Sept. 2, 2014 SIGN IN | REGISTER
Roll Call

A Lobbyist Might Not Be a ‘Lobbyist,’ but Needs to Be Careful

Q: I am president of a trade association with a question about my need to continue registering as a lobbyist. I read recently that Andy Stern, the president of Service Employees International Union, no longer registers. I presume this is because he does not meet the criteria triggering the need to register. This made me wonder whether I meet the criteria, too. While I do lobby government officials on behalf of my association, my job also involves lots of activities other than lobbying. Stern is a pretty big power player, and if someone like him does not qualify as a “lobbyist” under the law, maybe I don’t either. What do you think?

A: The issue of terminating lobbying registrations seems to be one that will not go away. As the restrictions on registered lobbyists continued to pile up last year, so did the number of lobbyists who terminated their registrations. Record numbers of lobbyists de-registered, freeing themselves of the restrictions and obligations that go along with registration. Many who, like yourself, are still registering find themselves wondering why.

In the case of SEIU President Andy Stern, he stopped registering as a lobbyist in 2007. Two advocacy groups have requested an investigation regarding whether Stern should have resumed registering as a lobbyist last year. In a November 2009 letter to federal prosecutors and Congressional officials, the groups Americans for Tax Reform and the Alliance for Worker Freedom allege that Stern lobbied extensively in 2009. The letter cites 22 visits by Stern to the White House between January and August 2009, more often than anyone else who visited the White House during that time period. It also includes news reports of Stern’s lobbying, as well as quotes from Stern’s Twitter account that appear to reveal instances of lobbying. For example, Stern wrote: “Lobbying with Mayor Bloomberg on health care. Leaving Senator Snowe.”

Yet, lobbying contacts alone would not have been enough to require Stern to register as a lobbyist. No matter how many such contacts Stern may have made in 2009, the Lobbying Disclosure Act would not have required him to register unless “lobbying activities” consumed at least 20 percent of Stern’s time at SEIU during a relevant registration period. Presumably, Stern’s duties as president of SEIU involve much more than just lobbying. From the advocacy groups’ letter, it is impossible to discern whether Stern’s lobbying activities consumed 20 percent of his time.

Thus, not all lobbyists are “lobbyists.” Put another way, not everyone who lobbies government officials qualifies as a “lobbyist” under the Lobbying Disclosure Act. To determine whether you qualify as a lobbyist and therefore still need to register, each quarter you must assess how much time you spend on “lobbying activities.” If you spent at least 20 percent of your time on such activities in the prior quarter or you expect to spend at least 20 percent of your time on such activities in the upcoming quarter, then you must register as a lobbyist for your trade association.

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, Stern’s 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 I’ve 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.

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