The Law: Part III on Lobbying
Lobbying is highly regulated and relatively transparent. There's a lot you must do and disclose and are banned from doing. It all makes some people think twice about becoming a lobbyist.
This is Part III of a series explaining the tools and trade of lobbying, a misunderstood and maligned profession. Parts I and II are here and here. Part IV will deal with state lobbying. Part V will outline where I did my best lobbying (not Washington) and who our best “lobbyists” were (not me).
There are fewer registered lobbyists in Washington today than in 2007, after years of steady growth. Why? Much blame starts with a lobbying scandal involving US Rep. Bob Ney (R-OH) and a lobbyist named Jack Abramoff. A movie, “Casino Jack,” was made in 2010 about their exploits (a similarly named documentary was published earlier). Even though the law worked (the culprits were caught and prosecuted), Congress pounced on the opportunity to tighten lobbying regulations by passing the Honest Leadership and Open Government Act of 2007 (HLOGA).
Here’s what Wikipedia says about the Jack Abramoff scandal.
The Jack Abramoff Indian lobbying scandal was a United States political scandal exposed in 2005; it related to fraud perpetrated by political lobbyists Jack Abramoff, Ralph E. Reed Jr., Grover Norquist and Michael Scanlon on Native American tribes who were seeking to develop casino gambling on their reservations. The lobbyists charged the tribes an estimated $85 million in fees. Abramoff and Scanlon grossly overbilled their clients, secretly splitting the multi-million dollar profits. In one case, they secretly orchestrated lobbying against their own clients in order to force them to pay for lobbying services.
In the course of the scheme, the lobbyists were accused of illegally giving gifts and making campaign donations to legislators in return for votes or support of legislation. Representative Bob Ney (R-OH) and two aides to Tom DeLay (R-TX) were directly implicated; other politicians had various ties.
While bribery was already against the law, HLOGA law banned many practices involving gifts, money, and travel. Gifts were mostly banned unless the lobbyist and elected official had long practiced exchanging gifts - lobbyists can’t buy a congressman a cup of coffee (although congresspeople can accept free attendance [e.g., food and beverages] at a “widely attended event” involving 25 or more people from outside Congress). Private travel from entities with registered lobbyists was banned.
Even lobbying paraphernalia is regulated. I remember being advised that giving a congressman a hat with a corporate logo is fine (promotional materials are okay), but no coffee mugs. Seriously. They doubled the number of yearly disclosures from two to four and added teeth - random audits from the Government Accountability Office and increased penalties for filing false reports.
They also expanded “cooling off” periods from one to two years for Senators and House members to register to lobby their former colleagues. Ex-staff can’t lobby the chamber for which they served for a year (it used to be just their former office). As a former Secretary of the Senate turned food lobbyist, I was prohibited from lobbying the US Senate for a year (1997). However, I wasn’t prohibited from making political contributions to US Senators and could attend political fundraising events. More about that later.
One valuable aspect of the law was banning ex-senators and officials from visiting the Senate floor when they were in session. It made me sick to watch Senators-turned-lobbyists buttonholing their former colleagues that way. It was more than an unfair advantage. It was tawdry.
Also, Senators were banned from influencing hiring decisions at private firms (placing favored staff or lobbyists in certain positions). Republicans used to have something called “The K Street Project” about populating Washington-based lobbying jobs with loyal Republicans. I remember that effort, prompted because Democratic lobbyists outnumbered Republican ones.
Abramoff also inspired another law, the JACK Act (“Justice Against Corruption on K Street), signed by President Trump in 2018. It requires any lobbyist convicted of bribery, extortion, false statements, etc., to disclose the details.
As a result of these new requirements and penalties, people who considered themselves lobbyists began to reconsider. They decided it wasn’t worth the cost or chose to do just enough lobbying not to have to register. Some even suggested the law drove lobbyists “underground.” However, lobbyists are known to tattle on those who appear to be evading the law.
Who is a lobbyist, and when do they have to “register?”
Here’s where another law kicks in: the Lobby Disclosure Act of 1995 (since amended a couple of times, including after the Abramoff scandal). At the federal level, you have to register on two conditions. First, you spend at least 20 percent of your time on lobbying “activities,” broadly defined as anything involving legislation, a “rule” or regulation, the execution of a federal program or policy, or the confirmation of a presidential nominee. Second, you must register within a few weeks of making your first lobbying “contact” with a “covered official.” The law was designed to capture full-time Washington, DC-based influence peddlers.
It works like this. Spend most of your time doing lobbying activities, such as research, participating in meetings (not involving elected or “covered” officials), or dispensing advice, but never making a lobbying contact, and you don’t have to register. You also don't have to register if you make lobbying contacts but spend less than 20 percent of your time in lobbying activities - anything intended to be used for lobbying, including planning and research.
I know we’re getting into the weeds but bear with me. Let’s talk about lobbying “contacts” for a moment. Who counts as a “covered official” under the law?
Members of Congress and their staff, all of them, committee or personal staff, are automatic. But in the executive branch, it’s not so obvious. Pretty much any 3-4,000 “Schedule C” politically-appointed officials, especially those whose jobs require Senate confirmation. The military is limited to flag officers such as brigadier generals or, in the Navy, rear admirals (lower half)—very few “career” public employees qualify. Lots of guidance is available, and lobbyists are encouraged to ask the officials themselves if they’re “covered” by the law. They’re supposed to know.
Also, it’s not considered lobbying if you make a pitch in the news media, give a publicly available speech, or testify publicly before Congress. Or if a Congressperson calls and asks for information or contributions to his or her reelection campaign.
But, you must register if your job responsibilities require lobbying, and you have to file quarterly disclosure reports electronically with the Clerk of the House and Secretary of the Senate, who make those records publicly available. I was the first Secretary of the Senate to enforce the new Lobby Disclosure Act when it passed in 1995. I conducted a couple of dozen training sessions for the lobbying community around Washington, DC, along with the senior attorney on my staff. We all took the new law very seriously. Feel free to click the link above and type my name to access all my disclosures from 2002 through most of 2018, when I retired from the corporate lobbying world.
If you knowingly fail to comply, they will refer you to the US Attorney for the District of Columbia for prosecution. The Clerk of the House claims to have made 5,800 referrals to the US Attorney’s office for possible non-compliance. And guess who recently got caught failing to comply (again)?
Those disclosure reports don’t require you to list the House member or Senator’s name or the specific date or location of the meeting. You do have to disclose what issue you lobbied about and how much you spent on lobbying during that period. And under the big lobby reform law of 2008, the Honest Leadership and Open Government Act (HLOGA), you’re subject to audits by the Government Accountability Office (GAO), the investigatory arm of Congress. And they do occur, even though I never experienced one.
What about the former congressmen and Senators who claim they don’t lobby but work for lobby and law firms that do? There are many of them. They attend campaign fundraisers and might call former colleagues to ask them to meet with a lobbyist on staff, but no requests for an “official action,” like voting for a bill or intervening with a regulator. They’re “strategists” who help lobbyist do their jobs and open a few doors. It seems to me the list of “lobbying activities” should be expanded to include invitations and requests for meetings, if not more.
Attending a political fundraiser is not considered lobbying since contributions are over $200 per election are publicly disclosed, along with all campaign expenses, to the Federal Election Commission. Yes, lobbying happens at political fundraisers, often during meals and receptions. This is why many lobbyists also set up Political Action Committees. I created one at my former corporate employer (it was terminated not long after I retired). There are lots of regulations and transparency involved with running a PAC, from whom you can solicit, how you may solicit them, how much you may solicit, and what you can use the money for.
Some independent lobbyists are also very good at raising and bundling large personal contributions from well-heeled clients and friends (and lobbyists who “bundle” more than $15,000 in contributions have to disclose that).
I spent much time raising voluntary contributions from “eligible” employees, mostly senior executives. PACs can contribute up to $5,000 per candidate per election (a party primary and general election in the same year count as two elections). There’s also a $5,000 annual cap on what one person may contribute to PAC. I filed monthly disclosures with the Federal Election Commission. You can read about my former PAC here.
Is all this regulation and transparency worth it. Absolutely. Transparency builds trust, as does “aggressive compliance,” as I call it. I went overboard to ensure full compliance with the letter and spirit of the law, even “over-disclose” if there was any doubt. Often, I didn’t spend 20 percent of my time on lobbying activities, nor was I based in Washington, DC, but I kept my registration and filed disclosure reports anyway.
But I do have one complaint. HLOGA effectively banned a food industry trip for congressional staff I used to organize and participate in, called a “congressional field study.” A group of companies with facilities grouped in a particular part of the country, such as California’s Central Valley or central Pennsylvania, would invite staff to participate in a 4-5 day trip (staff were required to disclose travel publicly, including the estimated cost of lodging and travel) during the month-long August recess (“district work period”) to visit farms and food manufacturing facilities.
Nothing was glitzy about visiting Modesto, California, or Lancaster, Pennsylvania, bakeries or evaporated milk plants in mid-summer. It got staff outside of Washington and gave them real-world education about the intersection of food production and regulation, focusing on food safety. Sure, we’d sneak in a trip to Hershey Park or maybe a professional baseball game. The former staff I occasionally run into remember those trips fondly, not just for the established relationships but for the fascinating details of how products were made and the people who made them. And that was the point.
One funny story. I was helping lead a group of congressional staff on a tour of a Pepperidge Farm bakery in rural Pennsylvania one morning. At the end of the tour, the plant manager handed out freshly baked loaves of cinnamon raisin bread, freshly packaged and still warm. A particularly diminutive and quiet young lady suddenly became very animated. “You’re The MAN!” she exclaimed. I usually asked my bakery plant managers to bake cinnamon raisin bread when conducting plant tours with Congress people and staff. The smell was awesome, and the samples were delicious.
Food lobbying has its advantages.
Companies can still do those trips, but lobbyists can’t be involved in ANY way - even planning them. So, they don’t happen. Thanks to Jack Abramoff, there is one more wall between congressional staff, the industries they regulate, and the people they represent.
Speaking of Abramoff, after he published a book, “Capitol Punishment,” with several recommendations on how to “reform” lobbying. He proposes terminating the “revolving door” between public and private sectors with a lifetime ban on any Member of Congress or staff from working for private companies that employ lobbyists. That’s not only unconstitutional, but it’s also a killer for recruiting talented staff on Capitol Hill, and it’s stupid. His other ideas include a ban on lobbyist contributions to political campaigns for Congress (also unconstitutional - political contributions are protected speech) and congressional term limits (we mostly agree). He correctly notes that most federal lobbyists oppose term limits since it requires them to make new relationships more often.
I suspect Jack Abramoff never met the late Bryce Harlow, the Oklahoman who worked for six presidents and fathered the government relations industry in Washington, DC. Harlow’s life was chronicled in a biography titled “Mr. Integrity,” which he was. He seamlessly moved between working for six US Presidents, starting with Dwight Eisenhower and the private sector. He established Procter and Gamble’s Washington office. Lobbying rules and regulations practically didn’t exist during Harlow’s esteemed career.
No one wrote a forward to Abramoff’s self-serving autobiography. However, the late Dr. Henry Kissinger wrote the forward for the Harlow biography. “During his 24 years of federal service, Bryce Harlow was in and out of the White House, in and out of congressional offices, and in and out of the private sector so often that it was almost difficult to keep track,” Kissinger wrote.
“The problem was that Presidents, Congressman, industrial giants, and anybody who was anybody in the business of government in Washington sought and ‘required’ his advice and counsel. . .Bryce Harlow was the most respected expert of unquestioned ability and integrity in every aspect of life in Washington, DC. His every act brought credit to his country and to those institutions he served. . .”
You won’t find words like that written about Jack Abramoff. Fortunately, there are many more Bryce Harlows than Jack Abramoffs among Washington’s roughly 12,000 registered lobbyists. The best among them see their lobbying as an extension of their public service, where many got their start, from Capitol Hill to the Pentagon.
Abramoff must have missed his 42 months at Cumberland Federal Correctional Institute in western Maryland. He went back to jail in 2020 after being found guilty of failing to register to lobby for cryptocurrency and marijuana projects.
It says as much about those industries as it does Abramoff. You know people by the company they keep.
As for the movie, “Casino Jack,” Kevin Spacey portrayed Abramoff and met with him during his final months in prison. Even as the movie bombed at the theater, Spacey earned a Golden Globe nomination for his portrayal. Spacey, who famously portrayed an ambitious, corrupt, and murderous Democratic politician in Netflix’s “House of Cards,” recently experienced his own brush with the law. But unlike Abramoff, he was exonerated.
This has been a good series. The vast majority of lobbyists are good people advocating for a law, regulation, or protection from outside threats, foreign and domestic. Many are former Hill staff who understand the way knowledge is distributed in Congress. But there are bad ones out there too, as you point out. And like the relatively few ethically challenged Members of Congress, the relatively few bad ones give the vast majority a bad name. My biggest advice to lobbyists when I started lecturing on the subject was to never do anything that will reflect badly on the person whose support you are trying to get. It embarrasses them, and damages your reputation forever. There is no excuse for breaking the Ethics rules.
My first job in Congress was as chief of staff in the House in 2007, the year the lobbyist reforms were passed. We learned that we could not take gifts from lobbyists, but there were 27 exceptions to that rule. Our lawyers told us that if we were sitting down we were probably breaking the law but if we were standing up it was ok. Using a fork would probably send me to jail. Using a toothpick was fine. That did not change the fact that I needed to raise about a million bucks a cycle from the PAC community. It just put more land mines out there to step on while doing it.
While I started in 2007, I was named chief in 2006 before my boss took office. I was invited to a dinner of all the Illinois chiefs - both D and R - in December organized and paid for by the AT&T lobbyist. The dinners happened monthly or so and lobbyists traded off in paying for them. I had a good chat with all the chiefs and from that meeting found an issue on which to collaborate with Rahm Emanuel’s chief. After the lobby reform package passed, the bipartisan group never met again