congress and file reports every six months disclosing the names of individual lobbyists, their clients, the bills or legislation on which they have lobbied, and the amount of money they spent lobbying and preparing to lobby. (Specific regulations concerning campaign contributions by lobbyists is discussed separately.)

What is the benefit of lobbying?

While lobbying is often viewed in a negative light, it provides a valuable service to the legislative process. Statutes and regulations address complex public policy problems, and lawmakers should have adequate information about those problems and any proposed solutions in order to make responsible judgments and decisions. Lobbyists can serve as a valuable resource in this context, providing legislators and others in policy-making positions with background information, in-depth analyses, and justifications for competing policy proposals. Lobbyists who value their credibility and professional reputations have a clear incentive to deliver reliable information without misrepresenting the state of affairs. At the same time, there are concerns that the public may believe the wealthiest players in the legislative process can subtly control the flow of information and broker closed-door deals that change the direction of public policy.

Apart from its informational and educative value, lobbying activity enjoys the protection of the First Amendment, which safeguards both freedom of speech and freedom to petition the government for the redress of grievances. It is in part because lobbyists are engaged in fundamentally protected activity that federal law regulating lobbyists is focused on public disclosure rather than any kind of prohibition. The statute seeks to balance the public's concern over possible behind-the-scenes deals and corruption against the government's need for reliable, in-depth information, all while accommodating the First Amendment interests in freedom to speak and petition.

What is Lobbying? And Who is a Lobbyist?

The Lobbying Disclosure Act applies to what it calls "lobbying activities"; these are defined as any oral or written communications with a covered government official, as well as preparation in support of such contacts, including research and planning activities. This definition of lobbying activities is important because all individuals who spend 20% or more of their time over a six-month period participating in lobbying activities for one client need to register as lobbyists. The 1946 Act required registration only by those whose principal purpose was to lobby, meaning individuals who spent a clear majority of their time lobbying. The new 20% threshold requires many more people who engage in lobbying to register. In addition, while the 1946 Act only covered contacts with Members of Congress, the current law broadens the universe of covered government officials to include the staff of Congresspersons and Senators and also civil servants and other employees of the executive branch.

Who Needs to Register?

Registration is required for a lobbying firm (i.e., one that employs lobbyists to act on behalf of a client other than itself), an organization that employs lobbyists to act on its own behalf, or a self-employed lobbyist. Along with an initial registration, a report must be filed every six months detailing the amount spent, which is either rounded to the nearest $20,000 or demarcated as being under $10,000. This report as well as the initial registration is filed with both the Secretary of the Senate and the Clerk of the House of Representatives.

Individuals who volunteer their services as lobbyists or who are not receiving any financial benefit do not need to register. Importantly, "grassroots" lobbying is not covered by the Lobbying Disclosure Act. Thus, for instance, highly funded, well-organized activities that encourage constituents to send form letters to their representatives do not trigger the disclosure requirements.

What needs to be on the registration?

A lobbyist registers on a standard form provided by the Secretary of the Senate or the Clerk of the House of Representatives. These forms can be viewed, printed out, and filed electronically on the website of The Secretary of the Senate and the Clerk of the House of Representatives. 2  On the initial registration form is the name, address, and phone number of both the client and the lobbying firm, if applicable, the general issue areas that the lobbyist is working on, the name of each lobbyist that is working for that particular client, and the areas of legislation or agency activity on which they may be lobbying. The semi-annual report must include similar information, as well as listing specific legislation that was lobbied for and describing financial expenditures on lobbying activities for that six-month period.

Penalties for Noncompliance

The penalty for non-registration or improper registration is a civil fine of not more than $50,000 depending on the extent and the gravity of the violation. Enforcement is under the power and discretion of the U.S. Attorney for the District of Columbia.

How can you access the registration/information?

All lobbying reports are public information. The easiest form of access is through the website of the Secretary of the Senate, where the reports are available for viewing. The Clerk of the House of Representatives does not place its reports on the Internet, but these reports are ordinarily very similar to those filed in the Senate. Both offices can be reached by phone and are willing to answer any questions one might have about lobbying. 3  Information also can be found on the website for Center for Responsive Politics, a non-partisan, non- profit research group in Washington, D.C. 4 

What is the scope of lobbying in Washington?

According to the Secretary of the Senate's statistics as of September 30, 2003, there were 6,005 registered lobbying entities (including lobbying firms) and 24,872 registered lobbyists (these are individuals; more than one lobbyist often works on behalf of a client). Lobbying entities registered in the Senate include all types of public and private institutions or organizations: the Town of Normal, Illinois; the Ohio State University; Clear Channel Communications; the Bowling Proprietors Association; and the Coalition to Preserve Access to White Pages represent a brief sample.

Ohio Rules

In Ohio, lobbyists are regulated pursuant to the Ohio Revised Code. 5  Referred to as either legislative agents or executive agency lobbyists, these individuals and their employers must register with the Joint Legislative Ethics Committee (JLEC). Registration is required if the lobbyist has had or anticipates having, "as one of his main purposes," direct communication, letters, emails, or phone calls, with any member of the General Assembly, any member of the Controlling Board, the Governor, the director of a department, or any member of the staff of any public officer, provided that the communication has been to promote passage, modification, or particular action on any legislation or executive agency activity and that the lobbyist is being paid for that work.

After initial registration, lobbyists and their employers must separately file updates with the JLEC every four months detailing expenditures. Reported expenditures are broken down into three categories: total, non-food, and food-and-beverage. Although employers must report all expenditures, lobbyists need not report expenditures of up to $50 per legislator for food-and-beverage and up to $25 for nonfood gifts. In addition to covering expenditures, the report requires information about the specific bills or resolutions that the lobbyist was discussing or promoting, the name of the public official or employee on whose behalf expenditures were made and the date.

Penalties for non-compliance include monetary fines up to $100 for late filings, civil liability if a false statement is filed and as a result a public officer or employee sustains damages, and possible criminal liability if a false statement was knowingly filed.

All information is filed with the JLEC and can be obtained on their website or in person. 6

Notes

1. Pub.L.No. 104-65, 109 Stat. 691, codified at 2 U.S.C. §§ 1601-07.

2. www.senate.gov and www.house.gov

3. Secretary of Senate – 202- 224-0758, Clerk of the House – 202-226-5200.

4. See www.opensecrets.org

5. O.R.C. §§ 101.70 to 101.79.

6. JLEC, 50 West Broad St, Columbus, OH 43215, 614-728-5100, www.jlec-olig.state.oh.us