House and Senate clarify lobbying rules guidance

The House clerk and Senate secretary have clarified guidance for the Lobbying Disclosure Act (LDA) that had confused K Street on how lobbyists can de-register.

The guidance also had drawn questions from Washington lawyers about whether it complied with the LDA. The House clerk and Senate secretary launched a review of the guidance because of the compliance issue.

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The clarified guidance makes clear that individuals can only de-list as lobbyists if they do “not reasonably expect to make further lobbying contacts” on behalf of a client.

The initial guidance said a lobbyist could de-register if he or she did not have two contacts with government officials in consecutive quarters.

Attorneys said the new language is still not fully in line with past interpretations of the LDA but is much better than the original guidance issued by the congressional authorities last week.

“It relieves some of the pressure on the companies,” said Rob Kelner, who heads up the election and political law practice at Covington & Burling. He added that the new guidance is a “reasonable interpretation of the act, which the prior guidance was not.”

Tom Susman, director of government affairs for the American Bar Association, called it a “common-sense interpretation” of the statute.

“I don’t believe this change will allow people who still have an impact on public policy to de-list,” said Susman, who is co-editor of the trade association’s lobbying manual.

He suggested the new guidance could make it easier for first-time associates at law firms to de-register as lobbyists.

“It used to be if you had two contacts years ago, you couldn’t get the gum off your shoes,” Susman said.

Under the old rules, an associate who spent 20 percent of his or her time in support of a client would be listed as a lobbyist, assuming the associate attended some meetings on Capitol Hill on behalf of the client. That associate would then remain listed as a lobbyist as long as the firm retained the client, Susman said.

Guidance for the LDA has taken on increased importance for K Street since many advocates were de-registering in light of the Obama administration’s tough stance on lobbyists.

In the first days of the new administration, the president signed an executive order to put an end to the revolving door between K Street and government, prohibiting lobbyists from working at agencies or on issues they had lobbied on during the past two years if the administration hired them.

In addition, Obama has sought to limit the influence of lobbyists on the stimulus package by not allowing them to talk to government officials after project applications have been submitted and disclosing all their contacts with the administration online.

The White House changed those rules and removed an outright speaking ban on K Street regarding stimulus projects after an uproar from the lobbying community. That move won praise from watchdog groups and lobbyist associations alike.

The White House is working to finalize the changes to the rules, which were first announced in a blog post on the White House website, and is expected to meet with outside groups again on the issue.

“As part of ongoing consultations with experts about the Recovery and Reinvestment Act lobbying rules, Norm Eisen, special counsel to the president for ethics and government reform, and other administration officials have reached out on an ongoing basis to a variety of groups to determine how to best promote merit-based decisionmaking and to ensure that the public interest, rather than special interests, is driving the process,” said Ben LaBolt, a White House spokesman.

The continued focus on the lobbying profession by Obama has led to a renewed call for more reform via Congress by some ethics watchdogs in Washington.

Craig Holman, campaign finance lobbyist at Public Citizen, is advocating for legislation that would restructure the Office of Government Ethics, tighten the LDA and pass into law the president’s executive order limiting the hire of lobbyists.

“I am trying to push the White House into the legislative route,” said Holman. “I know whoever comes after Obama, the rules are going to be jettisoned, whether it is a Democrat or Republican. These rules have to be codified.”