Requirements within the Lobbying Disclosure Act

The Lobbying Disclosure Act requires registrants to disclose on a quarterly basis specific information describing the nature of a lobbyist’s activities.  Much of what is required is straightforward, such as the name of a client, the amount of fees earned, and the entities that are the subject of the lobbying.  One area where there is discretion, however, is in describing the issues on which a registrant has been engaged.

To comply with the letter and spirit of the law, a lobbyist must adequately describe the nature of the activity, but beyond meeting the legal requirements, a lobbyist should carefully choose the words that are used to describe the activity.  According to reports about the activities of lobbyists assisting a controversial client currently being scrutinized by Congress, it appears that isn’t always the case, and could have adverse consequences for the client.

Section 5(b)(2)(A) of the LDA requires the disclosure of specific issues upon which a registrant is engaged to lobby.  Official LDA guidance requires a lobbyist to disclose the bill number of any legislation on which they are working and, more specifically, any particular sections of that legislation that is the focus of their activity.  Similarly, if a lobbyist is attempting to influence an executive branch rulemaking, they should adequately describe the pending rule and any specific sections.  The bottom line is that a lobbyist must disclose enough to inform the public adequately of their client’s specific issues.

But beyond what the law requires, what else should a lobbyist disclose?  Only what a client would want the public to know.  The law does not prohibit a registrant from reporting more than it requires.  So, for example, at times a client may want to disclose its efforts in more detail.  This could be to let Congress know of its deep interest in the matter.  It could also be to show legislative opponents that it is fully engaged in the issue.  After all, industry competitors scrutinize their competitors’ public filings just as the public interest community often does.

But there are also times when a client would like to have as little information as possible disclosed about its activities.  In the examples just cited, there could be equally compelling reasons to say no more than needed.  Again, as long as the information provided is accurate and adequately informs the public of the issue area, it needs to go no further. 

Recent reporting about the lobbying disclosures filed by several lobbyists registered for a client that is the subject of congressional interest puts this issue in focus.  Ordinarily, few would ever have noticed them given the thousands of registrations and reports that are filed each quarter.  But in an investigation, as is this instance, many otherwise unnoticed things come to light.  One lobbying firm indicated that it was working to identify decision makers and to assist with the client’s loan application.  On its face, it would appear that these activities do not even rise to reportable activities or even require registration in the first place.  Another firm indicated that they were involved in the introduction of the company to members of a congressional committee.  If introductions were the only activity, again, this does not appear to require registration or subsequent reporting.  But if the introductions involved discussions related to legislation or to an issue on which the client was seeking congressional action, more should have been reported to inform the public of the purpose of the introductions. Why use the word “introductions” anyway? Another listed numerous instances of “monitoring”.  Monitoring could be reportable lobbying activities if, at the time it is being conducted, future lobbying contacts are contemplated.  If such future contacts are not envisioned, the monitoring does not have to be reported. 

The purpose of highlighting these statements is not to criticize them, nor is it to suggest that lobbyists should conceal activities that otherwise should be disclosed.  The filing of LDA forms must be viewed through a dual lens that takes into account both the law and the client’s overall strategic goals.  Lobbyists should pay careful attention to the message that they are sending about their clients.  Clients should ask their lobbyists to submit to them in advance any LDA forms to ensure that the two are aligned in the information that is being disclosed.

Thomas J. Spulak is a King & Spalding partner and chair of the firm’s Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.

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