The lawyer who a decade ago advised Newt Gingrich on how to engage in advocacy without officially becoming a “lobbyist” is now working to close the loopholes that enable the former Speaker and other Members to avoid public disclosure.
Gingrich argued in a GOP debate Monday night that he was never a lobbyist, which is true largely because the lobbying rules allow individuals to conduct limited advocacy activities without being legally required to register.
Gingrich said he had hired “an expert in lobbying law” to make sure he never did anything that would qualify him as a lobbyist.
That expert was Thomas Susman, now the director of governmental affairs at the American Bar Association, which is pushing to expand the lobbying disclosure rules so that advocacy professionals don’t fly under the radar as Gingrich did.
“In the year 2000, Mr. Gingrich said: ‘I’m going to have consulting, strategizing — whatever it is — take me around the country, and I don’t ever want to cross the line and register as a lobbyist,’” said Susman, who at that time was a lawyer with Ropes & Gray. “And that’s what I was hired to do.”
Susman confirmed that he trained staff members at Gingrich’s firm, then known as the Gingrich Group. He declined to go into the details of his advice to Gingrich but said the definition of a federal lobbyist is clear: someone who spends at least 20 percent of his time for each client on lobbying activity and also makes two contacts with covered government officials.
“There is a clear line at 20 percent,” Susman said. “At 19 percent, even if you get $100,000 for your advice, you’re not required to register under federal law. It’s fairly clean.”
But things are trickier than they look, say experts familiar with the Lobbying Disclosure Act. Lobbying activity includes the typical K Street work such as asking a Member of Congress to vote for a bill. But it also includes behind-the-scenes strategy sessions with colleagues and clients to prepare for meetings or contacts with covered officials.
“If an in-house lobbyist is going to be speaking with somebody on the Hill and says, ‘Do you know this guy? What’s the best way to approach him?’ And you help him prepare, that’s lobbying,” explained Ken Gross, a partner at Skadden, Arps, Slate, Meagher & Flom who specializes in lobbying laws and ethics.
And it’s much easier to trigger a lobbying contact than one might think, Gross said. Calling a Congressional aide to set up a meeting or urging the staffer to take a client’s phone call is, in most cases, a lobbying contact. Even being present — but not speaking — during a client’s meeting on Capitol Hill is a lobbying contact, he added.
Rep. Elijah Cummings, D-Md., right, hugs Harold Schaitberger, General President of the International Association of Fire Fighters, after the Congressman spoke at the IAFF's Legislative Conference General Session at the Hyatt Regency on Capitol Hill, March 9, 2015. The day featured addresses by members of Congress and Vice President Joe Biden.