Lobbying Disclosure: Themes, Issues, and Legislative Consideration, 110th Congress
Lobbying Disclosure: Themes and Issues,
th
110 Congress
Updated May 29, 2007
R. Eric Petersen
Analyst in American National Government
Government and Finance Division
Lobbying Disclosure: Themes and Issues, 110
Congress
Summary
Recent incidents concerning a convicted lobbyist and the provision of privately
funded travel, free meals and entertainment by lobbyists to Members of Congress,
congressional staff, and some executive branch officials have focused broad public
and congressional attention on the interactions between government officials and
lobbyists. The First Amendment to the Constitution provides opportunity for interest
groups to participate in public policy making by prohibiting laws abridging freedom
of speech, while guaranteeing the right of the people to peaceably assemble and to
petition the government for a redress of grievances, but lobbying is controversial.
Any consideration of current law related to lobbying will likely involve discussing
the balance between open, transparent, and accountable governance through thorough
public disclosure of activities carried out by lobbyists, and the rights of lobbyists, on
their own, or on behalf of a client, to exercise constitutionally guaranteed rights.
The attention of policy makers has in the past focused in two general areas: (1)
the efficacy of current lobbying disclosure requirements; and (2) congressional rules
governing interactions between lobbyists, Members of Congress, and their staffs, and
statutes governing similar relationships between lobbyists and executive branch
officials. This report focuses primarily on issues related to lobbying disclosure
procedures and their potential amendment.
The regulation of lobbying disclosure is governed by the Lobbying Disclosure
Act of 1995 (LDA), as amended. During the early organizational period prior to the
110th Congress, it was reported that leaders of the new incoming majorities in both
chambers indicated that lobbying disclosure procedures are likely to be considered
as part of a broader package of ethics and procedural initiatives related to lobbying
activities. Some of that consideration might include the following issues related to
lobbying disclosure: (1) defining clients under LDA to incorporate coalitions and
grassroots lobbying; (2) frequency and scope of disclosure; (3) revolving door
provisions; (4) lobbyist contributions and payments; (5) linking lobbying disclosure
information with Federal Election Commission reports; and (6) LDA enforcement
and administration.
This report will be updated as warranted. For analysis of lobbying-related
legislation considered in the 110th Congress, see CRS Report RL34008, Lobbying
Reform Legislation: Side-by-Side Analysis of Lobbying Provisions in S. 1 and H.R.
2316, 110th Congress, by Jack Maskell. For further background information and
analysis regarding lobbying-related proposals, please consult the CRS Current
Legislative Issues page on Lobbying and Ethics Reform at
[http://apps.crs.gov/cli/cli.aspx ? P RDS_CLI_ITEM_ID=2405&f r o m = 3 & f r o m Id = 1 2 ] .
Contents
In troduction ......................................................1
Background ..................................................2
The Lobbying Disclosure Act of 1995..................................5
Lobbying Disclosure Issues in the 110th Congress.........................7
Definition of Client and Specification of Client Activities..............8
Frequency and Scope of Disclosure...............................11
Revolving Door Provisions.....................................11
Disclosure of Lobbyist Contributions and Payments..................12
Electronic Filing of LDA Materials, and FECA Linking...............13
LDA Enforcement............................................13
LDA Administration and Oversight...............................15
List of Figures
Figure 1. LDA Registrants, Clients, and Lobbyists, 1996-2006..............6
List of Tables
Table 1. Registrants, Clients and Lobbyists Registered Under
the Lobbying Disclosure Act of 1995, 1996-2006.....................7
Lobbying Disclosure: Themes and Issues,
th
110 Congress
Introduction
Some of the areas widely believed to be influenced by lobbyists include general
legislation and administrative rulemaking, the inclusion of earmarks in appropriations12
legislation that benefit narrow interests, and campaign finance practices. Recent
incidents concerning a convicted lobbyist and the provision of privately funded3
travel, free meals and entertainment by lobbyists to Members of Congress,
congressional staff, and some executive branch officials have focused broad public
and congressional attention on the interactions between government officials and
lobbyists.
The First Amendment to the Constitution provides opportunity for interest
groups, which might lobby either in their own behalf, or through paid lobbyists, to
participate in public policy making by prohibiting laws that unduly abridge freedom
of speech, the right of the people to peaceably assemble, and to petition the
government for a redress of grievances.4 Any consideration of current law related to
lobbying will likely reconsider the balance between open, transparent, and
accountable governance through thorough public disclosure of activities carried out
by lobbyists, and the rights of lobbyists, on their own, or on behalf of a client, to
exercise constitutionally guaranteed rights. Toward those ends, the attention of
policy makers has focused in two general areas: (1) the efficacy of current lobbying
1 See CRS Report RL33818, Federal Budget Process Reform in the 110th Congress: A Brief
Overview, by Robert Keith; and CRS Report 98-518, Earmarks and Limitations in
Appropriations Bills, by Sandy Streeter. For analysis of earmark-related measuresth
considered in the 109 Congress, see CRS Report RL33397, Earmark Reform Proposals:
Analysis of Latest Versions of S. 2349 and H.R. 4975, by Sandy Streeter; and CRS Report
RL33295 Comparison of Selected Senate Earmark Reform Proposals, by Sandy Streeter.
2 See CRS Report RL33836, Campaign Finance Legislation and Activity in the 109th
Congress, by Joseph E. Cantor and R. Sam Garrett; and CRS Report RL33580, Campaign
Finance: An Overview, by Joseph E. Cantor.
3 See CRS Report RL33893, Gifts and Ethics Rules: Side-by-Side Comparison of Provisions
of S. 1 and H.Res. 6, 110th Congress, by Jack Maskell; CRS Report RL33047, Restrictions
on the Acceptance of “Officially Connected” Travel Expenses From Private Sources Under
House and Senate Ethics Rules, by Jack Maskell; and CRS Report RS22231, The
Acceptance of Gifts of Free Meals by Members of Congress, by Jack Maskell.
4 For a broad overview of the roles and activities of groups that lobby Congress, see U.S.
Senate, Committee on Governmental Affairs, Subcommittee on Intergovernmentalth
Relations, Congress and Pressure Groups: Lobbying in a Modern Democracy, 99 Cong.,nd
disclosure requirements; and (2) congressional rules governing interactions between
lobbyists, Members of Congress, and their staffs, and statutes governing similar
relationships between lobbyists and executive branch officials.
This report focuses primarily on issues related to lobbying disclosure procedures
and their potential amendment. For analysis of lobbying-related legislation
considered in the 110th Congress, see CRS Report RL34008, Lobbying Reform
Legislation: Side-by-Side Analysis of Lobbying Provisions in S. 1 and H.R. 2316,
110th Congress, by Jack Maskell. For further background information and analysis
regarding lobbying-related proposals, please consult the CRS Current Legislative
Issues page on Lobbying and Ethics Reform at
[ http://apps.crs.gov/cli/ cli.aspx ? P RDS_CLI_ ITEM_ID=2405&from=3&fromId=12] .
Background
In the American political system, the pursuit of private interests through
adoption and amendment of public policy dates from the founding of the republic.
Writing in support of the new, as yet unratified Constitution in 1787, James Madison
identified interest groups, or factions — groups of citizens united by a common
impulse of passion or of interest — as a cornerstone of the American regime, but one
that had potentially negative connotations.5 In 1830, Alexis de Tocqueville observed
that “in no country in the world has the principle of association been more
successfully applied ... than in America,” and that the inclination to association was
a positive benefit for American society.6
More than two centuries after Madison’s writings appeared, the role of interest
groups and lobbyists in contemporary policy making is still controversial. In the past
40 years, observers have noted a steady increase in the number of organized interest
groups, including associations, public interest groups, and professional organizations.
Many of these groups lobby in their own behalf or retain the services of lobbyists.
Additionally, these observers note a change in the types of activities lobbyists employ
to influence policymaking. Longstanding lobbying techniques of establishing
personal ties with Members of Congress, their staffs, and executive branch officials,
testifying at congressional and administrative hearings, and supporting public
officials in their reelection efforts have been supplemented by marketing techniques.
Some of these techniques include direct mail, public relations, newspaper
advertisement, and other approaches to generate attention and interest in public
policies and programs, in an effort to influence the decisions of policy makers. One
consequence of this growth is an increase in the costs of lobbying.
Some observers assert that money plays a critical role in gaining access to policy
makers, and thus desired policy outcomes, for those who commit such resources.
These observers assert that lobbyists might use money to gain favor and influence
5 See Federalist Number 10, in The Federalist by Alexander Hamilton, James Madison, and
John Jay, edited by Benjamin Fletcher Wright (Cambridge, MA: The Belknap Press of
Harvard University Press, 1961), pp. 129-136.
6 Alexis de Tocqueville, Democracy in America (New York: Colonial Press, 1989), vol. I,
quote, p. 191.
with public officials in a number of ways, including (1) making campaign
contributions, hosting fund-raising events, or raising and bundling contributions to
Members of Congress or their leadership political action committees (PAC); (2)
arranging trips for Members or other government officials, paid for by their clients
or employers; (3) arranging privately owned aircraft for travel at below market costs;
(4) paying for parties or meals and tickets to sporting and entertainment events;
making contributions to foundations established or controlled by public officials; and
(5) financing retreats and conferences held by Members or other public officials.
Those observers assert that because such funds are intended to help influence the
decisions of Members, they must be subject to appropriate controls to protect the
integrity of congressional decisions.7
Others counter that the primary activity of lobbying is a communication process
regarding issues that may effect firms, organizations and citizens, and that such
communications are a legitimate and necessary part of the American political
process. Proponents of this view assert that lobbyists representing a broad range of
interested parties help Members and their staffs both to sort through the large volume
of legislative initiatives that are typically introduced in each Congress and make
informed decisions regarding those initiatives. For them, effective lobbying is not
about access or money, but organizing and providing information to congressional
and executive branch officials regarding the necessity and potential consequences of
various legislative or regulatory initiatives from a variety of viewpoints. From their
perspective, enforcement of current rules and regulations regarding disclosure and
interactions between government officials and lobbyists, such as those cases recently
adjudicated,8 and enhanced education about those rules are preferable to enacting
more rigorous disclosure regimes.9
Since the interactions between lobbyist and policy makers are protected under
the First Amendment, there is likely no way to prohibit those interactions in a manner
consonant with the Constitution. Instead, activities of individuals and firms that are
compensated as lobbyists are tracked through a system of direct and indirect
disclosure of contact and other interactions, but not the content of those interactions.
Direct disclosure of lobbying activities is required under the Lobbying and Disclosure
Act of 1995 (LDA), as amended, and discussed below. Indirect tracking of the
7 Statements and testimony of Fred Werthheimer, president of Democracy21, before the
Senate Committee on Homeland Security and Governmental Affairs, January 25, 2006;
Ibid., before the Senate Committee on Rules and Administration, February 8, 2006; and
Ibid., before the House Committee on Rules, March 2, 2006. Transcripts retrieved through
cq.com. See also, W. Lance Bennett, The Governing Crisis: Media, Money and Marketingnd
in American Elections, 2 edition (New York: St. Martin’s Press, 1996).
8 See United States v. Abramoff, No. 06-00001 (D.D.C. filed January 3, 2006); United States
v. Safavian, No. 05-0370, 2006 U.S. Dist. LEXIS 40474 (D.D.C. June 20, 2006); United
States v. Stillwell, No. 06-00300 (D.D.C. filed June 27, 2006); and United States v. Ney, No.
9 Statements and testimony of Paul Miller, president of the American League of Lobbyists,
before the Senate Committee on Homeland Security and Governmental Affairs, January 25,
2006; and Ibid., before the House Committee on Rules, March 2, 2006. Transcripts
retrieved through cq.com.
activities of some lobbyists who might also make donations to candidates for federal
office might be achieved through disclosures by federal candidates of the sources of
their funding required under the Federal Elections and Campaigns Act (FECA),10 as
amended, but the correlation of the activities of lobbyists and any contributions they
might make to candidates is not the intended focus of that law. Generally, concern
has been expressed that current lobbying disclosure requirements may be inadequate
to track all the activities of lobbyists in a manner that assures a level of transparency
sufficient to allow a broad understanding of the influences and motivations that
animate public policy making. Some observers believe that one solution to this
purported problem is to link data collected under lobbying disclosure and campaign
finance disclosure laws to achieve a clearer understanding of the roles lobbyists play.
In addition to the constitutional challenges, there are practical limitations to
identifying the consequences of lobbying activity. It is unclear, for example, how
effective lobbyists are at advancing the interests of their clients in a policy
environment characterized by many lobbyists offering many points of view, relatively
few policy makers, and the simultaneous demands of constituents vying for
consideration. Some argue that “money buys access, and lots of money buys lots of
access,”11 and that preferred policy outcomes could follow.12 On the other hand,
some observers suggest that constituents get the attention of a Member of Congress
faster than a lobbyist due to a Members’ perception of representational duty and
perceived electoral pressures.13 The difference of interpretation is due in part to the
difficulties inherent in efforts to quantify lobbying interactions, or in developing
qualitative evaluations that capture lobbying activities.14 Nevertheless, this paucity
10 2 U.S.C. 431.
11 Jeffrey H. Birnbaum, The Money Men (New York: Crown, 2000), p.20.
12 See Frank R. Baumgartner and Beth L. Leech, “Issue Niches and Policy Bandwagons:
Patterns of Interest Group Involvement in National Politics,” Journal of Politics, vol. 63
(November 2001), pp. 1191-1213; Margaret F Brinig, Randall G Holcombe, and Linda
Schwartzstein, “The Regulation of Lobbyists,” Public Choice, vol. 77 (October 1993), pp.
377-384; John R. Wright, PAC Contributions, Lobbying, and Representation,” Journal of
Politics, vol. 51 (August 1989), pp. 713-730; Laura I. Langbein, “Money and Access: Some
Empirical Evidence,” Journal of Politics, vol. 48 (November 1986), pp. 1052-1163; and Kay
L. Schlozman and John T. Tierney, Organized Interests and American Democracy (New
York: Harper and Row, 1986).
13 See Michelle L. Chin, “Constituents Versus Fat Cats: Testing Assumptions about
Congressional Access Decisions,” American Politics Research, vol. 33 (November 2005),rd
pp. 751-786; John W. Kingdon, Congressmen’s Voting Decisions, 3 ed. (Ann Arbor, MI:
University of Michigan Press, 1989); Morris P. Fiorina, Congress, Keystone of thend
Washington Establishment, 2 ed. (New Haven, CT: Yale University Press, 1989); Bruce
Cain, John Ferejohn, and Morris Fiorina, The Personal Vote: Constituency Service and
Electoral Independence (Cambridge, MA: The Harvard University Press, 1987); Richard
F. Fenno, Home Style: House Members in Their Districts (New York: Harper Collins,
1978); and David R. Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale
University Press, 1974).
14 Virginia Gray, David Lowery, Matthew Fellowes and Jennifer L. Anderson, “Legislative
Agendas and Interest Advocacy: Understanding the Demand Side of Lobbying,” American
(continued...)
of knowledge arguably could be interpreted to suggest that funds-tracking disclosure
regimes might be of limited explanatory utility in support of enhanced transparency
regarding the effects and outcomes of the activities of lobbyists.
The Lobbying Disclosure Act of 1995
The regulation of lobbying disclosure is governed by the Lobbying Disclosure
Act of 1995 (LDA),15 as amended by the Lobbying Disclosure Technical16
Amendments Act of 1998. LDA requires any lobbyist who is compensated for his
actions, whether an individual or firm, and whose lobbying expenses exceed certain17
thresholds to register and to file with the Clerk of the House (the Clerk) and the
Secretary of the Senate (the Secretary) within 45 days after the lobbyist first makes
a lobbying contact with covered officials in the legislative and executive branches of
the federal government on behalf of a client.18 The law requires lobbyists to file with
the Clerk and the Secretary semiannual reports of their activities. These reports
identify the name of the registrant, lobbyists the registrant employs, client, and the
broad issue areas in which lobbying was carried out. In addition, the disclosure must
include
!a good faith estimate, by broad category, of the total amount of
lobbying-related income from the client, or expenditures by an
organization lobbying in its own behalf, during the semiannual
14 (...continued)
Politics Research, vol. 33(May, 2005), pp. 404-434; and Chin, “Constituents Versus Fat
Cats...,” pp. 751-786.
15 P.L. 104-65, Lobbying Disclosure Act of 1995 (109 Stat. 691, 2 U.S.C. 1601).
16 P.L. 105-166, Lobbying Disclosure Technical Amendments Act of 1998 (112 Stat. 38, 2
U.S.C. 1601 note).
17 If the total income for matters related to lobbying activities on behalf of a client
represented by a lobbying firm does not exceed $5,000, or total expenses in connection with
the lobbying activities an organization whose employees engage in lobbying activities on
its own behalf do not exceed $20,000, then no registration and disclosure is required.
18 Legislative branch officials covered under LDA include Members of Congress; elected
officers of either chamber; any employee of a Member, committee, leader or working group
organized to provide assistance to Members; and any other legislative branch employee
serving in a position that is compensated at a rate of 120% of the basic pay for GS 15 of the
General Schedule.
Executive branch covered officials include the President; the Vice President; any
officer or employee in the Executive Office of the President; any officer or employee
serving in a position compensated through the Executive Schedule; any member of the
uniformed military services whose pay grade is at or above O-7 under 37 U.S.C. 201 (In the
United States Army, Air Force, and Marine Corps, this is a brigadier general. In the United
States Navy and Coast Guard the equivalent rank is rear admiral.); and any officer or
employee serving in a position of a confidential, policy-determining, policy-making, or
policy-advocating character that the Office of Personnel Management has excepted from the
competitive service under 5 U.S.C. 7511(b)(2)(b).
period. Expenditures may be estimated at less than $10,000 or in
increments of $20,000;
!the specific issues that were the subject of a lobbyist’s efforts,
including “to the maximum extent practicable” a list of bill numbers;
!a statement of the houses of Congress and the federal agencies
contacted by the lobbyist; and
!a list of the employees of the registrant who acted as lobbyists on
behalf of the client, and a declaration of any previous employment
as a covered executive branch or legislative branch official in the
two years prior to registration.
LDA defines a lobbyist as any individual compensated by a client for services
that include more than one direct lobbying contact, within certain limits.19 A “client”
is defined as any person or entity that employs and compensates another person to
conduct lobbying activities on their behalf.20 Table 1 summarizes the number of
registrants, clients, and lobbyists registered with the Secretary of the Senate since
LDA took effect. Figure 1 displays the same data graphically.
Figure 1. LDA Registrants, Clients, and Lobbyists, 1996-2006
4 0, 000
3 5, 000
3 0, 000
2 5, 000
2 0, 000
1 5, 000
1 0, 000
5, 000
0
19 96 1997 1 998 19 99 2000 2 001 200 2 2003 2004 20 05 2006
Re g i s t r a nt s Cli ents Lobbyi sts
Source: Data from the Secretary of the Senate, Office of Public Records.
19 An individual whose lobbying activities constitute less than 20% of the time engaged in
the services provided to a client over a six month period is exempt from LDA disclosure
requirements.
20 Under LDA, groups that carry out lobbying activities on their own behalf must also
register with the Clerk and the Secretary.
Table 1. Registrants, Clients and Lobbyists Registered Under
the Lobbying Disclosure Act of 1995, 1996-2006
Registrant s Client s Lobbyists
Yeara Annual Annual Annual
Tot a l Change Tot a l Change Tot a l Change
Change, 1996-200684.26%164.45%231.95%
Source: Data from the Secretary of the Senate, Office of Public Records and CRS calculations.
Notes: Except for 2000, data reflect all records available on September 30. Data for 2000 reflect only
active registrations, clients, and lobbyists.
a. As of Sept. 30 for each year. LDA became effective Jan. 1, 1996, and data for that year cover nine
mo nt hs.
b. Total reflects Senate Office of Public Records efforts to regularize differences in various client
na me s.
Lobbying Disclosure Issues in the 110th Congress
During the early organizational period prior to the 110th Congress, it was
reported that leaders of the new incoming majority in both chambers indicated that
lobbying disclosure procedures were to be considered as part of a broader package
of ethics and procedural initiatives related to lobbying activities.21 Since the 110th
21 Rep. Nancy Pelosi, “Pelosi Announces Opening Session of 110th Congress,” November
21, 2006; Ibid., “Pelosi: Democrats’ First Order of Business in the New Congress Will Be
Ethics Reform,” press release, November 27, 2006; Reps. Nancy Pelosi, Steny Hoyer, James
Clyburn, Rahm Emanuel, John Larson, Rosa DeLauro, and George Miller, “Materials for
(continued...)
Congress convened, several measures related to the disclosure of certain types of
lobbying activities have been introduced.22 Some consideration has been given to the
following issues related to lobbying disclosure:
!defining clients under LDA to incorporate coalitions and grassroots
lobbying;
!frequency and scope of disclosure;
!revolving door provisions;
!lobbyist contributions and payments;
!linking lobbying disclosure information with FEC reports;
!LDA enforcement; and
!LDA administration.
Definition of Client and Specification of Client Activities
Lobbying disclosure proposals in the 110th Congress could address issues related
to the lobbying activities of coalitions and grass roots entities. Any such
consideration would likely entail reconsideration of the LDA definition of a “client.”
Under LDA, a client is defined as any person or entity that employs and compensates
another person to conduct lobbying activities on their behalf. The law also requires
groups that carry out lobbying activities on their own behalf to register with the Clerk
of the House and the Secretary of the Senate. LDA requires the disclosure of any
person or entity that contributes more than $10,000 toward the lobbying activities of
a registrant, plans, supervises, or controls those lobbying activities. Under non-
binding guidance issued by the Clerk and the Secretary, members of informal
coalitions who each pay at least $5,000 in lobbying or membership fees to be a part
of a coalition or association may be viewed as separate clients for LDA disclosure
21 (...continued)
Today’s Members’ Conference Call on Democratic Rules Package,” dear colleague letter
to Democratic Caucus, December 14, 2006; Sens. John McCain, Susan Collins, Russell
Feingold, and Joseph Lieberman, and Reps. Christopher Shays and Martin Meehan, “Sens.
McCain, Feingold, Collins, Lieberman, Reps. Shays and Meehan Hold News Conference
on Lobbying Reform,” transcript, December 5, 2006; David Nather, “Democrats’ First 100
Hours: New Rules Will Test Promise to Run ‘Most Ethical Congress in History,’” CQ
Weekly, November 20, 2006; Senator Harry Reid, “Senate Minority Leader Reid Delivers
Democratic Response to President Bush’s Weekly Radio Address,” transcript, November
22 For analysis of lobbying-related legislation considered in the 110th Congress, see CRS
Report RL34008, Lobbying Reform Legislation: Side-by-Side Analysis of Lobbying
Provisions in S. 1 and H.R. 2316, 110th Congress, by Jack Maskell. For further background
information and analysis regarding lobbying-related proposals, please consult the CRS
Current Legislative Issues page on Lobbying and Ethics Reform at
[http://apps.crs.gov/cli/cli.aspx?PRDS_CLI_IT EM_ID=2405&from=3&fromId=12].
purposes.23 Grassroots lobbying, lobbyists, firms, or activities are not specified or
considered in LDA.
Concern has been expressed that entities that use anonymous lobbying activities
and public relations campaigns might circumvent the process of public consideration
of lawmaking and regulatory activities. Observers suggest that the current LDA
definition of a client might allow interested entities to shield their lobbying activities
through the use of ostensibly separate, independent coalitions and associations.24
Some of these coalitions and associations, sometimes referred to as “stealth” groups,
form alliances with other groups, or serve as groups that exist solely to advance a
campaign for or against a specific policy action.25 Political scientists Darrell West
and Burdett Loomis assert that anonymous campaigns are carried out in voter
education efforts, and electoral, legislative, and rulemaking settings, and that “the key
in each of these efforts is that the actual sponsor is masked by front organizations that
make it difficult for the public to see who really is funding the activity. Stealth
campaigns are consciously designed to fly under the radar of press and public
oversight.”26
In addition to concerns regarding stealth lobbying, observers have noted a steady
increase in the number of interest groups using direct mail, public relations,
newspaper advertisement, and other marketing techniques to generate public interest.
These activities can include engaging citizens to lobby on their behalf to persuade a
government official regarding legislation or executive agency action. Some of these
organized efforts, which are not currently subject to disclosure under LDA, are also
accompanied by sophisticated media campaigns to advance the causes of a group.27
Widespread lobbying campaigns may be targeted to citizens, journalists, lawmakers,
executive agency personnel, and other groups with interests similar to those of the
organization on whose behalf the campaign is mounted.28 This practice is sometimes
referred to as “grassroots” advocacy to identify its appeal to the general public. Some
observers, noting the use of marketing techniques and alleging that a bona fide
23 Office of the Clerk of the House of Representatives and Office of the Secretary of the
Senate, Lobbying Disclosure Act Guidance and Instructions, undated, p.11.
24 Josephine Hearn, “Dems Want to Change Congressional Rules,” The Hill, July 14, 2004,
p.3; and Alison Mitchell, “Loophole Lets Lobbyists Hide Clients’ Identity,” New York
Times, July 4, 2002, p. A1.
25 For examples of anonymous lobbying, see Jeffrey H. Birnbaum, “Lobbying Under The
Cloak Of Invisibility,” Washington Post, March 7, 2005, p. E1, retrieved through nexis.com.
26 Darrell M. West and Burdett A. Loomis, The Sound of Money: How Political Interests Get
What They Want (New York: W. W. Norton and Company, 1998), pp. 69-70.
27 West and Loomis, The Sound of Money, pp. 16-20; and R. Kenneth Godwin, “Money
Technology and Political Interests: The Direct Marketing of Politics,” in Mark P. Petracca,
ed., The Politics of Interests: Interest Groups Transformed (Boulder, CO: Westview Press,
1992), pp. 308-325. Also, see H. R. Hood, Interest Group Politics in America: A New
Intensity (Englewood Cliffs, NJ: Prentice Hall, 1990).
28 West and Loomis, The Sound of Money, pp. 45-64.
connection to the general public is lacking, sometimes refer to such efforts as
“astroturf” lobbying.29
Campaigns to sway public opinion and affect public policy, anonymous or
otherwise, are not new. Writing a series of articles that became known generally as
the Federalist Papers, Alexander Hamilton, James Madison, and John Jay30 sought
to persuade the general public in the 13 United States, and New York residents in
particular, to press their leaders for ratification of the U.S. Constitution. In 1787 and
1788, 85 articles authored by the trio appeared in newspapers throughout the country
under the pseudonym “Publius,” as part of what has been described as the “most
significant public-relations campaign in history.”31 In the articles, the three authors
made no mention of their close association with the Constitutional Convention that
drafted and approved the document.
Currently, however, concern has been expressed that entities that use
anonymous lobbying activities and public relations campaigns to mobilize the public
or sway public policy makers might circumvent the process of public consideration
of lawmaking and regulatory activities. Those supporting more detailed disclosure
through more frequent or detailed disclosure, or the inclusion of grassroots lobbying
efforts under LDA, might argue that such efforts could afford greater transparency
and a broader understanding of who supports or opposes a particular policy initiative,
and why. From their perspective, such an initiative could lead to both a better
understanding within Congress, the lobbying communities, and the general public of
how lobbying activities affect the public policy making process, and greater
understanding and acceptance of the resulting outcomes.
Critics could argue that expanding disclosure of the activities of coalitions and
associations might have a potential adverse impact on constitutionally protected
rights of assembly, association, and to petition the government, as well as the
longstanding tradition of carrying out these activities without the necessity of
self-identification. Those critics are likely to argue that such changes could have a
chilling effect on expressing those views, or the presentation of critical, but
politically sensitive matters to lawmakers. From their perspective, more rigorous
disclosure of coalition and association membership could deny policy makers a
crucial source of information from parties directly affected by pending legislation or
regulatory decisions. Critics of increased disclosure might argue that this could deter
Members of Congress and executive branch decision makers from making broadly
informed decisions in their deliberations, and could reduce the effectiveness of policy
making in general.32
29 Nicholas Confessore, “Meet the Press,” Washington Monthly, December 2003, available
at [http://www.washingtonmonthly.com/features/2003/0312.confessore.html].
30 Hamilton, Madison and Jay went on to become the first Secretary of the Treasury; a
Representative in the First through Fourth Congresses and fourth President; and the first
Chief Justice of the United Sates, respectively.
31 The Federalist Papers website, [http://www.law.ou.edu/hist/federalist/].
32 See also CRS Report RL33794, Grassroots Lobbying: Constitutionality of Disclosure
(continued...)
Frequency and Scope of Disclosure
Congress might choose to consider changes to current disclosure requirements
as described above. Changes could include a shorter period between initial lobbying
contact and registration, narrower ranges of estimated expenditures, and more
frequent disclosure. In addition, coalitions and grassroots entities might also be
required to disclose their activities.
Those supporting changes to disclosure benchmarks might argue that a more
detailed disclosure process could afford more openness of government activity and
greater accountability on the part of government officials, lobbyists and lobbying
clients. Those opposing changes to the current statute might maintain that filing
increasingly detailed disclosure reports at more frequent intervals could obligate the
registrant to spend increased time and money to comply with the law. This could
have the effect of further raising the costs associated with lobbying, and might restrict
the lobbying activities of some groups as a consequence.
Revolving Door Provisions
LDA requires registrants to disclose whether they have served as a covered
legislative branch or executive branch official in the two years preceding their
registration. Relatedly, 18 U.S.C. 207 requires that a Member of Congress may not
communicate with or appear before a Member, officer or employee of either
chamber, or any legislative branch office, with intent to influence official action on
behalf of anyone else for a period of one year after leaving office. Similarly, a “very33
senior staff member” of the legislative branch may not communicate with or appear
before the individual’s former employer or office with intent to influence official
action on behalf of anyone else for a period of one year after terminating
congressional employment. Similar prohibitions apply to officials and senior level34
employees of the executive branch.
House and Senate rules, LDA disclosure requirements, and the “cooling off”
prohibitions mandated by 18 U.S.C. 207 were designed to bring attention to, and
reduce the effect of, what some called the “revolving door,” through which legislators
32 (...continued)
Requirements, by Jack Maskell.
33 Under 18 U.S.C. 207, an employee is subject to post employment restrictions if, for at
least 60 days during the one-year period preceding the termination of employment, a staffer
was paid at a rate equal to or greater than 75% of the basic rate of pay for Members. The
basic rate of pay for Members is $165,200. According to guidance issued by the House
Committee on Standards of Official Conduct, a “very senior staff” member is “any employee
of a Member, committee or leadership office who was, in the one year prior to leaving
House employment paid at an annual rate of $123,900 or more for at least 60 days.” See
U.S. House, Committee on Standards of Official Conduct, Highlights of House Ethics Rules,
January 2007.
34 Similar prohibitions apply to officials and senior level employees of the executive branch.
See CRS Report 97-875, “Revolving Door,” Post-Employment Laws for Federal Personnel,
by Jack Maskell.
and public officials could leave positions of authority and influence in government
only to return shortly thereafter to the same circles as lobbyists or other
representatives seeking favorable action on behalf of private interests.
Efforts to curb the effects of lobbying by former public officials appear to grow
out of a widespread belief that lobbying activities advance special interests at the
expense of the more general public interest. Lobbying activities carried out by
individuals with special access to government decision makers due to previous
professional interaction, are sometimes said to exacerbate this perceived problem.
Proponents of lobbying activities counter that lobbying is “a legitimate activity
protected by the First Amendment to the Constitution,” and that all interests are
represented.35 Some maintain that further efforts to extend the duration of the
lobbying ban could have the effect of keeping individuals who might wish to pursue
lobbying as a career from entering public service, and may deprive the public (as well
as Congress) of access to, and the availability of, the particular expertise of former
legislators and staff.
Disclosure of Lobbyist Contributions and Payments
The disclosure of campaign contributions is governed by FECA. The
acceptance of gifts, travel, or other considerations by Members of Congress are
governed by House Rule XXV, Limitations on Outside Earned Income and
Acceptance of Gifts, and Senate Rule XXXV, Gifts, as well as criminal laws on
bribery and fraud. As part of broader consideration of lobbying related laws and
rules, Congress might choose to consider changes to existing policies that clarify
current practice or proscribe the acceptance of gifts, meals, or travel from lobbyists.
Some of those proposals could amend LDA to require the disclosure of campaign
contributions and other payments by lobbyists.
Proposals to link campaign finance and lobbying activities, and to enhance
current rules regarding the interactions between Members of Congress and lobbyists,
could serve to provide a clearer picture of who participates in public affairs and the
scope of the activities that characterize that participation. Proponents of such efforts
might argue that such efforts could afford greater transparency and a broader
understanding of the effects of private interests in the public policy making process.
From their perspective, such a change might also instill greater government
accountability, and help to maintain the integrity and legitimacy of the broader
political system. Those opposing changes to current lobbying disclosure practices
might maintain that expanding lobbying disclosure to include those who make
campaign contributions, but who may not have any direct participation in lobbying
activities, could have an adverse effect on the accuracy of LDA disclosure data, due
to a potential increase in registrants who conduct no lobbying but who must register
due to affiliations with entities that retain lobbying services. Additionally, opponents
might assert that such a change could increase the administrative burden associated
with reporting on their activities under LDA, or curb rights of participation through
35 Website of the American League of Lobbyists, “Resources,” at [http://www.alldc.org/
publicresources/index.cfm].
making campaign donations, or the right of association, due to the increased burden
of LDA disclosure.
Electronic Filing of LDA Materials, and FECA Linking
LDA does not require electronic filing of registration and disclosure reports. In
the House, the Office of the Clerk, in December 2004, inaugurated a voluntary
electronic filing system for those required to file under LDA. Pursuant to a directive
issued by Representative Bob Ney, chairman of the Committee on House
Administration, the Clerk required all registrants to file LDA materials electronically
after January 1, 2006.36 For some time, the Senate Office of Public Records has
maintained a voluntary program of electronic filing “for the purpose of minimizing
the burden of filing” LDA materials.37 It has been reported that that House and
Senate officials are working to develop an electronic filing system that can be
accepted and used by both the Secretary and the Clerk.38 No timetable for
deployment of such a system has been identified. Neither LDA nor chamber rules
require the provision of LDA disclosure information via the Internet. The Senate
makes LDA registration and disclosure reports available through the Internet at
[http://sopr.senat e.gov/].
Neither LDA nor the Federal Election Campaign Act of 1971 (FECA) require
the linking of information collected under either law.
Under LDA, registrants must register and files reports with the Secretary and the
Clerk, who maintain independent, parallel intake procedures, and separate electronic
databases. The linking of information maintained by FEC, and the Clerk and
Secretary, could raise data administrative and data management concerns. These
concerns might include consideration of the relative costs and benefits of linking
parallel databases containing essentially similar information with another database
system, or the technical challenges of linking potentially incompatible datasets.
Concerns might also arise regarding the merging of data maintained by legislative
branch and executive branch entities regarding custody and management of
commingled records.
LDA Enforcement
Whoever knowingly fails to rectify an incomplete disclosure report following
notification of the error by the Clerk or the Secretary, or who otherwise does not
36 Rep. Bob Ney, chairman, Committee on House Administration, “Electronic Filing of
Disclosure Reports,” dear colleague letter, June 29, 2005, at [http://www.house.gov/
cha/dearcolleaguejune29-05.htm]; see also the Clerk’s website at
[http://clerk.house.gov/ pd/index.html ].
37 Senate Office of Public Records, “Frequently Asked Questions,” at
[https://opr.senate.gov/ faq.html ].
38 “Hill Officials to Improve LDA Filing System Ahead of Other Anticipated Changes in
Law,” BNA Money & Politics Report, December 5, 2006, available at
[http://pubs.bna.com/ip/bna/mpr.nsf/eh/A0B3U5F3X 1].
comply with the requirements of LDA, may be liable for a civil fine of up to
$50,000.39 Congress might consider increased civil penalties or institute criminal
penalties for violations of LDA. The Clerk and the Secretary must refer alleged
incidents of noncompliance to the United States Attorney for the District of
Columbia. The number of such referrals made since LDA became effective on
January 1, 1996, is not publicly available. During a 2006 hearing held by the Senate
Committee on Rules and Administration to examine procedures to make the
legislative process more transparent, however, Senator Christopher Dodd stated that
“[s]ince 2003, the [Senate] Office of Public Records has referred over 2,000 cases
to the Department of Justice, and nothing’s been heard from them again.”40
The Department of Justice has reportedly claimed that between September 2003
and September 2005, it has received around 200 referrals involving possible LDA
violations and has pursued 13 of those cases for further enforcement action. Of that
total, media accounts have claimed that seven were still open as of February 2006,
three had been closed without further action by the department, and three were
settled. No public announcements by the department regarding the settlements have
been identified, but it was reported that the three cases were settled for fines totaling
$47,000 and other considerations, including periods during which some registrants
were prohibited from conducting federal lobbying. It is not known whether these
cases comprise the total LDA enforcement effort. Attorneys for the Department of
Justice reportedly contend that the details of any settlements of violations under LDA
are protected from public disclosure by the Privacy Act.41
An increase in potential penalties for noncompliance with LDA arguably could
increase the level of compliance, but it may not be possible to assess those potential
benefits given the lack of broadly accepted understanding of previous enforcement
efforts. Those supporting the approach might argue that a more comprehensive and
detailed disclosure process could afford more openness of government activity and
greater accountability. Those opposing changes to the current statute might maintain
that there could be a negative impact on constitutionally protected rights of assembly,
association, and petition of the government. Additionally, opponents might assert
39 For further discussion of LDA and other laws, rules, and regulations affecting those who
lobby Congress, see CRS Report RL31126, Lobbying Congress: An Overview of Legal
Provisions and Congressional Ethics Rules, by Jack Maskell.
40 Sen. Christopher Dodd, remarks during the Senate Committee on Rules and
Administration hearing to examine procedures to make the legislative process more
transparent, February 8, 2006, retrieved through cq.com, at
[ h t t p : / / cq.com/display.do?docke y= /
cqonline/prod/data/docs/html/transcripts/congressional/109/congressionaltranscripts109-
41 Kenneth P. Doyle, “Senate Passed 2,000 Possible LDA Violations To DOJ, Dodd Reports;
DOJ Pursued 13 Cases,” BNA Money and Politics Report, February 14, 2006; Kenneth P.
Doyle, “DOJ Refuses to Disclose Settlements With Those Who Violate Lobbying Law,”
BNA Daily Report for Executives, June 20, 2005; and Kenneth P. Doyle, “Justice
Department Reveals First Cases Settled Under Lobbying Disclosure Statute,”BNA Daily
Report for Executives, August 16, 2005, retrieved from the BNA website.
that if other changes to LDA relating to clients are enacted, increasing the potential
penalties for noncompliance could subject registrants to liability in the event that
clients, whether individuals, firms, or coalitions, withhold information.
LDA Administration and Oversight
LDA is administered in the House by the Clerk of the House through the
Legislative Resources Center, and in the Senate by the Secretary of the Senate,
through the Senate Office of Public Records. There are no explicit oversight
requirements in LDA. The Committee on House Administration and the Senate
Committee on Rules and Administration have jurisdiction over the Clerk of the
House and the Secretary of the Senate, respectively, and may have some oversight
authority of LDA provisions the Clerk and the Secretary must implement. Ethics in
Congress are overseen by the House Committee on Standards of Official Conduct
and the Senate Committee on Ethics.
Congress might choose to consider a range of options regarding the
administration and oversight of LDA. These could include creation of an
independent ethics commission within the legislative branch with authority to receive
LDA registration and reports. LDA administration could be transferred from
chamber officers to the ethics committees in each chamber. Another option is the
creation of an office of public integrity. This office which could be created in the
legislative branch or within each chamber could receive LDA registrations and
disclosure reports, and conduct audits and investigations necessary to ensure
compliance with LDA. Any entity empowered to administer LDA could also be
vested with authority to refer violations of the act to DOJ for further investigation,
or prosecution, in the event that criminal penalties are enacted.
The creation of new LDA administration and oversight processes, could require
the transfer of previously filed disclosure data to the new entity. In addition, the
creation of an office of public integrity, ethics commission, or transfer of LDA
responsibility to the chamber ethics committee could necessitate increased staff
levels in the legislative branch and concomitant increases in costs to administer those
programs. Finally, any reassignment of LDA administration might raise questions
regarding the status of staff and offices that are currently responsible for
administering LDA.
The potential consequences of reorganizing LDA administration are unclear.
For example, it is arguable that vesting administration oversight in the chamber
ethics committees might provide the opportunity to monitor the interactions between
lobbyists and Members of Congress, because those panels already have jurisdiction
over congressional ethics rules, governing Members’ interactions with lobbyists. On
the other hand, it is not clear how those panels might oversee the disclosure of
lobbying interactions with executive branch officials. Similar concerns might affect
ethics commissions or public integrity offices based in the legislative branch. In
addition to those concerns, creation of integrity offices or commission in the
legislative branch might raise constitutional questions regarding the House and
Senate’s authority to punish their Members for disorderly behavior,42 if those offices
are vested with authority to investigate Members of Congress regarding potential
ethics violations or prescribe discipline in the event that a violation is determined to
have occurred.43
42 Article I, Section 5.
43 For further analysis of these issues, see CRS Report RL33790, ‘Independent’ Legislative
Commission or Office for Ethics and/or Lobbying, by Jack Maskell and R. Eric Petersen.