So, what are lobbying activities? Under the act, they include not just lobbying contacts themselves but also efforts in support of such contacts, including background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others. Official guidance states that if the intent of the work is to support ongoing and future lobbying, then it counts as a lobbying activity. In addition, work such as reporting or monitoring that occurs at a time when future lobbying contacts are contemplated counts as lobbying activity.
How do you know whether you spend at least 20 percent of your time on lobbying activities? Unless it is obvious that you do not spend that much time doing so, the only way to know for sure is to monitor your time and keep a record of all of your activities that qualify as lobbying activities. This would be an especially good idea if you were actually contemplating terminating your registration. While the law imposes no formal record-keeping requirement with respect to lobbying activities, Sterns case is a good reminder of the value of record-keeping, particularly for people who do some lobbying but do not register. If Stern does face the investigation requested by the advocacy groups, good records of his time will make it much easier to demonstrate that he spent less than 20 percent of his time on lobbying activities, assuming that is the case.
In part because of the difficulty in applying the 20 percent threshold and the vague definition of lobbying activities, some lobbyists think the threshold needs to go. Dave Wenhold, president of the American League of Lobbyists, advocates such a position. He says that significantly lowering the threshold would increase transparency and remove an avenue for lobbyists to evade registration. According to Wenhold, If it walks like a duck and talks like a duck, it should be registered as a duck.
For now, however, you should take the threshold seriously. There are stiff penalties for failing to register. Civil fines for knowingly failing to register can be as much as $200,000. Worse, those who knowingly and corruptly fail to register face criminal liability, including up to five years in jail. Registration is a pain, I know. But, while Ive never been to jail, I imagine it is worse. In short, be careful. Improperly terminating your registration could just take you out of the frying pan and into the fire.
C. Simon Davidson is a partner with the law firm McGuireWoods LLP.
Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.