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A New Twist in the Lobby Law: Auditors

Lobbyists beware, the auditors are coming.

The Government Accountability Office, which is charged under the new ethics law with auditing compliance of the act, sent out notification letters last week to various lobbyists, lobbying firms and other registrants in an effort to determine how closely they are following the law.

The audits are mandated under the Honest Leadership and Open Government Act of 2007, the first major change to federal lobbying disclosure law since 1995. They mark the first time the GAO, the investigative arm of Congress, has reviewed lobbying disclosure records.

Under the statute, audit results of the first-quarter 2008 lobbying reports are due within six months. GAO spokesman Charles Young said the agency expects to release its findings in a report to lawmakers by Sept. 30.

Ethics lawyers say they have been pumping the agency for information over the past several months on what to expect in order to prep clients for the potential audits.

“I have attempted in the past to get GAO to share with us what their intentions are for the auditing process and in particular whether they have developed specific auditing guidelines, but they have been very tight-lipped and not really willing to discuss it,” said Robert Kelner, chairman of Covington & Burling’s election and political law practice.

The statute’s language is broad, requiring the Comptroller General, who heads the GAO, to “audit the extent of compliance or noncompliance with the requirements of this Act … through a random sampling of publicly available lobbying registrations and reports.”

More ominously, for lobbyists perhaps, is that the law also gives the agency the authority to request answers — in writing — about a lobbyist’s compliance with the law on “such information as the Comptroller General may prescribe.”

Ethics lawyers say that could include detailed nonpublic information — such as time sheets and travel and restaurant records — that the GAO might need to determine whether a law firm partner, for example, met the threshold requirements for registration.

The GAO’s Young declined to discuss what information auditors would be requesting.

It is also unclear whether individual firms or lobbyists who have been audited will be named by the agency in its September report. Details on that reporting, Young said, “are still being worked out.”

One firm doing work on behalf of a client being audited said the GAO sent an e-mail last week with the intention of setting up a face-to-face meeting in June.

The ethics lawyer handling that inquiry expects that the GAO will look for records to back up the information filed in lobbying disclosure reports. In addition, the inquiry may address which issues were lobbied on and how the entity calculated its lobbying spending.

Another ethics lawyer with a client who has been contacted said the GAO is narrowing its search in that audit to specific lobbying disclosure reports.

“They are asking us to set aside a considerable period of time for the audits,” said yet another lawyer with at least one client who has received an audit letter.

One issue being bandied about by ethics lawyers is what power the GAO has in cases where the entity being audited refuses to comply with requests for information. The GAO doesn’t have subpoena authority, said Cleta Mitchell, an ethics lawyer at Foley & Lardner.

But the law does state that the GAO may notify Congress if the entity it is auditing does not respond to requests within 45 days.

The Secretary of the Senate and the Clerk of the House then have the authority to write to the individual or group that isn’t in compliance, and if they have not heard back within 60 days, they may refer it to the Department of Justice.

This could be relevant in the event that the GAO determines it wants to investigate how coalitions or organizations with individual members, such as trade associations, determine which of their members are active participants under the law.

Under the new law, coalitions and trade associations must either list specific controlling members of their organization or provide a Web site that lists its members.

Most trade associations publicly disclose members on their Web sites. But if the GAO asks an association to disclose details of private member communications and other nonpublic membership information in order to assess its compliance with the “actively participates” coalition reporting provisions of HLOGA, such an inquiry could violate the Constitution’s protection of free speech and association, said Jeff Altman of McKenna Long & Aldridge.

It could also conceivably strengthen the hand of the National Association of Manufacturers. The group unsuccessfully argued in U.S. District Court that having to list its members who actively participate, as the law now requires, violates its First Amendment rights. That case is now awaiting a hearing before the U.S. Court of Appeals for the District of Columbia.

Still, ethics lawyers say they have advised clients to pre-emptively put in place “best practices” for keeping records and being prepared in the event of an audit by the GAO or a more conventional audit by the Internal Revenue Service.

In addition, the new law also requires the GAO to provide recommendations on improving compliance to Congress and giving the Department of Justice guidance.

“I think that would be helpful,” said an ethics lawyer who focuses on compliance work. “Most of my clients are asking, ‘Exactly what do we need to do? Give us a boilerplate program of documents we need to maintain.’”

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