by Eric Dunn, Sunlight policy intern

All 50 states require lobbyists to disclose some information about their work. Some require detailed online reporting while others just ask lobbyists to check in every now and then. Previously, Sunlight has looked at who has to register as a lobbyist, when they have to register and how much it costs. In this post, we reviewed the forms lobbyists file with state governments to disclose their expenditures in order to see what lobbyists report and how they do so.

What they report

Thirty states require lobbyists to disclose the issue or government action they were trying to influence. The states that have this requirement usually have lobbyists note the “purpose” of any given transaction with a code that corresponds to a specific issue area. This makes them into easily searchable samples. New York’s lobbyist disclosure form is especially detailed - lobbyists are required to list any bills, issues, or agency actions lobbied in a bimonthly report.

In thirty-eight states, lobbyists must disclose the name of legislators who receive or benefit from specific gifts (often defined as items with value or honoraria). Almost three-fourths of state forms require lobbyists to disclose the date a specific gift was made (twenty-nine states require both pieces of information).

How they report

Forty states allow lobbyists to file expenditure forms online. Most states have a registration system that requires lobbyists to obtain a unique ID and password before submitting expenditure reports. Thirty-seven states release these expenditure reports online to the public.

In addition to online filing, nineteen states publish searchable, sortable databases of registered lobbyists. Tennessee, for example, allows you to search by issue area, lobbyist or employer name. You can see who hired the lobbyist and how much they were paid. Nevada even has a lobbyist facebook so you can pick out lobbyists from a crowd, which Sunlight has tried to do at the federal level.

Follow the money and actions

In the city of San Francisco, lobbyists are required to report significant contacts made with legislators. Currently, no state has a similar reporting mechanism in place. As Sunlight has highlighted, disclosing significant contacts made by lobbyists is vital to making government more transparent.

The Lobbyist Disclosure and Enhancement Act, introduced last month in Congress, is an opportunity for the federal government to implement some of Sunlight’s suggestions for lobbying reform at the federal level. Good reporting practices go deeper than financial disclosure. The public deserves to know what lobbyists are doing.

You can see a copy of many state lobbying report forms here. Some reports are not available because states have online systems instead of one page forms.

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.

President Obama's mentioned several of Sunlight's core issues in his State of the Union Address issues last night. A closer look at what he said, and what he said last year, helps to sort out the rhetoric from the reality.

Earmarks

Here's President Obama, last night:

And because the American people deserve to know that special interests aren’t larding up legislation with pet projects, both parties in Congress should know this: if a bill comes to my desk with earmarks inside, I will veto it... A 21st century government that’s open and competent.

This is a new development, and a departure from his request last year, in January of 2010:

I'm also calling on Congress to continue down the path of earmark reform. Applause.) Democrats and Republicans. (Applause.) Democrats and Republicans. You've trimmed some of this spending, you've embraced some meaningful change. But restoring the public trust demands more. For example, some members of Congress post some earmark requests online. (Applause.) Tonight, I'm calling on Congress to publish all earmark requests on a single Web site before there's a vote, so that the American people can see how their money is being spent. (Applause.)

In 2010, Obama called for earmark transparency. In 2011, he issues an outright veto threat. What has changed?

After Obama's initial call for an earmarks database, lawmakers (and Sunlight) took his call seriously, crafting the Earmark Transparency Act in both the House and the Senate. They had broad bipartisan support, and the Senate bill even passed out of committee. The White House was silent, and uninvolved.

Unfortunately, a veto threat is an unlikely fix to our earmark issues. It's unclear how long it'll last, or whether it's a threat that Congress will accept. Even if they do, no one expects earmarks to end, but instead to continue under a different procedure -- phonemarking, lettermarking, and who knows what else. (We're calling those "nearmarks").  Members of Congress can still direct funds to pet projects; they'll just be harder to track, and further from the public eye.

The only ultimately reliable authority to appeal to on spending is public scrutiny. That's what Obama called for last year. Too bad he didn't follow through. It's difficult not to interpret the earmark veto threat with skepticism, as part of an escalating anti-washington political arms race, rather than a well-considered solution to a real problem.

Campaign Finance Disclosure

After the Citizens United decision, President Obama became a fierce ally for legislation to create disclosure in its wake. He made countless speeches and radio addresses, and the White House was heavily involved in trying to get the effort passed. Senate Republicans ultimately blocked the effort, even after an initiative to introduce a disclosure-only bill.

Given that history, it's surprising that this issue didn't show up at all in last night's speech. The cynical view is that Democrats are planning ways to benefit from campaign finance deregulation; perhaps Republican control of the House makes a disclosure bill less likely to pass. In any case, it's a huge reversal for the reform issue perhaps closest to Obama's heart to get a goose egg in the SOTU.

2011:

nothing

2010:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Lobbying

Last night's speech saw one particular call for lobbying reform:

Because you deserve to know when your elected officials are meeting with lobbyists, I ask Congress to do what the White House has already done: put that information online.

That sounds like a good idea, but unfortuntely it's expressed in State of the Union shorthand, and glosses over a pile of complexity. There are two sets of policies that Obama could be referring to when he says that they've "already done" lobbying disclosure.

First is the visitor logs, which the White House released as a result of a CREW lawsuit. They allow anyone to see records of most visitors to the White House posted online four months after the visits occur. These are meaningful disclosures, and allowed Sunlight's Paul Blumenthal to reconstruct the lobbying and dealmaking that went into the healthcare bill.

But that doesn't mean that they're an effective lobbying disclosure system. The design of the WAVES system is an artifact of how security officers track who enters and leaves the White House system -- a far cry from the lobbying disclosure so necessary to holding officials accountable.

Secondly, Obama could be referring to the lobbying disclosures the Executive Branch is voluntarily making around focused issues. There are such policies now applied to TARP, the stimulus, and now to the Dodd-Frank bill. Again, these are meaningful policies, worthy of broad praise, and further analysis. But they're insufficient for the White House to say they're "already done." These policies are easy to evade, and often rely on the outdated and ineffective definitions from the Lobbyist Disclosure Act.

The real fix is the sort of fundamental reform to our lobbying disclosure system that we've described in our bill on PublicMarkup, and posted for public review and commentary.

Having the President push for such a measure would improve its prognosis significantly. Unfortunately, it's unclear whether the line in last night's speech was the opening salvo in a new lobbying reform initiative, or a temporary jab at the legislature intended to garner praise for existing White House initiatives.

If "we do big things" then real-time, online lobbying disclosure should be one of them.

Other

Obama also mentioned the following line:

Because you deserve to know exactly how and where your tax dollars are being spent, you will be able to go to a website and get that information for the very first time in history.

This is rather cryptic. It's possible that this refers to a proposal to create a digital receipt for after paying your taxes, which has been floating around in different versions for several years. But that's a guess.

The USASpending.gov site already provides details on how the government spends money on grants and contracts, although the data they're using is largely unreliable.  If the government is going to add to this accounting, they should fix those problems first.

Overall

Compared to last year's speech, 2011's ideas were derivative and rhetorical.  Since there is no dedicated staffer at the White House pursuing ethics and transparency, it looks like the Obama's leadership on this issue is slipping.

As the White House staff shakeup continues, and in the absence of the not-to-be-replaced Ethics Czar, we're left wondering whether we've already seen the best of the transparency of the Obama Administration.

Sunlight recently developed a seven-point plan for a comprehensive and meaningful disclosure regime in a post-Citizens United political world.

John blogged about the first piece of the platform, Independent Expenditures, and today I’ll be focusing lobbying disclosure, which, even before Citizens United, needed to be updated to address the who, what, when, and why a lobbying contact took place. In the wake of Citizens United, real time, online, substantive disclosure becomes even more critical to demonstrate that corporate expenditures are indeed independent and to shed light on whether there is even the appearance of coercion.

Require Substantive, Timely Disclosure by Lobbyists

Imagine the following: Fat Cat Lobbyist meets Senator Spineless to ask for help with a controversial bill. Soon after, the airwaves in Senator Spineless’ state are blanketed with ads paid for by Fat Cat’s corporate (or union) client, supporting the senator in an upcoming election. The fundamental question is whether, when the senator met with the lobbyist, he felt threatened that he would face a barrage of negative attacks if he did not support the lobbyist’s position. As it stands now, nowhere is it disclosed that the meeting between the senator and the lobbyist even took place. There is simply no way for the public to decipher the senator’s motivation or whether he is acting in the public interest.

To shed light on such possible conflicts of interests, it is critical that within 24 hours of contacting a government official to request a specific government action, lobbyists be required to electronically report the name of the official being lobbied, a summary of the action requested and the name of the lobbyist’s client or employer.

Part and parcel to the requirement that lobbyists disclose the names of the officials they meet with is the requirement that all influence peddlers be required to report their meetings. The current 20 percent exemption for lobbyist reporting must be eliminated so that all significant contacts in which a request is made for a government action are fully disclosed. Corporate and union heads along with anyone who bundles campaign contributions must be required to report their meetings with government officials so that a gaping disclosure loophole can be closed.

The Citizens United decision gave corporations and unions a new and forceful method to twist the arms of elected officials in the form of threatened independent expenditures. This is a powerful weapon in the arsenal of organizations with very deep pockets. Only by exposing when and how that coercive weapon may be being used can the public understand its impact and have at least a chance of combating it.

Further dispatches from the Fifth Branch of government provided by the Washington Post:

Sen. Lisa Murkowski (R-Alaska) is likely to postpone offering an amendment (pdf) next week that would bar the Environmental Protection Agency from regulating carbon dioxide as a pollutant under the Clean Air Act, according to sources familiar with the matter. ... The maneuvering comes as The Washington Post has confirmed that two Washington lobbyists, Jeffrey R. Holmstead and Roger R. Martella, Jr., helped craft the original amendment Murkowski planned to offer on the floor last fall. Both Holmstead, who heads the Environmental Strategies Group and Bracewell & Guiliani, and Martella, a partner at Sidley Austin LLP, held senior posts at EPA under the Bush administration and represents multiple clients with an interest in climate legislation pending before Congress.

As reported in McClatchy, the lobbyists are very honest about the whole thing:

"This is what lawyers in Washington do every day of the week, is to take a look," Holmstead said. "It happens all the time on almost every piece of legislation. Before language is introduced, it is almost always shared with people on all sides of the issue."

All the more reason for even more transparency in the interaction of lobbyists with our elected officials.

Here are a few of the more interesting media mentions of Sunlight and our friends and allies from the week:

CNN interviewed Ellen Miller, Sunlight’s executive director, in an article on lobbyists and the need for disclosure of their interactions with congressional lawmakers and other federal officials.

Katharine Q. Seelye at The New York Times reported on the fact that, five months into his administration, President Obama has signed two dozen bills, but he has almost never waited the five days, as he promised during his election campaign. She noted how open government and other watchdog groups have criticized the president for not living up to his pledge. Seelye quotes Ellen as saying it’s less important for the president to wait before signing a bill than it is for the Congress to wait 72 hours before voting on it. “There isn’t anybody in this town who doesn’t know that commenting after a bill has been passed is meaningless." The article also has an accompanying video.

Politico's Victoria McGrane reported on how the Senate is considering putting all their office expenses — including staff salaries — online, as well as requiring campaign fundraising reports to be published on the Web. The mere fact that the Senate leadership has conducted a whip count is an encouraging sign for the reforms' passage, McGrane writes. And she quotes Lisa Rosenberg, Sunlight’s , “They wouldn’t be talking about bringing it up for a vote if it wasn’t pretty solid."

The Washington Examiner reports on Citizens for Responsibility and Ethics in Washington calling on the Obama administration to release the names of health care executives who have visited the White House. “If you are going to criticize other people for secrecy, you better have an open door,” said Melanie Sloan, CREW’s executive director. “They talk about transparency more than they exhibit it.”

Brian Wingfield at Forbes.com wrote about the health care reform debate and linked to Sunlight’s senior writer Paul Blumenthal's blog post about former senators Tom Daschle and Bob Dole releasing a health care plan while being health care lobbyists.

Lisa Wangsness with The Boston Globe reported on bloggers from the medical, technology, and patient advocacy worlds organizing to win the right of patients to gain access to their computerized health records from their doctors in an electronic format. She quotes the Center for Democracy & Technology’s Deven McGraw noting that federal law already entitles patients to easy, inexpensive access to their health records in whatever format they exist. Too often, she said, patients, doctors, and hospitals are not aware of the law. She added that Congress included $19 billion in the stimulus package for electronic medical records systems. Patients and their doctors need to have a clearer understanding of that right, she said.

The New York Times picked up Anne C. Mulkern’s Greenwire piece on how money has helped to grease the skids of the Cap and Trade Energy Bill on Capitol Hill. The report used data from the Center for Responsive Politics to show how industry with a stake in the legislation has attempted to influence the vote in their favor.

Sunlight’s concern over how fast the energy bill Congress is moving the generated a number of editorials in support of our position. The (St. Paul, Minn.) Pioneer Press editorialized about the energy bill, "Has anybody read those 1,200 pages?” The editorial says "it is a big deal," and the "virtues of transparency don't apply only to the work of one's opponents. If the price of broader public understanding of major legislation is a slower process, good." And the editorial ended with, "To our friends at the Sunlight Foundation, we say: Keep the pressure on." The Chicago Tribune also editorialized about Cap and Trade. "Remember that gargantuan climate change bill we told you about last week? It's gotten bigger. Over the weekend, the bill grew from 946 pages to 1,201 pages, according to the Sunlight Foundation. It's still changing, with important amendments in flux. And The (Riverside, Calif.) Press-Enterprise wrote a Cap and Trade editorial as well that used many of Sunlight's talking points.

ReadWriteWeb's Marshal Kirkpatrick wrote about the U.S. Office of Management and Budget issuing new reporting guidelines this week for recipients of the $787 billion Recovery Act. "The normally polite geek watchdog organization the Sunlight Foundation has come out swinging," Kirkpatrick wrote, referencing Ellen's blog post from yesterday where she called it a "significant failure" on the part of the administration by not living up to its promise for full and complete disclosure. Kirkpatrick also mentions how the Senate is now offering mashup-friendly XML (extensible markup language) feeds for Senate voting history. He lifted quotes from Sunlight's policy director John Wonderlich from a Politico article from April on the arguments against the chamber offering the voting history in XML. "The secretary of the Senate has cited a general standing policy that they're not supposed to present votes in a comparative format, that senators have the right to present their votes however they want to."

Speaking of the OMB’s new reporting guidelines, NextGov.com’s Aliya Sternstein noted other problems. The latest guidance does not include previous instructions from an earlier incarnation directing agencies to configure news feeds that would allow citizens to receive automatic updates. She interviewed Craig Jennings from OMB Watch, who said for standardization purposes, "it does make sense that there is some restriction to the raw data . . . to make sure [that, for example,] 'assn' equals association, 'Boeing Inc.' is the same as Boeing Incorporation."

Thanks.

Sometimes important information about the way Washington works is easily accessible online, but those “in the know” don’t know how to use it. Take this story from the New York Times. Rep. Collin Peterson (D-Minn.), Chairman of the House Committee on Agriculture held a hearing on derivatives legislation. Washington lobbyist Ed Rosen testified on behalf of the 650 organizations that make up the Securities Industry and Financial Markets Association.  According to the story, Rep. Peterson was unaware that Rosen lobbied for CDS Dealers Consortium, a group of nine Wall Street leviathans including JP Morgan Chase and Citigroup. CDS Dealers Consortium is a much narrower group that has potentially conflicting interests in derivatives legislation than SIFMA. Had Rep. Peterson known that Rosen represented CDS, “it would have guided his questioning and interpretation of Mr. Rosen’s testimony.” The Times infers that the information was unknown because “those testifying at such hearings are not required to disclose their affiliations.”  This is misleading, as the Times reporters themselves noted earlier in the article that lobbying records clearly show that Mr. Rosen was hired to represent CDS.

Had Rep. Peterson or his staff simply typed Ed Rosen’s name into the LDA disclosure search form on the House Clerk’s web site, the information he needed would have popped up in seconds. He would have had a relatively short time frame before the hearing to discover the information, so we will cut him a little slack and use the example to point out the need for real time online disclosure of lobbyist information. According to the lobbyist registration form, CDS Dealers Consortium hired Mr. Rosen on November 13, 2008. Mr. Rosen delayed filing the registration form until Thursday, January 29, 2009, and he filed his lobbying disclosure report the next day. According to the House Clerk’s office, both documents would have been accessible within one day of filing—a day or two before the February 4th hearing. But the tight timeline points out how the current quarterly reporting regime combined with registration requirements that allow 45 days or more to pass before registration forms need to be filed can be used to game the system, delaying disclosure until after it is useful or relevant. Still, even the best, most timely filing system doesn’t do anyone any good if the people who are in the best position to use the data fail to look for it. In this case, the derivatives hearing and any resulting legislation could have taken an entirely different tone if anyone had done his homework.

The GAO is bound by law under the Honest Leadership and Open Government Act of 2007 to file an annual review of compliance with lobbying disclosure requirements. A review of last year's disclosure compliance was released yesterday. For the review, the GAO randomly audited 100 lobby shops to determine their level of compliance. The contains statistics on those 100 lobby shops and estimations for the statistical level of disclosure across all lobby shops. Here are some of the noteworthy estimated statistics:

• 6 percent of all lobbyist disclosures "erroneously report the amount of income or expenses for lobbying activity."
• 7 percent, at minimum, of all lobbyist disclosures "list lobbying activity that did not actually happen."
• 3 percent, at minimum, of all lobbyist disclosures "fail to fully disclose whether the individual lobbyists for a specific client held an official covered position."
• 4 percent, at minimum, of all lobbyist contribution disclosures "omit donations that should have been reported."

And these are statistics based on the 100 randomly audited lobby shops:

• 14 percent of lobbyist disclosures were contradicted by documentation provided by lobbyists.
• 65 percent of lobbyist contribution disclosures "could be supported by FEC data or documentation provided by lobbyists."
• 16 percent of lobbyist contribution disclosures (LD-203) "contained erroneous entries or failed to disclose required contributions."
• 13 percent of registrants could not be linked to "a corresponding report... likely because either a report was not filed or reports that were filed contained information, such as client names, that did not match."

You can read the full report here.

It's been nearly two weeks since President Obama announced new rules to cover lobbying for stimulus funds and each passing day provides new examples of why these new disclosure rules are so important. Today, the Washington Post notes the explosion in some sectors of the lobbying sector, particularly around those seeking stimulus funds:

The $787 billion stimulus package -- along with an ambitious new federal budget, bank bailouts and the beginning of a regulatory overhaul -- has succeeded in stimulating the economy along Washington's avenue of influence. In the months since the November election, more than 2,000 cities, companies and associations have hired lobbyists to help them push their agendas on Capitol Hill and at the White House, easily outpacing such numbers after the previous two elections, according to disclosure records.

The need for full disclosure of the contacts by this new crop of lobbyists is essential to prevent fraud, waste, and corruption. (Just look at what can happen when lobbyists are grabbing at piles of money.) Hopefully, the administration's rules come into full relief shortly. For a full run-down on the new rules and how they change the current structure of lobbying disclosure, read this post from last week.