Watch Out Stealth Lobbyists

by Holland & Knight LLP
Contact

The oft discussed and long-anticipated unregistered federal lobbyist investigation may be occurring as we speak. The recently released 2014 first quarter report of the Office of Congressional Ethics (OCE) disclosed that one "entity" had been referred to the U.S. Attorney's Office for the District of Columbia for "failure to register under the Lobbying Disclosure Act."

De-registration movement

Ever since the lobbyist de-registration craze began, set-off by the tougher Lobbying Disclosure Act (LDA) penalties contained in the Honest Leadership and Open Government Act of 2007 (HLOGA) and the Obama-Biden 2008 campaign and later Obama Administration restrictions on registered lobbyists, there has been speculation that a large number of individuals were lobbying in Washington without registering under the LDA.  Of course, unregistered lobbyists most likely have existed since enactment of the LDA in 1995, but the fascination with "stealth" lobbyists seemed to peak during 2007 to 2009.  Until now, the discussion was purely hypothetical and centered upon famous (for Washington) non-lobbyist "strategic advisors," "consultants" and "historians" who from all outward appearances seemed to be lobbying but were not registered under the LDA. 

Am I a Lobbyist? 

The answer may surprise you. If you make more than one lobbying contact and spend 20 percent or more during a given calendar quarter on lobbying activities (lobbying contacts and related support activities) and your employer has more than de minimis lobbying expenses or income (currently $12,500 for in-house lobbyists/lobbyist employers and $3,000 for outside lobbyists/lobbying firms), then you are a lobbyist according to the LDA and your employer must register and disclose you as a lobbyist. There are no exceptions for certain professions (e.g., lawyers or retired Generals) or for non-profits (there is no distinction between "good" or "evil" lobbying). The LDA is conduct based and if you meet the definition of a lobbyist, you ought to be registered. If you are unsure about your status, consult with counsel and/or with the House Clerk or Secretary of the Senate.    

Other Potential Cases

The OCE unregistered lobbyist case almost inevitably arose because of an unrelated investigation. It is hard to imagine how else such a case would come about, since unregistered lobbying is so difficult to prove without a smoking gun such as emails, expense reports, or an eye witness/whistleblower. This time it was an OCE investigation, but next time it could be discovery during litigation, an audit, or a Congressional or Inspector General Investigation. This is the first known unregistered lobbyist case, but it is unlikely to be the last. 

Increased Penalties

In 2007, Congress passed HLOGA, which increased civil penalties for violations of the LDA from $50,000 to $200,000 and, for the first time, provided criminal penalties of up to five years in prison for certain violations. So, for the first time since the LDA was enacted in 1995, the lobbying statute had teeth, which means that the U.S. Attorney's Office may finally be interested in pursuing LDA enforcement cases.

Over 13,000 LDA Referrals

It appears clear there has been no shortage of potential LDA cases for the U.S. Attorney's Office to consider. The Secretary of the Senate has referred a total of 13,325 LDA violations to the U.S. Attorney since 1995 and the Government Accountability Office (GAO) has audited over 1,500 LDA filings since 2007. 

Stepped Up Enforcement

Since passage of HLOGA, the U.S. Attorney's Office has increased their LDA enforcement activities. In 2014, it filed a civil complaint against a lobbyist and a lobbying firm alleging violations of the LDA that could result in a fine of over $5 million. In December of 2013, the U.S. Attorney's Office secured a default judgment of $200,000 for LDA violations. Prior to that, the U.S. Attorney's Office entered into negotiated settlements three times — twice in 2012 for $50,000 and $30,000 and once in 2011 for $45,000. The next step in LDA enforcement may be a criminal case, and, according to a GAO LDA report issued in April 2013, the U.S. Attorney's Office is considering pursuing criminal penalties for LDA violations for the first time.

Next Steps

If your organization comes into contact with Congress or the executive branch, the LDA should be part of your internal compliance program. If you as an individual communicate with Congress or the executive branch as part of your job, you should seek the advice of counsel and/or contact the Clerk of the House or Secretary of the Senate to determine whether you meet the definition of a lobbyist. If you determine that registration is necessary, you should submit a complete, accurate, and timely LDA registration and subsequent reports.  Any missing or late LDA filings should be submitted as soon as possible and all filings moving forward should be submitted in a timely fashion. Any deficient filings should be amended with complete and accurate information. And never, ever, ignore LDA communications from the Clerk of the House, Secretary of the Senate, or the U.S. Attorney's Office.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP
Contact
more
less

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!