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Running the Traps on the Need to Register

I am a freelance lobbyist with a question about registration requirements. As I understand it, under the lobbying reform, the Congressional gift and travel rules apply to registered lobbyists, but not to lobbyists who do not register. It has been so long since I first started registering as a lobbyist that I cannot recall what the precise criteria are that trigger the requirement to register. Now that the lobbying reform raises the stakes for registered lobbyists like me, I thought it would be worth re-evaluating whether I need to continue registering. What are the criteria that would require me to register?

[IMGCAP(1)]A: Under the recently enacted Honest Leadership and Open Government Act, the gap between the legal liability of registered lobbyists and that of lobbyists who are not required to register has grown even wider. Registered lobbyists now face up to five years in jail for corrupt violations of the Congressional gift and travel rules, and fines of $200,000 for knowing violations. Meanwhile, lobbyists who lawfully choose not to register face no such liability.

The growing gap in liability between registered and unregistered lobbyists may make some lobbyists wonder why they should register at all. The answer for most of them, of course, is that the law requires them to. Moreover, lobbyists’ new obligations to comply with the Congressional gift rules apply not only to those who register, but also to those who are required to register but fail to do so. Lobbyists cannot evade the new obligations simply by ignoring the registration requirements.

On the other hand, lobbyists who are not required to register but do so anyway unnecessarily subject themselves to potential legal liability. The sharp increase in the legal exposure of registered lobbyists is good reason to revisit the criteria that trigger the requirement that lobbyists register in the first place.

Given that you have been registering for years, you probably already know that lobbying registration criteria operate on a client-by-client basis. This means that lobbyists must file a statement for each client where the registration criteria are met. There are two basic criteria. First, the lobbyist must be employed by a client for services that include more than one “lobbying contact.” And second, “lobbying activities” must constitute at least 20 percent of the lobbyist’s time in services for the client over a given three-month period. Let’s look at these criteria one at a time.

As for the first criterion, a lobbying contact is a communication to a covered official. The relevant terms here have highly technical definitions, so for specific questions you should study those definitions closely. Generally, however, “covered officials” include most employees in the legislative and executive branches of the federal government. And a qualifying “lobbying contact” is a communication with such an official made on behalf of a client regarding official government actions such as the formulation of federal legislation, regulations and policies. There also is a long list of exceptions to this definition, covering communications like requests for status updates, testimony before a Congressional committee, and communications compelled by subpoena or a federal contract. The bottom line is that if you communicate with a government official in an effort to influence her position regarding an official matter on behalf of a client, then your communication is likely to meet the definition of “lobbying contact” with regard to that client.

The second criterion is whether, during a given three-month period, “lobbying activities” constitute at least 20 percent of the time that you spend providing services to that client. It is important to remember that the definition of lobbying activities is much broader than lobbying contacts. It covers not only the contacts themselves, but also efforts in support of such contacts, including preparation or planning activities, research and other background work. Essentially, if the intent of the work is to support ongoing or future lobbying contacts, then it falls within the definition of lobbying activities. If, during a three-month period, such activities constitute 20 percent of your services for a client, you meet this criterion.

Only if you meet both criteria for a particular client do you have to register. So, if you never have direct lobbying contacts with covered officials but instead only do behind-the-scenes work, there is no need to register. Conversely, if you do have a few lobbying contacts for a client, but, during a given three-month period, lobbying activities make up less than 20 percent of your services for that client, there also is no need to register.

As you can see, navigating through the complex registration criteria requires closely monitoring lobbying contacts and activities, a tedious task. Given these demands, some lobbyists err on the side of caution and register if they think there is even a chance that they are required to do so. In the past, lobbyists have been able to register without exposing themselves to substantial legal risk. With the recent lobbying reform, your question is a reminder that registering may now expose some lobbyists to risks that, depending on their practices, they might not need to face.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.