by Cassandra LaRussa

Only 63% of information disclosed on lobbying reports were "properly reported and supported," according to a new Government Accountability Office audit. The March 2012 report surveyed lobbyist compliance with federal reporting requirements during 2011. According to the report, the major reasons for inaccurate disclosure reports included confusion regarding the definition of “lobbying activities” and the definitions of “covered positions.”

Although the majority of lobbyists surveyed indicated that lobbying reporting (LD-2) disclosure requirements were overall “easy” or “somewhat easy” to meet, some lobbyists interviewed indicated that they “were not sure when research and support activities become lobbying activities and therefore needed to be disclosed.” Others described confusion “as to whether congressional interns were considered covered positions and therefore need to be disclosed.” At least 11% of lobbyists in the study did not disclose previously held covered positions.

After the audit, 17 lobbying firms planned to amend and resubmit their LD-2 forms.

GAO reviewed a random sample of 100 LD-2 Forms, which lobbyists must file according to the Honest Leadership and Open Government Act of 2007. After examining the LD-2 forms, GAO asked lobbyists to verify the reported information by providing supporting documents.

Although lobbyists are not required to keep this documentation on file, all lobbyists complied with the request and provided documents to support 93% of the disclosure reports. Last year, lobbyists selected for review were able to support 97% of their reports. Reasons for not providing supporting documentation included a lack of recordkeeping and situations in which lobbyists over-reported, and did not actually lobby during the time period in question.

The GAO study also looked at LD-203 forms, in which lobbyists disclose their federal campaign contributions. Only 86% of lobbyists in the study who were required to file an LD-203 actually did so. At least 4% omitted one or more political contributions that should have been reported.

There has only been one enforcement case brought by the Department of Justice since the enactment of the Honest Leadership and Open Government Act of 2007. The GAO indicated that the US Attorney’s Office hired a new staff member in September 2010 specifically to handle lobbying compliance matters and developed a “top-ten list of noncompliant lobbyists” for closer investigation.

Photo credit [F]oxymoron

Bill Clinton famously tried to claim he hadn’t lied about his relationship Monica Lewinsky by saying, "It depends on what the meaning of the word 'is' is.” Newt Gingrich similarly contorts the English language by claiming “I was never a lobbyist.” Perhaps Gingrich’s claim depends on what the meaning of the word “lobbyist” is. If it is the loophole ridden, easily evaded legal definition in the Lobbying Disclosure Act that allows power brokers to avoid registering as lobbyists if they spend less than 20 percent of their time lobbying, then maybe, maybe, Gingrich can claim with a straight face that he was not a lobbyist. But if common sense and Miriam Webster are applied, to lobby means, “to conduct activities aimed at influencing public officials and especially members of a legislative body on legislation.” Under that definition, there can be no doubt that Gingrich was a lobbyist, even if he didn’t fill out the paperwork.

The New York Times today correctly notes that people of Gingrich’s stature never register as lobbyists. It’s time to change that. Former members of Congress who trade their political connections for paychecks must be required register and report as lobbyists so that the public knows who is paying them and what positions they are advocating. Sunlight has long supported legislation that would strengthen the definition of lobbyist by eliminating the 20 percent loophole. The law should be clear. Former members of Congress should not be able to call themselves “consultants,” “strategic advisors,” or “historians,” while taking money from corporate clients to advance their causes on Capitol Hill. They are lobbyists.

Anti-lobbyist barbs will continue to fly this election season because they win easy political points. But instead of accusations and denials, name calling and obfuscation, it’s time for real reform that will capture all who lobby and impose much needed accountability on the system.

Representatives Quigley and Polis took a significant step toward improving what we know about Washington power players by introducing the Lobbyist Disclosure Enhancement Act today. The bill would require lobbyists to disclose the names of the covered executive branch officials or Members of Congress lobbied (or the name of the employer if the lobbyist meets with staff), the dates of the meetings and the issues discussed. If enacted, speculation about what lobbyists are doing would be replaced with facts contained in databases of lobbying information. The public would have access to answers to questions about lobbying including: Who was the target of the lobbying? What did the lobbyists discuss? When did the lobbying contact take place?

The legislation also closes a gaping hole in who needs to report. Currently, some of the most powerful players inside the beltway are subject to zero disclosure. Former members of Congress such as Tom Daschle and Norm Colman, CEOs of major corporations like Jeffrey Kindler of Pfizer, and labor leaders such as SEIU’s Andy Stern have significantly more political and financial pull in Congress than many of the mom and pop lobby shops that must report. Yet, because the law says reporting is only necessary if a lobbyist spends more than 20 percent of her time lobbying for any particular client, the public is completely in the dark about many of these "stealth lobbyists" who wield tremendous influence.

The Quigley bill rightly eliminates that loophole. Bravely too, as many of the Congressman’s colleagues might decide to further their careers by becoming “policy advisors” in Washington law firms or lobby shops. Nearly 200 former members have chosen this lucrative path and many rely on the 20 percent loophole to avoid disclosure.

The bill also significantly speeds disclosure of new registrations and reduces delays in reporting of lobbyists’ contributions. Instead the current 45-day lag time for filing a registration when a lobbyist takes on a new client, the bill requires registration within 5 days. This nearly real time, online reporting will hasten public access of information that can be a vital clue as to what issues are trending in Congress and what companies or industries might be facing congressional scrutiny. Under the bill, reporting of contributions lobbyists make to candidates will occur quarterly instead of semi-annually. This aligns contribution reports with required quarterly reporting of lobbyists’ activities, improving the ability to track when lobbyists’ contributions amplify their requests for help from Members of Congress. (Sunlight would go even farther than the Quigley bill and require real time reporting of contributions and lobbying activity to eliminate the risk of the barn door being closed after the cows have escaped.)

Finally, the bill tries to impose some order on the wild west of lobbying disclosure by creating new enforcement mechanisms, including random audits and, eventually, an online whistleblower provision to ensure that lobbyists are accurately registering and reporting.

This is an important piece of legislation. Following the actions of lobbyists by making their work more transparent is one way to track influence and ensure accountability inside the beltway. Improved disclosures will also improve the dialogue in Congress by ensuring that voters can react and respond to the arguments their representatives are hearing from lobbyists. If a voter sees that her Congressman has met with a lobbyist whose views she opposes, she can contact the Congressman's office to make sure her viewpoints are heard, too.

Follow the progress of this bill as well as Sunlight’s work on it by checking in here or following the hashtag #openlobby on Twitter.

Lobbyist Disclosure Enhancement Act

A quick reminder: the Advisory Committee on Transparency event on lobbying starts in about an hour.

If you can't make it, also tune into C-SPAN, who will probably be providing live coverage. We'll also be live-tweeting, and posting video later.

Although our modern lives present many irreducible questions -- nature vs. nurture, liberty vs. security, funny vs. good-looking -- a recent paper suggests an answer to the perennial question of whether it’s better to be smart or well-connected, at least if you’re a lobbyist.

Whether lobbyists’ main role is the providing of access or expertise to politicians is the topic of a paper entitled “Is It Whom You Know or What You Know? An Empirical Assessment of the Lobbying Process.” The authors evaluated lobbying registration records, FEC reports, committee assignments, and lobbyists background information to reach a stark conclusion:

[L]obbyists appear to systematically switch issues as the politicians they were previously connected to switch committee assignments, hence following people they know rather than sticking to issues. We also find evidence that lobbyists that have issue expertise earn a premium, but we uncover that such a premium for lobbyists that have connections to many politicians and Members of Congress is considerably larger.

In other words, being well-connected is financially rewarded at a much greater level than possessing expertise. And lobbyists will abandon their areas of expertise in order to maintain personal connections to their former colleagues.

The authors speculate that “the price tag attached to lobbyists services suggest that they bring to the table a complementary resource, perhaps reputation, credibility or political savvy, in the transmission of information.” It is no surprise that people rely on their social networks to make decisions.

How much is it worth to lobbyists when congress relies on social networks over expert networks? The paper “Revolving Door Lobbyists” suggests an answer:

[W]e find that lobbyists with past working experience in the office of a US Senator suffer a 24% drop in revenue -around $177,000- when their ex-employers leaves office...

Consistent with the notion that lobbyists sell access to powerful elected officials, the drop in revenue increases with the seniority of and committee assignments power held by the Senator immediately prior to leaving office. For lobbyists connected to US Representatives we find similar if weaker effects.

The authors findings illustrate the forces that affect staffers career incentives. “A large portion of what makes revolving door lobbyists particularly attractive is perishable has the implication that staffers may have relatively short careers. Once a connection to a powerful Senator has been established, a staffer may want to move into lobbying and cash in this unique asset while it is still valuable.”

Along those lines, my research into staff turnover indicates that House hill staffers are young, with an average age of 31, suffer from a high turnover rate, and senior staff are paid significantly less than their private sector counterparts. Congressional staff are also likely overwhelmed by their responsibilities. Moreover, expert networks within Congress that could support policymaking -- including the legislative support agencies -- have been significantly weakened over the last 25 years.

When faced with overwhelming and complicated tasks, it is unsurprising that staff rely upon assistance from their former colleagues. Those lobbying efforts help determine the legislative agenda, although the true extent to which this happens is difficult to know.

Even with the 2006 lobbying reforms, we still cannot see the nitty-gritty of how lobbying works. It’s difficult to track the role of individual lobbyists, and many people who regularly lobby congress are not required to report their roles at all. If we wish to truly understand the influence ecosystem, and to change the incentives underlying policymaking, we need more transparency. Sunlight's suggestions on lobbying reform are available here.

White House Press Secretary Jay Carney was asked a series of questions today based on the Politico story I blogged about earlier.

Carney refuses to answer whether the White House has any guidance on when it's appropriate to schedule meetings that occur outside the reach of the visitor logs records. I doubt there's any formal guidance, but instead that whoever sets up a meeting thinks about the meeting's potential disclosure in the same way you might consider who is invited, how big the meeting might be, or what the agenda should be. In other words, these decisions are probably made as a matter of course.

Rather than engaging with detail in the question, or sidestepping it altogether, Carney attacks the idea that anyone would question the administration's commitment to transparency:

The suggestion that we’re not being transparent is laughable given the unbelievable precedent this administration has set in its -- closing the door, the revolving door, and releasing these records.

The tone of this response reads to me like insecurity.

If the White House feels vulnerable on lobbying reform, then they should avoid obfuscating on real questions about how the visitor logs policies work.

Of course, the fastest way to make these questions go away is to say that the visitor logs release is incidental (not essential) to the lobbying disclosure fight, and that Obama is going to actually push for lobbying reform in Congress.

The back and forth in question is below:

Q Given the President’s commitment to transparency, is there any guidance White House officials get about when it’s appropriate to meet off campus with a lobbyist and when a lobbyist meeting should be on campus?

MR. CARNEY: This administration has taken extraordinary actions to be transparent. I think this question stems from a story that, frankly, was absurd. We release hundreds of thousands of records voluntarily, a policy instituted by this President because of his desire for transparency -- something no administration had ever done before. The decisions about where -- and those records are available to every American citizen online to be reviewed, and all different types of people come to the White House complex for meetings on issues. And our level of transparency and disclosure is unprecedented because the President believes deeply in it.

What I would say is that, as any of you who have walked around this complex know, been in the West Wing -- not like the TV show; very small space, very few meeting rooms. The Old Executive Office Building -- the Eisenhower Executive Office Building, a third of which has been under renovation since we’ve been here -- very limited space. Jackson Place is a White House conference center -- so designated -- and therefore when we have large meetings sometimes we use that space if there are no spaces here.

So that’s --

Q But would you agree that there’s effectively a transparency loophole here, if the goal is to show when lobbyists, powerful interests, are meeting with White House officials, that right now it’s routine for White House officials to meet off campus with these people and there’s no daylight on that?

MR. CARNEY: It is routine for the White House officials to meet with all types of people, including lobbyists, and frequently here. The suggestion that we’re not being transparent is laughable given the unbelievable precedent this administration has set in its -- closing the door, the revolving door, and releasing these records. There are no -- the WAVES system, which is the system that produces the records, operates in certain buildings and not others. And for those decisions, how that operates and why, I refer you to the United States Secret Service. But the principle here is the unprecedented level of transparency that we have provided because we believe deeply in it.

Q Would it be inappropriate for a White House official to intentionally arrange a meeting off campus to not be caught by the WAVES records?

MR. CARNEY: Look, we have meetings with all sorts of people. We have them here. Those records are available.

Q But would it be appropriate if you choose to go off campus because you didn’t want it to show up in the files? It’s yes or no.

MR. CARNEY: The guiding principle here is transparency, and we believe that -- nobody is, that I’m aware of, is hiding where they’re meeting. The meetings that happen at Jackson Place, it’s a big meeting place and that’s where --

Q If it’s so big, why not change the policy and release those names --

MR. CARNEY: We do not control where the WAVES is. And I’m not going to -- in terms of --

Q You could release them separately. You could change the policy.

MR. CARNEY: Well, Chip, look, I’m not aware what policies might be instituted in the future. But what I think is fundamentally important to remind you of is that we release information that has never been released before. I think you probably remember, you were covering the previous administration. They went to court, to the Supreme Court, to prevent the disclosure of people who were meeting with the Vice President. We voluntarily release the records that are available to us. And we never said that there was a way to get every name in every meeting. The principle is disclosure, and we have gone to extraordinary lengths to make that happen.

Q Would you consider changing the policy to increase disclosure?

MR. CARNEY: Again, I don’t want to predict about future policies that may be put in place. I just want to remind everybody about what we’ve done and why.

Up and down K Street today, lobbyists are filing contribution reports detailing campaign contributions they made to Members of Congress. It’s a good idea with a major flaw. The reports should be filed in real time—as soon as a lobbyist makes a contribution. Instead, they are filed semi-annually, delaying public access to information about which Members of Congress are being supported, or courted, by the power brokers in Washington.

Because the semi-annual reports are due a full month after the reporting period ends, it could be as much as seven months between when a contribution is made and when the information is made public. There is simply no need, and no excuse, for such a delay. Filing is easy and even the most generous lobbyist could file a contribution report online in about the same time it takes to write a check.

Delayed disclosure does not meet the full potential of real time transparency. Watchdogs can’t connect the dots between legislative activities and lobbyists’ contributions if the contributions are not disclosed until long after they are made. Competing interests can’t level the playing field if they don’t know their opponent has been playing the game for months. And the public may not know which special interest their representatives may be beholden to if disclosure is delayed.

You can comment on Sunlight’s proposal for real time contribution reporting as well other changes we recommend for better disclosure of lobbying activities at PublicMarkup.org

Improving federal lobbying laws is the focus of a new report released by a task force of the American Bar Association’s Section on Administrative Law and Regulatory Practice. The Task Force on Federal Lobbying Laws, on which I served,* recommended [PDF] more comprehensive disclosure by lobbyists and those who support their efforts as well as strengthened enforcement of current law. To become ABA policy, the report must be reviewed by the ABA’s governing bodies.

Here are highlights from the report's recommendations:

• End a major loophole as to who counts as a registered lobbyist. The law would be changed so that a person need only spend 12 hours/quarter to be required to register as a lobbyist; current law requires a person to spend 20% of their time engaging in lobbying activities before having to register. It would also simplify the monetary trigger that requires registration.
• Disclose more lobbying information. Lobbying firms and organizations would be required to disclose more information about their activities, including contacts with all congressional offices, committees, and federal agencies; provide a list of all bills and topics regarding which lobbying activity was conducted; and identify all persons who engaged in “lobbying activities” or “lobbying support.”
• Better track lobbyists and lobbying. The publicly-accessible lobbying disclosure database should be improved; lobbyists would now be able to be tracked individually through the use of unique identifiers; and a new form for lobbyists to deregister would be employed.
• Require reporting for those involved in professional lobbying campaigns. Clients would be required to disclose the lobbying and lobbying support activities of firms hired to assist in a lobbying campaigns -- whether they are engaged in polling, public relations, coalition building, strategic planning, or providing assistance from high-profile public figures. All of these disclosures would be available online. Most people doing this work would be officially deemed “lobbying supporters.”
• Focus special attention on big money and big wigs. Anyone who is a “lobbying supporter” must file regularly if he or she has bundled money; given more than $10,000 in federal donations w/in a year of providing lobbying support; spent more than 10% of his/her time providing advice on lobbying strategy; or served as a Member of Congress, Senate-confirmed political appointee, or within the last 5 years as a Congressional staffer or within the Executive Office of the President.
• Separate lobbyists and fundraising. Individual lobbyists cannot engage in certain fundraising activities to support a campaign for a Member of Congress -- or a candidate for Congress -- with whom that lobbyist has had a “lobbying contact” within two years. Similarly, an individual lobbyist cannot make a “lobbying contact” if he or she has engaged in a covered fundraising activity within the past two years. (Note that candidates for Congress are not covered under current law.) Also, this prohibition on fundraising would be applied to other registered lobbyists at the same firm where a lobbyists has made a lobbying contact, and would require the firm as an entity to abstain from raising funds for that Member/candidate or directing money to that political figure.
• Clear up Earmarks. Although the report doesn’t take a specific position, it generally recommends that the House and Senate consider making earmark disclosure more timely and meaningful, perhaps in the ways described in the Earmark Transparency Act of 2010. Similarly, lobbyists who seek earmarks (and their employers) would be required to file a form stating they have neither contributed to nor sought individual or PAC contributions for the Members they lobbied for earmarks during the current session of congress. Also, lobbyists who are paid on a contingent fee basis would need to publicly file that contact if they lobby for earmarks, tax relief, or targeted loans, grants, contracts, or guarantees.
• Fix the Byrd Amendment. The Byrd Amendment, which (generally speaking) bans those who receive government contracts from using government money to hire lobbyists to lobby Congress or the executive branch, is badly worded and needs to be clarified. The report calls on OMB to issue final rules interpreting the statute.
• Improve enforcement. The Task Force noted the lackluster enforcement of the Lobbying Disclosure Act, and recommended that Civil Division of the Department of Justice may be a reasonable candidate to be assigned the duty of interpreting and enforcing compliance with the LDA.

* Note: I served on the Task Force as a liaison, which means that I participated in all the deliberations but did not vote on any issue.

Late last week, PMA lobbyist Paul Magliocchetti was sentenced to 27 months in prison and a $75,000 fine after pleading guilty to making illegal campaign contributions. For five years, Magliocchetti illegally used corporate funds from the once powerful PMA lobbying firm to reimburse friends and colleagues who made contributions to political candidates. Magliocchetti’s illicit generosity helped him secure earmarks from Members of Congress for many of his clients.

Some small measure of justice is served by Magliocchetti’s sentence, but if there were real time online reporting of lobbyists’ activities, perhaps it wouldn’t have taken five years to detect his scheme. Or, perhaps the scrutiny that comes with more frequent, detailed disclosures would have had a deterrent effect—Magliocchetti might have been less likely to commit a crime had he thought he risked being caught.

Sunlight is embarking on a campaign to improve lobbyists’ disclosures. (Check it out here, and sign up if you want to learn more.) Among the changes we propose is a requirement that lobbyists identify, in real time, who they are meeting with and what they are asking for. Such disclosures will, we believe, improve the democratic process and the ongoing policy dialogue by providing the public a clear idea of the issues that are hot on Capitol Hill and the interests that are lobbying in support or opposition to them. In the Magliocchetti case, such disclosures might also have quickly uncovered, or even prevented, the corrupting influence of Magliocchetti’s money laundering scheme.

Sunlight’s new Lobbyist Registration Tracker is a great new tool to let users track who is lobbying about what issues. It’s a valuable resource for anyone who wants to detect what trends are hot in Congress. But, it could be even more useful if it weren’t for the yawning gaps in the law about who is required to register as a lobbyist.

Right now, the oft-cited “20 percent exemption” lets some of the most influential players in Washington—the former politicians, the labor leaders and the corporate CEOs—wield their influence in the White House and the halls of Congress on behalf of clients, without registering their activities. So long as their lobbying activities take up less than 20 percent of their time on behalf of any one client, they don’t have to make their influence peddling public. It’s no secret that in Washington that a few well-placed phone calls to Members of Congress or their most senior staff by a power player like Tom Daschle, Bill Thomas or Andy Stern can yield significantly more results than dozens of meetings by the majority of registered lobbyists. But until the law is changed to close the 20 percent loophole, those meetings won’t end up in Sunlight’s lobbyist tracker, and the public will be prevented from having a complete picture of who is helping to shape our laws and policy.

One of Sunlight’s policy goals is to amend the Lobbyist Disclosure Act to create real-time, online disclosure about lobbying, including changing the definition of lobbyist to ensure there is disclosure by everyone who lobbies. Interested in helping make this sensible change happen? Sign up here and we’ll keep you informed on ways to get involved.