The registering (and deregistering) dilemma

Lobbyists continue to be singled out as an example of what is wrong with Washington, as the White House extended the ban on lobbyists’ oral communications in relation to stimulus-funded projects to non-lobbyists as well.

An administration official was recently quoted as saying, “[W]e have focused attention on how lobbying undermines the public interest … ” Presumably that does not apply to lobbying for the adoption of administration policies.

Increasingly, many lobbyists are asking, “If registering in good faith under a statute that is designed to create transparency makes an otherwise honest person an object of ridicule, can I terminate my registration?”

And while there is no indication how many are considering “deregistering,” the question is being asked enough to prompt House and Senate officials to address the issue. In the most recent guidance issued in connection with the Lobbying Disclosure Act (LDA), lobbyists were informed that they may terminate their registration if they reasonably expect that they would not be making any lobbying contacts in the future.

This guidance will not provide the basis for terminating a lobbying registration by most practitioners. By definition, lobbying entails some degree of advocacy before government officials. And while some in Washington limit their activities to strategic counseling, these individuals constitute a very small percentage of the more than 13,000 individuals who are registered. Most lobbyists will not be able to say that they have no expectation of contacting covered officials in the future.

There is, however, another basis for deregistering that has broader application and relevance.

That is the exception to the definition of “lobbyist” for individuals who devote less than 20 percent of their time on lobbying activities. “Lobbying activities” are defined as lobbying contacts and any efforts in support of such contacts, including preparation or planning activities, research and other background work that is intended, at the time of its preparation, for use in contacts and coordination with the lobbying activities of others.

Thus, under this exception, the number of lobbying contacts, i.e., telephonic, written and in-person meetings with members of Congress, congressional staff and political appointees in the executive branch, does not determine whether an individual must register and remain registered under the LDA. Rather, it is the total amount of time that the individual is engaged in contacts and efforts in support of such contacts, such as research, writing and preparation for the meetings.

Contract lobbyists are not likely to benefit from the exception because the denominator in the analysis is the total amount of time devoted on behalf of each one of their clients. It is unlikely that a contract lobbyist, such as a member of a lobbying boutique, spends a significant amount of time on anything but lobbying activities for a client.

Corporate and association executives are likely beneficiaries of the exception.

Many such individuals make regular visits to Capitol Hill and to executive branch agencies and departments but, in many instances, considering everything that the executive does for his or her client, i.e., their employing corporation or association, the amount of time they spend on lobbying activities in a quarter is often less than 20 percent. These individuals are not required to register. Yet, out of an abundance of caution, many have registered as lobbyists.

Since an individual who has never met or no longer meets the definition of lobbyist may terminate their registration, and in light of the real and perceived consequences of being a registered lobbyist, these individuals should reconsider that decision.

What impact would that have?

Aside from the removal of the moniker, there are a number of more tangible benefits. These include the elimination of the requirement to file the quarterly LD-2 income and activities report and the semi-annual LD-203 report of contributions and certification. It would also remove the restriction on offering gifts of meals or other benefits under the $50 exception.

In addition, the individual would be allowed to participate actively in the planning, organizing, requesting or arranging of any officially connected travel by a member that is paid for by a private source and accompany members on such travel — prohibited activities by registered lobbyists.

While the administration appears to be further relaxing the restrictions on lobbyist activity related to stimulus funds, at this time officials are only required to report pre-competition contacts made by lobbyists. Finally, ironically, the individual could now contribute to candidates, such as the president, who refuse to accept contributions from registered lobbyists.

It is unfortunate that the stereotyping of lobbyists may drive conscientious individuals away from voluntarily reporting under the LDA disclosure system. But under the circumstances, it may be a wise choice.

Spulak is a King & Spalding partner in the 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.