Lobbying Subject Disclosure

When a lobbying code requires that lobbyists report "specific lobbying issues" or "the subjects on which they have lobbied," what exactly is required? The best approach is to include more specific language in the disclosure section, such as "information sufficient for an ordinary member of the public to identify the law or resolution, contract, grant, regulation, real property or project, rule, proceeding, board or commission determination, or other matter."

Another approach is to include this information in comments to the lobbying code, or in a manual. This is what Congress chose to do in its Lobbying Disclosure Act (LDA) Guidance publication (attached; see below). Here is what this publication says on the topic, and the example it provides:

When reporting specific lobbying issues, some registrants have listed only House or Senate bill numbers on the issues page without further indication of their clients’ specific lobbying issues. Such disclosures are not adequate, for several reasons. First, Section 5(b)(2)(A) of the LDA requires disclosure of “specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities, including ... bill numbers[.]” As we read the law, a bill number is a required disclosure when the lobbying activities concern a bill, but is not in itself a complete disclosure. Further, in many cases, a bill number standing alone does not inform the public of the client’s specific issue. Many bills are lengthy and complex, or may contain various provisions that are not always directly related to the main subject or title. If a registrant’s client is interested in only one or a few specific provisions of a much larger bill, a lobbying report containing a mere bill number will not disclose the specific lobbying issue. Even if a bill concerns only one specific subject, a lobbying report disclosing only a bill number is still inadequate, because a member of the public would need access to information outside of the filing to ascertain that subject. In our view, the LDA contemplates disclosures that are adequate to inform the public of the lobbying client’s specific issues from a review of the Form LD-2, without independent familiarity with bill numbers or the client’s interest in specific subject matters within larger bills. The disclosures on Line 16 must include bill numbers, where applicable, but must always contain information that is adequate, standing alone, to inform the public of the specific lobbying issues.

Example: Client “A’s” general lobbying issue area is “Environment.” During the first quarter of 2008, lobbyists for “A” made contacts concerning the Department of Defense appropriations for environmental restoration. For fiscal 2009, the Department of Defense Appropriations Act was part of the Omnibus Consolidated Appropriations Act for 2009, H.R. 3610, a lengthy and complex bill that did not have numbered sections throughout. Title II contained separate but unnumbered provisions making appropriations for “Environmental Restoration, Army,” “Environmental Restoration, Navy,” “Environmental Restoration, Air Force,” “Environmental Restoration, Defense Wide,” and “Environmental Restoration, Formerly Used Defense Sites.” Lobbying contacts for Client “A” addressed all environmental restoration funding within the Defense Department bill. An appropriate disclosure of the specific lobbying issue would read as follows: H.R. 3610, Department of Defense Appropriations Act for 2009, Title II, all provisions relating to environmental restoration.

But even this is insufficient. For one thing, it is important to say which side of the issue one's client is on, and how the client might benefit. In the example, did the client seek to increase environmental restoration appropriations because it is in the business of environmental restoration? Or did the client oppose environmental restoration, because its spending on restoration takes funds away from other areas of the Defense budget? If so, was the opposition purely policy-oriented (more Defense spending), or was it because the client is a Defense contractor (or association or such contractors) trying to preserve Defense contracts?

A National Journal article this week looked at the issue of subject disclosure by lobbyists. It found that many lobbyists and their clients are not following the guidance provided in this publication. For example, Archer Daniels Midland, a large agricultural company, said on its form that it lobbied on trade, with the only detail being "Matters related to agricultural trade." As for the environment, the only detail was "Matters relating to climate change and sustainability." This provides almost no information to the public. Even Koch Industries, which provided a great amount of detail, did not disclose which side of each issue it was on.

Why are so many lobbyists ignoring the Secretary of the Senate and the Clerk of the House of Representatives, who prepared the guidance publication? Because these offices "don't have the auditing and investigative power to police the quality of the disclosure once the filings come in." For these offices, the big problem is getting lobbyists to disclose anything in a timely manner. How much detail they provide comes too far down the priority list to be the topic of enforcement actions.

This is also true at the local level, where the staff and resources for disclosure oversight are usually lacking. In fact, since many lobbying programs are overseen by the clerk's office or by another office that does not ordinarily engage in oversight, the expertise in and prioritization of oversight is sometimes lacking, as well. But the more clear the guidance, the easier it is to find a disclosure inadequate and, through advice and enforcement, get lobbyists to provide information that is useful to the public.

Robert Wechsler
Director of Research-Retired, City Ethics

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