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More Disclosure Likely With Senate Changes to Lobbyist Disclosure Act

Last week, the Senate approved a package of new gift and travel rules. Unlike the House, however, the Senate action would amend the Lobbying Disclosure Act. Today we focus on these pending amendments to the lobby law: the potential of ethics reform to achieve, through lobbying law, more disclosure, and the effects on registered lobbyists.

Other provisions of interest, such as one that would restrict lobbying by Members’ spouses or would limit entertainment at national party conventions, also are noted. In a future column we will address how the House and Senate gift and travel rules may soon differ.

Quarterly Reports. The Senate bill increases the current semi-annual reporting requirement for firms that employ lobbyists to quarterly reports filed 20 days after the end of the quarter, or April 20, July 20, Oct. 20 and Jan. 20. Electronic filing will be mandatory. The Clerk of the House and Secretary of the Senate are directed to create a publicly accessible database of lobbying report information.

Reporting of Lobbyist Fundraising Activity. An amendment offered by Democratic Sens. Barack Obama (Ill.) and Russ Feingold (Wis.), approved by the Senate, requires comprehensive disclosure of fundraising activities by lobbyists, their employers or political action committees they establish or control. The reportable activity includes: political contributions made or “arranged,” events hosted or co-hosted and checks collected or transmitted. In each of these instances, the fundraising must be disclosed quarterly and in some cases with additional detail, such as the date and location of events “hosted, co-hosted, or sponsored.”

The provision also supplies some definitions for key terms. “Arranged” contributions are those subject to “a formal or informal agreement, understanding, or arrangement” by which the lobbyist is credited for the fundraising; or, even in the absence of such an understanding, where the lobbyist knows (has “actual knowledge”) that the candidate is aware of her role in generating the funds.

Where the reporting lobbyist cannot identify the precise amount raised, such as the amount collected or arranged, the amendment would call for “a good faith estimate.” The threshold for these reporting requirements is low: contributions equal to or exceeding $200 within the calendar year.

It is unclear how these requirements relate to federal campaign finance laws that regulate bundling. Strictly speaking, they do not — there is no evidence of that intention. Yet there is an interactive effect. For example, the federal law requires bundlers to report to the Federal Election Commission in some circumstances, and it also applies limits to amounts raised by the bundler under his or her “direction and control.”

Few contributions are reported or restricted under these provisions, largely because the law is unclear and there is little information available to the agency to police these requirements in particular cases. With the amendment to the LDA, this changes: A lobbyist who reports under the LDA any of the described fundraising activities presents herself, on the public reports, as conceivably engaged in Federal Election Campaign Act-regulated activity.

The LDA may infuse new life into these largely obscure — and often ignored — FECA provisions. Other requirements under these amendments serve to enhance enforcement of the Senate rules.

For example, one provision compels disclosure of fundraising for retreats held for the benefit of Members. Under current rules, a lobbyist cannot finance this kind of event, but the LDA amendment forces into public view more indirect financing in which the lobbyist is involved — through the lobbyist’s employer or its political action committee. By also requiring reporting of donations to events in honor of specific Members, or to fund an endowment or other entity in the Member’s name, the amendment allows for enforcement of broad ethical standards that affect such payments if made in apparent relation to ongoing official business before the Member.

Cooling-off Periods for Members and Staff. Current law bars Congressional personnel from certain lobbying for one year after leaving Congress. The Senate bill expands the restriction in several ways.

First, the Senate expands the cooling-off period for Senators, Members of the House and senior staff (“elected officers”) as well as senior executive branch personnel to two years. Covered Congressional officials are barred from lobbying anyone in either the House or Senate. Congressional staff above a certain pay grade will be subject to the current one-year cooling-off period; however, the prohibitions of this cooling-off period have been extended to lobbying both houses of Congress.

Second, a provision offered by Feingold and adopted into the bill prohibits Members of Congress and elected officers from engaging in lobbying activities for two years. The effect of this ban is that former Senators and Congressmen will be barred from engaging in meetings and giving advice to others on how to lobby Congress as well as actual lobbying contacts (communications with Congress).

For example, a former Congressman would not be permitted to sit in a meeting with clients or other lobbyists and advise those persons on how to lobby Congress, even though the former Congressman never contacts any Congressional official himself or herself. Such a restriction is new to the LDA and has not previously been applied to any former government official.

Coalitions and Associations. Current law provides that associations and informal coalitions that retain lobbyists and register under LDA do not have to disclose the names of their members unless a member donates more than $10,000 and “in whole or in major part plans, supervises, or controls such lobbying activities.”

The Senate bill changed the language in this provision to lower the thresholds for disclosure. It would require disclosure of members by an association or coalition if the member donates more than $5,000 and “participates in a substantial way in the planning, supervision or control of such lobbying activities.” The import of this change is unclear, and there is no legislative explanation to date, but overall, the measure as approved by the Senate would expand the circumstances under which association members may have to be identified on an association’s LDA registration.

An enrolled version of the bill the Senate passed is not yet available as of this writing. Since the legislation was subject to numerous amendments and substitutions, many of which were by unanimous consent, a detailed listing of the proposed changes to LDA remains difficult to compile and definitively analyze. There are provisions affecting former Members of Congress such as denial of floor and gym privileges and forfeiture of retirement benefits in the event of certain kinds of criminal conviction and a new requirement for disclosure of earmarking provisions.

Other changes of note:

Convention Parties Honoring Senators; Other Events in Their Honor. The Senate also approved a new rule that would bar Senators from attending any event in their honor during a national party convention if the event is paid for by a lobbyist or an entity that retains or employs lobbyists. This is a change to the “widely attended event” exception under both House and Senate rules. Normally Senators may attend large gatherings and even receptions. However, under the approved measure, a Senator cannot agree to such an event in his or her honor if it’s paid for by lobbying entities. Another provision would require disclosure by lobbyists (or their employers) of events held in honor of Members at other times, which would remain permissible.

Spousal Lobbying. The bill would prohibit Senators and their staff (including staff in personal, leadership or committee positions) from having “official contact” with a Senator’s spouse who is also a registered lobbyist. This prohibition does not apply where the spouse was a registered lobbyist for at least one year prior to marriage to that Senator.

One Change Not Made, Also of Note. The original bill would have made grass-roots lobbying, i.e., activities geared at making employees, members or the public communicate with Congress, subject to LDA registration and reporting. The Senate deleted that provision on a vote of 55-43.

Unless the House votes to add grass-roots lobbying back into the legislation and the provision survives a conference committee, the proposal appears dead in this Congress. Similarly and by a margin of 71-27, the Senate rejected an attempt to create an Office of Public Integrity that would regulate and enforce the gift and lobbying laws. Enforcement of House and Senate ethics rules remains within the jurisdiction of the ethics committees. Enforcement of LDA remains with the Department of Justice.

This much is certain: There are many substantive changes to current laws and rules. If and when these changes pass the House, are signed by the president and become law, government officials and lobbyists will have to devote some time to mastering them and managing the necessary adjustment in their compliance programs.

Jan Baran and Robert Bauer are partners at Wiley Rein & Fielding and Perkins Coie, respectively. They have counseled clients including Republican (Baran) and Democratic (Bauer) Members of Congress.

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