Keeping Track of Who Is Lobbying Congress

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In the wake of an annual GAO report that some lobbyists have failed to register upon employment by a client, Representative Mary Jo Kilroy (D-Ohio) introduced legislation that would impose fines for late filings and require lobbying registration fees to fund enforcement of the filing provision. The bill aims for a higher level of accountability for lobbyists, who usually suffer no repercussions for failing to comply with registration requirements.

The “Fee on Lobbyists Act,” or HR 5751, would fine late-filings lobbyists $500 the first time they fail to register that they’ve taken on a client, and $1,000 for each subsequent infraction. It would also instantiate a public list of non-compliant lobbyists drawn from House and Senate records, whose names would be removed from the list once they file the report and pay the fine. Funds raised from these fines and the annual $50 per-client filing fee would be available to the appropriate House and Senate offices to pay for reviewing and auditing registrations. OMB Watch wrote about the bill last week; we noted its introduction in our daily roundup; and Rep. Kilroy issued this press release.

As things currently stand, the House Clerk’s Office and Senate Office of Public Records do not always know when lobbyists fail to file, and when they do find out, they send reminder letters that give the non-compliant 60-days to file (as required under 2 USC 1605). Theoretically, ongoing non-compliance could trigger prosecution by the Attorney General’s Office, after referral from the House or Senate. According to the GAO report, the AG often sends a letter demanding compliance; it notes the most recent enforcement actions were three settlements of civil actions in 2005. Theoretically, the maximum civil fine is $200,000 and the maximum criminal penalty for knowingly and corruptly failing to comply is 5 years imprisonment, although these provisions are largely unenforced.

The legislation cuts through much of the red tape to create an incentive to timely compliance, but there may be some room for additional improvements.

For example, although the legislation calls for the Secretary of the Senate and the Clerk of the House “to reconcile their databases … so that information … is compatible and easily comparable,” for this provision to have real bite it should mandate the publication of unique ID numbers for each lobbyist in every instance where that lobbyist is referenced. That way, it is easy to have confidence that the “John Smith” in the first quarter 2011 filing is the same “John Smith”in the fourth quarter 2010 filing; or to track his work for different employers over time. (Based on her press release, I think Rep. Kilroy intends for this provision to reconcile the list of non-compliant lobbyists made available by the House and Senate, but that is not clear from the text of the legislation)

Another possible improvement is to keep a public list (in a searachable, sortable, downloadable database) of all non-complying lobbyists and their employers, even when they pay their fine and file their forms. That way, the public can see whether the same lobbyists fail to file time and time again. Of course, the database should note the date when the lobbyist filed their updated forms and paid the fees. Except when a lobbyist is self-employed, it is employer (not the lobbyist or client) who files these registration forms, and it makes sense to fine the employer and not the lobbyist him/herself for each instance of noncompliance. Employers should be prohibited from passing through the late filing cost to clients or employees, and should be identified in this database.

In addition, to the extent the Senate and House lack the capacity to review these forms for timeliness and completion, one mechanism used to good effect in other circumstances is to let the public report instances of non-compliance. Timely and complete release of all filings will allow the public to contribute to this effort.

Additionally, there are likely to be instances where people have stopped lobbying and no longer need to file regular reports. Tracking these people is very difficult, as noted by the Center for Responsive Politics in their recent report “The Deregistration Dilemma.” They recommend:

Creating a separate form where a lobbyist can register and be assigned an ID…. A simple form in which a lobbyist discloses his or her employer and past government experience…. The form could also give the option for a lobbyist to deregister that is, terminate his or her status as a registered lobbyist, and thus forgo all the disclosure responsibilities entailed in that status.

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