By Jeffrey Young - 04/24/07 07:55 PM EDT
“WANTED: Make Calls for Non-Profit Health Care Client $25/hr (Not Sales),” reads the ad posted last week to craigslist.org and community e-mail lists in Alexandria, Va.
A small, local public-relations and marketing company needed some help getting telephone calls made to congressional offices this week to get members to sign off on a “Dear Colleague” letter.
“The calls will simply alert people to a sign-on letter being circulated on Capitol Hill and ask them to include their name. Very easy, no hard selling or lobbying,” wrote Joseph LaMountain, the president of SparkLight Communications.
Lawyers who specialize in lobbying laws, however, said that these phone calls would, in fact, qualify as lobbying activities, even though neither LaMountain nor the people he hired might have to register as lobbyists.
“What he’s doing is clearly lobbying activity,” said Brett Kappel, an attorney and lobbyist at Vorys, Sater, Seymour and Pease.
“The expenses related to that are certainly lobbying expenses,” said Kenneth Gross, a partner at Skadden, Arps, Slate, Meagher & Flom.
This particular effort to sway members of Congress on an issue has implications related to the strength of the current lobbying disclosure laws and on the debate over creating new disclosure requirements for so-called grassroots lobbying campaigns.
“Sometimes I need to contract out labor,” LaMountain said, adding that he has done the same in the past.
“We’re just trying to persuade members to go sign [the letter]. … It’s an issue of trying to get someone’s attention,” he said, emphasizing that he views the calls as part of his responsibilities to mount a marketing and public-relations campaign for his client.
LaMountain would not reveal who his client is but said that the letter related to appropriations under the labor, health and human services and education spending bill and would be delivered to the chairman and ranking member of that subcommittee. The calls were directed to members who had been sympathetic to his client’s goals in the past, LaMountain claimed.
Although he said he is not registered to lobby for this client, LaMountain has been a registered lobbyist in the past, including for work as an in-house lobbyist for the National Health Council, the Vision Council of America and the American Diabetes Association.
Told of LaMountain’s activities, Kappel said, “He may not have to register.”
In order to trigger a lobbying registration, an individual has to meet several criteria under the Lobbying Disclosure Act. He or she must have more than one lobbying contact with a congressional office or executive-branch agency, spend more than 20 percent of his or her time for a client on lobbying activities, and earn at least $6,000 over six months from that client.
“People who are not professional lobbyists may not realize” what those criteria are, said Craig Holman, legislative representative for Public Citizen’s Congress Watch and a registered lobbyist.
Kappel said he advises his clients to err on the side of caution if they take a contract that could require 20 percent of their time to be spent lobbying. “If you believe that that work will lead to lobbying, you should register,” he said.
Private citizens, as opposed to professional lobbyists calling congressional offices, also could be construed as a grassroots lobbying, or an “Astroturf” campaign designed to appear to be a grassroots effort.
“It makes all the difference how people represent themselves,” said Douglas Johnson, the legislative director for National Right to Life. Johnson’s group has led an effort against grassroots lobbying legislation pending in the Senate, contending among other things that it would classify too many people as lobbyists.
Holman, who is on the opposite side of Johnson on the grassroots legislation, agreed that “it depends on how they identify themselves” but said the use of non-professionals inherently creates the appearance of a grassroots campaign.
“This is a phony grassroots campaign,” Holman said.
LaMountain says he is careful not to mislead congressional offices about the source of the calls. “It’s not like one of those phony grassroots organizations,” he said. “I am so above-board with this stuff,” he added, stressing that he instructs his paid callers to identify themselves as calling on behalf of his client.
Lobbying laws can be confusing, and recent actions by the House and Senate have exacerbated the problem by making unclear how to remain compliant, LaMountain remarked. “It gets to the point of being ridiculous,” he said.
“Those of us who are lobbyists say they’re lobbyists” when they call congressional offices of federal agencies, Holman commented.
Under the law, however, this activity is simply lobbying, not grassroots — real or artificial, Gross said. “It has the feel of … Astroturf lobbying but in the legal parlance it is not” because the callers are financially compensated. “I don’t see anything wrong with it,” he added.
But without even the intimation that the caller is from a member’s home district or state, Johnson said, the contact likely would not have any impact. “Most congressional offices aren’t going to pay attention to it unless it’s a constituent,” Johnson said.