Draft Chapter on
Local Government Lobbying
To be added to the book Local Government Ethics Programs
Director of Research
City Ethics, Inc.
City Ethics, Inc.
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© 2015 Robert F. Wechsler
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A. Local Lobbying
B. Statement of Policy
D. Registration and Disclosure
E. Prohibitions and Obligations
Appendix I - City Ethics Model Lobbying Code
Appendix II - Books and Articles of Interest
A. Local Lobbying
Most local governments do not have lobbying codes or even provisions that relate specially to lobbyists, nor do many states have municipal lobbying codes. The major reason for this is that most local government officials and local government associations take the position that there are not many local lobbyists and, therefore, little need for a lobbying code. It is because there are so few lobbying codes, and limited demand for them, that my first two editions of Local Government Ethics Programs did not contain a chapter on lobbying. I also failed to write much about lobbying in the City Ethics Blog until 2014, when I began work on this chapter.
When I started researching and thinking about lobbying for this chapter, I realized that there is much more local lobbying than most people seem to believe even in those cities and counties with lobbying codes, primarily because (1) codes’ definitions of “lobbying” often leave out a great deal of lobbying activity; and (2) much local lobbying is done by owners and officers of companies and organizations rather than by the professional lobbyists whose lobbying is the object of state and federal lobbying codes.
There is also an assumption that there is no lobbying in smaller jurisdictions. This simply is not true, and I have never seen any evidence presented to support this assumption. There is a great deal of lobbying in smaller jurisdictions. One recent example of assuming there is not occurred in New York state. New York state law requires lobbying disclosure only in municipalities of over 50,000 people, but when the state decided to allow the building of four casinos, all but one of the designated locations for these casinos were in municipalities with populations under the 50,000 population threshold. So the millions of dollars of lobbying that ensued was not considered “lobbying” and was, therefore, not disclosed to the public.
Besides these big, special matters, every small municipality deals regularly with ordinary contracts, land use matters, grants, licenses, and the like, and all of these matters involve lobbying by business owners and organization officers, by lawyers and other professionals, and by professional contract and in-house lobbyists.
I came to the conclusion that, with the exception perhaps of the tiniest municipalities (and these can cooperate on a joint code and program), every local government should have at least a basic lobbying code, or a lobbying section in an ethics (that is, conflicts of interest) code, that (1) requires ongoing disclosure of lobbying activities and (2) contains certain prohibitions and obligations that relate to both lobbyists and principals (that is, clients), especially since local lobbying can best be distinguished from state and federal lobbying by the fact that more of it is done by principals and their employees than by contract lobbyists.
One of the main reasons to have a lobbying code is to increase awareness among local officials and employees that there is a lot of lobbying going on that they didn’t realize was lobbying. It’s not that this lobbying is wrong, it’s that it is important to be aware of it, to be open about it, to deal responsibly with the special relationships that arise through and around lobbying, and to recognize that both sides of the lobbying relationship can pressure each other in ways that are inappropriate and that undermine trust in those who govern a community. It is irresponsible to push lobbying oversight under the rug. It’s an issue that should be dealt with openly and professionally, to assure transparency and to prevent the misuse of office and wrongful influence, and the scandals that they lead to.
It is insufficient to simply pass one lobbying rule here, and another one there, when scandals arise or a local legislature wants to look like it cares about government ethics. Thomas M. Susman recognized the problem this causes in his essay “Private Ethics, Public Conduct: An Essay on Ethical Lobbying, Campaign Contributions, Reciprocity, and the Public Good,” 19 Stanford Law & Policy Review, No. 10 (2008):
Each piece of reform is crafted individually and sometimes (though not often) carefully. But they do not fit together to form a coherent whole. ... Both Congress and the lobbying profession seem to be developing two dimensional solutions to three dimensional problems, so it is little wonder that those solutions often do not work as intended.
Because lobbying oversight brings together all the areas of government ethics — conflicts of interest, gifts, confidential information, the revolving door, political activity, preferential treatment, transparency, and campaign finance — it is important that it be looked at three-dimensionally and treated as a whole. This chapter will break it down into its components, but City Ethics’ Model Lobbying Code brings it all together. A halfway solution simply shifts the way business is done; it doesn’t actually ensure more appropriate conduct or the appearance of appropriate conduct.
The Public’s View of Lobbying
Another reason lobbying oversight is important is that when people talk about ethical misconduct in government, they often have lobbyists in mind. Rightly or wrongly, lobbyists are everyone’s favorite villains. In a December 2013 Gallup poll that asked people to rate the “honesty and ethical standards” of various professions, lobbyists came in dead last.
This view of lobbyists hasn’t changed much since Henry Adams wrote his 1880 novel, Democracy, wherein Mrs. Baker, a lobbyist, hints that there is little difference between lobbyists and members of the oldest profession:
“Well! we got our bills through ... Some of them liked suppers and cards and theatres and all sorts of things. Some of them could be led, and some had to be driven like Paddy's pig who thought he was going the other way. Some of them had wives who could talk to them, and some — hadn't,” said Mrs. Baker, with a queer intonation in her abrupt ending.
It isn’t lobbying per se that the public has a problem with. What they hate is the idea (1) that wealthy special interests get preferred access to government officials due to their lobbyists’ special connections, wining and dining, and campaign contributions, and (2) that government officials make decisions not based on what they feel is best for their constituents, but rather based on what they are told by people with whom they form (or already have) special relationships.
It is a question of fairness and of private interests winning out over the public interest. And it doesn’t help that lobbying is done privately, in secret, even though it involves public officials. It is reasonable for people to think that if something is done in secret, there is something to hide or to be ashamed of.
However, most people (including local government officials) have only a hazy idea what a lobbyist is. In addition, few local governments (as opposed to state governments and the federal government) have a lobbying code, and most local ethics codes do not mention lobbyists. When they do, all they usually do is list lobbyists as a “restricted source” for the purpose of gift-giving, along with contractors, developers, and grantees.
Therefore, it should come as no surprise that oversight of the lobbying of local government officials has been the topic of very little study, that existing local lobbying codes differ in numerous ways (and rarely due to conscious experimentation), and that there are no best practices available to help local governments decide how to provide this oversight.
There is also no information about the extent of lobbying at the local level. However, the extent of lobbying at the federal level suggests that it might be much larger than people realize. According to Yale professor Heather Gerken, in a 2010 speech, spending on federal lobbying in 2009 has been approximated as $3.47 billion, while spending on federal campaigns that year was $3.2 billion. This implies that expenditures on lobbying at the local level are also about the same as campaign finance, which is substantial enough to be considered worthy of disclosure and oversight in just about every state. Considering that the money spent is basically the same, it is interesting how much more attention is paid to campaign finance or, looked at the other way, how much more effort is made to keep lobbying activities secret. At the local level, this is true despite the fact that most local jurisdictions are more likely to have the authority to pass lobbying laws than to pass campaign finance laws, which are usually handled by state governments.
Connections and Reciprocity
Despite their bad reputation, lobbyists are not villains. They are service workers in an industry that is, at least, perceived to have a very high return on value and where there the barriers to entry are relatively low. However, the economic and professional niche they inhabit is problematic, because the financial self-interest of their clients and government officials’ focus on the public interest are set against each other in the purest fashion.
The financial success of lobbyists and their principals depends on their success in getting access to, developing relationships with, and influencing government officials to further the principals’ personal interests. With lobbyists the situation is more problematic than with principals, because influencing government officials for personal interests is their only business. Their goal is effectively to create and take advantage of personal relationships with government officials, that is, to create conflicts of interest for government officials. In government, most conflicts of interest already exist, but because lobbyists are not (or should not be) family or business associates of the officials they seek to influence, they have to create new conflict. Their goal is to become like family, like business associates. Their goal is to create a relationship of reciprocity, “a whole string of contacts that forges the link,” in the words of Alan Rosenthal, from his book The Third House: Lobbyists and Lobbying in the States (CQ Press, 1993). And relationships of reciprocity with government officials are exactly what government ethics programs try to prevent and, when they exist, to keep from undermining trust in the government.
However, unlike new conflicts of interest, most lobbying relationships cannot be prohibited. But at least they can be made transparent, with some aspects limited or prohibited.
When lobbying is discussed, there is a great deal of talk about “influence” and “access,” but I agree with Alan Rosenthal that “connections” is the part of the process that should be focused on. More than anything, it is personal relationships that enable lobbyists and principals to get access to government officials and preferential treatment relating to the special benefits they are seeking. Anyone can get occasional access to their representatives, but only connections provide access at critical times and in especially important ways, such as when land use and procurement matters are first being contemplated (or being able to propose particular purchases and grants in the first place), during negotiations and the drafting of specifications, when amendments are being drafted and considered, and when committees are considering whether to move an item on or let or die. It is also connections that make lobbyists and principals privy to non-public information, or public information before it becomes public, which can make all the difference in the success of their goals. As Rosenthal quotes an association lobbyist, “It's harder to vote against someone you know than someone you don't know.” And it’s easier to give a contract to someone you know, or allow a permit to someone you’ve been working with for years. It is connections that lead to access and influence.
Personal relationships are central to being human, not to mention doing business. As the employee of a developer is quoted as saying about a bus trip of government officials to the site of a development similar to the one the developer is proposing, “we think that the bus ride is an important part of the trip. It allows us to talk to people in a more intimate environment. It also gives us a chance to demonstrate to the residents that we’re human too. The public and confrontational environment of the township meetings creates a very depersonalized view of developers.” (from Witold Rybczynski, Last Harvest: How a Cornfield Became New Daleville (Scribner, 2007), p. 69.)
When a lobbying firm bid for a lobbying contract with the town of Peoria, Arizona in 2012, it focused almost completely on its “positive,” “key,” and “extensive” relationships with state legislative and executive officials. Connections are the most important thing a lobbying client is looking for in a lobbyist.
One of the most problematic things about lobbying is that some lobbyists do things that look illegal and corrupt, but which are legal. Most of these have to do with the reciprocity that binds lobbyists’ connections with government officials. This reciprocity often looks to the public like bribery and kickbacks: money paid for a specific result. But it is not so direct, not one payment for one result. Lobbying is much more complex and long term than bribery.
Below is a description of lobbying activities from a 2009 report published by the Organisation for Economic Co-operation and Development (OECD), entitled “Self-Regulation and Regulation of the Lobbying Profession”:
In their role of creating a bridge between the private sector and the public sector, lobbyists and public officials instinctively relate according to the “reciprocity principle,” in which lobbyists providing needed research, gifts or other items of value help create a sense of obligation on behalf of appreciative public officials.
It is the ongoing reciprocity in the relationships between lobbyists and public officials that makes these relationships appear corrupt in the broader sense and, therefore, requires that lobbying activities be disclosed and certain conduct prohibited. As the federal Office of Governmental Ethics wrote in a 2012 proposal, “it is increasingly recognized that the more realistic problem [with gifts from lobbyists] is not the brazen quid pro quo, but rather the cultivation of familiarity and access that a lobbyist may use in the future to obtain a more sympathetic hearing for clients.”
It is important to recognize up front that money is not the only thing that lobbyists give. In fact, it is a minor element of a reciprocal relationship. One thing they provide that is more important is information and expertise. This includes legal and other technical information relevant to a particular matter, information about how the public feels about a matter (including polls and what lobbyists learn by talking with, for example, the opponents of a land development project), information about the politics of a matter, information about how similar projects have been greeted in other localities or how other localities build a bridge, handle recycling, etc.
At the local level, lobbying is more valuable to elected officials, because they have fewer staff than elected officials at the state and federal levels. Therefore, they need more information, more expertise, more constituent services, and more help in drafting ordinances, specifications, and other documents. Lobbyists and principals can prove useful to them by doing a lot of the support work, including professional advice in areas such as engineering, procurement, land use, accounting, and specialized areas of the law.
With respect to newly elected officials and board members, no information can be more helpful than information about how the legislative, land use, and procurement processes work. An experienced lobbyist, especially one with public service experience, is in the best position to provide this kind of information and profit from it. According to a January 2014 CBS St. Louis article, an experienced Missouri lobbyist used to hold seminars for new legislators and provide them with ongoing informal guidance, in addition to delivering beer (from a client) to legislative offices every Friday. He was so beloved for the services he provided to legislators that the Missouri Senate passed a resolution declaring him a designated smoking area in the smoke-free hallways of the legislative buildings.
The other important thing that lobbyists provide as part of their reciprocal relationship with government officials is the gift of their friendship and ongoing support, including their role in political campaigns and the care they take in helping officials look good. In a world where it is hard to trust anyone, individuals who have a personal interest in having you trust them can be the most reliable people around. And trust is the core of friendship. It is around this core that socializing forms and grows, from golf and hunting to family get-togethers, shared vacations, and shared political campaigns. Reciprocity is a very human, emotional thing that should never be seen solely, or even primarily, in terms of money. Or even beer.
“Follow the money” is a great slogan, but following the personal connections would give people a better picture of lobbying.
Differences at the Local Level
When people think of lobbying, they think of lobbying firms working at the federal level. They think of professional lobbyists representing big corporations and organizations trying to get laws changed in their favor. What people picture is public policy lobbying.
Less Professional Lobbying: Lobbying at the local level is different. Much of local lobbying is done not by professional lobbyists, but rather by owners, managers, attorneys, and community or government relations directors of entities that are directly seeking special benefits from the local government. Few of the individuals engaging in lobbying activities at the local level are paid specially to lobby, because the companies involved don’t have the resources to have a lobbyist on staff or even to hire a professional lobbyist. In fact, it would often be a waste of money, because there is no professional lobbyist who has better relations with officials than the business owner or the company’s attorney does.
This difference leads to another important difference: these business owners and lawyers do not consider themselves “lobbyists.” Nor does the federal definition of “lobbyist” include many of these individuals. This means that the definition of lobbying has to be changed to be relevant to, and effective at, the local level. This is the most important thing that needs to be kept in mind in drafting a local lobbying code.
About Special Benefits Rather than Public Policy: The other most important difference is that most local lobbying is not about public policy, but rather about land use matters, contracts, grants, and licenses. It is about seeking financial benefits directly rather than through changes in laws that benefit entire industries. There is no question whether a policy is best for the community; there are only the more mundane questions, such as whether a contractor is the best for a job, whether a grant should be given to x rather than y, or who should get the next liquor license.
When local lobbyists are specially paid or hired for their work, they usually report directly to the business owner or CEO and, therefore, the owner or CEO is involved more closely in the lobbying activities than in federal and state lobbying, where lobbying is often done for associations of businesses or overseen by a governmental relations department. Therefore, at the local level, the owner or CEO should be held more directly responsible for lobbying activities and their disclosure to the public.
Less Time and More Opportunities: Another thing that makes local lobbying more problematic than state and local lobbying is that some owners and CEOs often don’t have the luxury professional lobbyists have of gaining access and influence through long-term reciprocal relationships with officials. These owners and CEOs have to work harder and faster to develop these relationships. Doing this — via gifts, entertaining, and favors — can lead to a stronger appearance of quid pro quo transactions.
For those who do have time to make long-term connections, it is easier at the local level because local officials don't have a long commute. State and federal representatives disperse to their home towns, requiring lobbyists to concentrate their socializing when elected officials are in town. Local officials are, by definition, at home, and elected officials are only one important group of officials to befriend. Therefore, all year long local officials socialize at the same bars and restaurants as local lobbyists and business owners, play golf and tennis at the same clubs, etc. Having so many more opportunities to develop personal relationships with officials is a huge advantage for local lobbyists. It also mixes lobbying and socializing, so that it is very difficult to tell them apart. This mixture is more problematic locally than it is at the state and federal levels.
Cause lobbyists, who are less prominent at the local level, are less likely to develop personal relationships with local officials, because it is their issues rather than their personal familiarity that is most important. In any event, they often lack the financial and social resources needed to develop personal relationships, except with those officials who already strongly support their cause.
The Provision of Constituent Services: Besides money, information, and friendship, some local lobbyists gain access to and influence with officials by providing constituent services. No one is in a better position to provide constituent services than local universities and hospitals, social service agencies, arts organizations, and professional associations, all of which seek financial benefits from the local government. Sometimes these entities even lobby, raise funds, or put together coalitions in support of political and charitable causes that mean a lot to the mayor or the council president. And, of course, no cause means as much as re-election campaigns. Organizations, associations, and unions that have lots of members in the community, as well as companies with lots of employees, can provide valuable electoral and financial support.
Nonprofits Seeking Special Benefits: At the local level, there is also no important difference between a lobbyist for a for-profit developer and a lobbyist for a not-for-profit association, institution, or social service organization, whereas at the national level, most nonprofits are concerned with policies, not with contracts, real estate projects, or grants. Nonprofit hospitals, universities, social service providers, and chambers of commerce lobby just the way for-profit contractors and regulated businesses do.
Minor Matters Have Little Transparency: Another important thing that makes local lobbying more problematic is that it mostly involves what, for the public, are minor matters, as compared with public policy issues. Local lobbying involves such things as contract specifications and change orders, the handing out of federal, state, and local grant and loan money, and the regulation of businesses. In these areas, the only pressure on officials tends to come from those who lobby; there is, therefore, none of the oversight that comes in public policy matters from those with different views. Even with major property developments, much of the lobbying of officials occurs early in the process, before the public is aware, and much of the lobbying thereafter consists of grassroots lobbying, which doesn’t appear to be lobbying at all. Few follow these areas, and they are not well covered by the news media. Hence, local lobbying is even less transparent than state and federal lobbying. Therefore, the need for its disclosure — to make it more transparent — is more important at the local level. And yet it is far more rare for any disclosure to be required. At the local level, it's the “minors” where the most important games are played, despite there being no opponent and audiences that are small, or non-existent.
As Alan Rosenthal wrote in his book The Third House: Lobbyists and Lobbying in the States (CQ Press, 1993), lobbying is most effective when it comes to matters that mean a lot to those seeking financial benefits, but little to the public. A principal reason is that, with respect to these minor matters, officials assume that, if no one objects, the public interest is being served or, at least, not being undermined. Therefore, officials feel more free to serve personal interests.
Rosenthal gives a telling example of a minor bill at the state level that has had huge ramifications at the local level. A local government ethics bill in New Jersey was killed year after year because there was only one lobbyist focused on it: the state's local government officials’ association. Eventually, an ethics bill was passed (after the book was published), but it created a weak government ethics program that the same association has presumably been able to keep weak.
Blocking Change: Also relevant to the transparency of lobbying is the fact that it is not mostly about final votes, as the statistics provided by those who defend lobbying would make you believe (they insist there is little relationship between final votes and campaign contributions from lobbyists, at the federal level). Even when it comes to public policy issues, it is mostly about getting things on the agenda and, often more important, keeping things off the agenda or bottled up in a committee. When policies and regulations are involved, the goal of lobbyists is often to block change, to preserve the status quo, so that policies and regulations never become the subject of public discussion.
At the local level, lobbyists block change less than at the state and federal levels. Their clients are more often focused on initiating projects and getting contracts, grants, tax abatements, licenses, and permits, and getting them fast. The principal kinds of status quo they seek to preserve are a lack of effective regulation and a continuation of their contracts and annual grants. Otherwise, local lobbyists need to be more proactive than state and federal lobbyists. In many such instances, there is often no one on the defense, no one seeking to preserve the status quo, because while benefits are concentrated on one or two entities, possible costs to the community are widely distributed and often not recognized at all.
The Value of Transparency: All these aspects of lobbying that people don’t see become more visible when lobbying activities must be disclosed. This presents a much more true picture of what goes on in local government.
This transparency is more important at the local level than at any other level, because each decision (and lack of decision) immediately affects the community and the taxes that locals have paid and will be paying in the future. And the names mean more, because contractors, developers, and grantees are more familiar locally than nationally. The smaller the town or county, the truer a picture lobbying disclosure gives of how a community’s government is operating with respect to the special benefits it hands out.
Another part of lobbying that is more important at the local level is monitoring the status of matters, which is a service lobbyists supply to all their clients. At the state level, this is now relatively easy. But at the local level, things are usually not so transparent. This makes lobbyists who have connections and an understanding of the way things work especially valuable. But those who work in certain areas often monitor matters themselves through their personal relationships with important officials.
Opposition of Local Lobbying Regulation by Professionals and Nons: Since lobbying at the local level is different in so many ways from lobbying at the state and, especially, the federal levels, lobbying laws should be different, too. They should not differentiate so much between lobbyist and principal. They should treat the principal as the lobbyist and any employee or consultant who engages in lobbying activities for the principal as an agent of the lobbyist ( lobbyists were originally called “lobby agents,” and the City Ethics Model Lobbying Code refers to them “agent lobbyists”), responsible perhaps for filling out disclosure forms, but not for the lobbying activities themselves, except as agents.
Possibly the most problematic thing about the prevalence of non-professional lobbying at the local level (that is, business owners doing their own lobbying or having their lawyers do it) is the fact that non-professional lobbyists are less likely to support lobbying regulation than professional lobbyists are. Professional lobbyists at the federal level have supported lobbying oversight because they want the respect that regulation provides, they want the protection that clear-line rules provide, and they have an advantage in fulfilling requirements, since they can easily set up a compliance program. Compliance is much more difficult for, and therefore seen as an annoyance by, non-professional lobbyists, who don’t even see themselves as lobbyists. For them, lobbying codes seem unnecessarily burdensome, completely inappropriate, even damaging.
However, even professional lobbyists who work at the local level have not, for the most part, embraced lobbying oversight. They do not seek to hide their fees or prevent the paperwork that would be involved. It is reasonable for the public to wonder what these lobbyists, their principals, and elected officials feel is worth keeping hidden from them.
In two essays, “Lobbying Is an Honorable Profession: The Right to Petition and the Competition to Be Right,” 19 Stanford Law and Policy Review 23 (2008), and “The Seven Deadly Virtues of Lobbying,” Election Law Journal (2014), federal lobbyist Nicholas W. Allard makes an excellent case for the value of lobbying. But the arguments he makes do not apply to local businesses and organizations seeking special benefits such as contracts, grants, loans, permits, tax abatements, and licenses. In fact, he began the first essay by saying that his arguments involve only advocacy relating to policies, not to earmarks (his focus is the federal level), adding, “The need for new rules to curb abuses in the earmark area is apparent.” In his second essay, he wrote of earmarks, “That is a practice where often there is too much of an appearance, if not the reality, that campaign contributions influence results, that taxpayer money ends up in the hands of those who lobby and pay politicians with campaign contributions and favors.” The arguments he brings to lobbyists’ defense in his essays involve ideas, where there are multiple sides to every issue, not special benefits, where the competition is only for government funds and favors among entities who do not generally make their views available to the public. At the local level, it is special benefits that are the principal goal of lobbying, and the need for rules to curb abuses is strong.
Land Use, Procurement, and Other Special Local Lobbying
Almost all books and essays about lobbying and lobbying oversight in the United States focus on lobbying at the federal or, occasionally, at the state level. This makes Anthony Nownes’ Total Lobbying: What Lobbyists Want (and How They Try to Get It) (Cambridge University Press, 2006) stand out from the pack (ignore the inappropriate title)
Nownes divides lobbying into three kinds: public policy, land use, and procurement lobbying, each of which gets its own, large section of the book. Most books and essays are limited to public policy, with the occasional look at procurement at the federal level (especially defense procurement). Nownes does take most of his procurement examples from the federal level, but when it comes to land use lobbying, he has to focus on the local level, because this is where it primarily occurs.
Ottawa’s lobbying register provides a good idea of the subjects of local lobbying. In the two years up to October 2014, the zoning law was the top subject, with 600 lobbying activities. Next came “planning and development,” that is, more land use lobbying. Third was “infrastructure,” that is, procurement related to construction. “Garbage,” another procurement area, was also among the top five subjects.
Chicago has a pie chart of lobbyist clients, by industry. In such a big city, there is a lot more variety. However, real estate and construction has the biggest slice, by far. Industries with other large slices include financial (bonds), transportation (procurement and land use), retail (land use and regulation), hospitality (land use and regulation), medical/hospital (land use and regulation), education (land use, government employment, and charter schools), IT, technology, and engineering (procurement), and public utilities (land use and regulation). The pie chart only shows the number of clients, not the amount of lobbying they do.
Since most local lobbying occurs in the two areas of land use and procurement (as well as grants, licenses, loans, tax abatement, and regulation, which even Nownes doesn’t cover), this book is the closest thing I have found to a study of local government lobbying (but there is nothing about lobbying oversight). The book is descriptive and introductory in its approach, and is based primarily on interviews with a wide variety of lobbyists. Nownes not only acknowledges the most important areas of local lobbying, but says that “it is arguable the case that land use decisions ... and procurement decisions ... are more important to a wider range of people and organized interests than are public policy decisions.” And it is because this is not generally recognized that local lobbying can occur under the radar and, therefore, be more effective than public policy lobbying.
Nownes shows that business interests and major institutions (universities, hospitals, and governmental entities) are “far better represented before government than are other types of organized interests.” With respect to procurement matters, they are usually the only ones involved in lobbying. The only opposition comes from other lobbyists representing businesses seeking a contract in the same area. With respect to land use matters, where there is often citizen (usually neighborhood) opposition to major projects, there is usually no lobbyist — that is, no one with an ongoing, reciprocal relationship with involved government officials — in opposition. However, when there is a well-funded opposition group that can afford a contract lobbyist or experienced director, a business interest that feels it might be harmed by a project is often funding the group. In short, local lobbying is mostly about businesses seeking special benefits for themselves. Only government officials are looking out for the public interest, at least if they are not overly biased toward one of the lobbyists or principals.
Of course, a lobbyist is more likely to be successful when not opposed by other lobbyists. Nownes writes, “studies suggest that lobbyists who avoid conflict with other lobbyists by focusing narrowly on one small issue or set of issues are more effective than lobbyists who regularly confront other lobbyists.” At the local level, the way to do this, with respect to contracts and grants, is either (1) to have a hand in developing specifications so that one’s company or client is the only one that can supply the product or service, or (2) develop a relationship and reputation with officials such that the renewal of one’s contract or grant appears inevitable, so that no one opposes it.
Toronto recognizes this in its lobbying code by including in its definition of “to lobby” the phrase “determining the model and method of delivering a service,” that is, it expressly includes lobbying done to influence whether a service will be contracted out or delivered by the government itself and, if contracted out, in what manner the service will be provided. This form of lobbying can lead to huge, often effectively no-bid contracts that would not otherwise exist, and yet it does not involve any existing bill or even contract that is being discussed publicly, as some lobbying codes require.
Nownes found that, among the lobbyists he interviewed, only 13% of land use and 20% of procurement lobbyists work in-house, both lower percentages than public policy lobbyists. This would imply that local lobbying is more the work of contract lobbyists than in-house lobbyists. But Nownes did not consider or interview contractors who lobby for themselves, who do not need the connections of lobbyists because they are themselves involved in local politics and have longstanding relationships with both the agencies they do work for and the elected officials whose influence in procurement and land use matters is essential when it comes to final approval, budgeting, developments in their districts, change orders, and the like. Nor does he consider how many of the people who engage in land use lobbying, other than grassroots lobbying, are lawyers who consider their work to be legal representation rather than lobbying and, therefore, do not register as lobbyists or disclose their lobbying activities. Much land use lobbying is done by developers’ agents, but many if not most of these agents are not professional lobbyists. The problem is defining “lobbying” and “lobbyist” in such a way that the lobbying activities of land use lawyers, realtors, builders, and the like are not excluded.
With respect to land use lobbying and lobbying related to obtaining other kinds of permits as well as licenses, and even contracts, lobbying involves a great deal of negotiation. It helps the principal’s cause when the lobbyist has a good, personal relationship with the individuals with whom she must negotiate and those who have influence on these individuals. Although the negotiator is often a lawyer, the negotiations rarely involve legal issues. If the issues were totally legal, then there would be no reason to consider the negotiator a lobbyist. The fact that the negotiator is an attorney is irrelevant to whether the negotiation constitutes a “lobbying activity.”
Land Use Lobbying
Nownes writes that developers hire land use lobbyists rather than lawyers or other professionals “because they know that land use decisions are political decisions rather than simply technical or legal decisions.” The land use process is a political process, not only an administrative or legal process. The law can say one thing, and one or more government bodies or officials may believe and want to do another. But not all developers know this, and so they often employ lawyers to represent them rather than lawyers and lobbyists. And law firms often provide both legal and lobbying services. Lawyers, like lobbyists, often have just the right connections to allow their clients to negotiate their way through the land use approval process most efficiently and effectively. But what they are doing is lobbying, not practicing law.
Land use lobbying involves a number of players, including planning commissions, zoning boards, boards of zoning appeals, conservation commissions, local legislatures (especially the member representing the district in which the development would be built and members of the relevant legislative committees), mayors and county executives (who can greatly affect the messages given to the public), city and county managers, engineers, building inspectors, health and public works departments, and the staff for each of these bodies and individuals. Staff reports and recommendations count for a great deal. And staff also have, and are often willing to share, information that elected and appointed officials are not willing (or able) to divulge. This information often proves useful in lobbying those officials.
But what is most important, Nownes points out, is the fact that because standards are generally vague (e.g., “not injurious to the public welfare” or “generally compatible with surrounding land uses”) and, in any event, developers can seek variances (exemptions from standards), each of these players has a great deal of discretion. Wherever there is discretion, there is an opportunity to influence, an opportunity for lobbyists to do their work.
This is why definitional language is so important, as are advisory opinions that make definitional language more concrete. For example, see below for an advisory opinion detailing when the activities of a land use expeditor (often a lawyer) are considered “lobbying activities.”
What is most important, with respect to the goals of government ethics, is how the public views relationships between officials and developers. According to the 2011 Saint Index (the most recent index, which focuses on land use), “64 percent of Americans said the relationship between local officials and developers makes the approval process unfair.” Only 24% found the process fair. These terrible numbers imply that local lobbying oversight would be valuable to a community by improving the land use process and changing the public’s attitude.
Not only developers engage in land use lobbying. Nownes notes that property management companies, construction companies, utilities, railroads, cellular companies, chain stores, universities and other nonprofit institutions also seek land use permits and variances. Nownes quotes a lobbyist for a university as saying, “Pretty much everything that we do ... involving land, construction, [and] everything else, involves some land use permit or permission.” Neighborhood groups are often involved in land use decisions, but tend to use volunteers rather than lobbyists. When they do hire lobbyists, the cost is usually covered by a business that feels it would be harmed by a development.
Owen Eagan’s book So What: Measuring and Assessing Strategic Communications in Land Use Politics (Saint University Press, 2013) provides a huge amount of detail about another kind of land use lobbying: the provision of strategic advice regarding and the direction of the “complex political campaigns” that accompany major land developments. These political campaigns are focused not on planning commissions and local legislatures, but rather on the public, especially neighbors, “influentials,” possible supporters and opponents and, when a referendum or initiative is involved, possible voters. Important aspects of these campaigns include identifying likely supporters of one’s side, convincing them to participate in the land use process (through conversations, meetings, letters to the editor, op-ed pieces, blog posts, etc.), listening to opponents and possibly negotiating with them, controlling the debate and the message, and engaging in citizen education and outreach. The means include door-to-door canvassing, direct mail, phone banks, advertising, social and other online media, forming coalitions, polling, microtargeting, petitions, forums, the establishment of community advisory groups, videos of local supporters, small meetings and “kiosk-style” events, the support of local charities and government projects, opposition research, “truth squads” to debunk “myths,” “rapid-response teams,” and “crisis communications.” The book is full of quotes from notable behavioral psychologists.
These campaigns are known familiarly as “astroturf” campaigns, that is, grassroots campaigns led not by people in the community, but by people seeking special benefits and their agents. Both astroturf and grassroots campaigns involve the lobbying of local officials, only in an indirect fashion. It is the targets of the campaigns who directly lobby officials, although it isn’t usually called “lobbying.” The professional lobbying that goes into these campaigns has nothing to do with the “contacts” and “communications” with officials that often appear in lobbying code definitions.
This is why nowhere in the book does the word “lobby” appear, except with respect to the old-fashioned way of getting land use projects approved (the author’s terms of choice are “grassroots advocacy” and “grassroots organizing” — no one admits to astroturfing). In other words, the author does not consider the work his firm does to be “lobbying,” even though it involves professional campaigns to influence officials, in an indirect fashion, to support developers’ projects. Instead his firm calls it “land use politics,” and its members consider themselves “management consultants.” Many, although far from all, lobbying codes allow these “management consultants” not to register as “lobbyists” or disclose their lobbying activities.
A sizeable portion of the firm’s work seems to involve blocking development projects, such as the building of Walmart stores, according to a 2010 Wall Street Journal article. This opposition is paid for by local retailers that would lose business to the new store. Eagan calls this sort of campaign “protecting market share.” It is the same kind of campaign as supporting a development project, only focused on engaging possible opponents to a project instead of possible supporters.
According to the article, opposition to Walmart stores includes assumed names, phone banks to make it look like calls are coming from a variety of phones, training supermarket employees in public speaking, lawsuits to delay permit approval, and the creation of “astroturf” organizations, so that people think neighbors and other locals are in charge of the opposition.
And if the rules are not in one’s favor, Eagan says, one can seek to change the rules, often through what is known as a “big box ordinance,” which sets a maximum store size or the need for special approval for stores over a certain size. Land use lobbying can involve traditional legislative lobbying.
An excellent journalistic description of land use lobbying, and the range and complexity of the relationships between land use lobbyists and the government they lobby, can be found in a 1986 article by Ralph Frammolino in the Los Angeles Times.
Procurement lobbying is equally important at the local level. In fact, it is growing, because local government procurement itself has greatly increased in recent years, due to greater demand for services as well as the outsourcing of services formerly provided by government agencies themselves. Procurement usually involves fewer boards and individuals than land use, but it does not include the departments and agencies making the purchases, bid selection and oversight boards, financial departments and bodies, and the local legislative body, which is involved in budgeting for departments and agencies, in the approval of larger contracts, extensions, and renewals, and sometimes in oversight of procedures and projects.
Although fewer boards and individuals may be involved in procurement, there are many stages in the process, and each of them involves lobbying. This lobbying requires access, which requires connections, which is the essence of lobbying. Former government experience helps a great deal in developing connections with department and agency personnel, but local business owners often have the experience and political and personal connections needed to get their feet in the door, without having to hire a lobbyist to do this for them.
Ongoing or “background” lobbying is required to determine and influence the needs of various departments and agencies. Part of this background lobbying involves the stimulation of demand for particular products and services (“the county’s been using this for two years, and it’s worked for them; give Jane Doe a call and she’ll tell you all about it.”). Nothing is more effective than getting involved in the process as early as possible, so that bid specifications can be tailored to fit a particular product, service, or company. This can limit bidders to only two or three, or even just one. The holy grail of procurement lobbying is a contract that is bid out, but which only one’s company can win, a no-bid contract that fits the legal bidding requirements.
Nownes writes, “The ultimate background lobbying triumph for the procurement lobbyist is a case in which a government entity designs a [bid] solicitation with a single specific business in mind.” The procurement lobbyists who spoke with Nownes said that this is very common, especially with respect to big contracts. All of the lobbyists told him that “affecting the content of a solicitation is often the key to successful procurement lobbying.”
One reason background lobbying is so key is that if a solicitation can make one contractor the almost certain winner of a bid, the lobbyist has no opposition. In procurement, where there is little worry about public opposition, getting specifications designed for your firm makes the process much quicker and less expensive, not to mention more likely to be successful.
With the increased use of “best value” criteria, where factors other than price are given a great deal of consideration, the relationship between lobbyist and procurement staff can be crucial. The reason is that the use of “best value” criteria gives staff more discretion and, with more discretion, there is a greater chance that lobbyists can succeed by personally relating to officials. As Nownes says, “‘best value’ evaluation and award practices raise the old bugaboos of subjectivity and corruption in purchasing.”
As one lobbyist told Nownes, “the firm from which an agency chooses to purchase something often comes down to personalities. ‘Everyone [at the agency] has to assume that you can do [the job in question],’ he said, and thus technical aspects of a specific proposal are generally not the determining factors in who wins and who loses. Rather, it comes down to crafting the type of proposal that the specific decision-making individuals within an agency will respond positively to.” Nownes gives the example of recognizing the importance of meeting an agency’s minority outreach goals, but the issue is often nothing more than personal familiarity and the feeling of obligation that exists in a longstanding reciprocal relationship.
As another lobbyist told Nownes, “You don’t really hire a firm [to fulfill a contract]. You hire a group of people...” This is most true with respect to the procurement decisions that involve the greatest amount of discretion, and often do not require sealed bidding: professional services contracts. These also happen to be the contracts in which high-level officials often get the most involved, because they want to work with certain lawyers and consultants. In these procurement decisions, price is a minor consideration at most, and relationships (in addition to past performance) are everything.
This is why, as Nownes notes, much procurement lobbying is not related to a particular contract, but is rather background lobbying “designed simply to draw attention to a particular good or service.” And, I would add, to the people involved. Procurement lobbying is much more like sales than it is like public policy lobbying or even land use lobbying. It involves not only pushing products and services, but also creating a demand for them.
At the local level, no one can do sales better than local business owners. At higher levels, smaller contractors have a distinct disadvantage. At the local level, out-of-towners have a greater need to hire local contract lobbyists to alert them to opportunities, open doors for them, and give them advice that will give them an advantage in seeking a contract. Or, at least, give them an even chance.
Another area where background lobbying is important involves a department or agency’s budget requests. If they can be convinced to request money for a particular product or service, and the local legislature can be convinced to fund the request, the chances of obtaining a contract are much greater. One example Nownes gives is of a landscaping firm lobbying for increased spending on parks. Such requests are most likely to follow a small, successful contract for a new product or service. Thus, the lobbying that follows winning a contract is also, in its way, a form of background lobbying for a larger contract or an extension into other products or services.
Background lobbying is more important in procurement lobbying than anywhere else, because once the bid process has begun, most jurisdictions greatly restrict or prohibit communication with agency and procurement staff. But once the bid solicitation has been affected in a way to favor a company, there is no need to do more, at least until the procurement office seeks out the company. But even during a sealed bid process, there is often a point where lobbyists may be called in to answer questions, make a more detailed pitch, or negotiate with respect to price or other specifications.
When a sealed negotiation process is employed, negotiations continue throughout the process. Nownes says that the sealed negotiation process is being employed more frequently, due to an emphasis on quality in addition to price. A contractor whose lobbyist is not trusted by procurement staff has a hard time winning and negotiating contracts under this process.
Once a department, agency, or bid selection board makes a procurement decision, the legislative body will be asked to approve the bid result, if the size of the contract is large enough. Legislative bodies tend to be more involved in procurement at the local level than at the state or federal levels. This may require a great deal more lobbying, and in larger cities and counties this is more likely to be done by contract lobbyists, because they are more likely to have the necessary connections and understanding of the legislative process.
There are also oversight bodies that are involved in the procurement process, such as public works and park commissions, as well as special committees appointed for big projects, such as the building of a school or library.
And then there are all the issues that arise during implementation, which may involve much more lobbying and negotiation. This continues to the end of the contract, which itself involves lobbying to determine when the job is actually over, to extend or renew the contract, to put the best spin on the work done, and to deal with claims each party may have.
And, as Nownes notes, winning a delivery order contract doesn’t guarantee any sales. The contractor may need to lobby in order to get orders under the contract.
Considering all of this together, it appears that lobbying — especially ongoing background lobbying — is more essential to procurement than to public policy or land use. For the same reasons, it would seem that it would be equally important with respect to grants.
The Courtiers of Today
One of the most important revelations of Nownes’ book is that government officials “meet with lobbyists partially because it is fun. Politics is still a people business. Many of the people involved in politics enjoy the give-and-take of personal interactions.” They are more than anything social people. Staff also like to meet with lobbyists because it makes them feel important, and there is the possibility of looking good when they recommend a better or less expensive product, service, or service provider.
Officials like to spend time with lobbyists, because they tend to be former government officials or are politically involved, they understand the issues in the same way government officials do, they can provide valuable expertise as well as information about constituents and other officials, and they have every reason to support officials not only politically, but also socially and emotionally. When it is one’s job to be a pal, a lobbyist can be a very good pal indeed. Lobbyists are the courtiers of today.
Nownes points out one way to get around the apparent unfairness that can result from the relationships that lobbying provides. The way involves more lobbying: lobbying the local legislature or an oversight committee to get them to better monitor the procurement process or even intervene when, for example, a contract is not bid out according to the rules. If this doesn’t work, there is the possibility of a lawsuit (and this possibility can be held over the head of a local legislature and the city or county attorney).
New Public Policy Lobbying
After all this talk about how different local lobbying is, because it is far less about public policy than state and federal lobbying are, it is important to note that local governments have recently been dealing with certain public policy issues than they used to, and that the result of this has been more lobbying by state and national lobbyists. The issues include immigrants, fracking, wind mills, minimum wage, oil shipments, campaign finance programs, and bans on paper bags, soda bottles, and the like for health and environmental reasons. Although most municipalities don’t have these issues, or they’re relatively minor, many find themselves inundated by professional lobbyists and without a lobbying program that allows them or the public to see what is going on.
The Value of Lobbying and of Lobbying Oversight
Due to its unpopularity, it is important to acknowledge that, like conflicts of interest, lobbying is not a bad thing in and of itself. In fact, it plays an important role in our democracy. It is a way for citizens (including those who run businesses as well as those who lead citizen groups) to get their opinions heard by government officials; it is a way to educate government officials and the public; and it is a way to provide specialized expertise to government. When people say they think lobbying should be banned, they are thinking of lobbying by big corporations at the federal level. They are not thinking of citizens banding together to try to stop a development project in their neighborhood by having the organization president or a hired lobbyist educate officials about the possible negative consequences of the project.
Those who seek benefits from a government may not even have a choice not to lobby. The more lobbying there is, the more necessary it is for everyone to have a lobbyist. Here’s an instructive story from Alan Rosenthal’s book The Third House: Lobbyists and Lobbying in the States (CQ Press, 1993). The Florida League of Cities, a municipal association, was lobbying for a state program to facilitate urban development projects. State legislators demanded that the League come up with a revenue source to fund the program. The League settled on a sales tax on dry-cleaning. Why? Because the Florida dry-cleaning industry didn't have a lobbyist to oppose it. The dry-cleaning industry learned its lesson the hard way. This story also illustrates how much the game of lobbying is about defense as much as offense.
Lobbying is protected by the First Amendment of the U.S. Constitution and by many state constitutions. Lobbying is most specifically protected by the right to petition the government for redress of grievances. Lobbying is also an exercise of free speech and, where it involves groups of people working together, of free association. But the protection most often cited is the right to petition the government for redress of grievances.
What does it mean to “petition the government for redress of grievances”? In “Toward an Ethics of Being Lobbied: Affirmative Obligations to Listen,” Georgetown Journal of Law & Public Policy (2014), Heidi Li Feldman looks at the history of petitioning. It goes back centuries before the founding of the United States, and was even included in the thirteenth-century Magna Carta. It was originally a process by which individuals and groups could petition their feudal lords, and lords could petition, or send on petitions once they had decided on them, to the king. It legitimated the authority of each, as well as constrained this authority, because the king could not directly hear petitions from ordinary people.
Then petitions started being made to Parliament. A petition “had to address a recognized authority, state a defined grievance, and pray for relief. A petition was a discrete political and legal instrument for seeking justice.” In other words, there is limited overlap between the concept of a “petition for redress of grievances” and lobbying.
In colonial America, people made petitions to colonial assemblies. In fact, much of these assemblies’ time was spent dealing with petitions, and most petitions were addressed in the form of bills. Standing committees were formed to hear and address petitions. It is through petitions that these assemblies legitimized their lawmaking authorities and gained information about the problems in their communities. It is worth noting that petitions were not only accepted from the minority of voting white men, but also from women, native Americans, felons, and slaves.
Congress also handled petitions. But its handling of petitions was undermined when it was flooded with petitions calling for the abolition of slavery, and southerners started asserting a states’ rights argument against petitions to Congress. After the Civil War, Feldman says, petitioning Congress “died out completely.” The Supreme Court found that the right to seek a redress of grievances did not require governments to actually listen.
This is where it gets interesting. Free speech is limited by the fact that no one has an obligation to listen. But when it comes to government, should there be an obligation to listen? And if there is an obligation to listen to people seeking justice, wouldn’t it have to done fairly? That is, wouldn’t government officials be obligated not just to listen to multiple viewpoints, not only to developers, contractors, and business associations, but also to ordinary citizens and citizen groups that lack the ability to hire a professional lobbyist and have no personal connections with government officials? There is far too little talk about this obligation, which is the flip side of both the right to lobby and the community’s right to have decisions made in the public interest.
Feldman calls this “the ethical practice of being lobbied.” She suggests that government officials do such things as block out periods of time for appointments with non-lobbyists. At the local level, this would mean blocking out time for those who are not seeking financial benefits, at least other than preserving the value of their homes. It would include community associations, environmental organizations, and good government groups.
Feldman also suggests that officials not be passive about getting this input, but rather seek out information from those who might be affected by their decisions, as well as from outside experts. For example, so often, when government ethics reform is being discussed, officials simply hand the matter over to the city or county attorney, who has no specialized knowledge, who feels required to give officials what they want, who does not want to know what outside experts think (I know that they never contact me), and who therefore recommend the least amount of change possible. Things can be very different when councils contact outside experts. But it is more common for officials to seek out opinions only from within the community, where few people other than those with financial interests understand the matters or know about alternative solutions.
Citizens and citizen groups represent a much higher percentage of speeches at public meetings than of lobbying, but their speeches are often time-limited, too late, and ignored, partly because public speaking is not the best way to present their views, partly because decisions have already been made, and partly because their presence was not requested. Officials should take more initiative inviting groups to speak, giving them more time, and letting them know that written submissions would be welcome. It doesn’t take much to totally change the tenor of public participation in local government.
Feldman also recommends that officials make use of online ways of getting opinions from people in the community, such as online surveys, discussion forums, data analytic tools, and good old e-mail. She writes, “the internet enables willing, eager listeners to create opportunities for people who want to speak to them to make themselves heard.”
At the local level, most petitions to seek redress of grievances are dealt with in the form of what are referred to (sometimes mistakenly) as “constituent services,” not in the form of ordinances. Local lobbying rarely seeks justice. What it seeks is financial benefits. This doesn’t mean that local lobbying is wrong, although it can be, for example, during the procurement process, when the best practice is to prohibit it. What it means is that local lobbying was not contemplated by the Founders and is arguably not protected by the Constitution. It’s good that officials provide constituent services, but no one believes he has a right to them.
Even to the extent the constitutional right to seek redress of grievances is relevant to some local lobbying, there is no obligation on officials’ part to listen to these attempts or to read the letters and message that are sent to them. Of course, it would be rude to turn one’s back on people one meets with, and it might mean getting voted out of office or losing one’s job if an official were not to listen at all. But it is equally rude — and more damaging to the public’s trust in its local government — to be unfair with respect to whom one listens to, to give preference to individuals with whom the official has a family or personal relationship or does business, or from whom the official has received a gift or campaign contribution. It is this idea of fairness that is the foundation for the prohibitions and obligations placed on a lobbyist by a lobbying code.
And even to the extent some local lobbying is constitutionally protected, there are other good reasons for regulating it. One reason is the need for transparency, for the public to know who is getting frequent access to and seeking to influence those who represent the public and manage their communities, when and with respect to what matters.
A related reason is that, knowing that their contacts with lobbyists will be seen by the public, officials will be more likely to meet with multiples parties in a matter and, therefore, more likely to hear a range of views, which will help them make decisions in a more balanced manner and, presumably, more in the public interest, rather than in the interest of well-connected companies. When there is transparency, an official who meets only with those who are seeking special benefits will not look like he wants to know about all sides of a matter. It will also look like he is more interested in contracts and grants than in the issues that community residents care about. Lobbying disclosure can cause local officials to take the initiative, to seek out the opinions of local individuals and groups, as well as to consult with experts who have no horse in the race. Fairness and the appearance of fairness requires work.
Another reason is to ensure that lobbyists make use of their and their clients’ rights in a responsible manner, and do not get unfair access to or have improper influence on officials. The goal here is the protection of the integrity of legislative and administrative processes. Transparency can prevent a great deal of improper conduct. The biggest problems involving lobbying — preferential access, undue influence, drafting laws and regulations, ongoing, reciprocal relationships — are facilitated by secrecy.
Accountability is another important reason for lobbying regulation. There is a need to prevent lobbyists from corrupting government officials through gifts (including large campaign contributions and fundraising activity), and to prevent pay to play and other forms of lobbyist complicity in officials’ ethical misconduct. There is a need to prevent personal influence from affecting such areas as procurement, property development, tax abatement, and grant-making in a way that is costly and otherwise harmful to the community. And there is a need to gain the public’s trust that transparency and proper oversight are preventing misconduct in lobbying-official relationships. The appearance issue is extremely important, because it is on the basis of appearances that citizens decide how much to participate in government matters, including voting.
Another reason has been pointed out by Thomas M. Susman in his essay “Private Ethics, Public Conduct: An Essay on Ethical Lobbying, Campaign Contributions, Reciprocity, and the Public Good,” Stanford Law & Policy Review, Vol. 19, No. 10 (2008): that although lobbying is an activity primarily engaged in by private parties, it is “inevitably and unavoidably imbued with public implications. Thus, when applied to the lobbyist, the ethical standards ordinarily used to guide private conduct must have an added component to accommodate the public impact of that conduct.” In other words, the private values that accompany doing what one can to get a contract or a land use permit need to be balanced against the public values of fairness, transparency, and accountability.
One reason that it is valuable to know the extent of spending on lobbying is that, as Anthony Nownes wrote in his book Total Lobbying: What Lobbyists Want (and How They Try to Get It) (Cambridge University Press, 2006), “the data show that, ... all things being equal, lobbyists with lots of money at their disposal have a higher chance of succeeding than lobbyists with little money to spend.” Transparency lets the public know who is spending money on lobbying, how much, in what manner, and for what goals.
In “Towards a Madisonian ‘Interest-Group’ Approach to Lobbying Regulation” (St. John’s University School of Law Legal Studies Research Paper Series #07-0064, January 2007), Anita S. Krishnakumar argues that lobbying regulation should effect “change in how elected officials conduct business with lobbyists.” She feels that most lobbying regulation is done for symbolic purposes, to feed into the negative feelings the public has about lobbyists, with disclosure as a “magical cure-all.” The focus, she feels, should be more on government officials and on lobbyists’ principals. And disclosure should be handled in such a way that it benefits the processes of government, rather than simply to increase transparency and, hopefully, understanding of and trust in government.
Krishnakumar believes that more, and more timely, disclosure will help lobbyists know what lobbying is going on and, therefore, compete better, giving officials more views. Similarly, knowing that, if they meet with only one side of a matter, it will give the public the impression that they are biased or have been “bought,” officials will want to hear the views of various parties. This will make it more likely that their decisions will reflect the various views, that is, more balanced, informed, and in the public interest.
This competition, she believes, will spread to enforcement, making it more likely that lobbyists will accurately report their spending and contacts, for fear that competing interests will challenge their disclosure reports, leading to audits.
The irony of broad and timely disclosure is that it will lead to more rather than less lobbying, in much the same way that campaign finance disclosure makes campaigning a horse race with lots more information about the jockeys’ strategies. This is why lobbyists benefit from an effective lobbying program as much as anyone. Therefore, it is no surprise that many of them support lobbying reform, often more than officials do.
One problem Krishakumar points out is that most government officials do not see the lobbying process the same way the public does. They don’t think that lobbyists are as bad as people think, nor that they have much influence on government decisions. They don’t think that officials are corrupted by the gifts and campaign contributions of lobbyists and their principals. And they don’t see any problem with the revolving door. In fact, they see post-employment lobbying as a way for them to continue serving the public by providing its representatives with useful information based on what they learned in their public service (similarly, they consider it valuable to attract lobbyists into government service, to make use of their expertise). With this point of view, many officials do not agree with the reasons, or need, for lobbying regulation.
Officials also argue that lobbying disclosure hurts incumbents, who can be seen spending lots of time with lobbyists. But they are likely to run against other government officials, who will also have a record of meeting with lobbyists. In any event, officials are accountable for their time managing a community. Incumbency should never be an argument against transparency and accountability.
A reason that is less often mentioned now, but which was central to judicial arguments in cases involving lobbying, is the legitimate interest of government officials in knowing who is behind efforts to influence their actions. Not only the public needs to know this. It is also valuable for a council member to know (1) who is contacting him as a lobbyist or as part of a lobbyist’s campaign to inundate the council with communications in support of a position on a matter before it, and (2) the extent of his colleagues’ (and, in council-manager forms of government, executive branch officials’) contacts with lobbyists. In the important lobbying decision, United States v. Harriss, 347 U.S. 612 (1954), the U.S. Supreme Court said, “we believe that Congress ... is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of self-protection.” In short, lobbying disclosure is intended to protect both the public and those who manage their community.
In his paper “The Anxiety of Influence: The Evolving Regulation of Lobbying,” Columbia Public Law Research Paper No. 14-367 (January 2014), Columbia law professor Richard Briffault summed up the good and bad of lobbying in a way that is consistent with government ethics concerns: “Lobbying should inform and thereby improve government action, not distort it by appeals to the private self-interest of decision-makers. The principal concern here is not with the communicative aspect of lobbying per se, but with activities ancillary to communication that may improperly influence government action.”
An Increase in and Equalization of Lobbying
The First Amendment right to petition for a redress of grievances was intended to be employed relatively equally, not primarily by those with personal or political connections, or the money to hire those who have such connections. Nor was access to officials intended to be given preferentially to those seeking special financial benefits rather than furthering communal interests. This right was not intended to involve money, and certainly not money placed into the hands of those representing the community. When rights are employed very unequally, it undermines the legitimacy of our governmental processes.
The federal government has recognized the inequality issues in lobbying by prohibiting the deduction of lobbying expenses by companies, by prohibiting the use of federal grant funds to lobby the federal government, and by limiting the lobbying activities of those who have recently left government service.
Inequalities of access and influence have repercussions similar to those of ethical misconduct. When citizens feel that those with financial interests have special, secret access to officials, directly or through agents who have personal relationships with them, they stop bothering to participate. As it says in the Woodstock Theological Center at Georgetown University’s 2002 book entitled The Ethics of Lobbying (Georgetown University Press), lobbying should be viewed in the context of all democratic values and requirements, not solely in terms of the First Amendment. These values include political equality, accountability, informed consent of the governed, the promotion of justice, and the refinement, enlargement, and deepening of public opinion through deliberative practices.
In its recommendations, the Woodstock Theological Center goes further than ordinary lobbying rules by suggesting an increase in citizen lobbying through many more public forums where citizens and their representatives can exchange information and opinions, and deliberate about the public good.
An alternate approach would be for state governments and charitable foundations to provide grants to citizen groups with limited funds to enable them to hire a lobbyist to pursue their goals at the state and local levels, so that both or all sides of an issue can be presented professionally to government officials. At least with respect to issues and projects — as opposed to procurement, grant, loan, permit, license, and other matters, which are the subject of most local lobbying — this would provide a countervailing increase in lobbying with the goals of increasing First Amendment speech and grievances, that is, increasing the good things that lobbying provides and the number of sources it comes from.
Bruce Cain has suggested something along these lines in his essay, “More or Less: Searching for Regulatory Balance, “ in Race, Reform, and Regulation of the Electoral Process, ed. Guy-Uriel E. Charles, Heather K. Gerken, and Michael S. Kang (Cambridge Univ. Press, 2011). The idea is to have public lobbyists similar to public defenders in criminal proceedings. This would provide more voice in lobbying, equivalent to what matching funds provide with respect to campaign finance.
Heather Gerken, in a 2011 Election Law Blog post, suggests “providing a legislative subsidy for issues where lobbyists aren't there to provide a helping hand, where staffers and their bosses need political, electoral, and policymaking information to move forward.” This would entail funding independent “policy research consultants.” Alex Tausanovitch worked with her on this idea. Former federal lobbyist, now Dean of Brooklyn Law School, Nicholas W. Allard signed on to the idea in his essay “The Seven Deadly Virtues of Lobbying,” Election Law Journal (2014), and contributed two more ideas: making “pro bono public service part of a lobbyist’s job description” and helping citizens to join together in lobbying coalitions the way they join together in class actions, possibly with the use of contingency fees, which are otherwise prohibited in many jurisdictions.
Lee Drutman has a different approach, but it involves Congress and would likely be applied only larger cities and counties. In “A Better Way to Fix Lobbying,” Issues in Governance Studies 40 (Brookings Institution, June 2011), Drutman focuses on the value of the information lobbyists provide, arguing that the problem is that it usually comes primarily from one side and is not transparent. What he proposes is that a website be created as a “forum and clearinghouse for all public policy advocacy,” so that congressional staffers can see all sides of an issue, as agencies do with comments on proposed regulations, and that the information provided by lobbyists be available to all, since its purpose is, supposedly, to aid public knowledge during the legislative process. This interesting approach would only apply to a small part of local lobbying, since there would be no role for it in lobbying about procurement, grants, licenses, and most land use matters.
These ideas would be good not only for the citizen groups who would provide the information, arguments, and draft legislation, but also for officials. It’s amazing that a win-win situation like this has not been attempted. There are federal grants, from agencies such as the Centers for Disease Control and Prevention, that include within them the funding of efforts to influence state and local governments in ways that will enable specific federal goals to be realized at the local level. But these are not grants for lobbying; they are multi-million-dollar grants that provide within them for some lobbying activities. And it appears that most of these grants go to government agencies. In fact, it is illegal for the federal government to fund lobbying, so there has been criticism of these grants. Most other federal grants require applicants to promise that they will not use the funds for lobbying activities.
Similarly, there are rules that make it difficult for foundations to provide grants for lobbying. There should be discussion of an exception that would allow foundations to fund citizen groups who can make a good argument that, without the help of a professional lobbyist, they would not be able to effectively communicate their views to local or state officials.
As with campaign finance, the most constitutional way to get a range of views expressed is to fund communications rather than limiting them.
Another approach has a different advantage. That approach is to better fund local legislative bodies, especially their policy-oriented committees, so that they can have more expertise on staff and be able to pay for expertise when they need to, without having to depend on lobbyists. This gives local legislatures the ability to call the shots when it comes to obtaining information. They can take or leave lobbyists’ information, they can supplement it with that of neutral experts as well as that of experts who take a different position. This approach is pushed by Lee Drutman in a 2014 Cato Online Forum paper entitled “Invest in Smarter Government.”
A Short History of Lobbying in the United States
For most of American history, lobbying was not viewed through the lens of the First Amendment. According to a 2014 essay by Fordham University law professor Zephyr Teachout, “The Forgotten Law of Lobbying” (which was incorporated into her 2014 book, Corruption in America (Harvard Univ. Press)), lobbying was primarily viewed as the sale of personal access and influence, the sale of an ongoing, reciprocal relationship in which a government official provides special access and engages in conduct in return for past personal acts and the implied promise of future acts.
It is still the degree of personal influence, rather than the specialized knowledge, that determines the monetary value of a lobbyist. This is why so many government officials, and their family members, become lobbyists. Their personal relationships create a market in access to government officials, which has, through most of American history, been seen as degrading to government and harmful to the public interest.
For example, in an 1864 decision, the U.S. Supreme Court refused to enforce a lobbying contract, stating, “all agreements for pecuniary considerations to control the business operations of the Government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution.” (Oscayan v. Arms Co., 103 U.S. 261, 273 (1880))
A big problem with lobbying was its secrecy. However, as the U.S. Supreme Court said in Trist v. Child, 88 U.S. 441, 452 (1874), there is “no clear way to regularly distinguish between secret, inappropriate lobbying and appropriate paid lobbying.”
As late as 1941, in a case involving the prohibition of deducting lobbying expenses as business expenses, the U.S. Supreme Court referred to lobbying as a “family of contracts to which the law has given no sanction.” (Textile Mills Sec. Corp. v. C.I.R.., 314 U.S. 326, 339 (1941))
Lobbying was so frowned upon in the nineteenth century that, in 1877, Georgia's draft constitution included a provision criminalizing those aspects of lobbying that involved personal access sold to those with a financial interest in the matter (other state constitutions prohibited lobbying, without making it a crime). The provision's proponents argued that lobbying was corrupting the state government and costing the state millions of dollars a year, especially with respect to private bills. Private bills is effectively what most local lobbying consists of.
The U.S. Supreme Court set forth the costs of lobbying specifically with respect to procurement in its Oscayan opinion: “[W]here, instead of placing before the officers of the government the information which should properly guide their judgments, personal influence is the means used to secure the sales, and is allowed to prevail, the public good is lost sight of, unnecessary expenditures are incurred, and, generally, defective supplies are obtained, producing inefficiency in the public service.”
As the nineteenth-century courts recognized, personal access is not an individual, but rather a societal problem. Personal, reciprocal relationships, and private meetings between officials and lobbyists, allow undetectable bribery as a matter of course. In ongoing reciprocal relationships, there is no reason for immediate quid pro quo exchange and, therefore, it is hard to tell the difference between lobbying and corruption. After all, since a lobbyist's goal is to influence officials (or, in pay to play, not to lose current or likely future benefits by refusing to pay up), anything a lobbyist gives an official, directly or indirectly, before or after a client receives a benefit, is intended to influence or reward the official for past, present, and/or future acts. Whether or not any particular lobbyist is doing anything criminal or unethical, lobbying is a powerful enabler of both personal and systemic corruption.
U.S. Senator Paul H. Douglas described the situation well in his 1953 book Ethics in Government (Harvard University Press), at p. 44:
The enticer does not generally pay money directly to the public representative. He tries instead by a series of favors to put the public official under such a feeling of personal obligation that the latter gradually loses his sense of mission to the public and comes to feel that his first loyalties are to his private benefactors and patrons. What happens is a gradual shifting of a man’s loyalties from the community to those who have been doing him favors. His final decisions are, therefore, made in response to his private friendships and loyalties rather than to the public good. Throughout this whole process, the official will claim—and may indeed believe—that there is no causal connection between the favors he has received and the decisions which he makes.
Lobbyists themselves are corrupted by what they do. This was a concern of the U.S. Supreme Court in its decision in Marshall v. Baltimore Ohio Railroad Co., 57 U.S. 314 (1853). The court found that a lobbyist is “soon brought to believe that any means which will produce so beneficial a result to himself are ‘proper means’....”
Lobbyists are also corrupted in their role as citizens. According to Teachout, a lobbyist has “a distinct relationship to what he himself might believe. He is selling his own citizenship, or one of the obligations of his own citizenship, for a fee. In this sense, agreeing to work, for pay, on political issues is more akin to selling the personal right to vote than selling legal skills.” This is not only true with respect to political issues. It can also be true with respect to the means by which a client chooses to seek financial benefits from a local government.
Here’s a concrete example of a lobbyist who realized he’d sold his own citizenship for a fee only when he found himself conflicted. A lobbyist for the city of Cincinnati sat on the county elections board. When, as a member of the board, he supported moving an early-voting site out of the city's downtown, and the city, which opposed this move, asked him to abstain from the board’s vote, he withdrew from his lobbying contract. Only then did he recognize that a lobbyist gives up his right to go public with a personal view that contradicts that of his client. Lobbyists should recognize this not when it threatens their personal freedom in a concrete way, but rather before they sign their first lobbying contract.
The Sale of Personal Influence
Not only do judges no longer recognize the concerns of their nineteenth- and early-twentieth-century predecessors. Some are now applying to lobbying cases the First Amendment decisions reached in campaign finance cases, without recognizing the differences between them. Teachout notes that the Citizens United decision was based on the public’s “right to hear,” to maximize political information in the public sphere, not on the maximization of political information within government. When people say there is a “marketplace of ideas,” that marketplace is not for the speaker as much as it is for the public. And it is not really a “marketplace” at all, but rather an open, public forum.
In government, there is no marketplace at all. As Teachout wrote, “The sale of personal influence is not part of an open market of any kind, but part of a closed market that is only available to office holders by virtue of their official role. Members of government have a different relationship to knowledge in the first place, and [to support unregulated lobbying] it would have to be grounded in a right to receive information in a personal, private forum from paid influencers.” When information is given privately, it is not the same as information given publicly, and the First Amendment should, therefore, be applied differently.
As Michael Sandel explains in his book What Money Can't Buy: The Moral Limits of Markets (Farrar Straus, 2012), a market approach comes with certain norms that may not be appropriate to government. A market approach places a monetary value on goods and assumes that the principal way of handling these goods is exchange. Like one's vote, personal influence on government officials is something people believe should not be bought and sold. This influence is often derived either by working with the officials in government, or by being related to officials, which is why so many spouses, children, and siblings of high-level officials become lobbyists.
Sandel explains that a market for government access or favors degrades government “by treating it as a source of private gain rather than as an instrument of the public good.” This is not just an observation about the difference between free markets and government, but the central concept in government ethics. What may first appear as a goody-goody way of looking at lobbying (personal influence should not be sold) actually gets to the essence of why lobbying regulation is more central to local government ethics than many people think: most local lobbying is about private gain, not political grievances. The failure to acknowledge this is one of the reasons that most local governments have no lobbying rules in their ethics codes.
Lobbying As an Inefficient Use of Resources
In his essay “Lobbying, Rent-Seeking, and the Constitution,” 64 Stanford Law Review 191 (2011), UC at Irvine Law School professor Richard Hasen has identified another problem with lobbying: its threat to our nation's economic welfare. There are two aspects to this threat: (1) lobbying facilitates rent-seeking behavior, that is, companies’ financial resources are devoted to obtaining financial benefits from government (and providing financial benefits to officials, sometimes due to pay to play) rather than being put to a truly productive use; and (2) the government acts that lobbyists seek to influence often involve the inefficient use of government resources. The latter is especially true at the local level where, for example, lobbying can influence the drafting of contract specifications so that contracts do not go to the lowest bidder, so that the products and services that are purchased may not be of sufficient quality, and so that change orders can easily be arranged to greatly increase the cost of a contract. And grants can go to inefficient or low-quality arts and social service providers.
The cost to our economy of lobbying is many times greater than the amount of money spent on lobbying. Back in 1935, then U.S. Senator Hugo Black (later U.S. Supreme Court Justice) blamed the Depression in part on lobbyists: “our Government has lost hundreds of millions of dollars which it should not have lost and which it would not have lost if there had been proper publicity given to the activities of lobbyists.”
Hasen notes that rent-seeking lobbying occurs most often and most successfully with low-salience issues, that is, those issues where officials have little personal, political preference and where the public is either ignorant of what is going on or does not have strong views. Lobbyists succeed mostly with respect to the details and implementation of a bill, regulation, contract, or development, or in the blocking of new laws or projects, where little or nothing actually becomes public, at least until after the lobbyist’s job has been done. “[L]obbyists, like mushrooms, thrive in areas of low light.”
This is a good description of most of the local issues in which lobbying is most successful. It is this “low light” that has led to disclosure as the principal form of lobbying regulation. Lobbying disclosure can shed light not only on lobbying activities, but also on government activities. It is, therefore, doubly valuable. But the disclosure needs to be broad or the most successful activities, such as preventing matters from coming up, will be the activities that end up not being disclosed.
Lobbying may provide government officials with valuable specialized information, which results in more informed decision-making. But it is important to also recognize the costs of lobbying and the benefits of lobbying oversight.
While most lobbying rules provide transparency rather than restrict lobbying activities, there are some generally accepted restrictions, prohibitions, and obligations that are an important part a complete lobbying oversight program. One of the most common restrictions is the ban on ex parte communications. These rules restrict all but procedural and necessary private communications with officials during quasi-judicial proceedings, such as an administrative or ethics proceeding, as well as during procurement, grant, and permit matters. These restrictions are not directed specifically at lobbyists, but they prevent some lobbying activities. See the section of the Procurement chapter of this book on ex parte communications, and the section on them below.
There are also restrictions relating to campaign finance. As Heather Gerken said in “Lobbying as the New Campaign Finance,” 27 Georgia State Univ. Law Review Vol. 27, Issue 4, Article 11, “Lobbying and campaign finance work in tandem with one another as interests seek political influence.” One might add, “and as officials seek political benefits,” to acknowledge pay to play.
In addition to ex parte communications rules, local government ethics codes have several provisions that apply to lobbyists, but normally do not mention lobbyists by name. Here is how some of the basic ethics provisions apply to lobbyists:
1. Conflict of Interest/Withdrawal from Participation - An official who has a special relationship with a lobbyist, or the lobbyist’s principal, must withdraw from participation in any matter in which that lobbyist or principal is involved. In addition, part of withdrawal from participation involves not communicating with lobbyists with respect to a matter in which an official has a conflict of interest, even when the conflict does not directly involve the lobbyist. Withdrawal from participation involves all communications.
2. Gifts - Officials cannot accept gifts, at least above a certain small amount, from lobbyists seeking to benefit, directly or indirectly (that is, on behalf of a principal), from the local government.
3. Representation - Officials cannot act as lobbyists in matters before the local government or against the government’s interests.
4. Appearances - Officials cannot appear on behalf of a client, as counsel or as lobbyist, before the local government, including any communications with other officials or employees.
5. Post-Employment - Under some circumstances and for a certain period of time, officials cannot work as a lobbyist or for a firm that lobbies local government officials.
6. Complicity - No lobbyist may, directly or indirectly, induce, encourage, or aid anyone to violate any ethics provision.
Unfortunately, lobbyists are not always covered by these rules, because too many ethics provisions are drafted without the important phrase “directly or indirectly.” Many lobbyists are “in-house” employees of companies that do business with or are regulated by a local government and, therefore, are covered. But many lobbyists are external agents who are not covered by rules limited to direct conflicts, direct gifts, and direct employment. This is one of the reasons why the phrase “directly or indirectly” is so important to ethics provisions.
In addition to the above sorts of rules, some local governments have rules that apply only to lobbyists. Click here for the section of this chapter on this special rules.
What if your government wants nothing to do with lobbying oversight. Its high-level officials insist that lobbying is a good thing that is protected by the First Amendment and, therefore, lobbyists should not be treated as criminals. A government ethics program still has an option to bring lobbyists into the program. It can, without legislation, institute an opt-in program for lobbyists who want to distinguish themselves by agreeing to accept ethics commission jurisdiction over them, disclose their lobbying activities, and abide by certain rules. I do not know of any jurisdiction where this has been tried, but it would be valuable to see what would happen, especially with respect to professional lobbyists, who have become more professional and want to be seen as transparent and law-abiding. And if they abide, they may put pressure on non-professional lobbyists to abide or on officials to pass laws that cover all those who engage in lobbying activities.
There is no statistical study of lobbying codes in local governments in the United States, but a 2012 study of Florida lobbying codes by Wesley F. Hunt, for the Jacksonville Office of Ethics, provides an idea of how common they are, at least in larger jurisdictions. Of the 19 Florida cities with a population over 100,000, 14 (74%) had a lobbying code in 2012. Of the 33 Florida counties with a population over 100,000, 16 (48%) had a lobbying code, including the 9 with the largest population. Florida does appear to have more lobbying codes than most states.
Finally, it is important to point out the most important difference between government ethics programs and lobbying programs. Local government ethics programs provide oversight primarily over government officials and employees who have a special, fiduciary duty to the community. Lobbying programs provide oversight primarily over entities and their agents that are members of the public (although not necessarily of the local community) with no fiduciary duties. This is why lobbying programs consist primarily of disclosure.
B. Statement of Policy
Most lobbying codes that are not part of a larger conflicts of interest code have an introductory section that sets forth the aspirational grounding for the code. This section is given a variety of names, such as “Statement of Policy,” “Legislative Intent,” “Purpose and Intent,” “Findings,” “Objectives,” or “Goals.” Here is the City Ethics Model Lobbying Code language (§300):
Lobbying involves private interests seeking access to public servants, seeking to influence public servants, and seeking to obtain special public benefits. Because of their public nature, lobbying activities need to be disclosed to the public. And due to the appearance of impropriety that accompanies the intersection of private interests and the public interest, those who lobby have certain obligations and certain of their activities need to be restricted.
It is, therefore, the purpose and intent of the legislative body in drafting this lobbying code to:
In the name of transparency and the integrity of the government’s decision-making processes, ensure the community and those who manage the community easy, timely access to information about attempts to influence the government’s decisions;
In the name of fairness, subject to the same rules all persons engaged in lobbying activities, regardless of their position, training, or license, whether or not they are represented by others, or of whether or not they consider themselves “lobbyists”;
Prohibit improper influence on government officials and employees, and prohibit government officials from exerting improper coercion on those who seek to influence them;
Avoid corruption and the appearance of corruption; and
Reinforce the community’s trust in the integrity of its government.
Most policy statement sections refer to the constitutional right to redress grievances through lobbying. However, as discussed above, this right is misunderstood and, too often, used to unreasonably limit the regulation of lobbyists. This is why it has been left out of the model code policy statement.
It also should be noted that none of the lobbying code policy statements I have consulted have included, in addition to the problem of influence, the problem of some officials requiring lobbyists and their clients to pay in order to play, in the form of campaign contributions, gifts, and favors (see the third entry in the above list). If lobbyists wrote lobbying codes, the policy statements (and rules) would certainly refer to pay to play, which is usually, from the outside, indistinguishable from gifts made to influence. The difference is that, by referring to such gifts as pay to play, the onus falls on the official rather than on the lobbyist. Of course, if lobbyists and their principals were to report pay to play, it wouldn’t happen. It is their fear of losing officials’ support, which means losing benefits, that leads to the complicit silence that allows pay to play to occur. It is all part of the reciprocal system that forms the basis of lobbying, sometimes at the community’s expense.
Your neighbor shares with you a rumor that a big housing development is going to be built right behind your suburban house, so you pick up the phone and call a council member you know because her son goes to school with your daughter. Are you a lobbyist? Is what you’re doing lobbying?
If you’re making the call as a board member of a local environmental group, does that make you a lobbyist? If you make the call as a developer interested in the property, is it any different? As the spouse of a developer’s employee? Does it matter if you make one call or a dozen? Does it matter whether or not you’re paid to make the calls, whether or not you’re an employee or agent of the company you’re calling for, how much you’re paid?
If you give a speech at a council meeting as the paid executive director of a statewide environmental organization, are you lobbying? What if you give the speech as the governmental relations manager for the state developers association? What if you talk ten citizens into making speeches, but you don’t say a word in public or to any official in private? Is that lobbying?
What if you send a dozen roses to the mayor’s wife a week before your employer’s development comes up for consideration? Or the week after it’s approved?
What if you meet with a council member, but don’t talk government — you’re just having a drink or playing a round of golf — even though your organization is seeking a government grant? Is that lobbying? What if you never talk to an official at all, but do the research a lobbyist needs before meeting with the official, don’t get the meeting, and the information gets sent to an aide? Or you draft language for an ordinance or for contract specifications?
What if you’re a public relations professional asked by a company to send favorable news stories to council members as part of an attempt to influence them? (This situation came before the Miami-Dade County ethics commission in 2014, and it found the PR professional was engaged in lobbying activities.)
What if you’re a lawyer representing a client in a zoning matter, or a contractor putting together a bid? Can you talk to the county attorney or a procurement officer without having to register as a lobbyist?
What if you’re a newspaper publisher? A representative or member of the county or state municipal association? A council member? A recently retired council member? A city manager’s spouse?
These are only a few of the questions that together go to form the definition of the terms “lobbying” and “lobbyist.”
Everyone knows who is a government official or employee for the purposes of a government ethics code. But who is a “lobbyist” and what activities are considered “lobbying” for the purposes of a lobbying code are very complex questions. In fact, there are two uses for these definitions: determining who must register as a “lobbyist” and determining what activities a lobbyist must disclose. Some activities that are insufficient to require someone to register must still be disclosed by someone who engages in other activities. And there is a third use: individuals and entities can be held to obligations and often be prohibited from certain activities only if they are “lobbyists” (some prohibitions apply to all “restricted sources,” a term that includes lobbyists and principals who seek special benefits from a government).
Neither local lobbying codes nor commentators agree on how to define these terms. And yet who is and is not considered a “lobbyist” determines whose activities are disclosed and regulated. In 2013, Tim LaPira, a professor at James Madison University and Sunlight Foundation Academic Fellow, estimated that, at the federal level, about half of all those getting paid to influence public policy were not required to register as lobbyists. The narrower the definitions, the less disclosure and oversight there will be.
This is why the most important and complex element in lobbying regulation is defining what constitutes “lobbying” (or, as in the City Ethics Model Lobbying Code, “lobbying activities”) and who is a “lobbyist” is (sometimes, “lobbying” is included in the definition of “lobbyist,” for example, in Philadelphia and Chicago).
In the first chapter of this book, I wrote, “Definitions should not go first [in an ethics code and] should be used for clarification alone, not to catch officials who don’t check the definition of every word in the provisions. This is why there should be no rules in the definitions section (although including exceptions is permissible).” Because the definitions of “lobbying” and “lobbyist” are so important to lobbying regulation, this statement does not apply to lobbying codes. Unlike an ethics code, a lobbying code should begin with the Definitions section. When lobbying rules appear in an ethics code, the rules should begin with their own Definitions section, which may be replicated in the ethics code’s Definitions section, as well, especially if the code is long or where the same terms are used outside the lobbying section of the code.
Some definitions of “lobbying” are very short, such as San Diego’s “direct communication with a City Official for the purpose of influencing a municipal decision on behalf of any other person.” Other definitions are long and complicated.
The problem with San Diego’s definition is that it is limited to “direct communication with a City Official” and to lobbying for other persons. Although direct communication is what we first think of when we think of “lobbying,” it does not define lobbying. And, unlike D.C.’s K Street lobbyists working on behalf of big corporations, most local lobbying is done directly by business owners or executives (as San Diego’s code recognizes in its definition of “lobbyist”).
Chicago’s short definition, for example, is better because it is more inclusive. It starts with “undertak[ing] to influence any legislative or administrative action.” The City Ethics Model Lobbying Code definition of “lobbying activities” starts out like Chicago’s definition of “lobbyist.”
In drafting these basic definitions, the place to begin is deciding what role the definitions are supposed to play. Are they supposed to be exclusive, so that only a few professional, full-time lobbyists will register? Or are they supposed to be inclusive, so that everyone whom the public would consider as engaging in lobbying activities will register and, thereby, the public will have a full picture of who is trying to influence those who manage their community? Are they supposed to include only direct communications, or are they supposed to include all the activities lobbyists engage in, from research and socializing to grassroots lobbying and strategic advice?
Since lobbying codes are part of government ethics, and appearance is central to government ethics, the best practice is not to split hairs, but rather to include everyone whose job (in part or in whole) is to seek to influence government decisions, and those for whom they work. Disclosing all lobbying activities may take up the time of more individuals, but it will provide the optimum amount of transparency and fairness, and there won't be a lot of loopholes and gray areas that make it look like local elected officials and special interests are trying to keep a lot of lobbying hidden from the public, so that the public wonders why. Loopholes and gray areas are not a good way to convince the public that the principal goal of a lobbying oversight program is to bring transparency to lobbying.
As for lobbyists’ clients and those who directly lobby for special benefits for themselves, they need to recognize an essential problem with lobbying, even when it has been disclosed: that the public cannot know what they are saying to officials and, often, what they are seeking from these officials (or the officials are seeking from them). Recognizing how their interactions with officials appear to the public, those seeking special benefits from the institution that manages a community should try to increase trust in that institution’s processes by supporting lobbying oversight and, even when not required to by law, registering as a lobbyist, not only to be on the safe side (for their own benefit), but also because of the importance to the community of appearance, trust, and transparency.
Some definitions focus on or are even limited to elected officials. This is far too narrow. People lobby elected officials’ staff members, appointed officials, and all other officials and employees, including consultants and advisers, who have any influence, directly or indirectly, on decisions that are made. There are only a few local legislators, but there are hundreds of other officials to whom it is easier to get access, who make decisions separate from the local legislature (think of all the boards and commissions, not to mention the agencies), and on whom local legislators depend. In the most important areas of local lobbying — procurement and land use — local legislators often play a small role, and often get involved only toward the end of the process.
1. The Actions and People That Lobbying Seeks to Influence
One of the approaches to defining “lobbying” and “lobbyist” is in terms of the actions and people that lobbying seeks to influence. For example, Baltimore defines three types of lobbying, based on whom the lobbying is seeking to influence: executive, legislative, and grass roots. Other jurisdictions detail the actions that lobbying can influence: Toronto lists six, New York City lists eleven, and Chicago lists ten, as follows, in its definition of “lobbyist” (§2-156-010(p)):
(1) a bond inducement ordinance; (2) a zoning matter; (3) a concession agreement; (4) the creation of a tax increment financing district; (5) the establishment of a Class 6(b) Cook County property tax classification; (6) the introduction, passage or other action to be taken on an ordinance, resolution, motion, order, appointment or other matter before the City Council; (7) the preparation of contract specifications; (8) the solicitation, award or administration of a contract; (9) the award or administration of a grant, loan, or other agreement involving the disbursement of public monies; or (10) any other determination made by an elected or appointed City official or employee of the City with respect to the procurement of goods, services or construction.
By providing so much detail, this list leaves out of the definition a lot of matters and officials that may be influenced. For example, the list includes “zoning matters,” but not other land use matters. It includes contracts, grants, and loans, but not licenses. It includes legislation, but not regulations. Details such as those in the list are useful to make a definition more concrete, but they should be used only as supporting examples. They should not be part of the actual definition.
New York City’s list focuses less on matters than on the processes involved. This makes the definition more inclusive than Chicago’s list, but even wordier. Here is New York City’s list in its definition of “lobbying” (Title 3, Ch. 2, Subch. 2, §3-211(c)(1)):
any attempt to influence:
(i) any determination made by the city council or any member thereof with respect to the introduction, passage, defeat, or substance of any local legislation or resolution,
(ii) any determination made by the mayor to support, oppose, approve, or disapprove any local legislation or resolution, whether or not such legislation or resolution has been introduced in the city council,
(iii) any determination made by an elected city official or an officer or employee of the city with respect to the procurement of goods, services or construction, including the preparation of contract specifications, or the solicitation, award or administration of a contract, or with respect the solicitation, award or administration of a grant, loan, or agreement involving the disbursement of public monies,
(iv) any determination made by the mayor, the city council, the city planning commission, a borough president, a borough board or a community board with respect to zoning or the use, development or improvement of real property subject to city regulation,
(v) any determination made by an elected city official or an officer or employee of the city with respect to the terms of the acquisition or disposition by the city of any interest in real property, with respect to a license or permit for the use of real property of or by the city, or with respect to a franchise, concession or revocable consent,
(vi) the proposal, adoption, amendment or rejection by an agency of any rule having the force and effect of law,
(vii) the decision to hold, timing or outcome of any rate making proceeding before an agency,
(viii) the agenda or any determination of a board or commission,
(ix) any determination regarding the calendaring or scope of any city council oversight hearing,
(x) the issuance, repeal, modification or substance of a mayoral executive order, or
(xi) any determination made by an elected city official or an officer or employee of the city to support or oppose any state or federal legislation, rule or regulation, including any determination made to support or oppose that is contingent on any amendment of such legislation, rule or regulation, whether or not such legislation has been formally introduced and whether or not such rule or regulation has been formally proposed.
It is good that New York City changed its language to acknowledge, as in (ii), that lobbying occurs even when there is not yet any legislation, or to block legislation that is being considered. But New York City’s language is still not inclusive enough. For example, what about seeking to influence boards, commissions, and offices that make recommendations rather than determinations? Is it okay not to disclose lobbying that seeks to influence these boards, merely because the board is only influential? That doesn’t make sense when lobbying is all about influencing.
Consider the situation where the clerk’s office (which oversees the NYC lobbying oversight program) is preparing to recommend lobbying reforms to the council. If the local chamber of commerce lobbies the clerk and staff in an attempt to prevent the office from recommending that contractors file lobbying disclosure reports, shouldn’t this be disclosed, even if the clerk’s recommendation may not become law? It is better to use the more inclusive word “action” than the more restrictive word “determination.” And, like the City Ethics Model Lobbying Code, it is valuable to expressly include recommending among the actions that may be influenced by lobbying, so that it is not a gray area that leads people not to disclose.
Compare Chicago’s (6) to New York’s (i). New York limits lobbying of legislative matters to the introduction, passage, defeat, or substance of local laws or resolutions, while Chicago also includes other action taken on such resolutions, including motions, orders, appointments “and other matters.” Chicago’s definition here is significantly more inclusive, especially when one considers how much lobbying effort goes into attempts to prevent the introduction of resolutions or to have them die in committee.
In short, any definitional language that is unnecessarily restrictive, even terms such as “determination” or “passage or defeat,” should be carefully discussed. A list should be prepared of the many exceptions that the language effectively creates. But it is best for definitional language to be inclusive rather than restrictive. It is best to make exclusions in the form of exceptions that are clearly described in the lobbying code or, when unforeseen consequences are discovered, dealt with by the lobbying oversight office in the form of waivers and interpretations of code language.
When defining “lobbying” in terms of what and whom is influenced, the best approach is to be as inclusive as possible, as in the phrase immediately above. There is no need for long lists or details. This is what the City Ethics Model Lobbying Code does. Here is the beginning of its definition of “lobbying activities” (§301):
“Lobbying Activities” includes any activity undertaken to influence a city/county official, employee, consultant, adviser, candidate, official-elect, or nominee, directly or indirectly, to favor or oppose, recommend or not recommend, vote for or against or abstain, or take or refrain from taking action on ...
San Jose chose to make “Influencing” its most important definition (§12.12.170(A)). It defines this term as “contacting, either directly or indirectly, for the purpose of promoting, supporting, modifying, opposing, causing the delay or abandonment of conduct, or otherwise intentionally affecting the official actions of the city official or city official-elect, by any means, including, but not limited to providing, preparing, processing, or submitting information, incentives, statistics, studies or analyses.” There’s some good language here, but the definition still limits lobbying to “contacting” officials.
The San Jose definition does add one valuable element: it includes not only officials, but also officials-elect. This is good, but it would seem reasonable to extend this to include all candidates as well as officials who have been nominated for a position, but not yet appointed to it. After all, giving and raising campaign contributions are important elements of lobbying, and they are provided to candidates, including those who do not currently hold a government office. Lobbying candidates and nominees should have the same restrictions as lobbying the same individuals the day they have been elected, appointed, or taken office. It’s the same lobbying with the same goals. There’s no reason to wait until election day or the swearing-in day to require this lobbying, and attendant campaign-related activities, to be disclosed. Note that the model code definition of “lobbying activities” includes lobbying candidates, officials-elect, and nominees. These individuals are also included in the definition of “official or employee,” a term used throughout the model code.
San Jose’s definition of “Legislative Action” (§12.12.170(B)) also has some good language, including not only the mayor and council, but all boards and commissions, all task forces and “joint powers authorities of which the city is a party,” and the city’s redevelopment agency. Too often it is assumed that only councils engage in legislative action. Even ethics commissions engage in legislative action by interpreting ethics codes, drafting rules and regulations, and recommending amendments to the ethics code and to other ordinances relating to government ethics. Although lobbying of ethics commissions relating to proceedings should be prohibited, there is nothing to stop the lobbying of ethics commission with respect to its other activities.
One disadvantage of defining “lobbying” in terms of activities done in order to influence is that it brings intent and motive into government ethics, where they do not belong. Government ethics is not criminal law. It is easy for someone to insist (to himself as well as others) that a particular communication or series of communications, including meetings, was not intended to influence, but only to inform, advise, or be social.
Imagine that the owner of a construction contractor for a city plays golf with the mayor every Saturday morning throughout the summer. Most of the time they will talk about sports and politics, but sometimes they will talk about the building of a new school or road. And yet the contractor never plays golf with the mayor with an intent to influence, and if she did, who could know (not even the contractor knows, because she thinks she’s just playing golf)? What is important is not the intent, but the appearance, and the appearance is that the mayor is talking business at least part of the time and is likely to give the contractor preferential treatment. The fact that they are golf buddies means the contractor is seen as influencing the mayor. Therefore, these meetings should be disclosed just like any meeting.
Since government ethics is about appearances, it is best that someone seeking special benefits from a government official acts like what he appears to be: someone seeking special benefits from the government, who cannot prove that her socializing with a particular official has nothing to do with her business or that they did not talk about anything relevant to her business.
It is impossible to know (and prove) intent to influence, especially if there is nothing in writing. In fact, a note can be sent afterwards to make it clear that the communication or meeting was not about influence — “I really enjoyed our golf game yesterday. It’s so nice to get away from work and just have some fun for a change.” Requiring intent makes it very difficult to enforce lobbying rules. That is one reason why it is so common to require intent. It creates a large loophole and a perfect defense to an allegation that someone has failed to disclose lobbying activities.
When the definition of “lobbying activities” requires there to be an intent to influence, lobbyists and the officials they lobby can also say that because the official, not the lobbyist, initiated the communication, there was no intent to influence. In any event, many communications with lobbyists are initiated by officials in their guise as candidates, and lobbyists can ensure more frequent contacts by making several small contributions rather than one large one. These official-initiated contacts are likely to consist of the lobbyist seeking to influence the official. Therefore, they should be disclosed.
Here is an example of a situation where an official said that he had initiated a contact and, therefore, the lobbyist was not required to register. In 2013, soccer star David Beckham met with officials about the building of a stadium in southern Florida for the soccer team he owns, and was accused of lobbying without registering as a lobbyist. It was in the officials’ interest to say they had initiated the contact, since otherwise Beckham would be embarrassed by being fined for failure to register. It is true that the officials wanted to attract Beckham’s team, but Beckham was equally trying to obtain the best deal (that is, the most government subsidies) possible, which would benefit himself financially at the taxpayers’ expense. There is no doubt that both sides were seeking to influence the other’s decision, but requiring proof of motive would be difficult in such a situation.
Despite Miami-Dade County’s definition of “lobbyist” as someone who “seeks to encourage the passage, defeat, or modifications of ... any action, decision or recommendation,” the county ethics commission concluded that “if [Beckham] is [to be] involved in discussions intended to influence County officials, he would need to register as a lobbyist.” This was a good decision, but many ethics commissions would have decided that Beckham did not need to register.
Therefore, is best to make this clear either by not including language in the definition of “lobbyist” that implies that a particular motive is required, or by creating a presumption that contacts are intended to influence when one of the parties is seeking benefits from the other’s government. Anyone who seeks special treatment by a government should be considered to be lobbying when he communicates with an official of that government.
The fourth sentence of the City Ethics Model Lobbying Code definition of “lobbying activities” (§301) contains just this sort of presumption:
Any contact with a city/county official, employee, consultant, adviser, candidate, official-elect, or nominee, by someone who might specially benefit, directly or indirectly, from any government action or inaction is deemed to have been “undertaken to influence,” whatever the content of the contact may have been or whoever may have initiated any particular contact.
Take the situation of an adviser to a government official. Considering that lobbyists insist that their principal role is providing valuable information and expertise to government officials, what is the principal difference between an adviser and a lobbyist? It’s the fact that the official initiates and controls the adviser-official relationship. But it is in a lobbyist’s interest to have the ear of an official, not only to have more influence over the official, but also to attract clients who are looking for someone with the right connections. This is why the difference between an adviser and a lobbyist is not nearly as great or as simple as it first appears. Initiation is no more relevant here than in a romantic relationship. That is why it is important to acknowledge in a definition of “lobbying activities” that who initiates a contact is meaningless. This is the reason for the final phrase of the definitional language above, “whoever may have initiated any particular contact.”
Sometimes an advisory relationship starts when a lobbyist contacts an official, and from their communications the official comes to respect the individual, ask for her advice, and encourage her to give her opinion about particular matters (say, environmental issues) or all sorts of things. This can extend to election-related advice, where the lobbyist can be paid by a candidate committee for her advice, if this is permitted (I recommend that lobbyists not be allowed to participate in the campaigns of officials they lobby). A lobbyist who acts as a political consultant is still a lobbyist and is seen as acting as a lobbyist.
Even when a lobbying code does not require an adviser who is also a lobbyist or principal to disclose the contacts in which she advises on topics other than those that involve her or her clients’ financial interests, it is best that she disclose these contacts, showing in the list of topics discussed that these communications were directed to the official’s interests rather than her own or her clients’.
The reason for doing this brings us to another problem with requiring an intent to influence: it is a reflection of the popular conception of lobbying, rather than what really goes on. So much lobbying is not about directly influencing with respect to a particular topic or matter. It's about developing and maintaining a personal relationship that will, in the future, pay off for oneself, one's company or organization, or one's clients. There need not be a current matter or even a foreseeable matter for lobbying to occur, when one party is a government official in a position to influence government action and the other is someone who, directly or indirectly, is likely to benefit from government action.
This part of lobbying is sometimes referred to as “lobbying for goodwill,” and it is every bit as much of a goal as influence. Portland, Oregon and Palm Beach County, Florida each have a nice little addition to the definition of lobbying: “attempting to obtain the good will” of officials. Vermont has language that makes it more clear what this is all about: “an attempt to obtain the goodwill of a legislator or administrative official by communications or activities with that legislator or administrative official intended ultimately to influence legislative or administrative action.” The recognition of this kind of lobbying expands the definition to include not only attempts to directly influence an official with respect to a particular matter or client, but also the glad-handing, entertaining, general advising, and other activities, including those that apply to political campaigns, which are done on an ongoing basis, even when there are no relevant matters currently before the official.
The City Ethics Model Lobbying Code’s definition of “lobbying activities” (§301) includes the following language: “trying to influence or obtain the goodwill of an official.” This simple language greatly increases the transparency of a lobbying program and maturely acknowledges what everyone knows: that lobbying is about relationships and connections.
In his book Total Lobbying: What Lobbyists Want (and How They Try to Get It) (Cambridge University Press, 2006), calls this kind of lobbying “background lobbying.” The language in Portland and Palm Beach County recognizes that the lobbyist-official relationship is not quid pro quo, but rather a long-term relationship based on reciprocity that includes a great deal of background lobbying. Campaign contributions are only the best known form of background or goodwill lobbying. In fact, a more common way to gain access to government officials by spending money is to hire a contract lobbyist who already has the connections necessary to gain access. Campaign contributions are limited in value, because they can only indirectly, if at all, help gain access to the majority of officials local lobbyists seek to influence: appointed officials and agency employees. With them, connections need to be built up over a long period of time, either by the principal or by its lobbyist.
Goodwill is a valuable asset that is less about gaining influence than about gaining access both to government officials and to information that is not yet public. As one lobbyist told Nownes, “[If] we invite staff to functions ... and go buy donuts occasionally, and [there is a bill out there that is] affecting us, or more importantly, looks like it’s pending ... we get a call from [these] staff.” Nownes adds, “The telephone calls ... may stop if the background lobbying stops.”
Actually, “gain” is not sufficient to describe the goals of seeking access. Better would be “gain and maintain.” In fact, in many cases the goodwill is based on a relationship formed before the lobbyist represented the client or even before she became a lobbyist or the official became an official. A lobbyist’s representation of a client in a particular matter may be only a tiny part of a long-term relationship with an official. But what goes on between them is lobbying, whatever time it happens to be, at least once the individual is seeking special benefits from the government, directly or on behalf of another.
Directly influencing with respect to a particular matter is not a necessary element of lobbying, especially with respect to what activities should be disclosed. Lobbying is equally about keeping possibilities alive and information channels open. And the particular matter may be in the future. If a lobbyist plays golf with five council members in one week, and is not currently involved in any matter before the council, won’t that suggest that something might be in the works? Isn’t this information of interest and value to the public?
Palm Beach County deals with this aspect of ongoing relationships by defining “lobbying” to include attempts to influence with respect to “any item which may foreseeably be presented for consideration” (§2-351 of its Lobbyist Registration Ordinance; emphasis added). This prevents an individual from saying that he was not lobbying because his communication with an official regarded matters that were not before the official, when they were expected to be before the official or, in fact, the goal of the communication was to get the matter before the official or before other officials through the official’s influence. The City Ethics Model Lobbying Code follows Palm Beach County in its definition of “lobbying activities” (§301) by using the phrase “which may foreseeably come before” a government.
2. The Actions That Constitute Lobbying
Some jurisdictions take a different approach, detailing not the actions that lobbyists seek to influence, but rather the kinds of actions that constitute lobbying. The City Ethics Model Lobbying Code takes this approach in the second sentence of its definition of “lobbying activities.” Activities directly “undertaken to influence” officials are understood to be communications with them in various forms. These are the activities most commonly included in “lobbying” definitions; sometimes, unfortunately, they are the only activities included.
The second sentence extends “lobbying activities” to include many others, which often take up a greater part of a lobbyist’s time:
... any activity undertaken to support such influencing, including research, investigation, drafting, advising, monitoring, socializing, and attending meetings and events related to lobbying goals or attended by targeted officials.
The Model Code does the same thing in its definition of “grassroots lobbying,” a kind of lobbying that is the subject of the next subsection:
It includes such activities as advertising, mailings, phone banks, and door-to-door campaigns, the creation and use of an organization through which issue-oriented activities and campaign expenditures may pass, and the conciliatory lobbying of groups in opposition to the lobbyist’s goals.
Both lists are open-ended, examples rather than exhaustive lists that allow other activities to be kept secret.
There are other activities that are too often left out of “lobbying” definitions, such as the fastest growing area of lobbying, strategic advising. The activities of political fixers and go-betweens is another area covered by this section.
Indirect Lobbying: Another area of lobbying that is not part of the popular conception of lobbying — despite the fact that it’s been around for decades and is especially important in big land use matters — involves indirect lobbying, that is, activities that seek to get others to contact government officials, especially elected representatives. Indirect lobbying includes public relations (including social media) campaigns, mobilization campaigns, coalition building, and the strategic advising behind all these activities.
Indirect lobbying is valuable, because lobbying directly to officials leaves out the most important connection an elected official has: with constituents. Indirect lobbying is, therefore, an important complement to lobbying. It shows officials that their constituents are concerned with a matter, in the form of communications, petitions, demonstrations, op-ed pieces and letters to the editor, etc.
Not all constituents are created equal. Alan Rosenthal, in his book The Third House: Lobbyists and Lobbying in the States (CQ Press, 1993), talked about “key contacts,” that is, constituents who have a connection with an individual or entity that is seeking a special benefit from the government (e.g., a friend, a member, or an employee), but also a personal relationship with a particular official (friend, political colleague, family member, customer, neighbor, former colleague, or professional (e.g., the official's doctor or personal trainer)). One personally known constituent is worth a hundred strangers.
The most important subcategory of indirect lobbying is grassroots lobbying, which itself comes in four forms: lobbying via an organization’s membership (e.g., an environmental organization e-mailing its members and asking them to call their council members); grassroots lobbying of non-members via advertising, mailings, phone banks, and door-to-door campaigns; “astroturf” lobbying via the creation of an organization through which issue-oriented and campaign expenditures may pass, but which has no base in the community; and the conciliatory lobbying of opposition groups.
There do not appear to be statistics on grassroots lobbying at the local level, but a 2015 report from the Center for Public Integrity shows that national trade associations spend substantially more on grassroots lobbying than on direct lobbying.
The first and last kinds of grassroots lobbying generally do not require registration and disclosure. However, the last kind rarely occurs without the second and third kinds of lobbying, which should require registration and disclosure.
Grassroots lobbying works because elected officials care what their constituents think. They are responsible for representing their constituents, and it is their constituents who determine whether they are re-elected. Even when a developer has a good relationship with council members, it helps the developer’s cause a great deal when constituents express their support and, even more important, when few or no constituents express opposition. Anthony Nownes wrote in his book Total Lobbying: What Lobbyists Want (and How They Try to Get It) (Cambridge University Press, 2006), “In virtually all of my interviews with public policy lobbyists, I heard a variation of the following statement: If it comes down to a choice between what their constituents want and what a lobbyist wants, elected officials will almost always do what their constituents want.”
Grassroots lobbying is especially valuable when a referendum or initiative must be passed in order to approve a big development or transportation project, change the charter for various reasons (including government ethics reform), or allow a bond sale for school construction. Sometimes there is a choice between council and voter approval, and interested parties use grassroots lobbying to push for voter approval, which leads to even more grassroots lobbying. A good example of lobbying of this is the attempt in 2014 by the Aircraft Owners and Pilots Association (AOPA) to require voter approval, rather than council authority, over any changes to the Santa Monica, California airport. AOPA and its allies spent over $800,000 in support of the initiative, including the petition process and the campaign for the initiative’s approval and against an alternative initiative. Many community, good government, and environmental groups opposed the AOPA initiative, and it was defeated.
Grassroots lobbying is becoming increasingly easier, with e-mails that allow constituents to easily communicate with elected officials, and even an app, Phone2Action, which provides for automatic social media barrages, including e-mails, tweets, and communications with Facebook accounts.
And yet the description of lobbying by the national association of lobbyists (the Association of Government Relations Professionals) does not mention this kind of lobbying, and many lobbying codes do not mention it, either. For many years, people have considered the biggest weakness of the federal lobbying code to be the omission of grassroots lobbying from the definition of “lobbying.” At the local level, especially with respect to land use matters, grassroots lobbying is extremely important. To leave it out of the definition of “lobbying” is to leave out a great deal of lobbying, in many cases a majority of the lobbying on a land use matter.
As Anita S. Krishnakumar states in her essay “Towards A Madisonian ‘Interest-Group’ Approach To Lobbying Regulation” (St. John’s University School of Law Legal Studies Research Paper Series #07-0064, January 2007), if ordinary lobbying must be disclosed, but not grassroots lobbying, then lobbyists will engage in more grassroots lobbying. And grassroots lobbying benefits those with greater resources even more than ordinary lobbying. Therefore, lobbying oversight must apply equally to these two principal sorts of lobbying.
One kind of grassroots lobbying that need not be disclosed is the most basic, old-fashioned kind of grassroots lobbying, in which an organization or association communicates with its own members. This is a common exception to the disclosure rule. Even though artificial letter-writing campaigns can occur within organizations, this is more of a problem with national organizations than with local organizations. No one cares what out-of-towners think about a local land use matter.
“Astroturf” lobbying is an insidious kind of grassroots lobbying that appears to be issue advocacy when it is actually something else. It involves grassroots campaigns run by fake organizations that only seem based in the community, fake letter-writing campaigns, and the like. There is often no disclosure of the sponsor of an “astroturf” campaign, which is seeking special financial benefits for itself. The campaign only discusses policy issues, as if it were only a policy matter and not a matter of seeking special benefits. The Public Relations Society of America recognizes the problems with this type of lobbying and prohibits it in its code of ethics. The reason is that “astroturf” campaigns are fraudulent.
Sometimes, the fake organization works in coalition with other organizations, so that ordinary people without special interests are involved. But the coalition’s work is paid for and orchestrated by those who do have special financial interests and their agents, including lobbyists, lawyers, and public relations professionals.
Oakland prohibits “astroturf” groups in a provision that starts by saying that no lobbyist may “attempt to create a fictitious appearance of public support or opposition to any governmental action.” This could be considered a subset of the provision of deception through false information (see the section on deception below). But here it is not factual information that is false, but rather the level of support or opposition to governmental action that exists in the community.
It is important in prohibiting or requiring the disclosure of “astroturf” lobbying to clearly differentiate it from actual issue advocacy. This is much harder to do at the federal and state level than at the local level, where “astroturf” lobbying almost always occurs with respect to land use matters, and is almost always funded either by a land owner or developer, or by local businesses opposing a competitor that wants to build in the community. Whatever their policy views might be, they are acting in their personal financial interests. Disclosure of their schemes will limit speech only through self-censorship, because it is embarrassing to be caught selling your personal financial interests in the form of public policy views.
Some argue for the right to speak anonymously, but that is about issues, not about the seeking of financial benefits by communicating indirectly, and secretly, with government officials. For a detailed account of the constitutional issues involved in the disclosure and other regulation of “astroturf” lobbying, see Jonathan C. Zellner, “Artificial Grassroots Advocacy and the Constitutionality of Legislative Identification and Control Measures,” 43 Connecticut Law Review 1 (November 2010). The most important case is United States v. Harriss, 347 U.S. 612 (1954), where the Supreme Court recognizes the constitutionality of requiring the disclosure of an “artificially stimulated letter campaign.” The Court felt that the public needed to be able to properly evaluate the pressures that were being placed on them with respect to a matter, so that they could make informed political decisions. “Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal.”
Between “astroturf” and old-fashioned grassroots lobbying (that is, an organization getting its members to contact officials and attend public meetings) is lobbying that openly seeks to stir up a community, without the use of fake organizations, fake coalitions, or fake letter-writing campaigns, but for the special benefit of the individual or entity that is funding the campaign. This often takes the form of advertising, mailings, surveys, and phone banks. There is nothing wrong with this, but it is indirect lobbying that should be disclosed just as much as direct lobbying.
Conciliatory lobbying (what Nownes calls “demobilizing public opposition”) is the least known kind of grassroots lobbying, especially in the area of land use. Conciliatory lobbying consists primarily of meeting (one on one, or in small groups) with individuals and representatives of groups that oppose a development, in order to explain the issues to them, to show them (and, when they are told about the meetings, government officials) that the developer cares about their concerns, and to offer them concessions that will satisfy their concerns so that their opposition goes away or lessens. These concessions usually involve the effect of a development on the neighborhood, on traffic patterns, and on noise, health, and the environment. It is as important to have good relations, and connections, with neighborhood groups as it is to have them with government officials.
With respect to the community as a whole, and those who represent it, a lobbyist will emphasize job creation, property taxes, a positive effect on other businesses, and other economic benefits. The lobbyist will also try to get community groups, such as the chamber of commerce, active in support of the land use project.
Most state lobbying codes require the disclosure of at least some forms of indirect lobbying. But some people insist that requiring disclosure of grassroots lobbying is an unconstitutional infringement of free speech and free association rights. In a decision about the constitutionality of such a disclosure requirement, the Washington state supreme court wrote that striking down the law “would leave a loophole for indirect lobbying without allowing or providing the public with information and knowledge re the sponsorship of the lobbying and its financial magnitude.” (Young Americans for Freedom, Inc. v. Gorton, 522 P.2d 189, 192 (Wash. 1974)) In Florida League of Professional Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996), a federal appellate court found that the government’s interest in disclosure of indirect lobbying may be stronger than the case for disclosure of direct lobbying because “when the pressures are indirect . . . they are harder to identify without the aid of disclosure requirements.” In addition, the U.S. Supreme Court, in United States v. Harriss, 347 U.S. 612 (1954), said that any impact on free speech rights occurred merely because of “self-censorship.”
There is another kind of indirect lobbying that most jurisdictions ignore: the lobbying of local officials with respect to state and federal matters. Local officials spend a great deal of time applying and lobbying for grants, loans, subsidies, approvals, and legislation at the state and federal levels that lead to important benefits for certain local companies and organizations. Lobbying local officials (directly or via grassroots lobbying) to give priority to certain grant opportunities is no different from lobbying state or federal officials directly, but it is not considered state or federal lobbying, because no state or federal officials are contacted except by local officials.
Here is New York City’s provision on this kind of indirect lobbying:
an attempt to influence ... any determination made by an elected city official or an officer or employee of the city to support or oppose any state or federal legislation, rule or regulation, including any determination made to support or oppose that is contingent on any amendment of such legislation, rule or regulation, whether or not such legislation has been formally introduced and whether or not such rule or regulation has been formally proposed.
The City Ethics Model Lobbying Code covers this kind of lobbying more simply, in the last phrase of the first sentence of its definition of “lobbying activities” (§301): “... any matter before or which may foreseeably come before any level of government.”
Beyond the inclusion of indirect lobbying in the definition of lobbying activities, an important question is whether indirect lobbying is enough, without any direct lobbying, to require an individual or entity to register as a “lobbyist.” I think it is enough, because indirect lobbying is no longer a secondary form of lobbying, but rather an essential lobbying activity, and when left out of a lobbying oversight program, it is a way for individuals to hide their activities from the public. Individuals clever and connected enough to wield influence without the need for direct communication should not be allowed to hide their activities.
But it would be reasonable, with respect to indirect lobbying, to have a higher expenditure amount below which registration is not necessary. This would take the burden off individuals and organizations involved in putting together small local coalitions and mailings. Another alternative would to limit required disclosure of indirect lobbying to situations where a specific government action or matter, rather than a general issue, is involved. This way, campaigns for economic equality would be excepted from disclosure, but not campaigns for a minimum wage law; campaigns for or against gun control would be excepted, but not when a particular gun law was under discussion. But the dividing line can be difficult. Would, for example, a campaign to institute a government ethics program, when none was being discussed by the government, be considered specific (proposed ethics reforms) or general (the issue of government ethics)?
A third alternative would be to limit the disclosure requirement to situations where people are expressly asked to contact a government official. But such a limited requirement should (1) be worded in such a way as to prevent loopholes that would allow such requests, but in a tacit form and (2) include all related activities.
Detailing the actions that lobbyists engage in not only clarifies what lobbying consists of, but also expands the concept of lobbying from the limited, simplistic picture that first comes to mind. Here are the six actions listed in Los Angeles’s definition of “lobbying activities” in the first section (§48.01) of its Municipal Lobbying Ordinance:
(1) engaging in, either personally or through an agent, written or oral direct communication with a City official;
(2) drafting ordinances, resolutions or regulations;
(3) providing advice or recommending strategy to a client or others;
(4) research, investigation and information gathering;
(5) seeking to influence the position of a third party on municipal legislation or an issue related to municipal legislation by any means, including but not limited to engaging in community, public or press relations activities; and
(6) attending or monitoring City meetings, hearings or other events.
This definition recognizes that lobbying involves much more than communicating with a government official. It provides a much more realistic picture of what lobbyists actually do. Numbers 2 and 5 are at least as important lobbying activities as number 1. Although the drafting role of lobbyists is less important at the local level, it can make a huge difference. For example, professional and business associations often seek to regulate competitors’ conduct through ordinances they draft and which are passed, with little or no changes, by local legislatures. In addition, lobbyists’ drafting activities go beyond laws and regulations, to include such things as contract specifications, the recommendations of advisory boards, and materials relating to development projects and grants.
Dallas is one city that uses the phrase “directly or indirectly,” while Philadelphia uses the adjectival form of this phrase, modifying “communication.” These may appear to be the same, but whereas seeking to communicate indirectly, by getting others to communicate, is what public relations is all about, an “indirect communication” appears to be limited to a communication made through an agent or made to an official’s aide rather than directly to the official herself. The adverbial form is, I think, preferable.
Since many people don’t believe that the activities included above in numbers 3 and 4 — research and advising — are really lobbying activities, one possibility is to break them out, as Connecticut does, calling them “activities in furtherance of lobbying.” They describe these as follows: “research, reports, polls, media buys, activities fostering good will, office expenses, secretarial or paralegal salaries, etc.; essentially the activities that support the actual lobbying efforts” (a concept that the City Ethics Model Lobbying Code borrows). These activities are counted for the threshold for lobbying registration, so they are considered “lobbying activities.” They are simply differentiated to make it clear that these activities are included.
The City Ethics Model Lobbying Code definition of “lobbying activities” (§301) takes a combined approach to indirect lobbying. First, it uses the phrase “directly or indirectly.” Second, like Los Angeles, it details the activities that are often left out of a definition, such as research, advising, and monitoring. Third, it expressly includes lobbying local officials for state and federal benefits by ending the first sentence of the definition of “lobbying activities” with the phrase “ any matter before or which may foreseeably come before any level of government.” Fourth, it expressly includes grassroots lobbying and provides a separate definition for it, which follows the same format as the “lobbying activities” definition:
“Grassroots Lobbying” includes any activity undertaken to encourage others to influence a city/county official, employee, or consultant to favor or oppose, recommend or not recommend, vote for or against, or take or refrain from taking action on any matter at any level of government. It includes such activities as advertising, mailings, phone banks, and door-to-door campaigns, the creation or use of an organization through which issue-oriented activities and campaign expenditures may pass, and the conciliatory lobbying of groups in opposition to the lobbyist’s goals.
It does not expressly refer to “astroturf” lobbying, because it is often hard to differentiate between grassroots and astroturf lobbying and, for the purpose of disclosure, it is not necessary to make this differentiation. The disclosure itself will provide the sort of information that citizens and the news media can use to distinguish between the two.
Strategic Advice: Number 3 on the Los Angeles list of lobbying activities – providing advice or recommending strategy to a client or others – is, at first glance, the oddest of the six. But it is important, because it is a way to include strategic advice, the most recent growth field in lobbying. In a December 2013 New York Times op-ed piece, Columbia University professor Thomas Edsall defined “strategic advice” as focusing on “how to convince and mobilize voters and opinion elites in support of a client’s agenda.” Strategic advisers help companies, associations, and organizations (1) plan out legislative and independent campaigns and drives, especially to affect the establishment and implementation of regulations; (2) determine which officials and agencies to deal with; and (3) determine potential coalition partners.
Lobbyists engage in strategic advising without making direct, or even indirect, contact with officials. They don’t even get directly involved in public relations activity. Strategic advisers make use of their knowledge rather than their contacts, or at least their contacts who are still in government (many, like them, are on the outside).
Providing expert information is what lobbyists insist is their principal purpose. The provision of strategic advice is the provision of expert information at a level above ordinary lobbying, that is, it involves the development of the strategies that lobbyists (both internal and external) and their principals will employ. Therefore, it too should be included in the definition of “lobbying activities.” The City Ethics Model Lobbying Code does this by including the word “advising” in the list of activities “undertaken to support such influencing.”
Edsall quotes from a self-description by one lobbying firm: “Old lines between public and private sector, journalist and civilian, outside agitator and inside power broker are blurring. GPG was built to help organizations navigate this shifting landscape.” Lobbying definitions also need to keep up with this shifting landscape.
Fixers: A group of people who, like strategic advisers, facilitate and guide influence on behalf of people seeking special benefits from a local government are also often left out of lobbying code definitions: individuals known as power brokers, fixers, bagmen, the people who bring people together, arrange meetings, get people through bureaucratic processes, make things happen. These individuals often exert no influence and are rarely paid directly for their services. They may not even represent anyone, or they may officially work for a political party, which gets the benefit, while the fixer gets the credit and, therefore, the power. Or they may get paid for giving advice (often about people, processes, and tactics) rather than influencing. They may set up meetings without attending them. They may not perpetrate ethical misconduct, but instead enable and be complicit in it.
One big-time fixer in the Jersey Sting told an FBI informant, “You don't need to know how I do something. All you need to know is whether it got done.” When it comes to government, the public needs to know who and how things are getting done. This is public information.
Because there are few, if any professional lobbyists at the local level, the contract lobbyists who are successful locally sometimes become power brokers. These individuals can best represent their clients by being in a position to pull a lot of strings. They can get into this position through their involvement in the majority political party, through the services they provide to officials, through their involvement in and financial support (directly and through clients) of political campaigns, and through the personal relationships they form with officials. Often, because they do engage in lobbying activities, these power brokers register as lobbyists. But sometimes they stop engaging in these activities, or report only a small percentage of the activities by which they help influence government decisions, and there is little transparency.
It is difficult to include fixers in lobbying oversight programs, because they don't fit the usual definitions. What makes it especially difficult is that they are rarely “hired” and rarely “represent” anyone. They are rewarded in other ways, but through the usual reciprocal relationships.
One approach is for lobbying oversight offices to try to identify these individuals and ask them to participate, to file disclosures and register as lobbyists, even if they are not required to. The worst they can do is say No. And if one or more of them say Yes, the pressure is on the others to follow suit.
As for lobbyist-power brokers, a lobbying oversight office can ask for information about their other activities, where they bring people together in ways that facilitate lobbying.
Placement Agents: In 2011, California began requiring placement agents to register as lobbyists, attend ethics training, and not take finder's fees from money managers. California defines “placement agent” as follows:
an individual hired, engaged or retained by, or serving for the benefit of or on behalf of, an external manager, or on behalf of another placement agent, who acts or has acted for compensation as a finder, solicitor, marketer, consultant, broker or other intermediary in connection with the offer or sale of the securities, assets or services of an external manager to a state public retirement system in California or an investment vehicle, either directly or indirectly.
“External managers” are consultants who manage a pension portfolio or investment fund. Placement agents are more controversial than lobbyists, but are similarly the representatives of entities seeking a special benefit from the government, in this case the business of a pension fund. They have become increasingly regulated, mostly through disclosure, but in some states, such as New York, their activities have been banned.
In New York City, pursuant to a 2010 law department opinion, placement agents attempting to influence decisions made by the city comptroller or staff, or the boards of trustees of the city's pension funds and retirement systems or staff, were deemed to be lobbyists. If a local government is in a state that is not requiring placement agents to make full disclosure of their activities, it may require this by expressly including placement agents in its definition of “lobbyist,” including their activities in its definition of “lobbying,” or by designating them as a special sort of lobbyist subject to the same or similar rules. The City Ethics Model Lobbying Code includes them in the definition of “lobbyist” and gives them their own definition, based closely on California’s.
One thing placement agents must keep in mind with respect to compliance with local lobbying laws is the fact that a criminal conviction could be considered a “disqualifying event,” resulting in treatment as a “bad boy” for purposes of the federal Securities and Exchange Commision’s (SEC) Regulation D Rule 506 exemption.
Other Activities: Los Angeles’s lobbying activities numbers 4 and 6 – research, investigation, and attendance at meetings – are activities that are necessary in order to prepare for communications with officials and for other lobbying activities. Lobbyists do not just show up at meetings with officials, they do lots of research and watch the officials in action, scouting them just as sports team scout their competition. Philadelphia might be considered to deal with this part of lobbying by using the phrase “incurring office expenses” in addition to communication. But it is best to clearly describe the activities for which such expenses are incurred, or they will not be disclosed. This is what the City Ethics Model Lobbying Code does this in its definition of “lobbying activities” (§301).
San Diego has a list that is similar to the Los Angeles list, but not as good. However, it does contain two elements that do not appear on the Los Angeles list: communications with clients (like L.A.’s number 3, but more inclusive) and waiting to meet with officials, which can presumably take all day.
Philadelphia includes in its short list the provision of a gift “to advance the interest of the lobbyist or the principal.” Since most definitions of “lobbying” are based on communications, this effectively makes gifts a form of speech. After all, if you send three council members to a conference in Hawaii and you’re trying to get a development project accepted, you don’t really have to say anything more. But it is best to prohibit any gifts from lobbyists. There is no need for the extra language, which only requires a level of proof that can be difficult to provide. Anyway, as an Alabama lobbyist once pointed out, “lobbyists don't give anything to public officials but for the purpose of influencing official action.”
One kind of lobbying that is often left out of definitions is negative lobbying. For example, in Missouri a political consultant for a major corporate user of electricity wanted to prevent the electric utility from charging its customers for a new nuclear power plant before it came on board. To do this, the consultant put together a program of mailings and robocalls to people in the district of a state senator who was leading the attempt to allow the utility to pre-charge its customers. The public relations program alerted people to spiraling utility costs, even though they did not even get their electricity from the relevant utility. The goal was not informing the public, but using corporate money to pressure a senator to back off (and intimidate others away from supporting the bill). This type of activity can be included under the definition of “grassroots lobbying” by including language, as in the City Ethics Model Lobbying Code (§301), that makes it clear that lobbying includes attempts to get officials to oppose as well as support matters that come before them.
3. Who Can Be Lobbied
Many jurisdictions limit who can be lobbied for an activity to count as “lobbying.” Sometimes, the definition limits “lobbying” to communications with elected officials. Sometimes, the definition also includes decision-making bodies, procurement decision-makers, and/or department and agency directors, referring to them and their members as “covered individuals” or the like.
At best, these limitations on who can be “lobbied” ignore reality. A lot of lobbying is not directed toward the highest officials. The highest officials are the hardest to get access to, and they often listen to their staff, especially their legal counsel. Lobbying their staff and their counsel can be equally effective and much easier. In addition, it is usually aides, counsel, and other staff who draft laws, regulations, letters, and press releases. And aides, counsel, and other staff have input into setting priorities and agendas (especially keeping matters off the agenda, which is a common goal of lobbyists). They have a great deal more authority than they are given credit for.
Because it is difficult to determine which employees, in which situations, are likely to be lobbied, it is best to define “lobbying” broadly to include the lobbying of any official or employee, as well as consultants and advisers. This is true even if one considers that many government employees generally engage in ministerial matters, that is, where no one has discretion. It is better to make an exception for ministerial matters than for the people who generally engage in them, because these individuals sometimes act as advisers and have authority of their own, such as choosing not to put a matter on an agenda. See the City Ethics Model Lobbying Code’s ministerial matters exception to the registration requirement.
Similarly, it is better to make an exception with respect to adversarial proceedings than to except the individuals who sometimes take part in such proceedings, that is, government lawyers.
As with gifts, in some jurisdictions a great deal of the definition of “lobbying” consists of exceptions or, as many lobbying codes call them, “exemptions.” Exceptions must be carefully phrased or they will be seen and used as loopholes, and have many unintended (or, at least, unstated) consequences that undermine lobbying oversight by removing individuals, entities, professions, and activities from disclosure and limitations. Many exceptions also undermine the acceptance of a lobbying oversight program by making those not given an exception believe that the program is unfair. Inclusiveness is essential to fairness, the appearance of fairness, the effectiveness of a lobbying oversight program, and the public’s belief that the program is designed to disclose all lobbying activities and prohibit misconduct no matter who engages in it.
When one starts thinking of exceptions, it can become difficult (1) to decide which to accept and which to reject, and (2) to use language that will prevent what was intended to be a narrow exception from being turned into something you can drive a truck through (sometimes, the exception is designed to fit a certain truck; sometimes the truck hasn’t even been designed yet, but the exception will determine its design). In 2013,Tim LaPira, a professor at James Madison University and Sunlight Foundation Academic Fellow, estimated that, at the federal level, about half of all those getting paid to engage in lobbying activities were not required to register as “lobbyists” due to the kinds of lobbying that are not covered, including grassroots lobbying and strategic advice.
However, the broader the definitions of “lobbying” and “lobbyist,” the more exceptions are required. Since the City Ethics Model Lobbying Code employs a broad definition of “lobbying activities” (§301), it contains many exceptions. But the exceptions themselves are not as broad as those in many lobbying codes, nor do they open up loopholes for lobbyists to get around registering as “lobbyists.” And they are not exceptions to the definition of “lobbying activities” or “lobbyist,” but rather to the requirement of lobbyists to register. Whichever place the exceptions appear, they should, as much as possible, all appear in the same place.
It is important that individuals who seeks to influence local officials acknowledge that they do not have to take advantage of express exceptions or exceptions created by vague language. Lobbying is not a sport; it is a right that comes with obligations. Like all government ethics rules, lobbyist registration rules are minimum requirements. What this means is that exceptions only say that people who fit the exceptions do not have to register or disclose; they do not say that they should not register or disclose. Vague language allows individuals to argue that they do not have to register as a lobbyist, but this does not mean that they should not register anyway, both to be safe and to show their support for transparency. Even if one seeks ethics advice and is told that one does not have to register, one may register anyway. For the good of the community and the fairness of the lobbying oversight program, individuals should choose to register as a lobbyist and disclose activities and expenditures that they may not be required to disclose.
One may do more than is minimally required by law not only because it’s the right thing to do, but also because it may very well be in their personal interest and, if they are a contract lobbyist, in the interest of their clients. This is true because their failure to be transparent could, if the facts come out, put them in the middle of a scandal that will not only hurt their reputation in the community, but also may require government officials to reject not only their meeting requests, but perhaps also their requests for grants and permits, and even their contract bids. Better safe than sorry is a valuable bit of wisdom when it comes to lobbying registration.
Seattle has good language that speaks to this (which the City Ethics Model Lobbying Code has borrowed (§302.2)): “Any person exempted under this chapter from registering and reporting may at his or her option voluntarily register and report under this Chapter.” This should not, however, be in a separate provision following the exceptions. It should appear right after the registration requirement and before the exceptions, as it does in the Model Code.
Chicago has just two exceptions: “solely ... submitting an application for a City permit or license or ... responding to a City request for proposals or qualifications.” The first goes without saying; the second is dealt with below.
The District of Columbia has six exceptions:
(i) The appearance or presentation of written testimony by a person on his or her own behalf, or representation by an attorney on behalf of any such person in a rulemaking (which includes a formal public hearing), rate-making, or adjudicatory hearing before an executive agency or the Tax Assessor; (ii) Information supplied in response to written inquiries by an executive agency, the Council, or any public official; (iii) Inquiries concerning only the status of specific actions by an executive agency or the Council; (iv) Testimony given before the Council or a committee of the Council, during which a public record is made of such proceedings or testimony submitted for inclusion in such a public record; (v) A communication made through the instrumentality of a newspaper, television, or radio of general circulation, or a publication whose primary audience is the organization's membership; and (vi) Communications by a bona fide political party.
San Francisco wins the prize with sixteen exceptions, with Dallas and San Diego tied for second with thirteen each, while the City Ethics Model Lobbying Code (§302.3) has fourteen. But all exceptions are not alike. Most of Dallas’s are unnecessary, while most of San Diego’s and San Francisco’s are important, although they could have been consolidated into a less unwieldy list. The Model Code’s exceptions are to a much broader registration requirement. But in general, a large number of exceptions reflects either too great a concern that non-lobbying activity will be considered lobbying, or an attempt to greatly limit the regulation of lobbyists. Or both.
The two exceptions in Jacksonville’s lobbying code are important, although they can be conflated into one (see exception for lawyers below):
(1) Legal or settlement discussions directed toward an attorney for the City or of an independent agency; or
(2) Participation in a quasi-judicial proceeding involving the City or an independent agency (except that all ex-parte communication to a decision maker or non-lawyer city or independent agency employee constitutes lobbying).
Another approach to the first Jacksonville exception is the one Chicago takes: “an attorney shall not be considered a lobbyist while representing clients in a formal adversarial hearing.” The Jacksonville term “legal discussions” could, for instance, include discussions about regulations or proposed regulations, with a lobbyist arguing that they raise legal or constitutional questions and, therefore, should be scrapped or not passed. This is lobbying.
The other most important exceptions are for the news media (see D.C.’s fifth exception) and for ministerial matters, such as asking a clerk for a form or scheduling an appointment, when nothing else is involved. Here is the City Ethics Model Lobbying Code’s ministerial matters exception (§302.3(d)):
A ministerial matter, such as asking a clerk for a form or scheduling an appointment, when no other lobbying activity is involved.
There are problems with most of the other exceptions. Consider the D.C. exceptions above. Is written or even verbal, public testimony not part of lobbying? The preparation of such testimony is an important part of lobbying. It can consist of extensive arguments and documentation, including recommended language. It can have a serious effect on a body’s decision to act and, if so, in what manner. The fact that citizens also do this, and that this is not considered lobbying, is taken care of by the requirement that a lobbyist be paid to lobby, a requirement that a lobbyist spend a certain number of hours engaged in lobbying activities, or an exception for citizens stating their opinions (the model code’s approach). There is no reason to differentiate the work that goes into public testimony from the work that goes into private or indirect communications. They are both part of the same lobbying effort and even though public testimony is public, it should be included in the disclosure of lobbying activities when it is part of a lobbying effort.
In some jurisdictions, the public meeting exception is limited to appearances by professionals, including attorneys and architects. If professionals are to be excepted, the exception should be much more specific (see the section below on an exception for lawyers).
Similarly, the fact that a communication is a response to an inquiry from a government body or official does not mean that the communication is not lobbying. The inquiry may be part of an ongoing series of communications. In fact, the inquiry may have been made in response to lobbying. Affecting how, when, by whom, and to whom inquiries are made can be an important goal of lobbying. Excepting such communications from the definition of lobbying is an incentive to communicate in this manner, that is, to ensure that an inquiry is made early in a series of communications intended to influence officials. Inquiries that are part of surveys, investigations, or the like, where the inquiries are widespread and not involved with matters relevant to lobbying, will not be considered lobbying even without this exception.
Of course, inquiries concerning nothing but the status of specific actions should not be considered lobbying, but who does nothing but this? Considering how little time such inquiries take and the fact that such inquiries are usually directed toward officials without any decision-making powers, is it really necessary to make an exception for them when there is already a ministerial acts exception? Monitoring is an important part of lobbying. Do we want lobbyists to exclude monitoring from their timesheets? If such inquiries do take any appreciable time, then something other than status is likely to have been part of the conversation. This exception seems like a good way to provide lobbyists with a good excuse for not reporting a communication or meeting: “I was asking about the status of an action, so I didn’t report the meeting (or the call).” This is the sort of unnecessary loophole that allows the unscrupulous to be able to defend their lack of transparency.
New York City’s exceptions are, with one exception (adjudicatory determinations), described in terms of the individual’s role more than the activity. The excepted people and entities are lawyers (under all circumstances where there is no attempt to influence), the news media, witnesses in certain proceedings, parties to an adjudicatory proceeding, those who advertise with circulars or fliers, those who prepare responses for information or comments, and contractors in procurement matters (but not their representatives, unless they are providing technical or certain other professional services). Is all of this really necessary? If it is, is the list sufficient? No, there are many more types of people who communicate with officials but do not lobby them. But adding more roles is not the answer. Each excepted role opens possible loopholes that allow lobbying to go on secretly. Each one should be scrutinized to determine if it is truly necessary and, if so, how the language can be drafted to prevent loopholes.
One result of having a very broad definition of “lobbying activities,” like that in the City Ethics Model Lobbying Code, is the need for more exceptions than with a narrow definition (in this case, exceptions to the need to register, not exception to what are “lobbying activities” or who is a “lobbyist.” The most important additional exception is the first (§302.3(a)):
An individual need not register as a lobbyist if the individual’s only lobbying activities will be those described below.
a. An individual expressing an opinion (including one inspired by a grassroots lobbying* effort), unless (1) it relates to a matter with respect to which the individual, an individual’s business, business associate, or client, or an individual’s immediate family member may, directly or indirectly, benefit financially in a way that is not shared with a large number of residents of the municipality or (2) the individual is representing a group or organization. Lobbying with respect to benefits to an individual’s owner-occupied home does not require registration. Questions about whether a particular benefit is sufficiently widespread to require registration should be directed to the lobbying oversight office before a decision is made whether or not to register.
This exception is required because, unlike most lobbying codes (the exceptions include Denver and Broward County, Florida), the Model Code does not distinguish in its definitions between those who are compensated for engaging in lobbying and those who are not. The reason for this is that citizens having their say about local policies are not the only individuals who are not compensated for their lobbying. Uncompensated lobbyists also include professionals, business and property owners, corporate officers and employees who are not primarily lobbyists, nonprofit officers and board members, and others who lobby not primarily about public issues, but rather in order to get special benefits such as contracts, grants, permits, and licenses for themselves, their company, or their organization.
In other words, the best basis for determining whether a citizen’s lobbying should be disclosed is whether it relates to a matter involving special benefits that the citizen is seeking, beyond the citizen’s residence, or, where there are no special benefits involved, whether the citizen is representing an organization rather than himself. Most lobbying codes use compensation or time spent (or both) as the basis for this determination. But distinguishing on the basis of compensation allows, for example, business owners to lobby for a contract or a land use permit without having to register and disclose. This makes no sense, especially when a larger company that hires a lobbyist or has an in-house lobbyist is required to register and disclose exactly the same lobbying activities. Distinguishing on the basis of compensation also allows a citizen’s group or a coalition of local businesses to lobby against a development without having to register and disclose, while the developer has to register and disclose when speaking out on the very same matter.
Not only does this lessen lobbying transparency, but also neither of these situations is fair, and this unfairness rightly makes lobbyists resentful about lobbying disclosure. This undermines a lobbying oversight program. Lobbyists try to get around the rules, justifying their cleverness on the basis of this unfairness, and lobbyists use their connections to influence local legislators to prevent such lobbying programs from being instituted, keep the definitions narrow, the prohibitions few, and the penalties low, and starve them of sufficient funds and staff to provide effective oversight.
In order to require the disclosure of the lobbying activities of these uncompensated individuals, it is necessary to distinguish between these individuals and those who are not compensated because they are merely giving their personal opinions on public issues or dealing with limited personal matters that affect their residence or their street, their personal taxes, their sports activities, and the like.
The City Ethics Model Lobbying Code has two additional exceptions focused on ordinary citizens. The first (§302.3(b)) deals with ordinary communications with the local government, seeking information or advice, or filing complaints or reports of problems, from potholes and garbage pickup problems to ethics complaints and tips about criminal behavior:
An individual who files a complaint or tip, or seeks information or advice regarding a matter that does not involve a special financial benefit to a business with which the individual is involved or whose interests the individual is representing.
Exception for Constituent Services. The second exception deals with the related area of constituent services, which the Model Code defines as “help by elected officials provided to individual residents of the city/county in minor matters that will not benefit their or their family’s business or special financial interests (other than the value of their home).” This exception (see below) mirrors the definition by making clear the distinction between helping a citizen with a personal matter and helping a business with a matter that may benefit it financially. The exception also places on officials the obligation to tell business constituents to register as lobbyists. This is important, because these individuals do not see themselves as lobbyists and may not even be aware of the lobbying code, at least in the first years of a lobbying program.
An individual resident of the city/county requesting information or seeking, or an official providing, constituent services. However, entities and individuals that have or are seeking special financial benefits from a government (local, regional, state, or federal), such as a contract, grant, loan, permit, or license, are deemed not to be seeking constituent services and are not excepted from registration. Officials should report any communication with such entities and individuals as lobbying contacts, and should register as lobbyists if they contact an official or employee on the contacting party’s behalf. [In the alternative, the official may be prohibited from contacting another official on such a party’s behalf, but that prohibition should appear in the prohibitions section.]
What is and is not a constituent service is a more complex distinction than most elected officials acknowledge. First, it is important to recognize that seeking constituent services is lobbying. It is an attempt to influence an official, in fact, it is an attempt to influence an official to use his position to influence other officials or employees. That’s the place to start.
Then it is important to recognize that, even if elected officials were to treat every individual and entity exactly the same, most individuals ask for help with minor, procedural matters, while most businesses ask for help with matters that involve substantial financial benefits. And whereas most individuals who ask for help give nothing in return, except possibly a vote, many businesses that ask for help make large contributions and engage in an ongoing reciprocal relationship with the official.
Therefore, what is to be treated as seeking a constituent service (not required to be disclosed) as opposed to lobbying (required to be disclosed) should be limited to situations where officials help certain kinds of constituents in limited ways, in terms of who is helped, to what extent, and in conjunction with what sort of relationship.
It matters, for example, whether the service is provided to an individual or entity that resides in the official’s district or jurisdiction. Out-of-towners are not constituents, even if their business might be seen as helpful to the community. In fact, businesses, organizations, and associations that have only a minor presence in the official’s district or jurisdiction — a state association with an office in town, a chain with a store in town, a resident who represents an out-of-town company — are not necessarily constituents, either.
Another issue is whether the service being sought is personal or business. For example, does it involve the valuation of a home or the valuation of a business for tax purposes? Does it involve getting a job or getting a contract? One could argue that a business is capable of handling relations with an administration by itself or paying for the help an official might provide and, therefore, does not require the intercession of an official.
It also matters what sort of relationship the constituent has with the official. If the constituent, including its officers, employees, and representatives, have given large campaign contributions or provided gifts to the official, then what may be similar to a constituent service might appear to be preferential treatment based on a reciprocal relationship with the constituent, especially if the service financially benefits the constituent, or the constituent’s business, family member, or business associate.
Even without any contributions or gifts, a business associate, or even a former business associate, can have, or appear to have, special influence. For example, in December 2014 it came out that the lobbyist for a company that obtained a $110 million no-bid contract from the Texas health agency was a former business partner of the chief counsel who put together the deal.
In the alternative, the issue of determining what is a constituent service could be dealt with effectively and professionally by a local legislative body handling constituent services collectively — via a citizen services office in the legislative body or the city manager’s office — rather than individually by each member or by the mayor. This way, there is no reciprocal relationship between those helped and those providing the help, at least as long as the council president or mayor doesn’t effectively control the citizens service office and use it to further his power.
Some jurisdictions have an exception for elected officials acting within their official duties, which includes lobbying for certain of their constituents. This is a reasonable exception, because it is impossible to distinguish between officials communicating with other officials as part of their work or as part of a lobbying effort. It would be too hard to make these distinctions, and it would frankly seem inappropriate to require officials to disclose all of their attempts to influence other officials. See more about this exception below.
Exception for Nonprofits. Exceptions can involve either an activity involved or the identity of the person involved. Identity is an area where jurisdictions sometimes create inappropriate exceptions. For example, New York State excepts religious institutions and nonprofits seeking contracts. Chicago excepts anyone who is a “volunteer, employee, officer or director of a not-for-profit entity who seeks to influence legislative or administrative action solely on behalf of that entity,” that is, not on behalf of for-profit members (nonprofits with for-profit members are primarily associations, such as a chamber of commerce or professional association). Chicago’s lobbying code refers to nonprofits without for-profit members as “one-tiered nonprofits.”
The problem is that many one-tiered nonprofits — such as social service organizations, hospitals, and universities — seek contracts, grants, and approvals from the local government, just like any for-profit. They also deal with a special sort of matter: payments in lieu of property taxes, which can have a significant effect on a community’s resources, and the community’s personal and business taxes. Some nonprofits, especially universities, are the most powerful player in local politics. Excepting them from lobbying oversight is the wrong way to protect community groups from having to pay registration fees. It is better simply to have a nonprofit size limit for registration fees, as in the City Ethics Model Lobbying Code.
The District of Columbia differentiates between types of nonprofit in a different manner. Nonprofits “whose activities do not consist of lobbying, the result of which shall inure to the financial gain or benefit of the entity,” do not have to register as lobbyists. This double negative means that any nonprofit that seeks a financial benefit must register. This is a much better way to differentiate than Chicago’s. But this still allows nonprofits to do a great deal of lobbying on policy issues that, arguably, do not bring them financial gain without having to disclose, while the lobbyists they oppose are required to disclose.
Nonprofits should not be treated any different than for-profit companies or associations of for-profit companies. This is especially true when they’re seeking special benefits from a government for themselves — usually grants and social service contracts — even when they are arguably also of benefit to the community. A jurisdiction may choose to, on an individual basis, waive revolving door rules when they involve an individual who will be lobbying strictly about policies, not about contracts, grants, or other financial benefits. But the lobbying of nonprofits should be just as transparent as any other lobbying.
Some jurisdictions have more narrow versions of this exception. For example, in Dallas there is an exception for a “neighborhood association, crime watch group, or homeowners association or its members when lobbying on a municipal question that affects the group or association as a whole.” Neighborhood and homeowners associations can be very active in blocking developments, and may choose to hire a lobbyist to help them out. Why shouldn’t this lobbyist be considered a “lobbyist”?
Does it matter when the lobbyist is a volunteer, acting for a cause rather than any financial gain? Someone who lobbies for a nonprofit is often seeking to get more money with which to pay those who manage it and more work for its employees. And whether or not the lobbyist himself benefits financially, he considers it his organization, an important part of his life, identity, and role in the community. There may be policy issues involved, as well, and benefits to the community, but the nonprofit is often lobbying for the personal benefit of those involved, their salaries and their careers.
And yet some nonprofit exceptions expressly refer to nonprofits seeking to influence on behalf of the entity, rather than with respect to policy. This is a misunderstanding based on the kind of lobbying that tends to occur at the federal and, to a lesser extent, at the state level, where nonprofits are more policy-oriented than at the local level. At the local level, the only nonprofits that are strictly policy-oriented tend to be good government, environmental, and anti-tax groups. Good government groups are usually happy to be transparent about their lobbying. Why shouldn’t other nonprofits?
What harm would occur were policy-oriented nonprofits required to disclose their lobbying activities? The burden of filing online disclosure forms has to be offset by the unfairness of nonprofits fighting for-profit companies about a policy issue, where the companies have to disclose and the nonprofits don’t.
But when it is proposed that nonprofits register and disclose, they often oppose it strenuously, as happened, for example, in Providence, Rhode Island in September 2014. The reason that nonprofit good government groups are happy to register and disclose is that they recognize that transparency is valuable to the community, and that it is better to have more transparency, a more complete view of lobbying, and fair disclosure rules, than to save nonprofits a bit of time. The Providence nonprofits who protested registration wrote, “To hold a volunteer nonprofit board member to the same onerous standard as those for a multimillion-dollar corporation seeking to sway city policy and obtain contracts worth millions of dollars borders on the unconscionable.” But filling out a form is no harder for a volunteer than for a multimillion-dollar corporation. In fact, it’s much easier, because there is little to write. It appears unconscionable for someone to want to be excluded from disclosing their lobbying to the community just to save themselves a bit of trouble.
There will be occasions when a nonprofit organization or a more informal group of individuals, as well as the officials it communicates with, do not want to disclose their communications because the organization is effectively a pariah and fears harassment or arrest, for example, a Communist party or a group of undocumented immigrants. Such a group or organization should be permitted to seek from the lobbying oversight office a waiver from lobbying registration and disclosure. Through a formal, but not public, waiver process, the organization could either be excused from registering (with a letter to give to officials it lobbies), or it could be required to register and disclose, but all documents would be kept confidential, if this is legal under state freedom of information laws. Here is the City Ethics Model Lobbying Code exception for such groups and organizations (§302.3(n)):
A principal, and anyone lobbying on the principal’s behalf (to the extent of this representation alone), may seek to be excepted from the registration requirements of this code by demonstrating to the lobbying oversight office that there is a reasonable probability that the disclosure of identifying information will subject the principal and/or agent lobbyists to threats, harassment, arrest, or reprisals. This is the only situation where an exception or waiver may be provided by the lobbying oversight office without a public hearing and decision.
Los Angeles has good language that narrowly refers to what are essentially constituent services performed by legal services agencies and the like. What makes this provision especially valuable is it contains an exception for contracts between the government and the organization (the City Ethics Model Lobbying Code has a version of this language):
Any organization exempt from federal taxation pursuant to Section 501(c)(3) of the Internal Revenue Code, which receives funding from any federal, state or local government agency for the purpose of representing the interests of indigent persons and whose primary purpose is to provide direct services to those persons, if the individual or individuals represented by the organization before any City agency provide no payment to the organization for that representation. This exemption shall not apply to direct contracts with a City official in other than a publicly noticed meeting, for the purpose of attempting to influence a City decision with regard to any City funding which the organization is seeking.
For information about IRS and other federal rules relating to lobbying by nonprofits, see The Nonprofit Lobbying Guide, downloadable free from the Center for Lobbying in the Public Interest.
Exception for Grassroots Organizations. Most grassroots lobbying activities do not require lobbyists to register at the federal level, even though this has been a common form of lobbying for several decades. This exception is done not in the form of an express exception, but rather by limiting “lobbying” to direct communication with officials.
Such an exception is unacceptable at the local level, where grassroots lobbying is a common part of land use lobbying as well as public policy lobbying. Whether or not grassroots organizations are created by lobbyists, hire lobbyists, or do their own lobbying, they should disclose their lobbying activities.
The recent increase in political activity by organizations that are permitted to withhold the disclosure of their funders has led to a call that their officers be excepted from registering as lobbyists and disclosing the sources of their funds. This contention was, for example, made in 2014 in response to complaints filed against the head of two such organizations in Texas. Since these organizations do not have to report donors, there is no way for the public to know whether or not their officers are representing special interests as lobbyists, thousands of individuals as grassroots advocates, or both at different times. If they are communicating, directly or indirectly, with government officials, these organizations should register and disclose the information required by law.
Exception for Lawyers. It is important not to make an exception for lawyers. Many individuals who engage in lobbying activities are lawyers but, when they engage in these activities, they are not acting as lawyers, they are not practicing law. If they were, then no one else could lobby. You do not have to have a law degree, not to mention be a member of any bar, to lobby. Therefore, any exception for lawyers, as opposed to certain activities that only lawyers can do, such as litigation, is intended to make lawyers attractive as lobbyists by giving their clients an opportunity to hide their lobbying activities. Such an exception is essentially a way for lawyers to get more business from principals who oppose transparency.
San Francisco has an exception that speaks not to the status of the lobbyist, but rather to the service being provided or the activity being engaged in. It makes an exception to the definition of “lobbyist” for “A person performing a duty or service that can be performed only by an attorney, an architect, or a professional engineer licensed to practice in the State of California, including any communication by an attorney in connection with litigation involving the City and County or a claim filed pursuant to Administrative Code Section 10.20-1 et seq.”
Some jurisdictions — especially those that limit lobbying oversight to the procurement process (mostly independent agencies) — have an exception for lawyers negotiating existing contracts with a government. But this is not primarily a legal area. In fact, a great deal of the most costly favoritism that goes on in procurement involves the negotiation of existing contracts after the competitive bidding process, including change orders, extensions, and the handling of contract fulfillment problems. It is important that the public have some idea, from lobbying disclosures, that contract terms are being changed, that past contract amounts may be extended into the future, or that the contractor may be having problems fulfilling contract requirements, so that questions can be asked. The fact that an attorney is working on these issues should not in any way affect transparency.
Lawyers sometimes contend that lawyer-client confidentiality prevents them from disclosing the names of their clients or any information regarding their representation of clients. But everything an attorney does, even for a client, is not the practice of law. If a lawyer runs down to the local store to buy a sandwich for a neighbor-client, is that a confidential act? If he tries to get public representatives to publicly vote a certain way, is that an act that may arguably be kept confidential? No, because it is not the practice of law. It is representation that can be done by anyone, including lawyers, and public representatives have said this representation must be made public.
When a lawyer engages in lobbying activities, that lawyer is not practicing law and, therefore, there is no lawyer-client confidentiality. Even if the lawyer could argue that a particular activity was both lobbying and legal practice, if a client asks a lawyer to lobby and the law that covers lobbying officials in that jurisdiction requires disclosure of lobbying activities engaged in on behalf of the client, then the client has a legal obligation to disclose, directly or through its lobbyist, and not to contend that the information is confidential. Where there are lobbying disclosure requirements, lobbying is not confidential information. Lobbying is the meeting of private and public, and the public (including those managing communities) need this information to make important decisions.
In fact, lawyer-client confidentiality is an important reason to require lobbying disclosure. Portland, Maine’s “most active lobbyist” told the Press-Herald in December 2014 that when a council member asked him how much he was being paid to lobby the council, he said, “It’s my business. I am influencing public policy and I understand why people would ask, but until such time that there’s a requirement to disclose that stuff, I can’t.” With a lobbying oversight program, he would be permitted (and required) to answer this question, because the law would trump lawyer-client confidentiality. This is not because government is more powerful than profession; it is because when the profession refuses to distinguish between lobbying and the practice of law, the government is required to do so in order to bring transparency to this important private-public activity.
What a local government should do, in a lobbying code, is to expressly have a principal acknowledge that, by hiring a lawyer to lobby for it, it waives lawyer-client confidentiality with respect to required disclosures of lobbying activities. The City Ethics Model Lobbying Code deals with this important issue in four places. It includes such a waiver in the provision about the registration form, so that the waiver is on the registration form itself (§302.6):
By engaging an attorney to lobby, a principal waives attorney-client confidentiality to the extent of disclosures required by this code. This waiver will appear on the registration form.
It repeats the first sentence in the provisions about the two types of disclosure, ongoing disclosure and quarterly disclosure (§§303, 304). And in the exception for a “pending or imminent publicly noticed judicial or quasi-judicial proceeding” (§302.3(e)), it states:
Whenever engaged in lobbying activities, attorneys and other professionals must register and follow all the rules in this code just like any other lobbyist and may not use lawyer-client or other professional confidentiality rules as a defense.
Requiring a principal to waive attorney-client confidentiality makes it clear that lobbying regulation is not regulation of attorneys, or even of lobbyists, as much as it is regulation of principals, because lobbyists and attorneys are only the agents of principals. Attorney-client confidentiality exists only to the extent a principal insists on it. If a principal waives it, then it does not exist and an attorney has the principal’s obligation to disclose.
Not only is it important not to make an exception for lawyers. It is important to expressly include lawyers, because otherwise there will be lawyers who insist they do not have to register because (1) the bar provides oversight over their activities and (2) lawyer-client confidentiality. When this happens, non-lawyer lobbyists rightfully feel that lobbying oversight is unfair, because it excludes lobbyists on the basis of profession rather than activity. The assumption should be that anyone providing lobbying services is a lobbyist.
Pennsylvania expressly, and very simply, states in its definition of “lobbyist” that attorneys can be lobbyists: “The term includes an attorney at law while engaged in lobbying.” This is better than making an exception for lawyers when they are not lobbying.
In addition, the Pennsylvania Rules of Professional Conduct were amended in 2011 to expressly make lawyers acting as lobbyists subject to state and local lobbying rules:
1.19 Lawyers Acting as Lobbyists (a) A lawyer acting as lobbyist, as defined in any statute, resolution passed or adopted by either house of the Legislature, regulation promulgated by the Executive Branch or any agency of the Commonwealth of Pennsylvania, or ordinance enacted by a local government unit, shall comply with all regulation, disclosure, or other requirements of such statute, resolution, regulation or ordinance which are consistent with the Rules of Professional Conduct. (b) Any disclosure of information relating to representation of a client made by the Lawyer-lobbyist in order to comply with such statute, resolution, regulation or ordinance is a disclosure explicitly authorized to carry out the representation and does not violate Rule 1.6.
This is something every state’s legal authorities should do. If a state has not done this and a local lobbying code is being considered, the local bar association should consider doing it, if it is permitted. Even if it cannot legally make a rule, it can recommend to its members that they comply with the disclosure requirements.
Perhaps local bar associations should act even if the state has already done so. In Pennsylvania, lawyers have argued that they are not subject to local lobbying laws despite the state rule. In 2011, the Philadelphia Bar Association opposed a Philadelphia ethics board lobbying regulation that would apply to lawyers. Here is what the association said, in part:
Attorneys engaged in the practice of law are not subject to the requirements of the Lobbying Ordinance because Rule 1.19 of the Pennsylvania Rules of Professional Conduct does not apply to ordinances enacted by the City of Philadelphia. The Draft Regulations and the frequently asked questions (“FAQ”) document should be amended to expressly make this clear.
2. The final regulations should expressly state that the exemption for participating in an “administrative adjudication” includes all aspects of matters that involve, or might lead to, a formal adjudication before a City board, commission or official or by a court. ...
Under Article V, Section 10(c) of the Pennsylvania Constitution, only the Supreme Court may regulate the practice of law. If the Lobbying Ordinance and the Draft Regulations (which simply copy the Ordinance’s definition of “lobbyist”) are interpreted as applying to attorneys, the Lobbying Ordinance and the Draft Regulations would unconstitutionally intrude upon the Supreme Court’s exclusive constitutional authority to supervise the practice of law.
The bar association concluded that “attorneys are not ‘lobbyists’ and thus are not subject to the requirements and restrictions of the Lobbying Ordinance.” The bar association could have recognized that what applied to state lobbying laws would also, reasonably, be applicable to local lobbying laws. But they chose to be purely technical about the issue, showing no interest at all in the policy implications of the new state Supreme Court rule or its embrace of the value of lobbying transparency over lawyer-client confidentiality. Nor did it show any interest in considering the distinction between regulating an activity and regulating a profession. The best response to the bar association’s argument would have been that, if the city cannot regulate attorneys and it chooses to regulate lobbying, it will prohibit attorneys from lobbying. Then there would be no conflict between state and local law, and no constitutional problem.
In 2014, Colorado clarified the situation of lawyers acting as lobbyists by adding the following language to its lobbying code:
Notwithstanding any other provision of this part, an attorney who is a professional lobbyist is required to disclose information about the clients for whom he or she lobbies in accordance with this part to the same extent as a professional lobbyist who is not an attorney.
The City Ethics Model Lobbying Code (§302.3(e)) has a limited exception for lawyers representing a client in a “pending or imminent publicly noticed judicial or quasi-judicial proceeding,” a common provision. But this does not include ex-parte communications. Nor does it include possible proceedings. Because proceedings are always possible, this creates a huge loophole.
With respect to “possible” proceedings, but in a different context, in 2014, former Rhode Island attorney general Patrick C. Lynch insisted he was not lobbying because he was representing his client only with respect to proposed or pending litigation — not “state policy.” In fact, he was alleged to have been proposing that the attorney general get involved in a suit that would benefit his client, in other words he was lobbying about a possible proceeding that did not even involve the state, at least not yet. This is lobbying.
Here is the City Ethics Model Lobbying Code exception:
An attorney, other professional, or pro se party when representing a client or self in a pending or imminent publicly noticed judicial or quasi-judicial proceeding. The attorney, other professional, or pro se party must register as a lobbyist before engaging in an ex-parte communication with a non-lawyer official or employee (other than a government lawyer’s assistant or a judicial clerk) regarding the proceeding or its settlement. In fact, whenever engaged in lobbying activities, attorneys and other professionals must register and follow all the rules in this code just like any other lobbyist.
It is important to give other professionals and individuals representing themselves the same exception as attorneys, because the exception is not for the profession, but rather for the activity of being involved in a legal proceeding, because these proceedings have their own rules. It is notable that the lawyers who write local lobbying codes do not give pro se parties the same rights they give to parties who are represented by lawyers.
The Model Code mentions attorneys in other places as well. It includes them in the definition of “lobbyist”: “‘Lobbyist’” means any individual or entity, including an attorney....” And it includes attorneys in the following conflict of interest provision, which appears in the section on prohibitions and obligations:
City/County Lobbyists. Any individual or entity that receives compensation pursuant to a contract or subcontract to lobby on behalf of, or otherwise represent (including as an attorney), the city/county may not lobby the city/county.
In other words, an attorney who is lobbying or representing the city/county cannot lobby it.
Exception for Collective Bargaining. Government employee unions and their representatives are often omitted from local lobbying codes, even though they engage in a lot of lobbying and campaign activities. In fact, in many municipalities, it is difficult for officials to win elections without the support of unions, especially the uniformed unions. Some lobbying codes, such as Toronto’s, totally except government employee unions from the code, at least when their officers and employees are acting in their official capacity. This is too large an exception for such important players in local government.
The communications of government employee union representatives with government officials take three principal forms (besides grievance proceedings): the negotiation of collective bargaining agreements, direct lobbying, and grassroots lobbying through the unions’ membership and coalitions. Grassroots lobbying through membership should be an exception to the registration requirement, because it is what associations, including unions, are for: to set policy for members and let the members know the results, so they can act together to achieve group goals. Grassroots lobbying through coalitions, however, should be disclosed.
Collective bargaining should also be an exception, since although it involves constant communication between unions and officials, this communication is done in the ordinary course of government business. The benefits the unions are seeking involve only payment for and conditions of their employment.
Direct lobbying should not be excepted. It is no different than the lobbying done by companies, associations, and organizations.
The City Ethics Model Lobbying Code excepts unions’ non-coalition grassroots lobbying in the grassroots lobbying part of its definition of “lobbying activities,” but this exception is repeated in the union exception (§302.3(j)):
Designated union representatives negotiating a collective bargaining agreement with designated city/county representatives and unions communicating with their members.
Exception for News Media. It almost goes without saying that journalists should not have to register in order to interview local officials or write editorials that try to influence local government decisions. What does not go without saying is where to draw the line. This is especially important today when everyone publishes their opinions online. Can the internet be used to influence local officials without the need for disclosure?
San Diego takes the position that if it’s online, it has been disclosed. It has an exception that reads as follows: “the publishing of any information on an Internet website that is accessible to the general public.” This is in addition to a more common news media exception:
any newspaper or other regularly published periodical, radio station, or television station (including any individual who owns, publishes, or is employed by any such newspaper, periodical, radio station, or television station) that in the ordinary course of business publishes news items, editorials, or other comments or paid advertisements that directly or indirectly urge action on a municipal decision, if such newspaper, periodical, radio station, television station, or individual engages in no other activities to influence a municipal decision
The last clause is important, because those who own media outlets often have other business interests that lead them to seek to influence local government decisions in other, less public ways. When they have these interests and act on them, directly or indirectly, they need to register as “lobbyists.” Being in the journalism business does not mean that one’s lobbying activities can be kept secret. It is the public nature of journalism that allows this exception to exist.
Here is the City Ethics Model Lobbying Code exception for news media (§302.3(i)):
A communication made in the ordinary course of gathering and disseminating news, or a news item, editorial, commentary, or paid advertisement that directly or indirectly urges action on a city/county matter published in the ordinary course of business by a news medium of general circulation, a website or blog, or a publication whose primary audience is an organization's membership. However, there is no exception when a communication is only incidental to a lobbying effort and includes not only the gathering of information, but also an attempt to influence. Any individual associated with a news medium who engages in other lobbying activities must register as a lobbyist. An official or employee* who believes that such a communication was in fact intended to influence him or her for the personal benefit of the communicator or the communicator’s principal*, or that such a news item, etc. was part of a lobbying campaign, should make a report of the communication or news item, etc. to the lobbying oversight office.
This exception goes further than most. One, it includes websites and blogs. Two, it does not provide an exception for a communication that “is only incidental to a lobbying effort and includes not only the gathering of information, but also an attempt to influence.” Three, in order to determine what is incidental to a lobbying effort, when a lobbyist does not do so by registering, officials are encouraged to report such a communication to the lobbying oversight office. Knowing that this may happen should make it more likely that someone in the news world will register as a “lobbyist” when seeking to influence officials not only openly through editorials and articles, but also secretly through private communications and meetings.
Exception for Procurement. Not all communications regarding procurement are “lobbying activities.” The bidding process requires the sending of documents, questions from both sides, and often meetings. Once a bid has been won, or a no-bid contract provided, the contractor has ongoing communications with the procurement office and with the department or agency for which the contractor works. All or none of these communications are “lobbying activities.” There are two ways to make an exception for these communications. One is through the definition of “lobbying,” as in New York City’s provision:
[attempts to influence] any determination made by an elected city official or an officer or employee of the city with respect to the procurement of goods, services or construction, including the preparation of contract specifications, or the solicitation, award or administration of a contract, or with respect the solicitation, award or administration of a grant, loan, or agreement involving the disbursement of public monies
What is left out of this provision is, presumably, not “lobbying.”
It is much more clear to expressly state what is left out in an exception, as in the City Ethics Model Lobbying Code’s (§302.3(f)):
An individual whose sole communications with the city/county are directed to an official formally designated in bid documents to receive such information and involve (1) the submission of a bid on a competitively bid contract or a written response to a request for proposals or qualifications; and/or (2) communications in connection with the administration of an existing contract, but excluding change orders, extensions, and anything else that involves further compensation under the contract.
Doing it this way ensures that a lobbyist need not register and disclose these communications if they constitute his only lobbying activities. In other words, this exception is only for contractor personnel who work with the local government’s procurement, public works, and other departments during the bidding process and throughout the work on a contract. The exception is not for executives and lobbyists who are both talking about the type of asphalt to be used on a particular road and, say, seeking a change order. And it is certainly not for those seeking a no-bid contract or trying to influence a contract’s specifications.
One area of lobbying that most needs to be made public involves post-bid requests and negotiations regarding change orders, extensions, and other ways in which contractors seek to increase their compensation without having to go back to a competitive bidding process. These communications should not be kept secret by keeping them out of a definition (or allowing contractors to argue that they are not included in the definition), so that the exception is itself secret. It is better to put them expressly in an exception.
Some lobbying codes have another procurement-related exception, for limited sales solicitations. In procurement, sales and lobbying can be hard to tell apart. But it is reasonable to allow de minimis sales solicitations, so that sales reps can do their job without having to register as “lobbyists.” Here is the City Ethics Model Lobbying Code exception for minor sales solicitations (§302.3(h)):
An individual who advertises the availability of goods or services with fliers, leaflets or other advertising circulars, or who makes no more than two sales-related inquiries or solicitations a year less than fifteen minutes each, if the individual engages in no other lobbying activities.
Exception for Specific Actions or Proceedings. Philadelphia has an exception for professionals (and principals that represent themselves) who deal with specific local government actions, as long as policy issues are not addressed:
when a principal, or a consultant or professional ... acting as the representative or agent of a principal or client, communicates with a City agency in a matter in which the principal or client is subject to or seeking a specific City agency action in which the principal’s or client’s interests, rights, or privileges are at issue, provided that such communication is in an effort to address those interests, rights, or privileges and is in the normal course for such matters. This exception shall not apply to efforts to influence general policy on behalf of an interest group, nor to direct communications with City officials or employees who the principal, representative, or agent knows or should know are not those who would ordinarily make determinations in the matter at issue.
The problem with this exception is that it starts with the inappropriate assumption that lobbying only involves policy, not specific matters. At the federal level, most lobbying is about policy, even though it may indirectly benefit the principal. But at the local level, most lobbying involves specific matters, such as contracts, grants, and land use.
An example that illustrates this exception in the Philadelphia ethics board’s Regulation 9 is, however, reasonable. In the example, a taxpayer who receives a notice that it is in arrears on tax payments has its accountant contact the name listed on the notice of arrears and set up a meeting, at which the accountant documents the taxpayer’s position. The ethics board says that as long as the accountant does not want to change the city’s policy, her contact and meeting do not constitute “lobbying.” I agree. But this exception is unnecessarily broad to allow such contacts to be excluded from the definition.
Another example from Philadelphia’s Regulation 9 presents a situation where this exception would allow lobbying activities to be kept secret from the public:
An engineer has been engaged by a college to represent its interests in the development of a proposed academic building. In order to proceed with the development, City Council ordinances will need to be obtained to: (i) relocate the underground Water Department right-of-way to another part of the college’s property; and (ii) permit certain sidewalk encroachments. The college’s engineer contacts and meets with the relevant officials of the Water Department, the Streets Department and the City Planning Commission and the applicable District Councilperson to facilitate the introduction and passage of the required ordinances.
The document goes on to note that if the college’s representatives contact officials to influence the passage of these ordinances, then this would constitute “lobbying.” But the lobbying started with the original contacts and the introduction of the ordinances. There is no reason to wait until the matter goes before the council, where it may be passed without discussion, to alert the public that the college is seeking to have these ordinances passed.
The first example could be better dealt with by an exception limited to proceedings, in this case a proceeding to collect unpaid taxes. Here is the City Ethics Model Lobbying Code language (§302.3(e)):
An attorney, other professional, or pro se party when representing a client or self in a pending or imminent publicly noticed quasi-judicial proceeding. The attorney, other professional, or pro se party must register as a lobbyist before engaging in an ex-parte communication with a non-lawyer official or employee (other than a government lawyer’s assistant or a judicial clerk) regarding a proceeding or its settlement.
Exception for Government Officials. Most local lobbying codes do not require any government official to register as a “lobbyist.” A few limit the exception to city or county officials and employees.
Lobbying by government officials goes on all the time. In fact, although it is somewhat controversial, more and more governments, agencies, and school districts are hiring in-house and contract lobbyists to lobby at all levels of government.
The principal argument in favor of excepting elected officials is that they are elected to act as their constituents’ representatives, so that when they seek to influence other officials in their official capacity (as opposed to, for example, trying to get work for their law firms), they are not lobbying for anyone’s personal interest, but for the public interest or, at least, the interests of their constituents. This is arguably not lobbying at all, because it does not involve any attempt to influence officials for a private interest. But the definition of “lobbying activities” does not make this distinction. It can, therefore, only be made in an exception.
As for other government officials and employees, the argument could be made that they are working for elected officials or for their appointees. They are, therefore, effectively agents for elected officials, even if they were not hired to lobby and take no direction from elected officials.
On the other hand, since the public sector has a stronger obligation to be transparent, disclosure requirements related to their lobbying activities should, if anything, be stronger than for other lobbyists.
Another consideration is that private sector lobbyists consider it unfair that they have to disclose their lobbying activities, while those who lobby for the public sector do not. This gives them a good reason to oppose disclosure. Fairness is important.
What adds insult to injury is that all the lobbying codes that except all government officials from having to register as “lobbyists” define “lobbyist” as someone who is compensated for lobbying. The only government officials who are compensated for lobbying are in-house lobbyists, mostly in larger cities and counties. The rest of them would be excepted anyway under the compensation exception. Why then are government officials excepted twice? And why is no distinction made between uncompensated and compensated officials, since this is essential to the definition of “lobbyist” in these jurisdictions?
So, actually, the only government officials the exception applies to are in-house and, depending on the definition of “official,” contract lobbyists. It is unusual for these lobbyists to lobby local officials, because they tend to lobby up — to regional, state, and federal officials. The most likely situation would be contract lobbyists for city and town governments lobbying county officials. But most of these exceptions appear in city lobbying laws.
Therefore, it is difficult to make a case that the elected officials who pass these laws are not showing preferential treatment to themselves and their appointees. If the only ones who would actually need an exception are in-house lobbyists, why wouldn’t the exceptions they draft focus on in-house lobbyists? Is this just an oversight, or do elected officials want to make absolutely sure they will not be required to register as lobbyists?
Since the City Ethics Model Lobbying Code does not make a distinction based on whether lobbyists are compensated or not, this is not an issue. But the issue for a non-compensation-based definition of lobbying is more difficult: where to draw the line. After all, every communication between government officials cannot be disclosed. They are far too frequent, and sometimes they involve confidential information. Even the topic of their communications may not be disclosable.
On the other hand, if governments’ in-house and contract lobbyists are not required to register and disclose, this will be rightly seen as unfair.
How wide should a government officials exception be? Should it also apply to unelected officials, employees, and contractors from other governments who are seeking to influence one’s officials and employees? Does it matter whether they are high-level officials talking to their peers? Is this an important distinction to make?
Another possible distinction involves lobbying up versus lobbying down, that is, lobbying to a higher or lower level of government. Most lobbying in government involves lobbying up, because that’s where the money is. But at the local level, there is a different sort of lobbying down. State elected officials often try to influence local officials, county officials often try to influence city officials, and officials at all levels try to affect independent agency officials (and vice versa).
At the local level, there is an important kind of government lobbying that is neither up nor down, but across. It involves lobbying between officials of a school district or independent agency or body (including public-private agencies and bodies) and a city or county government. There is a great deal of this, since lobbying usually goes toward where the money is (or money savings are), and school districts and independent agencies and bodies are often dependent on local governments for at least part of their funding, procurement, and the like. Should all this lobbying be kept hidden? What public policy does this further?
With so many possible distinctions to be made, how does one choose? The best solution would be to make an exception for all government officials, and then encourage them to disclose their lobbying communications voluntarily, to let them decide which activities are lobbying and which are informational, administrative, etc. This would be consistent with the government preference for lobbying transparency and would make the lobbying oversight process fair and complete, while recognizing that what they do is not, for the most part, what people considering “lobbying.”
But this reasonable solution has, as far as I can tell, never been tried, and is not likely to be tried. If tried, it is likely to come out poorly, with many officials failing to report their lobbying, with people arguing about what is and is not lobbying and, therefore, with a negative appearance of hiding communications rather than a positive appearance of voluntarily disclosing communications. But this problem should only be a short-term problem, until pressures led to more disclose. Thinking more of the long term, the City Ethics Model Lobbying Code has included a suggestion of voluntary compliance, at least in part.
Certainly internal communications should be excepted. And it is unlikely that elected officials would require other elected officials, or their aides, to register as lobbyists. It would be a valuable thing to discuss whether state elected officials really have any business trying to secretly influence local officials, but this is not a discussion that is going to happen in many municipalities or at the state level, at least not within government.
And elected officials generally consider their appointees extensions of themselves, and their “lobbying activities” the way governments work. When the chair of a board calls a council member or the mayor’s office about increasing the board’s budget or selecting a new appointee, this is not seen as “lobbying,” even though the chair is not representing anyone. In fact, the same thing applies to the head of an independent transit authority that is funded by the city and some of whose board members are appointed by the mayor. It would be valuable to the public to know everyone who is communicating about the authority’s budget or appointments, but this is unlikely to happen.
Probably the only exception that is possible in most jurisdictions is one limited to professional lobbyists. Seattle is one jurisdiction that has excepted them from its government officials exception:
Elected officials, officers and employees of any local, state or federal government agency acting within the scope of their representation of or employment with such agency; provided, however, that this subsection A(4) shall not apply to persons specifically employed or retained by a government agency to lobby.
No one can argue that these individuals are not lobbying. Why should their lobbying be treated different than anyone else’s? Since contract lobbyists may also lobby the government for other clients (if this is permitted, which is not recommended), raising conflicts of interest situations, it is important, from a government ethics point of view, that they be required to register and be as transparent as possible. But this does not apply to in-house governmental lobbyists.
There are some jurisdictions that make an exception only for their own officials and employees. It’s interesting that two of these also, like the model code, do not distinguish between compensated and uncompensated lobbyists: Denver and Broward County, Florida. The others I have come across are also Florida counties. Towns in Broward County, as well as the sheriff’s office, show up in the online county commission visitors list. This does not harm them in any way, and furthers both transparency and the fairness of the lobbying program.
The City Ethics Model Lobbying Code follows the lead of Seattle, in addition to requiring registration and disclosure by town officials lobbying up to a county government and encouraging the voluntary disclosure of officials’ lobbying, especially when it involves special benefits such as grants and land use permits, that is, the same areas where most local lobbying is done. Here is the model code language (§302.3(l)):
Officials and employees of any government or independent agency, including consultants, lobbying another official or employee in his or her official capacity or within the scope of his or her employment. However, this exception does not apply to individuals specifically employed, internally or by contract, to lobby (at least in part), or to individuals representing political subdivisions of the county. Despite this exception, in the interest of full transparency, all officials and employees who seek special benefits from the city/county are encouraged to register as lobbyists and disclose their lobbying activities.
Exception for Political Party Officers. One of the most difficult exceptions, in terms of considering whether or not to include it, is communications with government officials by political party officers or other party representatives. Elected officials communicate with their parties all the time, and they are often influenced by what party officers and committees tell them. And at the state and federal levels especially, political parties sometimes expend substantial funds lobbying, especially in the form of grassroots lobbying and advertising for particular legislation.
But political parties are not generally considered “principals,” and party officers are not generally considered “lobbyists.” In fact, lobbyists try to influence political parties through their officers (another area of lobbying that is not disclosed).
Although political party officers are not generally given their own lobbying code exception, they usually get excepted by not having been compensated to lobby. But they may be lobbying for their own or others’ benefit, rather than the party. That is, they may be lobbying at the same time as they communicate the party’s opinions (or they may only be pushing personal goals, using their party position as a form of access and leverage).
This is what makes it seem inappropriate to give party officers an exception. In fact, many party officers are also professional lobbyists, principals, or employees of principals that are seeking benefits from the local government. Many individuals get involved in political parties because they have something to gain financially from this activity. It may mean government contracts, grants, or jobs for them and their family members, or more legal, consulting, or real estate work from those who want to influence the party and its officials or feel that they may suffer if they don’t provide the work as well as the contributions. In short, party officers who communicate with and seek to influence local officials often wear multiple hats.
Therefore, since it cannot be known whose interests party officers are communicating, their communications should not be excluded from the definition of “lobbying” or from registration requirements. What should never be excluded is party officers lobbying appointees and employees. In fact, this should be prohibited, because a local government’s administration should not be politicized. Here is the City Ethics Model Lobbying Code prohibition (§305.2(l)): “ And no political party officer or other representative may lobby a local official or employee other than an elected official.”
It is more difficult to prohibit party officers lobbying elected officials who are members of their party. The reason is the same as the problem: a party officer needs to communicate often, and it is impossible to know what the officer and the official are discussing and, even if it is a topic that may affect the officer, it is impossible to know which hat he is wearing. This is a serious conflict of interest that is difficult to regulate.
The best way would be to encourage party officers to register as a lobbyist whenever they have an involvement in a matter coming before officials they are in communication with, whether or not they are communicating about that matter and whether or not, if they are communicating about that matter, they believe they are pushing their personal interest. As a check, government officials could be encouraged to voluntarily disclose contacts with party officers that appear to them to involve the party officer’s personal interest, including the interests of the party officer’s clients, family members, business associates, or others with whom he has a special relationship.
It is the interests involved that matter most in this situation, not the individual’s party position. Hence the City Ethics Model Lobbying Code’s exception for political party officers and representatives (§302.3(k)):
A political party officer or other representative communicating with an elected official or candidate for an elected position, to the extent the communication does not relate to a matter that may specially benefit the party officer or a family member, business associate, or client of the party officer or other representative.
Exception for Expert Witnesses. Many lobbying codes include an exception for expert witnesses invited by a government body or agency to give testimony. This seems completely uncontroversial until one realizes that lobbyists insist that their principal role is providing needed expertise. Once this is recognized, it becomes more an issue of who is taking the initiative. If the expert is invited to testify, then it is not “lobbying.” If the expert goes the official, then it is “lobbying.” However, as I argue above, in an ongoing, reciprocal relationship, it doesn’t matter who takes the initiative.
What matters here is whether the expert witness is also engaged in lobbying activities, either as a principal or as an agent. Here is the City Ethics Model Lobbying Code exception that allows experts who do not otherwise lobby to not have to register as a “lobbyist” (§302.3(g)):
An individual who is invited by a city/county body or agency to give expert testimony relating to scientific, technical, or other specialized information or to make a required oral presentation, if the individual, or a colleague, employer, or agent, engages in no other lobbying activities.
5. Time Spent Lobbying
There are two ways to define “lobbyist.” One is as someone who participates in enough paid lobbying to require registration. The other way is to define “lobbyist” simply as someone who participates in lobbying activities, however much and whether paid or not (this is the approach employed in jurisdictions such as Denver and Broward County, FL, as well as in the City Ethics Model Lobbying Code). According to the latter approach, any amount of lobbying is enough to require disclosure or, even if an individual may not have to register, he would still be prohibited from, for example, making gifts to officials or holding certain positions. He would still be a “lobbyist.”
Most jurisdictions take the first approach. They define “lobbyist” in ways that go beyond the individual’s activities. The principal additional elements of being a “lobbyist” are (1) time spent lobbying, (2) compensation for lobbying, and (3) lobbying-related expenditures. The first element shows how much time an individual spends on lobbying activities. The second element is supposed to do this, as well, but it also makes the assumption that it is necessary for someone to make money from lobbying in order to either be a “lobbyist” or, more commonly, to register as a “lobbyist.” The third element shows how much an entity and its representatives spend on lobbying and the gift-giving and entertaining that often accompany it. Different jurisdictions use different combinations of these elements or, occasionally, none of them.
It is reasonable not to require the registration and regulation of individuals and entities that do only a small amount of lobbying. These can be considered ordinary citizens seeking something minor that requires limited preparation, communication, and other lobbying activities. It can be assumed that neither they nor their agents (if any) are likely to be involved in reciprocal relationships with the officials they lobby.
A requirement of a certain amount of lobbying adds a de minimis element to the definition of “lobbyist.” The policy behind this requirement is that a small amount of lobbying is not worth anyone’s time to deal with. But it requires a broad definition of “lobbying activities” to ensure that the activities are truly de minimis. And a small amount of lobbying might be worth the public’s knowing about. And the effect can be great. For example, a short meeting with the mayor, followed by a quick call or text to a department head, can mean a great difference. What is also not de minimis is the past work that went into getting access to the mayor and sufficient influence to get her to make the call. And the result would be no record of the transaction for the public. As I argue at length elsewhere in this book, de minimis considerations should apply only to enforcement, not to ethical standards.
It is more common to define de minimis in terms of compensation than in terms of time spent. However, in Los Angeles, a lobbyist is “any individual who is compensated to spend 30 or more hours in any consecutive three-month period engaged in lobbying activities, directly or via an agent.” In Philadelphia, the minimum is 20 hours; in Portland, OR, the minimum is 5 hours, which does not include travel time. In San Jose, the minimum is 10 hours a year for “in-house lobbyists.”
In San Diego, the minimum is stated in terms of contacts rather than hours; “organization lobbyists” are those who have at least 10 contacts with one or more officials in a 60-day period.
The rule at the federal level is spending 20% of one’s time lobbying, which is almost impossible for anyone to know. In any event, it is completely inappropriate at the local level, where almost no one spends 20% of his time lobbying one local government.
The number of hours is sometimes included in an exception to registration, rather than in the definition of “lobbyist.” It is better that a de minimis requirement be included in both places so that someone looking for it will be sure to find it.
This example from the Philadelphia ethics board’s Regulation 9 shows (1) how complicated de minimis requirements for registration can be and (2) how such requirements can keep lobbying activity secret from the public:
Example: On January 10, 2012, Vice President Jones of Business Firm X meets with the local District Councilman concerning a pending bill in Council. Jones spends a total of 5 hours of his time preparing for and participating in this meeting, and the Firm’s only expense is Jones’ time, which, for the 5 hours, is valued at less than $1000. On February 15, 2012, Business Firm X contracts with the lobbying firm of Y to do all lobbying for the firm for the year beginning on that date. Under the contract, Lobbying Firm Y will bill Business Firm X on a monthly basis. On March 5, 2012, Lobbying Firm Y begins contacting City Councilmembers on behalf of Business Firm X. On April 6, 2012, Lobbying Firm Y bills Business Firm X $3000 for lobbying in March. Who must register and when?
Result: The thresholds for registration are stated in Paragraph 9.24 and Code Section 20-1204. Under these thresholds, an employee who engages in lobbying for his employer of less than 20 hours is exempt from registering as a lobbyist, so Vice President Jones’ 5 hours of lobbying on January 10 does not require him to register. Nor must Firm X register as a principal based on Jones’ work, since the expense does not exceed the threshold of $2500. Since Lobbying Firm Y did $3000 worth of lobbying, the dollar threshold is passed and Business Firm X must register as a principal and Lobbying Firm Y must register as a lobbying firm. But these registrations need not occur until ten days after the thresholds are exceeded, or by April 16.
Since the next quarterly report for Business Firm X is not due until July 30, this means that this lobbying effort, which began on January 12, would not be disclosed at all until April 16, and the details of the effort (less, presumably, President Jones’ lobbying), and any related expenditures, would not be disclosed for nearly seven months after the effort began. It is likely that, by this time, action will already have been taken on the “pending bill” and the disclosures will be purely historical.
Having no de minimis amount means that business people, lawyers, and others who only occasionally contact an official for themselves or for a client are required to register as “lobbyists.” They may see this as an inappropriate burden, and it is also a burden on whoever oversees lobbyist registration, not only due to more reports to look at, but also due to more valid complaints of failure to file. But it leads to the greatest amount of disclosure, the greatest amount of training about what constitutes lobbying and why it is important for it to be done transparently and with some restrictions, and the fewest number of people who can evade lobbying oversight.
If the lobbying oversight office finds that a lobbyist failed to file and that only a small amount of minor lobbying, with little possible effect and no accompanying expenditures, occurred, the office can take this information into account as mitigating circumstances in determining the fine or other sanction (if any) on the violator, or even deciding not to pursue the matter at all. This is where the de minimis nature of lobbying should be taken into account, not in determining whether lobbying occurred.
6. Lobbying-Related Income and Expenditures
The de minimis requirement more frequently used to determine whether an individual or entity is a “lobbyist” involves lobbying-related income and, sometimes, lobbying-related expenditures, gifts, or reimbursements. However, many jurisdictions do not have a minimum income requirement and do not even mention expenditures, gifts, or reimbursements. They simply require that “lobbyists” be compensated to engage in lobbying activities.
Tampa has a good definition of compensation: “compensation of any kind, including but not limited to, salary, payment, retainer, commission, consideration of any type, forbearance, forgiveness or any combination thereof, either received or expected.” Baltimore has language that can be applied to situations where an employee or lawyer lobbies part-time for a principal: “If lobbying is only part of a person’s employment, ‘compensation’ means a prorated amount of the person’s total compensation ... that is based on the time devoted by the person to lobbying compared to the time devoted to other employment duties.”
When a minimum income, expenditure, or reimbursement is required for an individual to be considered a “lobbyist,” things can get pretty complicated. Nearly every combination of minimums can be found, the relevant income or expenditure period is either a month, a quarter, or a year, and the sources of income can also be important. Here, for example, are the registration requirements in the city that hosts more lobbyists than any other, our nation’s capital:
(a) Receives compensation of $250 or more in any 3 consecutive calendar month period for lobbying;
(b) Receives compensation from more than one source which totals $250 or more in any 3 consecutive month period for lobbying; or
(c) Expends funds of $250 or more in any 3 consecutive calendar month period for lobbying.
The dollar figures vary greatly. In Dallas, registration is required of a lobbyist only if he gets $200 in compensation or reimbursement in a quarter, or if he is the agent or employee of someone who is required to register as a lobbyist. In San Jose, the figure is $1,000. In Philadelphia, the figure, per quarter, is $2,500 for both individuals (income from all principals combined) and for principals (expenditures on lobbying). San Francisco had a minimum of $3,000, but in 2014 changed the definition so that being a lobbyist is based on contacts instead of compensation.
In Baltimore, the minimum to require registration for “legislative lobbying” is, annually, $100 for gifts made, $500 for expenses, or $2,500 in compensation. For “executive lobbying” the only minimum is $100 for gifts made, which appears to mean that those who do not make gifts to executive officials may lobby them without registering.
New York City has an annual minimum for registration, a total of compensation and expenses in the amount of $5,000, except when the lobbyist is an architect or engineer, or an architecture or engineering firm; then the minimum is $10,000 (those professions likely had better lobbyists).
If a lobbying code has a minimum threshold, it is valuable to provide that, in addition, anyone whose duties include lobbying and is salaried is considered a “lobbyist.” Otherwise, the entity for whom the lobbyist works can argue that its compensation for the employee’s lobbying activities (as opposed to her other activities) is below the minimum. Where it has multiple lobbyists, it can argue that it spreads lobbying duties around, so that none of them meets the minimum requirement. Therefore, for salaried, in-house lobbyists, there should be no minimum income. Here is Oakland’s language:
any person ... whose duties as a salaried employee, officer or director of any corporation, organization or association include [lobbying activities]
Missouri has good language for one of the five ways in which someone can be considered a lobbyist (the others involve compensation or expenditures): “Is designated to act as a lobbyist by any person, business entity, governmental entity, religious organization, nonprofit corporation, association or other entity.”
Honolulu has no minimum income for registration. It also has an interesting addition to the definition of what constitutes lobbying for payment, which makes it clear that nonprofits lobby too:
A person [including an organization] who accepts membership dues or contributions made, or a fee or salary paid, with the understanding that the person accepting the same intends to devote a portion of the funds contributed or the time for which the salary is paid to lobbying activities shall be deemed to have “engaged oneself” [for pay] to conduct such activities.
Los Angeles has a complex definition of “compensation” that excludes reimbursement for reasonable travel expenses, but includes situations where compensation is not made solely for lobbying (although only that amount intended for lobbying goes to determining if the minimum income has been met). Its definition defines a different level of compensation, that is, when an individual “becomes entitled to receive compensation,” as the moment the lobbyist agrees to provide lobbying services or performs those services. Los Angeles also includes as compensation an investment in an entity for which an individual engages in lobbying activity. This seems far too complicated for a consideration that is arguably unnecessary.
A major problem with minimum requirements is that individuals and entities seeking special benefits from a government can lobby without registering by finding loopholes in the requirements. This is why Dallas requires certain people who engage in lobbying activities to disclose even though they are not required to register (§12A-15.7). Those who lobby with respect to zoning cases or matters involving public subsidies must file what is called a non-registrant disclosure statement within five days after contacting a city council member or member of the city plan commission for lobbying purposes. It is best to require more people to register as lobbyists, but where traditional definitions are used, leaving out many people who engage in lobbying activities, the Dallas solution is a good fallback.
One way to get around minimum compensation requirements is to structure compensation to an inside lobbyist or external attorney so that nearly all the compensation is directed toward non-lobbying activities. San Antonio’s lobbying handbook makes it clear that this is not acceptable:
If a person engages in both lobbying activities and other activities on behalf of a client, the person may not structure the receipt of compensation in a way that unreasonably minimizes the value of the lobbying activities. Compensation structured in such a way constitutes compensation in connection with lobbying activities.
The biggest group left out of registering due to a compensation requirement is business owners who are representing themselves, a large percentage of those who lobby at the local level. The requirement of compensation also opens up a loophole for board members of nonprofits to lobby without registering, simply because they are not paid, even though their interest in a matter is equivalent to that of a paid executive director or lobbyist. The head of a state good government group told me that, since he is paid, he is a registered lobbyist. But when his group’s board members lobby, even though they are not paid, he registers them as lobbyists, even though it is not legally required. The reason is that good government groups value transparency, and they find no reason not to let the public know about their lobbying efforts.
Another major problem with minimum requirements is that lobbyists do not have to register or disclose until they’ve met the requirements. This may allow them to go for months without disclosing, even if they expect to go beyond the minimum requirements. The longer the report period and higher the minimum, the longer it will be before lobbying activities are disclosed. This is especially true if the definition of “compensation” requires that money actually be paid.
7. Contract, In-House, and Expenditure Lobbyists, and Their Principals
The common picture people have of the lobbyist is of someone who represents numerous companies and associations in their interactions with government officials. According to this picture, there are lobbyists and there are clients, and never the twain shall meet.
But this describes only one kind of lobbyist: the “contract lobbyist.” Those who work for, own, or manage companies, organizations, or associations can be lobbyists just as much as outside representatives. In fact, many full-time lobbyists work inside companies, organizations, and associations. Many companies, organizations, and associations don’t bother hiring inside or outside lobbyists, but instead make use of their executives and public relations personnel. Both of these kinds of lobbyist are known as” in-house lobbyists.”
Then there are the companies, organizations, or associations themselves, known as “clients” or “principals.” They can lobby through external agents –contract lobbyists – or through their employees – in-house lobbyists. The City Ethics Model Lobbying Code refers to both contract and in-house lobbyists as “agent lobbyists” and to the individual or entity on whose behalf they lobby as “principal lobbyists.” Sole proprietors and partners who lobby on their own behalf are also “principal lobbyists.” This makes it clear that there is no essential difference between these two ways of being represented, and that those who employ lobbyists are also lobbying, not directly, but indirectly, through an agent. In fact, principals are the true lobbyists, because it is their interests that are being pursued. When principals or their owners do lobby directly, they are still “principal lobbyists,” lobbyists not making use of an agent. Principal lobbyists should be required to register and be held responsible for following lobbying rules separately from the individuals and lobbying firms that engage in lobbying activities on their behalf. This makes it clear that the responsibility is shared, and provides a check on disclosure.
Many local lobbying codes or provisions follow the common picture of lobbying by referring applying their rules only to the agents who do the work, ignoring those for whom they are working. When this is the case, the real lobbyists — clients and employers — are left unregulated. They do not have to disclose (or vouch for their agents’ disclosures), and their actions and their non-lobbyist officers and employees are not regulated or restricted.
You end up with absurd distinctions, like this one from Oakland’s lobbying manual:
I own a small consulting business. Several months ago I submitted a response to an RFP (request for proposal) that was favorably reviewed by staff and now is going before the City Council for approval. Can I contact City Council members about the proposal without having to register as a lobbyist?
It depends on the organization of the business. If you are organized as a sole proprietor or partnership, where the interests of the business are essentially your personal interests, then you probably do not need to register. However, if your business is a corporation and you serve as a “salaried employee, officer or director” of that company whose duty it would be to influence that decision, then you must register before contacting any City Councilmember.
According to Oakland’s lobbying code, what matters is how a company is organized, not how it lobbies. A company’s organization, and who is doing its lobbying, should have no effect on the disclosure of its lobbying activities or on the obligations and restrictions of a lobbying code.
Principal Lobbyists: Many jurisdictions recognize this and do include employers and/or clients as lobbyists. They often do so with a simple sentence. Here is Miami-Dade County’s: “‘Lobbyist’ specifically includes the principal as well as any employee whose normal scope of employment includes lobbying activities.” Miami-Dade County then makes the principal responsible for filing a form prior to “conducting any lobbying” (which recognizes that it is actually the principal, not the agent, that is doing the lobbying). The form states that the lobbyist is authorized to represent the principal. Of course, the lobbyist may fill out the form, but it is the principal who takes responsibility for the lobbyist’s activities and for the lobbyist’s compliance with the lobbying code.
Orange County, Florida (§2-354(b)) get principals as well as boards involved by requiring that principals file “specific project expenditure reports,” which pull together all their expenditures, possibly through multiple contract and in-house lobbyists, with respect to each particular project or issue, and submit them to the board before the matter is placed on the board’s agenda for review and approval. This is a good complement to lobbyists’ reports, which may not give a full picture of the lobbying done on a particular matter. It also provides a check on lobbyists’ reports, so that it is more likely that everything is disclosed.
The District of Columbia is one jurisdiction that requires principals to register by including in the definition of “lobbyist” not only those who are compensated for lobbying activities, but also those who expend money for lobbying activities. But it is important to make it clear that this does not just mean money expended by individual lobbyists — for gifts, entertainment, transportation, and the like — but also expenditures made directly by the principal to its agents and employees. When this isn’t clear, clients will have reason not to file.
Dallas takes a different approach, defining companies with in-house lobbyists as “lobbying firms.”
Some lobbying codes, like the City Ethics Model Lobbying Code, do not differentiate between contract and in-house lobbyists, that is, between employees and contractors, but do differentiate between lobbyist and client. Los Angeles, for example, defines “client” as follows:
(1) the person who compensates a lobbyist or lobbying firm for the purpose of attempting to influence municipal legislation and
(2) the person on whose behalf a lobbyist or lobbying firm attempts to influence such municipal legislation, even if the lobbyist or lobbying firm is compensated by another person for such representation.
New York City’s definition of “client” is more simple and does not require compensation or even compensation specially for the purpose of lobbying:
every person or organization who retains, employs or designates any person or organization to carry on lobbying activities on behalf of such client.
San Jose’s definition of “client” in its ethics code is equally simple and also does not require compensation (oddly, the definition in the lobbying code does require compensation):
the real party in interest for whose benefit the services of a local governmental lobbyist are actually performed.
“The real party in interest” is a great way to make it clear that lobbying is less about the lobbyist and more about the principal.
Here’s another approach, from Tampa:
Lobbying principal means any person providing compensation to a lobbyist in consideration of his or her performance of lobbying activities, regardless of the technical or legal form of the relationship between the principal and the lobbyist. Principal specifically includes a person whose employee or agent lobbies on behalf of the employer for the benefit, or in the name of the employer.
Portland, Oregon defines “employer of a lobbyist” as a “person or agency by whom the lobbyist is employed or in whose interest the lobbyist appears or works.” Portland’s lobbying prohibitions apply expressly to both lobbyists and their “employer.”
Indirect Compensation: The above definitions separate the company or association from the “lobbyist” who may either be an employee or a contractor, so that both can be regulated. What is special about such definitions is that they appropriately include as a principal any individual or entity on whose behalf a lobbyist lobbies, even if the lobbyist is not specifically compensated for lobbying or the lobbyist is compensated, but not directly by the client.
It is important to include the latter situation because, as with any contractor, there are often subcontractors, who are paid not by the client but by the contractor. For example, a lobbyist might hire a public relations firm to set up a letter-writing campaign, a local fixer to set up meetings, or a polling company to do a poll. Or the lobbyist may subcontract work across the state to a lobbying firm or an unregistered lobbyist that has better connections there. The client should be made aware of the subcontractor’s work and take responsibility for it and for its disclosure, just as for an employee’s or contractor’s work. And both the contractor and any subcontractors should be expressly required to register as lobbyists or at least to have their work disclosed as part of a lobbying effort, no matter how they divvy up their work. It’s better not to just imply this.
The indirect compensation of a lobbyist does not work the other way, so as to affect members of an association (which are often entities, as in business associations) who do not pay directly for lobbying. The Los Angeles lobbying code expressly states that a member of an association that employs a lobbyist is not itself considered a client of that lobbyist unless “the member makes a payment for such representation in addition to usual membership fees.” But in many cases, some association members (usually the ones doing business with or regulated by governments) do make additional payments for lobbying, to give them a larger voice in this process. They too should be considered clients.
Separate Registration Requirements: Differentiating lobbyist from client makes it easier to describe lobbying activities. For example, one activity in Los Angeles’s list is “providing advice or recommending strategy to a client or others.” It also allows a city or county to require separate filings by lobbyist and client. For example, New York City requires annual disclosures from clients in addition to more frequent disclosures from lobbyists. Separate filings provide a check on the information provided, and also bring clients into the ethics program, so that they can be trained, restricted, and recognize and fulfill their responsibilities, rather than leaving everything to their lobbyists. After all, lobbyists are only agents or employees. They should not carry the entire burden of disclosure and compliance with lobbying and other ethics laws. The principal burden should fall on principals, the ones whose interests are being pushed, the ones who are most likely to benefit the most from lobbying.
Toronto (which calls contract lobbyists “consultant lobbyists”) has a separate registration requirement for in-house lobbyists. In fact, it is not the in-house lobbyist’s obligation to register and report; it is instead the obligation of the “senior officer” designated to do this. In other words, it is the obligation of the entity rather than each employee involved. Toronto’s definition of “in-house lobbyist” is especially significant in that it includes sole proprietors and partners, a different approach from the City Ethics Model Lobbying Code, but also valuable:
A. An individual who is employed by an individual, corporation, organization or other person, or a partnership, a part of whose duties as an employee is to lobby on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary.
B. An individual who is the sole proprietor of a business, when the individual is lobbying on behalf of that business.
C. An individual who is a partner in a business, when the individual is lobbying on behalf of the partnership.
Parents and Subsidiaries: It is important to note that an employee who may be an in-house lobbyist includes those of the company or organization’s parent or subsidiaries. San Diego states this directly in its definition of what it calls an “organization lobbyist”: “An employee of any parent or subsidiary of the business or organization is considered an employee of that entity.” One difference between the typical in-house lobbyist and San Diego’s “organization lobbyist” is that, as in Toronto, it is the company or organization that is the lobbyist and has the obligations to register and follow the laws, not the individual lobbyists working for the entity. This is a best practice.
Expenditure Lobbyists and Grassroots Lobbying: San Jose’s lobbying code has a third kind of lobbyist, which is too often ignored: the “expenditure lobbyist,” which it defines as follows:
A person who makes payments or incurs expenditures in the aggregate amount of $5,000 or more during any calendar year in connection with carrying out public relations, advertising or similar activities with the intent of soliciting or urging, directly or indirectly, other persons to communicate directly with any city official in order to attempt to influence a legislative or administrative action. The $5,000 threshold does not include:
1. Compensation paid to contract lobbyists or in-house lobbyists for lobbying activity; or
2. Dues, donations, or other economic consideration paid to an organization, regardless of whether the dues, donations or other economic consideration are used in whole or in part for lobbying activity.
It is valuable to differentiate this kind of lobbying, often referred to as “grassroots lobbying,”which does not involve direct communication with officials, but rather fostering the communication of others, through various forms of promotion, including petition drives, phone calls, mailers, and websites. This work is often done not directly by lobbyists, but by individuals, grassroots, and “astroturf” organizations that are supported by a principal or agent lobbyist’s money, labor, and advice.
In fact, it was a scandalous case of astroturf lobbying that led to the first federal lobbying code. It involved public utilities sending fake telegrams from “constituents” to members of Congress in order to defeat a bill that the utilities opposed. With modern technology, there is less need to fake phone calls and e-mails. It is astroturf organizations that are now fake, funded almost entirely by special interests rather than by members. A congressional report on the first federal lobbying act described a distinct group of lobbyists as follows:
Those who do not visit the Capitol but initiate propaganda from all over the country, in the form of letters and telegrams, many of which have been based entirely upon misinformation as to facts. This class of persons and organizations will be required under the title, not to cease or curtail their activities in any respect, but merely to disclose the sources of their collections and the methods in which they are disbursed.
Astroturf lobbying (“an artificially stimulated letter writing campaign”) was also mentioned in the important U.S. Supreme Court decision on lobbying, United States v. Harriss, 347 U.S. 612 (1954). It is nothing new.
San Diego’s definition of “expenditure lobbyist” is more detailed, but is broader rather than focused on indirect, grassroots lobbying:
any person who makes expenditures for public relations, media relations, advertising, public outreach, research, investigation, reports, analyses, studies, or similar activities designed to influence one or more municipal decisions
Pro Bono Lobbyists: Toronto’s lobbying code defines yet another kind of lobbyist, which also must register: the voluntary unpaid lobbyist for a for-profit entity. This category includes people such as company and association directors, shareholders, and members who lobby on behalf of a company or association, who may have a financial interest in the company or association, but who are not compensated for their lobbying activities. Here is the definition of this odd-bird lobbyist:
A. An individual, corporation, organization or other person, or a partnership, who or that, without payment, lobbies or causes an employee to lobby a public office holder on behalf of or for the benefit of the interests of a for-profit entity or organization.
B. A director of a for-profit entity or organization, who is not an inhouse lobbyist ..., when he, she or it lobbies or causes an employee to lobby a public office holder on behalf of, or for benefit of the interests of, the for-profit entity or organization.
C. A shareholder of a for-profit entity, when he, she or it lobbies or causes an employee to lobby a public office holder on behalf of, or for benefit of the interests of, the for-profit entity.
Toronto’s recognition of the voluntary unpaid lobbyist points to a problem with defining “lobbyist” in terms of compensation and expenditure. Very effective lobbying can come from individuals whose rationale for lobbying, in a particular matter or for a particular entity, is based on something other than direct compensation, including such things as the long-term value of the entity, loyalty to an organization and its leaders (this is especially true of board members), the policy position in the matter, obligations to a family member, business associate, or close friend, or an act in reciprocity for something done for the individual in the past or expected to be done for the individual in the future. “Voluntary” makes lobbying sound like a sacrifice. Calling it “pro bono” is more accurate, because it often involves professional work by a professional (often an attorney) for reasons other than direct monetary compensation.
Anita D. Stearns Mayo, an attorney whom the San Francisco Board of Supervisors, in 2014, asked to comment on the proposed amendments to the lobbying code, suggested an additional amendment (it was not proposed):
It is my understanding that former elected officers and department heads routinely lobby City Hall, but do not register and file reports because they claim that they are not being paid to lobby. Because such individuals still have such a great influence on City officials and employees, in the interest of transparency and fairness, the law could be amended to include former elected officers and department heads as volunteer lobbyists who are not paid but who engage in contacts with City officials and employees for the purpose of influencing local legislative or administrative action.
Perhaps the pro bono lobbyist should not carry the burden of registering. It would be more appropriate for the entity to handle the paperwork, at least if the lobbying were approved by the entity. But the paperwork should be done, and the lobbying activities given the same degree of transparency as any other lobbying activities.
Law Firms’ Lobbying Firms: One important definitional problem involving lobbyists has to do with lobbying firms that are closely related to but not part of a law firm or, less often, a public relations firm. Usually the top partner or partners of a law firm are the owner(s) or top partners of the lobbying firm. Creating separate legal entities allows an official to legally work for a law firm that lobbies his government and insist that his law firm does no lobbying. But only a lawyer would believe that a legal differentiation of entities matters in this situation. Once this setup has been discovered, it actually undermines the public’s trust even more than where the law firm itself lobbies the official’s government. Legalistic distinctions that are not, in practice, real, and do not appear real to the public, are harmful to any area of government ethics.
8. Public Sector Lobbyists
Public sector lobbying —that is, lobbying by and on behalf of governments, school districts, and independent agencies and authorities — has been, in recent years, among the fastest growing areas of lobbying. However, this growth, fueled by competition for county, state, and federal funds, has led to some backlash against the expenditure of public funds for what the public sees as wasteful bickering over how their tax dollars are spent. Since this book focuses on the lobbying of local governments, the only public sector lobbying that is important is cities, towns, agencies, school districts, special districts and authorities, and public-private authorities lobbying cities and counties.
Local governments are represented by three kinds of lobbyist: ordinary government officials and employees who lobby as part of their work; designated in-house lobbyists; and contract lobbyists. It is easy to require the last two kinds of lobbyist to register and disclose their lobbying activities, and follow all the lobbying rules. But it is not so easy with officials and employees who do not see themselves as lobbyists, and do not want to be trained (not to mention fined) regarding the obligations of and limitations on someone who lobbies. One can set a minimum of, say, 25 hours a year, but then the occasional lobbyist will be lobbying without knowing that he is a lobbyist, the individuals lobbied will also not know how to handle the transaction, and the public will not know about their own government’s lobbying until long after it has been done and, in many instances, the matter has passed into history. In short, it is difficult to deal responsibly with occasional lobbying once when acknowledges that it is just as much lobbying, and the public has a right to know about it, just as much as the lobbying of a professional.
Since the value of transparency is central to government and public service, it is appropriate that a government official provide the utmost transparency possible. And government officials (and contract lobbyists for governments, like any consultant or contractor, are effectively acting as government officials) have a stronger obligation to disclose and follow laws than ordinary citizens. This greater obligation also applies to the use of inappropriate tactics such as withholding information or presenting it in an overly selective or an exaggerated, distorted, or misleading manner. The greater obligation also means that a local government lobbyist should present the same information and arguments to all officials. They should inform officials and let them know the position of the community being represented (which might include grassroots lobbying by members of the community or with others through a coalition with other communities), but do nothing more.
This greater obligation, based on a fiduciary duty to the community, places contract lobbyists, who also represent private clients, in an uncomfortable position. They cannot simply take off one hat and put on another when they engage in lobbying activities, because what they do for private clients, especially with respect to participation in campaign-related activities, affects their work for public clients.
No matter what the limitations are on private sector lobbyists, public sector lobbyists should not be permitted to solicit, make, or bundle campaign contributions for anyone at the level at which they lobby. That is, a lobbyist who works for a city and lobbies the county commission should not be permitted to be involved in the campaign of any county commissioner or anyone running for the county commission (if a county commissioner is running for county executive or even for state representative, this prohibition should still apply). It is a conflict of interest for someone being paid out of one group of taxpayers’ funds to be involved in elections that involve a different constituency, even if the lobbyist’s constituency is part of the other one. The only situation where this would be allowable is where a county commissioner represented the lobbyist’s city, and no one else. But then there would be no need to be involved in an election campaign in order to get that commissioner to support the interests of the city, since that was already the commissioner’s turf.
Similarly, public sector lobbyists should not be involved in the campaigns of those they lobby. When contract lobbyists are employed by local governments, even if they do not represent their public sector clients in the campaigns, they still engage in campaign activities and use the relationships they develop to gain special access and obtain preferential treatment for their requests, especially when they do not involve issues being debated in the news media. In fact, like all clients, local governments often seek out contract lobbyists who have developed and continue to develop personal relationships based on family and business relationships, past public service, and campaign services. It is inappropriate for local governments to do this, but difficult for them not to when those with whom they compete for funds are employing such lobbyists.
The reliance on personal relationships with the officials that are lobbied is an aspect of lobbying that has always been seen as inappropriate. After all, government ethics is based on the idea that government decisions should be made in the public interest, based on facts and objective analysis, and unaffected by personal relationships and obligations. And yet some governments hire multiple lobbyists to take advantage of their personal relationships with multiple government officials. This sort of strategy should not be employed.
It is difficult to solve this problem raised by public sector contract lobbyists. Should it be prohibited for local governments to hire contract lobbyists? They do not have a right to seek redress of their grievances, but they do have an obligation to their residents to seek and obtain available government funds, and contract lobbyists are often more effective, especially for smaller governments that cannot afford in-house expertise.
The goal should be to obtain funds through local officials themselves and in-house lobbyists who are prohibited from getting involved in political campaigns and engaging in other conduct intended not to get a message across, but to develop (or make use of) personal relationships with county, state, and federal officials. Without such prohibitions, local officials should recognize the inappropriateness of certain lobbyists and activities, and work through their local government associations to get an agreement not to hire contract lobbyists or engage in inappropriate activities.
It is important that public sector lobbyists who are not otherwise officials be excepted neither from definitions of “lobbyist” nor from registering and following the rules, no matter what sort of lobbyist they are or what their profession is when they are not lobbying (many lobbyists are lawyers, but one does not need to be a member of the bar to lobby; therefore, lawyer-lobbyists are not practicing law when they are lobbying, and have no obligation to claim lawyer-client confidentiality for their clients, especially for their public clients).
It is also important that, no matter what the obligations of principals, local governments, agencies, etc. be required to register as lobbyists when they hire lobbyists, without any minimum. Since governments have a fiduciary duty, they should take full responsibility for disclosing, as frequently as possible, their lobbying activities and expenditures on lobbying and, if permitted, their and their lobbyists’ gifts and contributions to officials.
A report — “Because That’s Where the Money Is: Why the Public Sector Lobbies,” by the Citizens League’s Public Sector Lobbying Committee (1990) — recommends that local governments’ contracts with lobbyists “specify the purpose of the contract, the legislative issues, compensation, and duration of the contract, and require periodic reports from their lobbyists analyzing the outcomes with respect to each matter on which they lobbied. The report also recommends that state legislatures (so why not county commissions?) should examine those of its practices that encourage public sector lobbying, such as the processes for distributing funds and services or approving land use permits.
Anything that applies to individual local government lobbying should also apply to associations of local governments, such as county leagues of cities and associations of particular positions, such as clerks or assessors. It is important to recognize that these associations are funded primarily by taxpayer funds, through dues and payments for conferences and training programs, and that, therefore, they have the same fiduciary duty to be transparent and follow government ethics laws.
One advantage public sector lobbyists have is in grassroots lobbying, because their clients’ leaders not only have extensive contacts through governing and campaigning, but they can both speak for the public and have great influence on citizens’ willingness to contact their higher-level representatives, to write letters and op-ed pieces, and to engage in public demonstrations. Simply the act of getting elected on a platform of obtaining something from a higher level of government (e.g., a larger state education payment or the ability to tax a university) can make that goal easier to obtain, especially if the higher level of government is controlled by the same political party.
As Alan N. Fernandes points out in “Ethical Considerations of the Public Sector Lobbyist,” 41 McGeorge Law Review 183 (2009), when a public meeting “results in direction to advocate a policy position, a public official on the receiving end of this advocacy may give the position greater weight given the fact that it is a point of view generated in the public’s view from a shared constituency.”
An agency or special district has no elected leadership. But their directors and board members are usually appointees of elected officials and, therefore, have special influence with them or their successors, unless the successor is an opponent of the appointing individual or body. Their lobbying activities should be disclosed.
The definition of what constitutes “lobbying” and who is a “lobbyist” is so complex that it is irresponsible for a lobbying program not to provide extensive examples to make the definition more concrete and, therefore, easier for individuals and entities to comply with. It is sad that so few jurisdictions provide examples.
Philadelphia’s lobbying regulation contains nine examples within its text. They consist of a detailed description of a situation followed by a paragraph entitled “Result.” L.A. Metro has many short examples in its extensive lobbyist manual, and Oakland’s shorter lobbying manual has eleven questions and answers. New York City has the most extensive list of examples on its lobbying FAQ pages. Dallas has a good FAQ page, and Massachusetts has a few examples on its FAQ page, as well.
I have sprinkled examples throughout this text, but here are a few more, which come from online examples, real life, my imagination, or a combination of the three.
This is an example from the Los Angeles Unified School District’s (LAUSD) lobbying brochure. Culver Consulting Firm is paid by Grape Cola Inc. to prepare presentations and recommend a strategy to help Grape Cola Inc. promote their products at LAUSD out of the scope of a bid process. Culver needs to register, because the school district’s lobbying code includes among “lobbying activities” “providing advice or recommending a strategy to a client or others on LAUSD matters.” This is a lobbying activity that most lobbying codes omit, because the drafters settle for the popular view of what lobbyists rather than research what actual lobbyists do.
Two related cases from Philadelphia shed some light on what it means to “influence” government officials. Both involve the same principal, the William Penn Foundation, which funded (1) a consulting company hired by the city’s school district to make recommendations to it regarding issues ranging from financial planning to charter schools, as well as (2) organizations seeking particular changes to the city’s education program, including the controversial issue of charter schools. Allegations against the William Penn Foundation of lobbying without registering were dismissed by the Philadelphia ethics board because, although witnesses said that the foundation’s role as a funding source gave it significant access to and influence with school district officials, the foundation did not seek to influence “a specific administrative or legislative action” and did not provide money “to enable the public entity to carry out that action.” In other words, communications and payments intended to influence constitute lobbying activities only when it can be shown that they were focused on specific outcomes. Indeed, this is a common view of lobbying because lobbying is usually considered as piecework, that is, it is viewed in its parts rather than in terms of the whole relationship, which may include a variety of current and possible, future issues, especially when the principal or the lobbyist is involved in several long-term issues. This is why it is better to have lobbying viewed more holistically.
The other issue, although not discussed in the decision, appears to have been that the foundation’s principal activity was funding a consulting company that made recommendations that the foundation may have itself made, but instead did it under a city contract funded by the foundation. This indirect way of making specific political recommendations protected the foundation from being considered a lobbying principal. And this is a common form of lobbying, because “independent” studies and recommendations are worth more than those made directly by a business, association, or organization. It is better, then, to commission a report than do it in-house.
So the question is, should a organization that funds a report that make recommendations in the area of its political or personal interest register as a principal lobbyist, in the recognition that this setup was intended to influence the government? I think it should.
In the second case, the ethics board reached a settlement with an organization funded by the same foundation. The organization makes grants to charter and other schools in Philadelphia. Although the settlement does not discuss the nature of the lobbying activities, it appears that the organization was acting directly as a lobbyist rather than via a consulting company writing a report, and that it was communicating with respect to specific outcomes rather than a range of issues.
D. Registration and Disclosure
Lobbying codes are mainly about disclosure. One reason for this is the common belief that, because lobbying is protected by the First Amendment of the U.S. Constitution, as well as equivalent language in state constitutions, it cannot be restricted, only disclosed. As discussed above, however, this belief is not based on judicial opinions, and it has not always been the common belief. It is more to the point to say that it has become increasingly unquestioned as the First Amendment has risen in stature, at least with respect to political speech.
Disclosure of lobbying activities is important for several reasons. One is that it allows citizens to know the extent of lobbying aimed directly and indirectly at those who govern their community. Even when residents do not personally visit the website where this information is made available, news media and local bloggers can do this for them. The result is articles such as this one from the San Diego Reader, which lists the lobbying activities of one local lobbyist (later accused of campaign finance infractions), including whom he met, representing which client, on which topic, as well as a fundraiser he hosted and how much money he raised for which candidate. Over time, such information shows the patterns of communication at city or county hall, the kinds of matters lobbying seeks to influence, the extent of fundraising done by lobbyists and, combined with knowledge of outcomes, the effects lobbying has. What is not included in the Reader article, however, is grassroots lobbying, which can be even more important than direct lobbying, because when it comes to local matters nothing is more important than the views and participation of sizeable numbers of constituents.
Another reason disclosure of lobbying activities is important — especially when combined with a requirement that lobbyists identify themselves, their client, and the purpose of their lobbying to every official they contact — is that it allows officials to know who is seeking to influence them and why. In addition, officials can see the extent of lobbying by the individuals and clients they and their staff have contact with, as well as those who pass them by to focus on others. Some believe the value of lobbying disclosure to government officials is as great or greater than the value to their constituents, because officials can better understand the disclosures, and they care more than citizens do. If more officials realized the value to them of timely lobbying disclosure, there would probably be a lot more of it.
Another reason for the importance of disclosure is that making all this information public makes misconduct more difficult and, therefore, less likely. When people know their activities are being watched, they are far more likely to believe they might be caught if they do something wrong. Yes, they might choose not to register and disclose, but then they are guilty of misconduct simply by failing to register. An investigation into the extent of their failure may very well turn up other kinds of misconduct. As long the disclosure of indirect lobbying, such as grassroots lobbying, is required, and as long as there are no big loopholes in the exceptions to the registration requirement, it is difficult to get around disclosure rules for long or with respect to important matters.
Disclosure of lobbying activities also makes it easier to investigate a matter. For example, in December 2014 the registration of a Texas company’s lobbyist allowed the press to investigate connections between that lobbyist and the chief counsel who gave the company a $110 million no-bid contract. Had their relations been secret, the fact that they had been business partners would likely never have been discovered.
Another reason for the importance of lobbying disclosure is that it prevents local legislative and other bodies from making decisions without input from those who might make arguments in opposition to or different from the lobbyist for the company, say, pushing a land use development. The reason is that, if they only listen to the developer, they will be seen as biased and as not doing their job, not looking out for the public interest. Of course, this only works when disclosure is ongoing, as it is with conflicts of interest and campaign contributions. But that is the best practice.
For example, consider what happened in Warren County, Kentucky in December 2014 (the county has no lobbying oversight program). A right-to-work ordinance (which prohibits labor unions from requiring their members to pay fees to the union), drafted by a national organization, came before the local legislative body for a vote with no lobbying disclosure and with a description of the bill that was so broad, it gave no notice to local labor unions that it would even apply to them. Therefore, no union representative was present to argue against the bill, and none sought to lobby the county legislators. A lobbying disclosure requirement would have prevented this. If disclosure were not made, it may have led to the law being voided and may have placed involved local legislators in violation of the law.
Not only the community and those who manage it benefit from the ongoing disclosure of lobbying activities. Other lobbyists and those they represent also benefit, perhaps more than anyone. When disclosure is ongoing, principals can see how much lobbying activity their lobbyists (and their competitors’ lobbyists) have been engaging in, lobbyists can see which officials have been meeting with other lobbyists, potential contractors can be alerted by others’ lobbying to get started lobbying themselves, and the lobbyists for community, environmental, and good government groups can see how much work they would have to do to offset the lobbying efforts of, say, developers or would-be no-bid contractors.
This is one of Anita S. Krishnakumar’s major goals in her essay “Towards A Madisonian ‘Interest-Group’ Approach To Lobbying Regulation” (St. John’s University School of Law Legal Studies Research Paper Series #07-0064, January 2007). She wrote, “The key to more effective lobbying regulation may be to embrace the fact that interest groups are the entities with the greatest incentive to take advantage of lobbying disclosures and, accordingly, to structure lobbying regulations in a manner that encourages organized interests, in order to maximize their own positions, also to further public goals.” She considers the public goal here to be more lobbying from all sides, which would lead, presumably, to more balanced decision-making, which is, in turn, more in the public interest than in the interest of particular companies.
Krishnakumar is talking here about public policy lobbying, which is less important locally than at the federal level she is focused on. But there are also competing contractors and grantees, and those who oppose development projects. Timely information about lobbying will spur them to get involved and provide information from a variety of points of view, so that government decision-makers can be more informed and their views less narrow. There will then be a greater likelihood that their decisions will be made in the public interest rather than in the private interest of those who have the connections to get access early in the process and make their mark before the matter comes not only to the public’s knowledge, but even to the knowledge of their less well connected competitors.
In order to ensure disclosure, certain individuals and entities are required to register with the office that oversees the lobbying program (which I call “the lobbying oversight office”) and, usually, to pay a fee to help fund the program. The registration and disclosure provisions of a lobbying code determine who must register, when they must register, how much they must pay to register, and what disclosures they must make and when. Related issues include public access to disclosures and who is in charge of overseeing and enforcing disclosure requirements.
Some officials have opposed disclosure with the argument that their city or county will lose business to other localities, because businesses will not want it known to the public that they were lobbying local officials. Businesses that are working with public-private development commissions can usually keep their interest in building or investing in a community confidential. But businesses seeking to influence government officials are engaged in public actions. Most of their communications are public record. Lobbying disclosure only organizes and makes the basic facts (although not the content) of these communications more easily accessible to the public.
Registration is so central to lobbying codes that some are even given titles such as “Lobbyist Registration Ordinance.” But beware: since registration is essentially a bureaucratic process, the purpose of a lobbying code can be lost in the minutiae of registration and disclosure requirements. There is more to a lobbying code than registration and disclosure, and the reasons for these are not bureaucratic, but involve transparency and the prevention of ethical misconduct.
1. Who Must Register
The simple answer to the question, Who must register?, is “lobbyists.” This takes us right back to the last section, on the definition of “lobbyist.” Most lobbying codes define “lobbyist” to include only those who directly engage in lobbying activities, that is, the agent or employee of an individual or entity seeking to influence local officials. However, there are some jurisdictions, as well as the City Ethics Model Lobbying Code, that do require clients and employers of lobbyists (“principal lobbyists”) to register and make disclosures, as well as those who lobby on their own behalf or on behalf of a company they own or on whose board they sit. This is preferable, because principals are the true lobbyists, the ones whose interests are being pursued. It is not appropriate for all the responsibility to be placed on agents and employees, especially since they are sometimes required by their principals to argue that they are not, in fact, lobbyists (and fined for not registering). This argument should be made by the principal, not the agent.
The Registration of Principals: There are two ways to require principals to register. One is to include them in the definition of “lobbyist” or as one of a number of different kinds of “lobbyist.” See the discussion in the preceding section on the various ways local governments do this.
The second way, where principals are not considered “lobbyists,” is to require them to register or be involved in the registration process as “principals.” For example, Philadelphia requires lobbyists and their principals to register and file reports. One unforseen consequence when this approach is used only sometimes is that principals who have hired lobbyists in jurisdictions that do not require them to register can be blindsided when they hire a lobbyist in a jurisdiction that does require them to register. The lobbyist should inform them, but the lobbyist may not realize that the client doesn’t know about the requirement. The best thing is for all jurisdictions to require registration by principals, not only to prevent this consequence, but, more important, because it’s best to have principals trained, seek advice, and take responsibility for their lobbyists’ activities.
In New York City, in order for lobbyists to register, “clients” (a term that includes both employers and those who hire contract lobbyists) must provide their lobbyists with “a written authorization [or] a written agreement of retainer or employment,” which must be filed as part of the registration process. And even before a lobbyist registers, both the lobbyist and the client are required to enroll in the electronic filing system (since clients must file annual reports).
Similarly, such jurisdictions as Seattle require “a written authorization from each of the lobbyist's employers confirming such employment.” Seattle defines “employer” to include both clients and employers.
Seattle and Denver place a special obligation on employers of individual lobbyists to make sure that they are registered or agree to register before their employment commences. Seattle’s language is, “It is a violation of this chapter for any person to employ a lobbyist who is required to register, but is not registered under this chapter.”
The Oregon Metro Council (Portland area) has an extra registration requirement for employers of lobbyists. Annually, they must report “the name of any Metro official who attended a fund raising event for a non-profit tax exempt entity as a guest of the employer of a lobbyist.” One wonders why this is only an annual requirement.
Exceptions: While most lobbying codes make exceptions to the definition of “lobbyist,” some instead, or in addition, make exceptions with respect to who must register. This is the approach taken by the City Ethics Model Lobbying Code. These exceptions may apply to certain individuals and entities, or they may apply to certain activities. The Model Code has both kinds of exception.
Seattle puts all of its exceptions under the registration requirement, excepting four kinds of person from registering, including those who only appear before public sessions, those who do not engage in lobbying activities for more than four days each quarter (or parts thereof; this is an unusual way of describing time spent lobbying), and government officials and employees, unless they are specifically hired to lobby. Philadelphia also places its fifteen exceptions in the registration part of its lobbying code.
One could argue that this is not the best place to put exceptions, because these are really exceptions to who is a “lobbyist” or what are considered “lobbying activities,” and it is in the definitions of these terms that people will look for exceptions. But if exceptions are placed in the registration section, those who look to see if they are a “lobbyist” will find that they are. I think it is important that people realize that many more people lobby than what is popularly thought — including themselves. This is a response to a serious problem with the popular image of the lobbyists: that they are professional hired guns. At the local level, this is not the case. Many people lobby local governments. They let their council member know how they feel about an issue, they get involved with a local organization that lobbies against a property development or tax increase, they sit on the board of a social service agency that lobbies for a contract extension, they try to help their child get a city job, they do what they can to get some work for their accounting firm or electrician business. It is better to recognize that all of this is lobbying, even if not all these people are required to register.
2. When Registration Is Required
It is important to make it clear when a lobbyist has to register. A lobbying code that fails to provide this guidance complicates enforcement of registration and disclosure requirements, leading to scandals that the enforcing office cannot prevent.
The best practice is to require registration before an individual or entity engages in lobbying activities, either directly or through an agent. This way, the lobbyist not only notifies the public and government officials, but also focuses her attention on the lobbying rules and requirements, so that from the very beginning, she will be aware of a lobbyist’s responsibilities and limitations. The importance of this awareness can be seen in El Paso County’s rule that an individual cannot register (and, therefore, act) as a lobbyist before taking a lobbying training course. The county places the horse before the cart.
The City Ethics Model Lobbying Code uses the following language (§301.1):
Except as provided below, in order to legally engage in lobbying activities, directly or through the acts of another, an individual or entity must register with the lobbying oversight office by filling in and filing a Registration Form.
The alternative is to provide a minimum (de minimis) requirement, that is, an individual or entity does not become a lobbyist until it has engaged in lobbying activities for so many hours, has been compensated so much for lobbying work, or has expended so much money on lobbying over a month, quarter, or even longer. Before these limits have been reached, anyone can lobby without registering, without disclosure, and without any obligations or prohibitions.
De minimis requirements save some occasional lobbyists the trouble of registering, but they also allow people to lobby without having to make themselves aware of the rules and requirements, not to mention making timely disclosures. De minimis requirements are acceptable only when they are truly minimal, for example, excluding single, uncompensated contacts. Any expenditure of money or multiple contacts (even if by different individuals on behalf of a single principal) should require registration and disclosure.
Where there are de minimis requirements, the best thing is for each individual or entity to register upon realizing the minimum will likely be reached during the current period, rather than after the minimum is actually reached. But this is impossible to enforce and, therefore, no one has this requirement. The norm is Philadelphia’s requirement that individuals or entities register 10 days after “engaging in lobbying,” which means after going beyond the 20-hour minimum (in Portland a lobbyist must register 3 days after reaching the hourly minimum). In many cases, this means that there is no registration until the lobbying has been done and the matter decided. It also means that officials will not know they are going to be lobbied, because the lobbyist will not be required to say she is a lobbyist when seeking an appointment, will not be wearing an identification badge to the meeting, and will not have to sign a lobbying log, if being registered lobbyist is a requirement for signing (this is not a best practice). This puts an official in an awkward position. When a lobbyist is subject to a lobbying code from the very beginning, the official can say, “Excuse me, but since you have not registered, you cannot lobby me. Please register and then make another appointment.” If this means that the lobbyist’s message will be too late, then think how late her disclosure would come, if at all. For more on de minimis registration requirements, see the section above.
The bottom line question is, which is it more important not to inconvenience, the lobbyist or the community?
When there is no minimum, it is best to require that a person register before engaging in lobbying activities, as the City Ethics Model Lobbying Code does. Jurisdictions that require this include Seattle, San Jose, Jacksonville, Oakland, and Florida’s Palm Beach and Broward counties. Toronto requires that a contract lobbyist register within three days after first lobbying an official, and that an in-house lobbyist register before doing any lobbying at all.
El Paso’s requirement of a brief training course before engaging in lobbying activities is a good idea. But it is only fair to make this requirement where there is an online course. Otherwise, the lobbyist may have to wait some time before lobbying.
3. Role of Local Officials and the Lobbying Oversight Office in Lobbying Registration
What most distinguishes lobbying oversight from the rest of government ethics is that, while government ethics primarily regulates the activities of government officials, lobbying oversight primarily regulates the activities of non-officials. Only government officials have a fiduciary duty to their community.
Officials’ Role in Lobbying Disclosure: Peter Martin Jaworski’s “Blame the Politicians: A Government Failure Approach to Political Ethics,” Georgetown Journal of Law & Public Policy (2014), focuses not on lobbying oversight, but on the blame for ethical misconduct that accompanies businesses’ attempt to get a piece of a government’s “goodies.” But Jaworski makes a good point in arguing that, “When it comes to the moral evaluation of lobbying, cronyism, and rent seeking more broadly, our attention should be directed primarily at government actors—from politicians to regulators—rather than market actors.” He notes that it is government officials who choose to listen to lobbyists, and choose not to seek out other experts, hold hearings, or ask psychologists about blind spots. He also notes that political actors are both gatekeepers, which comes with a fiduciary duty to the community, but also the rule makers, the ones who can set the rules to best prevent ethical misconduct and provide the transparency necessary to gain the public’s trust in their actions.
So then, why is it that, in the great majority of jurisdictions, lobbyists and principals have all the obligations, and officials have none? Might it, one wonders, be that elected officials are the rule makers who use this authority to place the burden totally on others?
In her essay “Towards A Madisonian ‘Interest-Group’ Approach To Lobbying Regulation” (St. John’s University School of Law Legal Studies Research Paper Series #07-0064, January 2007), Anita S. Krishnakumar emphasizes the importance of requiring disclosure from officials as well as from lobbyists. The check that official disclosure provides to keep lobbyists and their principals honest is extremely valuable to the accuracy of disclosures, which are otherwise difficult for a (usually understaffed) lobbying oversight program to ensure. And when officials are required to disclose their contacts, they will have to obtain more information about lobbyists’ clients, which they often lack (for them, it can be enough that they know the lobbyist).
In addition, people looking for information are more likely to search for lobbying contacts by the name of the official rather than by the name of the lobbyist, which few will recognize. Even though lobbying is spoken of in terms of lobbyists, if a lobbying oversight program is effective, it will also give a picture of who government officials are spending their time with.
Elected officials are accustomed to disclose their campaign contributions. At the local level, lobbying contacts are not much different, because most of a local candidate’s campaign funds come from lobbyists, principals, and the PACs they give to or sponsor. The major difference is that, with respect to lobbyist contacts, officials don’t have a campaign committee to depend on. But they do have aides or assistants. If they’re in a smaller town, then they probably don’t have too many lobbyist contacts, so disclosure wouldn’t be burdensome.
The best approach is to have officials keep a log of all their meetings and communications with lobbyists, whether registered or not (that is, the log should include all meetings with individuals who are representing entities or individually seeking special benefits for themselves). For example, Hallandale Beach, Florida, a city in Broward County, requires officials to disclose all lobbying activity that involves them by filling in an online form that is reported on an ongoing basis on the city commission’s website (updated every 72 hours). This online database shows that even a small city (pop. 37,000) can afford to handle lobbying logs online, where they are most easily accessible to the public.
This is greatly preferable to what some other jurisdictions, such as El Paso County do: require officials to keep a daily log, but submit it only twice a year. If the log is to be kept daily, it should be submitted as often as lobbying contacts are made, by making filling out and submission one process, via an online form that either goes automatically into a database or, if that is too expensive, can be easily and frequently joined together into single, searchable PDFs for each lobbyist, principal, and matter (area ethics commissions could even cooperate in order to bring together lobbying by principals that lobby throughout the area, often with respect to one matter, for example, a transportation project).
Officials’ obligations can go further than filling out forms. They can also be required to help get lobbyists and principals registered. For example, Hawthorne, CA places an obligation on city departments “to identify individuals and entities who may be subject to [the lobbying code] and to advise them of the information contained” in it. In addition, departments are required to get a “a signed certification by contractors and applicants for permits, licenses, grants, and franchises that they are familiar with the requirements of [the lobbying code].”
In Jacksonville, the lobbying code expressly allows government officials and employees to require an individual to register as a lobbyist before addressing the official or employee. This is another valuable way to get government officials involved in lobbying registration, and to protect themselves from being accused of being complicit in the failure of lobbyists to register and disclose their lobbying activities.
Miami-Dade County takes a different approach. It requires its officials and employees to “be diligent to ascertain whether persons required to register ... have complied.” It also prohibits officials and employees from knowingly permitting an unregistered person to lobby them or their agency or body. But a Miami-Dade case involving soccer team owner David Beckham, which is discussed above, shows that it is best that officials go beyond the law, or ask for advice from an ethics officer, when they know they will be meeting with an interested party. In this case, the mayor’s office initiated the meeting, and it wasn’t clear that each individual at the meeting needed to be registered as a lobbyist. When the meeting was proposed, the mayor’s office should have said to Beckham or his representative, “We may be initiating this meeting, but since we are going to be discussing possible business between you and the government (or, at least, that's what the public will reasonably assume), everyone attending should register as lobbyists before the meeting. The law does not clearly require this, but it is the right thing to do. Since you are a celebrity and anything you do is front-page news, the front-page ethics rule — would you want to see this on the front page? — is not a thought experiment; it's a fact. It would look best for everyone if it were noted that you had offered to register as a lobbyist even though it may not clearly be required.”
El Paso County is more explicit in the requirement it places on its officials. Its code says that officials “shall not permit any Lobbyist ... to communicate with him regarding any official matter before being presented with a current lobbyist registration card verifying that the Lobbyist is registered.”
Ottawa requires council members to take the initiative of “review[ing] the Lobbyist Registry on a monthly basis to confirm that instances where they have been lobbied on a particular matter, including the specific matter and date, have been registered. Where lobbying activity has not been disclosed, the Member shall first remind the lobbyist of the requirement to disclose and, should the activity remain undisclosed, advise the Integrity Commissioner of the failure to disclose.” This is the strongest requirement I found anywhere.
City Ethics Model Lobbying Code (§303) requires that “all elected officials, board and commission members, and departments and agencies must log all lobbying activities that involve them and their employees, to be placed online on no more than a weekly basis.”
When considering disclosure requirements for officials, the legislative body should also consider the possibility of placing limitations on contacts, so that no lobbyist or principal is given more than a certain amount of access, at least in terms of time (including calls, meetings, and the time spend reading communications, including reports). First Amendment arguments against limitations on independent spending are not relevant to limitations on a government official’s limited time.
Voluntary Disclosure: Even where local officials have no obligations with respect to lobbying, they may choose to be involved (1) by letting people know that they cannot be lobbied by anyone who has not registered as a lobbyist (this is better than, as sometimes happens, finding out later that the lobbyist wasn’t registered and filing a complaint against them), and (2) by keeping an online log of their meetings and other communications with individuals seeking special benefits (it’s better to do this on a database, but if there isn’t one, it can be done on an official’s homepage). A calendar is insufficient (1) because it only provides names of those the official is scheduled to meet with, not information about whom they represent, who actually comes to the meeting, what the topic of the meeting was, and what results were sought, and (2) because meetings are only one of several forms of communication, direct and indirect, by which people seek to influence officials.
Voluntary disclosure of lobbying by officials — even if everyone were to participate — is not a replacement for making disclosure part of a formal lobbying or conflicts of interest program, because a voluntary procedure usually lacks detailed definitions and requirements, training, neutral advice, and independent enforcement, and requires a great deal more work for the public to get an overall picture of lobbying activity. It is also limited to direct lobbying; officials do not have much information about grassroots and other kinds of indirect lobbying. Voluntary disclosure can also be subject to loopholes, such as New York mayor Bill DeBlasio’s decision to disclose only “substantive” meetings, not including those he initiated and not including any other communications. Voluntary disclosure is best when it is done to set an example, as a step toward the goal of institutionalizing disclosure.
Lobbying Oversight Office Registration Role: Lobbying oversight offices should do their best to accumulate information that will help them identify and contact those who might be required to register as lobbyists. In 2014, the New York City council gave the clerk’s office, which oversees the city’s lobbying oversight program, the express responsibility “to develop a protocol to review sources of information” that may provide evidence of lobbying misconduct. The new provision (§3-212(e)(1)) even provides some examples of such “sources of information”:
1. state lobbying registration documents;
2. notices of appearances before city agencies that identify the representative of an applicant; and
3. the city's “doing business” database.
Every lobbying oversight office should develop such a protocol, looking at the examples on this list, as well as newspaper articles and blog posts about public meetings and lobbyists.
The 2014 New York City reforms also require the clerk’s office to work with the council and city agencies “to develop notices and advertisements to be placed in print and electronic media intended to reach persons and organizations doing business with the city that will inform them of the requirements set forth in this subchapter.” The goal is to identify lobbyists and get them into the lobbying program, or to have them and their principals identify themselves by seeking advice or registering as lobbyists.
4. Registration Forms
Most jurisdictions require that contract lobbyists make a separate registration, and pay a separate fee, for each principal represented, and that each in-house lobbyist also make a separate registration. Many jurisdictions also require principals to register.
Most jurisdictions require lobbyists to re-register and update their registration forms annually (calendar year or anniversary of original filing date), or at least pay a fee for remaining registered. Most jurisdictions also require that lobbyists file a termination form stating that they have stopped lobbying the government and, therefore, are canceling their registration. In Oakland, for example, lobbyists file a notice of termination form in order to be relieved of further obligations until they begin lobbying again. Termination is also important in determining revolving door timelines in jurisdictions that require a waiting period before lobbyists can be appointed to or hired for government positions.
The best idea is to provide a single Amendment of Registration form, such as California’s Form 690, which agent and principal lobbyists can fill out and file any time one of the following events occurs:
1. Lobbying firm adds or loses a lobbyist employee.
2. Lobbying firm adds or loses a lobbyist client.
3. Lobbyist employer adds or loses an in-house lobbyist.
4. Lobbyist client adds or drops a lobbying firm.
5. Changes to information on registration form, such as changing the responsible officer, address, or contact information.
6. Termination of lobbying activities, with no likelihood of recommencing them again in the near future.
The City Ethics Model Lobbying Code provides for a similar all-in-one form.
5. Registration Fees
Most lobbying programs (and their website databases) are funded, at least in part, by fees charged to lobbyists and principals when they file registration and, sometimes, when they file other forms. Fees range widely. In Florida alone, they range from $10 in Orange County to $490 in Miami-Dade County ($500 seems to be the upper limit).
Equally important is whether a lobbyist is charged a single annual fee, as in Miami-Dade County, or an annual fee per principal represented, as in Broward and Palm Beach Counties. Thus, Broward County’s $50 fee per registration can cost a busy lobbyist more than Miami-Dade County’s large one-time fee.
Chicago charges $350 per registration, plus $75 for each additional client after the first client. Los Angeles fees are $450 plus $75 per additional client.
Jurisdictions should not charge fees greater than needed to cover the costs of the lobbying oversight program, taking into consideration other sources. If they charge too much, it could be considered an unconstitutional tax on lobbying (see, most recently, ACLU of Illinois v. White, 692 F. Supp.2d 896 (N.D. Ill. 2010)).
Another source of funding for a lobbying oversight office is fines, especially those for late filings. However, this source is difficult to estimate, even after a few years of experience.
Because it is difficult to know in advance where to set fees so that they, along with fines, pay for a lobbying program (over and above what is allocated in the government’s budget), some lobbying codes (and the City Ethics Model Lobbying Code at §302.5) pragmatically state that the oversight office may set reasonable fees, allowing it to learn what fee level works best. For example, Baltimore’s ethics code states that “the Ethics Board may charge reasonable filing fees for statements, reports, and other documents filed under this article.” Denver’s lobbying code states that “the clerk shall establish the fee structure so that, on the average, a lobbyist's fee expenses will be proportional to the city's expense for that lobbyist.” The resulting fees are $50 a year for individual lobbyists and $75 for organization lobbyists. The Model Code language is, “The amount of each fee will be set by the lobbying oversight office with the approval of the local legislative body.” This allows the fee to be changed as the office learns what fee is most appropriate, without having to amend the ordinance, which may open up a can of worms.
Some jurisdictions allow the oversight office to waive a fee due to financial hardship (not surprisingly, Miami-Dade County is one such jurisdiction). Some jurisdictions also provide exemptions or lower fees (for example, $50 rather than $250 in the District of Columbia) for representatives of nonprofits (sometimes a lower fee is allowed only to those not paid specially for their lobbying work).
An across-the-board nonprofit discount or exemption is inappropriate, because there are many rich nonprofits, including professional and government associations, chambers of commerce, universities and hospital groups, and large national organizations for which lobbying is a principal purpose. It is better that the discount be given only to nonprofits with an annual budget under a certain amount, or that seek no financial benefit from the government. Another good alternative is to have a good, consistent, and quick waiver process to provide waivers to small community groups, which are the only ones that deserve a waiver.
The City Ethics Model Lobbying Code provision has language for both alternatives (see below). For more on this topic, see the longer discussion above.
A fee provision should include language about the penalty for failure to pay a fee. If a fee is not paid for the first year of registration, there should be no registration and, therefore, no lobbying. The same thing should be true in later years. This is why the City Ethics Model Lobbying Code does not allow someone who has not re-registered and paid a fee by February 1 to lobby or have someone lobby on their behalf. They are treated as if they had filed a statement terminating their registration.
Below is the City Ethics Model Lobbying Code provision on registration fees. The provision ensures that registration fees will be used solely for the lobbying program, rather than placed into the general fund.
Upon registering and every January 1 thereafter while active, a lobbyist will pay an annual fee, pro-rated according to the registration date, plus a fee for each additional client to be registered. The principal will pay a fee for each in-house employee, officer, or board member who lobbies on its behalf. The amount of each fee will be set by the lobbying oversight office with the approval of the local legislative body. A lobbying firm must pay the registration fee for each employee or partner who lobbies, but it need pay only once for each client represented by the firm. The registration fee will be waived for all those lobbying on behalf of nonprofit organizations with annual expenditures of less than $100,000 and all those lobbying on behalf of governments and governmental agencies. Other nonprofits, as well as individuals, may apply for a waiver on the grounds of inability to pay. Those who have not paid their fees by February 1, or at the time of filing a first registration form, may not engage in lobbying activities nor may anyone engage in lobbying activities on their behalf until the fees have been paid, with penalty as determined by the lobbying oversight office. All registration fees will be deposited into the account of the lobbying oversight office and used solely by that office to perform its duties.
6. What Must Be Disclosed and When
Since disclosure is the principal act required by a lobbying code, “What must be disclosed?” is the second most important question after the basic definitional question, “Who is required to disclose?” In fact, if disclosure requirements are very limited, then it really doesn’t matter who has to register and disclose, because there will be very little transparency in any case, and the public, not to mention government officials, the press, and other lobbyists, will have little information about lobbying activities. Disclosure must, therefore, be sufficiently detailed, including the names of officials and staff contacted, the specific subject and length of meetings and calls, the date and amount of all contributions (including indirect ones through PACs and the like), lobbying work other than contacts (including indirect, grassroots lobbying, as well as strategic advising about lobbying), and payments to and by lobbyists.
The other most important question is “When must information be disclosed?” If disclosure is not made on a timely basis, it will be of little but historical value to anyone.
With respect to the content of disclosure statements, there are two principal forms of disclosure (in addition to the disclosure that accompanies registration, and its updates): ongoing and periodic disclosure or, put another way, disclosure of activities and disclosure of expenditures. There are jurisdictions that require only annual or semi-annual disclosure of both activities and disclosure, but these jurisdictions fail to give the public sufficient or timely information.
Ongoing Disclosure: The best approach is to provide an ongoing flow of information online about lobbying activities and campaign contributions. To do this best requires a reasonably sophisticated database, something few local government can afford. However, it might be possible to piggyback on the database of the state or of a big city or county in the state. Once a database has been created, it is not much trouble to let other jurisdictions use it for free or for a reasonable charge.
There is a less expensive alternative, however: searchable PDF forms filled out for each lobbying activity, which can be merged together into single PDF files relating to each lobbyist, principal, and matter. This requires no technical expertise and no database. But it does require more ongoing clerical labor by the lobbying oversight program, a perfect job for student interns.
Some lobbyists and officials insist that ongoing disclosure is too burdensome, and that it will discriminate against small and nonprofit lobbyists, because they lack the resources. But the fact is that only a small proportion of lobbyists frequently engage in lobbying activities, and these individuals and firms have the resources to provide ongoing disclosure. Contract and in-house lobbyists already keep time records for billing and reporting to their clients, and officials keep calendars listing their appointments. Reporting contacts builds on these. And since they are seeking special benefits from the government, it is certainly worth lobbyists’ while to expend these resources.
In any event, filling a short online form out even every day is hardly burdensome or difficult even for small and nonprofit lobbyists. It’s just part of the work. Volunteer lobbyists can have someone from the organization file for them.
One federal agency that employs ongoing disclosure for certain lobbying communications is the Federal Communications Commission. It requires anyone who makes an oral or written presentation to the FCC to send a copy or summary of the presentation to the FCC by the following business day, and the FCC issues a public notice of these presentations twice a week.
In fact, there are lobbyists who support ongoing disclosure. For example, Idaho Association of Commerce and Industry lobbyist Alex LeBeau said in January 2014, “I’ve long advocated that everything should be immediate, 100 percent disclosed every time you spend a dime. Whether it’s taking somebody out to lunch or hiring a lawyer to help you do an analysis.”
For more on ongoing disclosure, see the subsection below.
Barring ongoing disclosure, quarterly reports provide somewhat timely information at least with respect to long-term matters. Anything less provides disclosure only of history. It is a better practice to combine ongoing disclosure with quarterly reports, focusing ongoing disclosure on lobbying activities and campaign contributions, with quarterly reports focused on compensation and expenditures, which do not require the same timeliness.
The greatest burden is disclosure at registration. This disclosure of personal, business, and employment relationships, including past campaign contributions and other activities, is important not only for the public, but also for officials, principals, and lobbyists to see what their possible conflicts of interest may be, so that they can deal with them responsibly. Registration disclosure is a good reminder that lobbying oversight is primarily a government ethics process.
One argument officials make against disclosure is that the public will misinterpret what is disclosed. But the public already interprets the secret relations between lobbyist and official to the point where lobbyists are at the very bottom of the list of professions. More transparency can only make lobbyists look more professional and less sneaky.
The best way officials can satisfy the public is to have disclosures show that they meet not only with businesses that, seeking special benefits, give them and bundle large campaign contributions or sit on party committees, but also with a wide range of potential contractors, grantees, and permittees, as well as with community groups, environmental and good government groups, and the like.
It isn’t that the public hates lobbying per se. People feel that it is unfair, with special access for friends and supporters, and that it is done in secret, which means that there is something to hide. More balance and transparency will go a long way to lessen the hatred the public has for lobbying.
a. Disclosure at Registration. Below is a list of the information that jurisdictions should consider requiring lobbyists, and their principals, to disclose at the time of registration, with at least annual updates thereafter. It is best to have a requirement that important update information be filed at the time changes are made, in the form of an amendment to the registration form, rather than waiting for the annual update. It should be required that such an amendment be filed within no more than thirty days.
It is best to place disclosure requirements in the lobbying code, while allowing the lobbying oversight office to create forms according to the requirements. When the oversight office finds statutory requirements inadequate or insufficiently clear, it should be permitted to supplement them via regulation. Los Angeles does this in its list of required information: “Any other information required by regulation of the City Ethics Commission, consistent with the purposes and provisions of this Article.” The City Ethics Model Lobbying Code has a similar provision, §302.6(n).
In those jurisdictions that have hourly or compensation minimums before one must register as a lobbyist, lobbying will occur before registration. Therefore, these jurisdictions should treat registration disclosure as the first quarterly report and require much more information at registration. See the section on quarterly disclosure below.
1. Lobbyist Information: Contact information for each lobbyist and his or her spouse or domestic partner [for possible conflict of interest purposes]; the date the lobbyist was initially (or, if previously registered, once again) retained or began to engage in lobbying activities; whether the lobbyist is an employee, consultant that provides more than lobbying services, or a contract lobbyist; and the name and acronym of any affiliated political action committee or campaign committee [many lobbying and law firms have PACs, and their members are officers of campaign committees; it is important to have this information, to determine if there might be a violation of a lobbying provision or for conflict of interest purposes]. If a lobbyist is an entity, the contact information for each officer or employee (1) who engages in lobbying activities, (2) who is employed in the division of the entity that engages in lobbying activities, (3) who has engaged in fundraising activities or provided campaign-related services for a current city/county official or campaign committee in the past two years (with the name of the official(s)), or (4) who has provided services under a contract with the city/county in the past two years (with the name of the department, agency, or board for which the services were provided) [in (4), “services” includes lobbying, legal, and other services]. This information should be reported in four separate lists, and the spouse or domestic partner of each individual should be included. Include home addresses, for the purpose of checking against campaign contribution databases; however, these addresses will not be made public. [Home addresses are provided in order to check campaign contributions, but are not made public. Philadelphia requires a recent photograph of each lobbyist.]
2.Principal Information: Contact information for each principal, that is, for anyone by whom or on whose behalf the lobbyist is directly or indirectly retained, employed, designated, supervised, compensated, or reimbursed, with a description of the principal’s business in sufficient detail to inform the public of the nature and purpose of the principal’s purposes for lobbying. This includes a principal’s parent company, subsidiaries, affiliates, and related companies with a financial interest in the outcome of the lobbying activities or which control a principal’s activities or contribute funds or advice with respect to the lobbying activities; this applies to both for-profit and nonprofit entities. [Who is a principal is not always an easy question. Sometimes the ostensible principal is not the one paying for or reimbursing the lobbyist or is not supervising the lobbyist. Or the individual or entity that would benefit from the lobbying is not the one for whom the lobbyist works. For example, a trade association’s in-house lobbyist may be lobbying for a project that would benefit only one or two of its members. These members should also be listed as principals.] For a corporation or association, the name of the chief executive officer; for a general partnership or joint venture, the names of all general partners; for a limited partnership, the names of the general and limited partners; for a trust, the names of all trustees and beneficiaries. In addition, except where a publicly traded company, the names of all individuals holding, directly or indirectly, at least 5% or more ownership interest in the entity. [It is important in any public matter for the public to know the beneficiaries of lobbying activities. Often a company’s name has no meaning. In fact, companies can be created for one land use matter. No one has seen the name before and there is no information available about it. Only the owners of the company can give the public a picture of the beneficiary of lobbying activities.] If the principal is an association or membership organization, the number of members, the methods by which members make decisions about positions on policy, and the name of any member who pays an extra fee for lobbying, directly or as part of a membership category. If the principal is an informal group or coalition of individuals or entities, contact information for each member of the group (the lobbyist may file a single registration form for all of them). If the principal is an organization, the contact information for the organization and for any individual or entity that, in any of the past three years, paid for more than 20% of the organization’s revenues. Also, the name and acronym of all political action committees affiliated with any sort of principal. [Some jurisdictions ask that it be identified whether the client is for-profit or nonprofit. With respect to the issue of lawyer-client confidentiality, which sometimes arises when a lobbyist is a member of the bar, see the discussion above.]
3. Lobbying Agreement: Contract lobbyists must attach a written agreement of engagement or a statement of the substance of an oral agreement, as well as any relevant motion, minutes, or other documentation of the action authorizing the lobbyist’s engagement. The agreement or statement must include the terms of compensation; whether the lobbyist is authorized to incur expenditures (and, if so, of what nature); whether any such expenditures will be reimbursed by the principal or by another individual or entity, in part or in whole; and a statement that the principal has not offered and the lobbyist has not agreed to accept a contingency fee from anyone. If the lobbyist is an employee, officer, board member, or volunteer of the principal, and no extra compensation will be provided based on the lobbyist’s lobbying activities, attach a written authorization from the principal’s chief executive officer or someone delegated by the CEO or the board of directors, and a statement whether the relationship is expected to involve compensation, expenditures, or both.
4. Subjects of Lobbying: A description of the subjects and matters about which the lobbyist expects to lobby, including information sufficient to identify the local law or resolution, contract, grant, loan, program, decision, permit, license, regulation, report, real property or building project, rule, proceeding, board, commission, or agency determination or recommendation, or other matter, as well as specific parts or aspects with which the lobbyist is concerned. Also, which side of the issue the principal(s) are on, how the principal(s) might benefit, and any other specific outcomes sought. [For example, if the lobbyist expects to oppose a development, is it because the principal owns a nearby business or land whose value may be negatively affected or is it because the principal is a group of people in the neighborhood who do not want the nature of the neighborhood to change?]
5. Objects of Lobbying: The name of the city/county officials, employees, and departments, boards, and agencies each principal lobbyist expects to lobby, directly or indirectly, and that each agent lobbyist is authorized to lobby, expects to lobby, or expects to engage another person to lobby. The name and position of each city/county official or employee or member of a city/county official’s immediate family who has a business or professional services relationship with the registrant, with a lobbyist or lobbying firm of the registrant, with an employee or office of the registrant, or with any entity related to the registrant or the registrant’s principal (also describe the nature of the relationship).
6. Grassroots Lobbying: If the registrant or a lobbyist on behalf of the registrant expects to engage in grassroots lobbying, the contact information of any entity with which the registrant or lobbyist will work, the media which the registrant, lobbyist, or entity will employ, the officials and employees, and a description of the members of the public, to be targeted by the grassroots appeals.
7. Relationship with Principal: If the lobbyist, or a member of his or her immediate family, has a direct or indirect financial interest in or relationship (other than as lobbyist) with the principal or with the principal’s contract, project, or other matter about which the principal is seeking a special benefit from the government or agency to be lobbied, information as to the extent of such interest or relationship and the date on which it was acquired or begun. [Since a principal element of lobbying involves the seeking of personal benefits from local government, it is important to know whether a lobbyist, or an immediate family member, also has a personal interest other than as a lobbyist.]
8. Possible Conflicts of Interest: Any familial relationship or business or professional association of any executive, officer, board member, partner, or owner of a principal or its parent, subsidiary, or affiliate, or of a lobbyist, with a high-level city/county official, or his or her aide, or with any official of the department, board, or agency the lobbyist expects to lobby or expects to influence through lobbying others, or with the spouse or domestic partner of any of these. [Cook County, Illinois (which includes Chicago) requires disclosure of a wide range of familial relationships to any elected official in the county or in any municipality within the county, because there have been so many nepotism-based scandals in the county. It would be best to include not only municipalities, but any governmental agencies or units, since these are often overlooked when it comes to lobbying disclosure.]
9. Campaign Contributions: All contributions (funds or in-kind) made or delivered in the past two years by any principal, by an owner or officer of a principal, by any lobbyist or by the lobbyist’s firm, by any lobbyist firm partner or employee who engages in lobbying activities, by the spouse, domestic partner, or dependent child of any of these, or by a political action committee affiliated with a principal, lobbyist, or lobbying firm, to a candidate for city/county office, an elected official, a candidate for another office who is currently a city/county official or employee, or to a committee that provides campaign funds to such a candidate or official (including for non-campaign-related travel and other gifts) or is controlled by such a candidate or official, even if that committee was organized to support or oppose a ballot measure or other candidates, or to an organization that independently supports such a candidate or opposes such a candidate’s opponent. Also any such contribution arranged by a principal or by an agent lobbyist representing a principal, or with respect to which the lobbyist acted as an agent or intermediary. For each contribution, the following information must be provided:
(a) The amount of the contribution;
(b) The date of the contribution;
(c) The name of the contributor;
(d) The occupation of the contributor, if not the principal;
(e) The employer of the contributor; if self-employed, the contributor’s business;
(f) The name of the committee or organization to which the contribution was made.
(g) The principal and/or lobbyist’s role with respect to the contribution, other than contributor;
(h) A description of the ballot measure, where this is relevant.
[It is not enough to disclose only campaign contributions made after lobbying registration, because a principal or lobbyist may then choose to make all its contributions before lobbying commences or, in many jurisdictions, during the period before the amount of lobbying meets the minimum. Even though many of these contributions may be public record, it is difficult or impossible to tie these contributions to the principal or lobbyist, not to mention to the lobbying activities.]
10. Other Campaign-Related Activities: A full description of all other campaign-related services provided by a principal, one or more of its officers, or a lobbyist or other agent for the principal, to a candidate or candidate-controlled committee during the reporting period, and any compensation promised or received. [Such services are discouraged and, in most cases, prohibited by this model code, but this provision is important where such services are permitted.]
11. Government Employment History: Any position with the city/county government held within the past three years by the lobbyist, by a member of the lobbyist’s firm, by an owner, officer, or board member of the lobbyist’s principal (or its parent, subsidiary, or affiliate), or by a member of the immediate family of any of the above. If there has been any such employment, an affirmation that the registrant’s lobbying activities will not violate any provision of this lobbying code or of the city/county or state’s ethics codes.
12. Additional Funding: With respect to any funding received from the city/county government by the principal, directly or indirectly, within the past five years, information about the amount and nature of the funds and each office, agency, or program that provided the funding. This includes federal or state funds that are handed out by the city/county government or an agency affiliated with it.
13. Responsibility for Disclosure: Each principal who lobbies through an agent lobbyist must state who will be charged with the responsibility of providing ongoing and quarterly disclosure reports.
14. Further Disclosure: Any other information required by the lobbying oversight office, consistent with the purposes and provisions of this lobbying code.
15. Affirmation Statement: A statement that the registrant has reviewed and understands the requirements of the city/county’s lobbying and ethics codes, has reviewed the contents of the Registration Form, and verifies that, based on personal knowledge or on information and belief, he or she believes the information on the Registration Form is true, correct, and complete. For first-time registrants, a statement that no lobbying activities have been engaged in (if lobbying activities were engaged in, full disclosure of the activities must accompany the Registration Form).
b. Ongoing Disclosure. Disclosure of lobbying activities is of little value if it is not done on a timely basis, while issues, development projects, and the distribution of public funds to contractors and grantees are being planned, discussed, bid, amended, approved, and changed after approval. Sometimes things happen fast, like the lobbying effort that apparently helped kill a GMO ban by the Los Angeles council in December 2014. This effort took just days.
The norm is disclosure on a quarterly basis, every three months. However, San Francisco and Denver require monthly reports.
The best practice, however, is (1) ongoing, “real-time” public logs of lobbying activities — including contacts, gifts (if permitted), and contributions to political campaigns (if permitted) — prepared both by lobbyists and by the officials they lobby, and (2) quarterly reports of lobbying expenditures and compensation, prepared by principals with the help of the lobbyists who represent them. Monthly disclosure reports could dispense with the need to report gifts and contributions on an ongoing basis.
In deciding how frequently to require disclosure, one must first consider the goals of lobbying disclosure. This kind of disclosure is a way for the public to understand and track the dynamics of influence (and pay to play) in their community: who is seeking to influence those who manage their community, which officials are providing access to what range of lobbyists and in what ways (meetings, telephone conversations, e-mails, texts, etc.?), how often the access is being provided, on what topics, and when in relation to decision-making, campaign contributions, appointments, and employment offers, and what relationships exist that may give rise to conflicts of interest, which need to be dealt with responsibly by all parties involved. This information is of far less use if it is made available only after laws and regulations have been passed or blocked, contracts and grants made, and permits and licenses provided or rejected.
Consider other kinds of disclosure. Conflicts of interest disclosure is done as conflicts arise, especially at public meetings. The frequency of campaign finance disclosure varies, but is done at least quarterly, and sometimes online on an ongoing basis.
As for the burden of disclosure, it is fortunate that digital technology has greatly lessened this burden, and that most people are used to frequent digital communications. Ongoing disclosure of lobbying activities, especially with apps, digital databases, and fillable PDFs, is no more burdensome than keeping time sheets, which contract and in-house lobbyists do anyway. With the ease of digital communications, the burden of disclosure is minimal. And the less someone lobbies, the less the burden.
The Sunlight Foundation calls for real-time disclosure of lobbying activities and lobbyist expenditures. For the federal government, it has drafted a Real Time Online Lobbying Transparency Act. For local governments, it has drafted a Municipal Lobbying Data Guidebook (which I found helpful in thinking through issues relating to lobbying disclosure). It notes on its website that “disclosures can be as simple as reporting a meeting with an elected official by checking-in to a location using a mobile app, just as many people already do using Foursquare or Facebook.”
Jacksonville’s ethics office is developing such an app for lobbyists to register and disclose their activities. It is scheduled to be available in 2015.
Real-time disclosure consists of lobbyists and officials keeping logs of lobbying activities, preferably online. Broward County, Florida, and the cities within the county, require lobbyists to report each meeting they have with an elected official by filling out a physical Contact Log. However, this applies only to in-person meetings at city or county hall, a small percentage of lobbying communications and an even smaller percentage of lobbying activities. In addition, most of the municipalities do not make the information available online.
The best thing about logs such as this is that they don’t have to be limited to people who meet the legal definition of “lobbyist.” In Palm Beach County, Florida, for instance, everyone who meets with an official can be asked to sign the log. Here’s the language the county uses:
The person shall provide his or her name, whether or not the person is a lobbyist as defined in this article, the name of each principal, if any, represented in the course of the particular contact, and the subject matter of the lobbying contact.
Thus, if someone keeps meeting with officials, but does not register as a lobbyist, that individual can be asked by the lobbying oversight office to explain why he should not register as a lobbyist.
In Orange County, Florida, input of meetings with county commissioners, the mayor, and their staff is done at “electronic sign-in kiosks” located in reception areas. You may not have Disney World in your jurisdiction, but your offices do have computers and your lobbyists do carry smartphones and tablets. Signing in electronically is not a problem.
If this were extended so that, when a meeting occurred away from city hall and when the official communicated with a lobbyist electronically, an official were required to have the lobbyist fill out a PDF and e-mail it before the communication began or right after it ended, there would be a complete, real-time record of at least in-person lobbying communications with officials.
Orange County, Florida adds to its county hall log requirement the following:
In the event that a lobbyist or principal engages in lobbying which is initiated outside of county offices, the lobbyist or principal shall provide the information required above to the county department or office designated by the county mayor chairman within seven calendar days of such lobbying contact.
Although not required by ordinance, Orange County has an online database that provides up-to-date information on lobbyists’ meetings with officials (although not other forms of contact or lobbying activity).
The Greater Orlando Aviation Authority (in Orange County) expressly advises in its lobbying code, “In an effort to streamline the availability of lobbying information, members of the Board and employees, excluding the Mayors of the City of Orlando and Orange County, are urged to hold all Lobbying meetings with Lobbyists at the Authority offices.” This is a good policy. Officials who meet with lobbyists elsewhere should be asked, as part of their disclosure report, why they could not have held their meeting at their agency (volunteer board members who do not work near a government office have a good reason to meet elsewhere).
But better yet is to require logs to cover all lobbying communications, not just meetings in government offices. The Orlando authority does this as well, giving lobbyists seven days to file a Notice of Lobbying for any contacts made outside authority offices.
Orange County, Florida also requires the filing of what it calls a Specific Project Expenditure Report. This report is filed as part of the application process for a permit, grant, or contract. It contains all the lobbying expenditures made by the applicant and its lobbyists, contractors, and consultants. The report must be updated as more expenditures are made. The report must be filed with the board of county commissioners at least two weeks before it meets to deal with the application and, at the meeting, the applicant must verbally tell the board whether there have been any further lobbying expenditures.
It is an excellent idea to incorporate lobbying disclosure not only into the meeting agenda of local legislative bodies, but also into the agenda of other boards and commissions, and of agency and departmental meetings. The best way is to make this part of the more common request for disclosure of possible conflicts of interest when a matter arises. It is important to recognize that this form of applicant disclosure is a supplement to ongoing disclosure of lobbying activities and periodic disclosure of expenditures and compensation. See the subsection on disclosure at meetings below.
Hallandale Beach, Florida, a city in Broward County, supplements its lobbying meeting logs by requiring officials to disclose all lobbying activity that involves them, by filling in an online form that is reported on an ongoing basis on the city commission’s website (updated every 72 hours). This online database shows that even a small city (pop. 37,000) can afford to handle lobbying logs online, where they are most easily accessible to the public. This is greatly preferable to what some other jurisdictions, such as El Paso County do: requiring officials to keep a daily log, but submit it only twice a year.
If a log is to be kept daily, it should be submitted as often as lobbying contacts are made, by making filling out and submission one process, via an online form that goes automatically into a database. If that is too expensive, fillable PDFs can be easily and frequently joined together into single, searchable PDFs for each lobbyist, principal, and matter (area ethics commissions could even cooperate in order to bring together lobbying by principals that lobby throughout the area, often with respect to one matter, for example, a transportation project).
The most effective way to ensure timely transparency is to require both lobbyists and officials to disclose all their mutual contacts online on a real-time basis, and to have lobbyists disclose all their other lobbying activities in the same manner. Requiring both to disclose what they both are involved in provides an excellent check, and also makes both sides take responsibility for disclosing the level of access given to those seeking special benefits from the local government.
Ottawa provides ongoing lobbying information in an online database. Its lobbyist registry is more sophisticated than Hallandale’s both in the information provided and in the search mechanism (here’s a link to the webpage on using this registry). It is valuable to have multiple kinds of searchability.
Also see Toronto’s lobbyist registry, which is part of its Open Data system. Open data laws and programs can make an important contribution to a lobbying program by allowing it to be part of a larger, more sophisticated database and program than a lobbying program could afford on its own. Also, incorporating lobbying disclosures into a larger government ethics database allows all aspects of lobbying activity, including gifts, campaign contributions, events, and bundling, to be viewed easily together.
Among the states, New Mexico is one jurisdiction that requires disclosure within 48 hours while the state legislature is in session. New Mexico requires lobbyists and their employers to disclose, online on a real-time basis, all expenditures — including campaign contributions, gifts, events, and bundling. Many states require monthly disclosure, especially when the legislature is in session. Local legislative bodies tend to always be in session.
Open, structured data (available to search through, in bulk, and downloadable), in which each lobbyist has a unique identifier, is the best way to make information publicly available, because it can not only be easily accessed and searched, but also analyzed and shared in creative ways, such as through databases and apps that make lobbying data even more accessible, or combine or cross-reference lobbying information with procurement, zoning, grant, campaign finance, meeting agenda/minutes, ethics disclosure, and revolving door information. In a big city, one can imagine an app that would allow people to visually watch lobbyists come and go through City Hall. This would only require that lobbyists download an app, open it when they enter City Hall, and turn on their location service.
Chicago is one place where this sort of thing (although not quite an app like that) is happening. Although Chicago requires only quarterly reports, its Electronic Lobbyist Filing System is available in sortable and downloadable formats. A project of the nonprofit Open City, called Chicago Lobbyists, has taken this data and made the information easier for the public to work with. But the information had first to be required, provided, and made available in a sortable, downloadable way by the city government. Also see a similar project, Lobbying.ph, for Philadelphia. These projects are in their early stages.
Online filing and databases make life easier for those providing disclosure, for those seeking access to it, and for the governments providing it. There is no reason to require the time, expense, and access problems that accompany the filing of paper forms, the combination of searchable PDFs, and public records requests.
How expensive is non-online disclosure? In 2011, the National Institute on Money in State Politics, with a grant from the Sunlight Foundation, did a study of the costs and availability of non-digital state lobbying expenditure data. It found that the cost of getting 2010 lobbying data from Alabama would be$25,220 (and there would be additional personnel costs to go through all the pages of data, which would not be required where there is an online database). This is the cost each citizen or organization would have to pay, unless one of them would themselves make it available online (it still would not be a database, and the expenditure would have to be made every year). Thus, over time, the cost of one organization obtaining and reviewing the data would be less than the cost of a database. Alabama’s number is a high one, due to the per page cost of supplying the data, but the figure is still several thousand dollars for states that lack an online database.
The best, least expensive approach would be for local governments, through a state municipal association, the National League of Cities, or the National Association of Counties, with foundation funding, to develop an app that would allow lobbyists and officials to report each contact or meeting on their cellphones, as if it were just another social media transaction (in fact, it is the most important sort of social media transaction: making a public matter public).
Some jurisdictions, such as Lee County, Florida, that require officials to keep written lobbying logs, but only make them public every quarter, could make life easier for everyone by having them fill out an online form that goes into a database. This is easier than having to keep finding and filling out a paper log sheet. It is certainly easier for information provided online to be made accessible to the lobbying oversight office and to the public.
If lobbying logs are not to be easily accessible, on a timely basis, there would seem to be no reason to keep them other than to make it easier for officials to make quarterly reports. Making the ease of officials more important than the ease of the public creates exactly the wrong appearance and undermines the public’s trust that officials want the public to know about lobbying contacts on a timely basis.
Another reason for ongoing rather than quarterly disclosure is that more frequent disclosure is a better deterrent to ethical misconduct. If lobbyists, their clients, and officials know that information on their contacts, contributions, events, and fundraising will become public immediately, they will be far less likely to engage in conduct that might get them in trouble.
When lobbying activity is disclosed on an ongoing basis, it is best that it be disclosed by whoever is most likely to have engaged in the activity. At the local level, this usually means the owner or officer of a company or the CEO of an organization or association. Contract lobbyists are the exception at the local level, and employees are usually charged with lobbying only by large companies and institutions. But when a contract lobbyist is used, the lobbyist should be the one disclosing.
When disclosure is quarterly or less often, it is best, like Philadelphia, to require principals (clients and employers of lobbyists) rather than lobbyists to file disclosure reports. Since, in any event, the principal does most of the lobbying at the local level, this makes sense. When the owner or CEO is not doing the lobbying, the lobbyist (whether employed or contracted with by the principal) is just the principal’s agent, and may, as an agent, provide information to the principal or fill out the disclosure form on the principal’s. But it is the principal’s responsibility to file it and to make sure it is accurate.
Philadelphia’s approach is unusual primarily because the models for most local lobbying codes tend to be state and federal lobbying codes, where contract lobbyists are the norm. Since this is not the norm at the local level, when disclosure is not made on ongoing basis through logs, online forms, or apps, disclosure by principals is the best, most appropriate approach. Even when there is both ongoing and quarterly disclosure, it is best for principals to be responsible for quarterly disclosure.
City Ethics Model Lobbying Code §303 requires that whoever is charged by the principal with the responsibility of providing disclosure of lobbying activities, expenditures, and campaign contributions, as stated on the Registration Form, will enter, or have someone else enter, information electronically within three business days after any communication, meeting, grassroots lobbying activity, expenditure, or campaign contribution.
Section 303 also requires that all elected officials, board and commission members, and departments and agencies must log all lobbying activities that involve them and their employees, and that their logs be placed online on no more than a weekly basis. And it acknowledges that sometimes databases don’t work. In that event, a filer must file a report in paper format with the lobbying oversight office.
Below is a list of the information that jurisdictions should consider requiring lobbyists to disclose on an ongoing basis. When the principal is charged with filing ongoing reports, it is useful to have a provision like this one, from the Common Cause model local lobbying ordinance:
Each person about whose activities a registrant is required to report ... shall provide a full account of such activities to the registrant at least five days before such registrant’s report is due to be filed.
The following list assumes that the reporting period is at least three months (real-time disclosure of contacts generally does not include financial data, although it should include campaign contributions). It is best to place these minimum disclosure requirements in the lobbying code (this list appears in City Ethics Model Lobbying Code §303). When the oversight office finds statutory requirements inadequate or insufficiently clear, it can supplement them via regulation.
1. Lobbyists. The name, unique identifying number, and role of all lobbyists engaged in the lobbying activity or campaign contribution. (If any unregistered individual was involved in the activity or contribution, in anything more than a support position, provide that individual’s name and have that individual register as a lobbyist within three business days.) [If any individual or firm does not have a registration number, this is a sign that the individual or firm must immediately register and pay a fine for late filing, if applicable.]
2. Date and Time Spent. The date of the lobbying activity or campaign contribution. With respect to meetings, the number of contacts and the approximate time spent with each official or employee. If the activity extended over more than a day, enter the range of dates. If an activity extends more than three days, disclose the activity at least every three days.
3. Subject and Object of Lobbying. A list of the names and positions of all officials and employees, including the name of their office, agency, or board, who were lobbied; a description of the topics about which the lobbyists lobbied; information sufficient to identify the local law or resolution, contract, grant, loan, program, decision, permit, license, regulation, report, real property or building project, tax matter, rule, proceeding, board or commission determination, or other matter to which the lobbying activity related; and the outcomes sought. [Oakland uses this language: “A brief narrative description of the position advocated by the lobbyist.”]
3. Lobbying Activities. A description of the lobbying activity, including the techniques of communication, whether direct or indirect (and, if indirect, through what processes and intermediaries, and targeted at which officials and which members of the public), research, materials provided, etc. Also, a description of any activities, and the identities, of individuals and entities hired by the lobbyist or principal to support the lobbying effort (“lobbying supporters”), which activities include research, planning, advising, monitoring, public and media relations, polling, coalition building, and legal actions, whether or not they have registered as lobbyists. Any event held or sponsored, in whole or in part, by the lobbyist or principal, must be described, including the venue and date, and a list of all officials and employees* in attendance.
4. Campaign Contributions. All contributions (funds or in-kind) made or delivered by a lobbyist, the lobbyist’s firm, or by any lobbyist firm partner or employee who engages in lobbying activities, by a lobbyist’s principal, by an owner or officer of the principal, or by the spouse, domestic partner, or dependent child of any of these, to a candidate for city/county office, a city/county elected official, a candidate for another office who is currently a city/county official or employee, or to a committee that provides funds to such a candidate or official (including for non-campaign-related travel and other gifts) or is controlled by such a candidate or official, even if that committee was organized to support or oppose a ballot measure or other candidates. Also any such contribution arranged by a lobbyist or by the lobbyist’s principal or with respect to which the lobbyist acted as an agent or intermediary. [Jurisdictions can go further and, like Oakland, require lobbyists to report the name of every person they solicit for a campaign contribution and the name of the candidates for whose benefit the solicitations were made. One valuable piece of information that contribution disclosure provides is how often a lobbyist makes a contribution to a particular candidate. One way for a lobbyist to ensure frequent communications with an elected official is to give many smaller contributions, so that the official will keep contacting the lobbyist to ask for more. Aggregate numbers do not show this.] For each contribution, the following information must be provided:
a. The amount of the contribution;
b. The date of the contribution;
c. The name of the committee to which the contribution was made
d. The name of the contributor, and the contributor’s relationship to the lobbyist or principal;
e. The occupation and employer of the contributor, if not the principal; if self-employed, the contributor’s business;
f. A description of the ballot measure, where relevant.
5. Further Disclosure. Any other information required by the lobbying oversight office, consistent with the purposes and provisions of this lobbying code.
b. Quarterly Disclosure. Ongoing disclosure is limited to the disclosure of lobbying activities and campaign contributions. Periodic (preferably quarterly) disclosure involves more the financial side of lobbying: compensation to lobbyists, lobbying expenditures, known as “activity expenses,” and the expenses that accompany lobbying activities (usually reimbursed except where a principal or a principal’s officer engages in lobbying activities). Quarterly disclosure is also a way of pulling together campaign contributions, to give a better picture of who has given them and to whom over a period of time.
In jurisdictions that allow gifts from restricted sources (which includes both principals and lobbyists), it is good to disclose these gifts at least quarterly. It can be valuable for officials who have received gifts to see a copy of lobbyist disclosure reports before they have filed their own gift disclosure forms. Philadelphia requires that, at least seven days prior to submitting their report to the ethics board, principals send each city official and employee “information that will enable the City official or employee to comply with” the applicable disclosure requirements.
Some jurisdictions provide dollar ranges rather than requiring exact dollar figures for total compensation, expenditure, and reimbursement figures (campaign-related figures are more frequently exact, as they are in campaign finance disclosures). This makes it easier on those filling out forms. However, it is important that the dollar ranges not be too large, especially at the more common, lower end. At the higher end, what comes across quickly is that the numbers are especially high. For example, for quarterly compensation figures, which are generally low, the ranges might be $0-250, 251-500, 501-1000, 1001-1500, 1501-5000, 5001-10000, with an exact figure required when the number is over $10,000. Filers should also be given the choice of providing exact figures when an amount is on the low point of the range or when they prefer to do this. The point is to make the process easier, not to make filers look like they received or paid more than they did.
Disclosure reports should be required to be made within seven days after the end of the period. It is useful to suggest that, if lobbying activities are completed for the quarter at an earlier date, information be entered at that time, so that the information is as timely as possible. Filers should be able to request an extension of time from the lobbying oversight office, but only before the seven-day period ends.
As discussed above, it is a best practice to have principals be responsible for quarterly reports, even if they are filled out by a contract lobbyist. If a jurisdiction prefers to have disclosure reports filed by each lobbyist or lobbyist firm, the language of the list below can easily be changed to reflect this difference.
Below is a list of the information that jurisdictions should consider requiring principals to disclose on a quarterly basis.
1. Lobbyists. A list of all individuals and firms (with their unique identifying numbers) that engaged in lobbying activities for the principal during the period, including the principal, officers, employees, and members of the principal, and contractors and subcontractors.
2. Subjects of Lobbying. A description of the subjects about which these lobbyists lobbied during the period, including the names of all officials, employees, consultants, and advisers, and of their offices, boards, and agencies, who were lobbied, the date of each lobbying activity and approximate time spent with each official (if multiple contacts occur in a short space of time, a range of dates may be disclosed, along with the total number of contacts during the period), and information sufficient to identify the local law or resolution, contract, grant, loan, program, decision, permit, license, regulation, report, real property or building project, tax matter, rule, proceeding, board or commission determination, or other matter to which the lobbying activity related. Also, the outcomes sought.
3. Lobbying Activities. A description of the lobbyists’ lobbying activities during the period, including the techniques of communication, whether direct or indirect (and, if indirect, through what processes and intermediaries), research, materials, etc. Also, a description of the activities, and the identities, of individuals and entities used by a lobbyist or principal to support the lobbying effort (“lobbying supporters”), which activities include research, planning, advising, monitoring, public and media relations, polling, coalition building, and legal actions, whether or not they are registered as lobbyists. A description of any grassroots lobbying activities during the period, including the format, the time period, and the public office holders lobbied or to be lobbied, and a description of the officials and employees, and of the members of the public, who were the target of the grassroots lobbying effort.
4. Compensation and Expenses. Compensation and reimbursement that each lobbyist, lobbyist’s firm, or lobbying supporter was entitled to receive for his or her lobbying-related activities engaged in during the period (even if not to be paid until a later time), and expenses expended, received, or incurred by the lobbyist, the lobbyist’s firm, or the lobbying supporter for the purpose of this lobbying. The expenses of the lobbyist, the lobbyist’s firm, or the lobbying supporter related to lobbying city/county officials or employees must be detailed as to the amount, the payee (and beneficiary, if different from the payee), and the purpose of the payment and, if over $50, must not be paid in cash and must be substantiated by a check copy or a receipt upon request. Expenses should be listed in categories as determined by the lobbying oversight office, including the categories of direct and indirect communications, reimbursements to lobbyists and to others, compensation to lobbyists and to others, and office expenses. Expenses less than $50 each may be listed in the aggregate, but must be listed under the payee’s name. Expenses for the lobbyist’s or lobbying supporter’s personal sustenance, lodging, and travel must also be listed in the form of aggregate per diems, without the need to list the payees. If a lobbyist engages in both lobbying activities and other activities on behalf of a principal or other lobbyist, compensation for lobbying includes all amounts received from that person, if the lobbyist has structured the receipt of compensation in a way that unreasonably minimizes the value of the lobbying activities. [Some lobbyists will insist that compensation information is “proprietary.” It is not.]
5. Activity Expenses. The date, amount, and description of any payment (except routine purchases from a commercial retailer) made during the reporting period to, or on behalf of, any official or employee, member of an official or employee’s immediate family, or business entity in which the registrant knows, or should know, the official or employee has a financial interest or serves as a director, officer, or in another policy-making position, by the principal, a lobbyist, the lobbyist’s firm, or by anyone acting on behalf of any of these, including but not limited to, to the extent permitted, gifts, meals, fees, salaries, and reimbursements, with the exception of campaign contributions (“activity expense”). The name, title, and agency of the official or employee, and of the payee (if different), and the name of each lobbyist and/or other individual who participated in making the payment. The date, description, invitation list (and list of officials and employees who attended), and cost of any special event to which officials or employees were invited (if all members of a body or agency were invited, the invitation list may state the name of the body or agency instead of its members). An activity expense shall be considered to be made on behalf of a principal if the principal requested or authorized the expense or if the expense was made in connection with an event at which the lobbyist attempted to influence the official on behalf of the principal. Officials and employees mentioned in disclosures of activity expenses may, within sixty days after the disclosure is made online, file a written exception to inclusion of their name or that of a member of their immediate family or a business they are involved with. [Jurisdictions that require only lobbyists to file quarterly reports should make it clear what they mean by making activity expenses on behalf of or that benefit a certain client or principal. When lobbyists represent multiple clients, it is not clear from the expenditure of fungible money where that money originated or on whose behalf the expenditure is being made. San Francisco has an interesting requirement: that a developer disclose any contributions of over $5,000 made to a nonprofit that lobbies with respect to the developer’s project. In the alternative, such nonprofits could be considered under the rubric of “lobbying supporters.”]
6. Campaign-Related Activities. A full description of all non-prohibited campaign-related services provided by the principal, one or more of its officers, or a lobbyist or other agent for the principal to a candidate or candidate-controlled committee during the reporting period, other than campaign contributions, and any compensation promised or received.
7. Background Support. The identity and activities of any individual or entity that, during the period, has made an expenditure of $1,000 or more to a lobbyist or principal or that has actively participated in the planning, supervision, or control of the lobbying activities of the principal or its lobbyists. Also, the identity of anyone who, during the past two periods, has contributed to that organization in an amount greater than $5,000. [One of the major reasons that nonprofits cannot be left out of lobbying disclosure is that often their lobbying activities are done on behalf of an individual or entity that has a financial interest in a matter, even though the nonprofit principal does not. Sometimes the nonprofit is an “astroturf” organization, created solely for the purpose of hiding the true principal behind an apparently grassroots lobbying effort. It is important that the existence of both background supporters and creators of fraudulent organizations be disclosed so that the public’s and officials’ views of lobbying are complete. The first part of this disclosure is required by the federal lobbying code, and the second part by New York State.].
8. Business with Officials or Employees [if permitted]. Any business transaction or series of business transactions during the period by the principal, one or more of its officers, or a lobbyist or other agent for the principal with any of the following individuals or entities:
a. the spouse, parent, child, or sibling of an official or employee*;
b. a business entity in which an official or employee* is an proprietor or partner; or
c. a business entity in which an official or employee* has an ownership interest of 10% or more.
The date or dates of the transaction or series of transactions, the name and title of the official(s) or employee(s) involved in the transaction or series of transactions, the nature of the transaction or series of transactions, and the nature and value of anything exchanged in the transaction or series of transactions.
9. Further Disclosure. Any other information required by the lobbying oversight office, consistent with the purposes and provisions of this lobbying code.
10. Affirmation Statement. A statement by the filer or by an authorized owner or officer of the filer that he or she has reviewed and understands the requirements of the lobbying and ethics codes, has reviewed the contents of the report, and verifies that, based on personal knowledge or on information and belief, he or she believes such contents to be true, correct, and complete. A similar statement by the principal (if different), which may attach a statement to the report describing the limits of its knowledge concerning the information contained in the report. If it engaged in lobbying activity during the reporting period which was not reported by a lobbyist, the principal must file its own report.
c. Disclosure at Meetings. An additional form of disclosure that may be useful is disclosure that accompanies the placement on a board’s agenda of a matter that one or more parties have lobbied about. It is also useful to include such disclosure at agency and departmental meetings. A good approach is to bring it up as part of the more common request for disclosure of possible conflicts of interest when a matter arises.
Even when quarterly disclosure is required, a matter may come up before the lobbyist has even registered, or before the quarterly disclosure has been made. Since disclosure reports can be filed late — there is nothing to prevent principals and lobbyists treating late fees as a cost of doing business — the effective period in which lobbying is secret may be greater than the required three months. Requiring an additional disclosure to be made by any official who has been lobbied on the matter and by any party to a matter that has lobbied, especially if it is speaking at the meeting, ensures that disclosure is made before the matter has been decided, so that all participants, as well as the public at public meetings, knows what lobbying activities have gone on.
This additional disclosure could be limited to situations where the matter involves a specific benefit, such as a contract, permit, grant, loan, or license, but it could also include more general issues where parties have lobbied a great deal. Here is language from San José (§12.12.800):
Before taking any legislative or administrative action, the mayor, each member of the city council, the chair and each member of the San José redevelopment agency board of directors, and each member of the planning commission, civil service commission, or appeals hearing board must disclose all scheduled meetings and telephone conversations with a registered lobbyist about the action. The disclosure may be made orally at the meeting before discussion of the action on the meeting agenda. The oral disclosure must identify the registered lobbyists, the date(s) of the scheduled meetings and telephone conversations, and the substance of the communication. This section does not limit any disclosure obligations that may be required by this code or city policy.
Small communities that do not want to institute a formal registration and disclosure program might consider this approach as an alternative. But while valuable, disclosure tied to a matter getting on a meeting agenda is not a replacement for ordinary lobbying disclosure, because lobbying is often used to keep a matter off a board’s agenda and with respect to matters that never get on any public board’s agenda (for example, most contracts). There would come no time to disclose this sort of lobbying if meetings were the only forum.
Also, by the time a contract or grant comes before a board, so much effort has already been invested in the bidding and selection process, that it is very late in the process for the public or its representatives to take into account whatever lobbying has been done. And lobbying that continues after a contract is approved would not be disclosed at all. In any event, the disclosure of lobbying is not intended primarily to affect the decisions of a legislative body; therefore this is not the most appropriate forum. Disclosure at meetings is only a way of ensuring the timeliness of information that may not otherwise be disclosed in a timely manner.
This sort of disclosure can be especially valuable when disclosure is made on an annual or semi-annual basis, that is, where information becomes public only after the relevant matter has been fully dealt with. But even big matters, where there is the most lobbying, may not come before a legislative body for years, or at all. The point where a matter goes onto a legislative body’s agenda is not an appropriate determinant of the timeliness of disclosure.
Therefore, this is an excellent additional form of disclosure, but not a replacement for quarterly or ongoing disclosure.
d. Disclosure in Return for a Tax Deduction. In “Business Lobbying as an Informational Public Good: Can Tax Deductions for Lobbying Expenses Promote Transparency?” 13 Election Law Journal 1 (2014), Michael Halberstam and Stuart Lazar propose an interesting way to try to increase lobbying transparency at a time when lobbyists have managed to get around at least the limited federal disclosure rules. Their idea is to allow businesses to deduct, for tax purposes, any expenditure they make that “educates lawmakers on policy issues. In other words, business lobbying can be considered to supply an informational public good only where such information is made available to all participants in the legislative process through full and timely publication. It cannot be said to supply an informational public good where it is inserted strategically into the legislative process at a time, and in such manner, that excludes others from using the information to assess the merits of proposed legislation or promote contrary interests.”
In other words, Halberstam and Lazar are calling lobbyists on their insistence that they are providing a public good in the form of useful information. If the information is publicly useful, why shouldn’t it be public? If it’s made public in a timely manner, then they should be allowed to deduct the cost of providing the information. Both the businesses that lobby and the public would benefit from having this information made public.
Of course, it’s unlikely that such a win-win situation would be instituted, but it would be an interesting experiment for a local government to do, with the carrot of property tax or fee reductions, perhaps.
E. Prohibitions and Obligations
Although overall, the disclosure of lobbying activities is good for our democratic system, which thrives on transparency, there is a downside. When there is only disclosure, without prohibitions and obligations, a lobbying oversight program can make ethical misconduct related to lobbying not only legal, but common and respectable.
It is, therefore, important that lobbying codes also contain prohibitions, restrictions, and obligations relating to such things as gifts, campaign contributions, business transactions, and the revolving door. These prohibitions and obligations should apply not only to lobbyists, but also to their principals, that is, to those who seek special benefits from a local government. Principals and lobbyists as a whole are commonly referred to as “restricted sources,” because government ethics codes restrict or prohibit these people’s gifts to and other aspects of their relationships with government officials. The prohibitions and restrictions in an ethics or campaign finance code should apply whether or not restricted sources engage in lobbying activities. But the ones that are included in a lobbying code focus on those who do engage in lobbying activities, and the obligations in a lobbying code relate to these activities.
An important problem regarding these prohibitions, when they are applied only to lobbyists, is that some courts have recently been finding them unconstitutional limitations on the First Amendment right to seek redress of grievances. Since these prohibitions have nothing to do with the redress of grievances, there is no reason to limit them to lobbyists. Doing so makes it appear that the target is the redress of grievances rather than the protection of the public from conflicted officials and reciprocal gift-giving. This has nothing to do with free speech, freedom of association, or the redress of grievances. It is about ensuring the independence of government officials so that they can make decisions in the best interest of their community rather than in their personal interests or in the interests of those who seek to financially benefit from their decisions.
Although I will look at prohibitions and obligations that appear in city and county lobbying codes, I will question whether each sort of prohibition or obligation actually belongs in a lobbying code. Some of them don’t belong anywhere except, perhaps, in an aspirational section, because they are unenforceable. Others belong in an ethics code or campaign finance law.
Wherever rules appear, including in a state law, it is good to include in a lobbying code every rule that applies to all or some local lobbyists. It is only fair to lobbyists to make it easy for them to see what laws they must follow and what obligations they have, without having to hire a lawyer to make sure there’s a law they’re not aware of.
1. Deception. From the government’s point of view, the principal value of lobbying is said to be the communication of expert information. Those who have something to gain from government action or inaction often have the expertise government officials need to educate themselves about the facts and issues involved in the matter before them, especially legislation and regulation. Lobbyists provide a service to a community by sharing their expertise and training officials.
This is why the most frequent prohibitions in lobbying codes involve deception, lies, and fraud. Lobbying has only a negative value if it involves deception, if a lobbyist is fraudulently putting forward supposed expertise in order to deceive rather than enlighten officials.
However, it is very difficult to describe and to prove deception. Therefore, this rule is more aspirational than enforceable. It is a way for a community to let lobbyists know that they are expected to be truthful with those who manage the community and make its policies. That is why I think it is best to use positive rather than negative language, as Toronto does:
Lobbyists shall conduct with integrity and honesty all relations with public office holders, clients, employers, the public and other lobbyists.
It’s interesting that Toronto extends the honesty requirement to a lobbyist’s principals, the public, and other lobbyists. This is clearly an aspirational rule, and it appears in the Lobbyists’ Code of Conduct section of the city’s lobbying code. In fact, it is very similar to the Association of Government Relations Professionals (the U.S. lobbyist association) Lobbyist Code of Ethics, whose first two provisions are as follows:
A lobbyist should be truthful in communicating with public officials and with other interested persons and should seek to provide factually correct, current and accurate information.
If a lobbyist determines that the lobbyist has provided a public official or other interested person with factually inaccurate information of a significant, relevant, and material nature, the lobbyist should promptly provide the factually accurate information to the interested person.
The second subprovision is an important addendum to the first, because it departs from the intentional aspect of any honesty requirement and, thereby, acknowledges that even unintentionally inaccurate information is harmful and requires correction. It also gives a lobbyist a way of correcting a problem without having to admit that intention was involved. In fact, there is a third subprovision in the Lobbyist Code of Ethics that extends the requirement to correct inaccurate information to situations where there has been a change that has made the information inaccurate.
If a material change in factual information that the lobbyist provided previously to a public official [Note: “other interested persons” are not mentioned here] causes the information to become inaccurate and the lobbyist knows the public official may still be relying upon the information, the lobbyist should provide accurate and updated information to the public official.
San Diego is the only jurisdiction I know of that requires lobbyists to correct misinformation, focusing on accuracy rather than deception. The City Ethics Model Lobbying Code has taken this approach as well (§305.2(b)):
Correcting Misinformation. If he or she discovers that information provided to an official or employee is not materially correct, a lobbyist should provide accurate and updated information to the official or employee, specifying the nature of the misinformation.
But even San Diego has a negative deception provision, dependent on intent and almost impossible to enforce:
Every lobbyist shall .... not deceive or attempt to deceive a City Official as to any material fact pertinent to any pending or proposed municipal decision
Los Angeles’s deception provision goes one step further by including the word “fraudulently”:
No lobbyist or lobbying firm ... shall ... Fraudulently deceive or attempt to deceive any City official with regard to any material fact pertinent to any pending or proposed municipal legislation.
This language is legalistic, requires intent to deceive (other jurisdictions use the word “knowingly” instead of “fraudulently”), and is limited to legislation. This provision, therefore, effectively encourages lobbyists to lie about information relating to contracts, permits, grants, and regulations that are not instituted by legislative bodies. It also provides no guidance to lobbyists when they discover that they have provided misinformation unintentionally or when they discover that a colleague, or opponent, has provided misinformation. Better that lobbyists get each other to correct misinformation than that they file complaints against opponents or help colleagues hide the untruthfulness of information they have already provided.
When it comes to enforcing rather than encouraging truthfulness, First Amendment free speech concerns arise, along with issues relating to the slipperiness of truth. Who wants to deal with the distinctions between half-truths, distortions, mistakes, misspeakings, and false inferences? Who wants to get into the mind of someone who is deceiving someone else, fraudulent or otherwise? Who wants to get into the difference between intent and incompetence in phrasing or researching? Who wants to insist that truth in lobbying is more important than free speech protections, not to mention the First Amendment right to seek a redress of grievances, which every lobbyist’s lawyer will raise? In addition, defending a misrepresentation leads to more misrepresentations and other forms of dishonesty. It can get really ugly. When it comes down to it, truth is too precious a thing to enforce. But it is certainly worth encouraging truth, as well as corrections.
If a truthfulness provision is to be enforceable, it must require proof of actual malice, that is, evidence that the violator acted with knowledge of the falsity of stated facts or in reckless disregard of the truth, and that, when asked to make a correction, refused. This is the standard of proof for defamation.
False appearances provisions, which deal with a different sort of deception, are discussed below.
2. Contingency Fees. The second most frequent prohibition in lobbying codes is of contingency fees (43 states have laws that include this prohibition), that is, of contracts between principal and lobbyist that benefit the lobbyist based on the success of the lobbyist’s endeavors, in the form of a contract won, a permit or grant obtained, legislation passed, etc. In Australia, they’re called “success fees.” Outside of lobbying and law, the common term for a contingency fee is payment on a “commission” basis.
When you consider the situation in which commissions are the norm — sales — it is clear that this form of compensation is not appropriate to the influence of government officials. It is one thing to place an hourly value on the work of a lobbyist; it is another to place a monetary value on stopping a piece of legislation or getting a grant. If lobbyists do not want to be accused of “buying” officials, they should not be paid on a commission basis. Contingency fees embody exactly what American society has found most objectionable about lobbying from the start.
Lobbying is supposed to be a citizen-to-official informational process (a stating of grievances, according to the Constitution), not a sales job. Lobbyists are supposed to be professionals representing principals who have information and views to share with government officials. They are not supposed to be salespersons with a personal financial interest in the outcome of their work.
In fact, in some jurisdictions, contingency fee prohibitions are not limited to lobbyists. These jurisdictions also prohibit contractors from making a contingency fee arrangement with anyone who represents them before a government, including attorneys (see the section of this book on this kind of prohibition).
Courts have for a long time considered contingency fees to lobbyists as contrary to public policy, because they focus the attention of lobbyists not on informing and seeking to influence, but rather on obtaining concrete results, by any means possible, including means that are improper or corrupt, including inappropriate gifts, bribery, promises of kickbacks, and undisclosed conflicts of interest, such as representing multiple bidders for the same contract, so that the lobbyist has a higher chance of getting paid. The courts therefore saw contingency fees as “inflaming the avarice” of people whom they already felt were not acting in the public interest.
According to Zephyr Teachout’s 2014 essay “The Forgotten Law of Lobbying” (which was incorporated into her 2014 book, Corruption in America (Harvard Univ. Press)), contingency fees were referred to as “bribes,” because they encouraged bribery as the most direct way to ensure payment. This is why, Teachout states, “contingent fee arrangements for political influence were almost always void.”
The argument in favor of allowing contingency fees is that, as with lawyers, they enable individuals and groups with fewer resources to obtain lobbying services. But most cities and several states allow contingency fees for lobbyists, and it does not appear that this is benefiting those with fewer resources. The main reason is that there isn’t much money in it. An individual or community group is not going to benefit in any major financial way that can be shared with a lobbyist on a commission basis. A pro bono policy and/or government subsidies would be preferable to allowing all contingency fee arrangements to improve access to lobbying services in a few situations.
Some local jurisdictions expressly allow contingency fee arrangements, but require that they be disclosed. Disclosure is not an effective way to cure an arrangement that has for so long been illegal, and for good reason. Making payment dependent on governmental action encourages misconduct and leads to more pressure on government officials. Just letting officials know about the arrangement is not going to lessen the pressure.
Here is the language of Chicago’s contingency fee prohibition:
2-156-300. No person shall retain or employ a lobbyist for compensation contingent in whole or in part upon the approval or disapproval of any legislative or administrative matter, and no person shall accept any such employment or render any service for compensation contingent upon the approval or disapproval of any legislative or administrative matter.
But “legislative or administrative” may be seen not to apply to the decisions of boards and commissions. It is best to make it clear that contingency fee arrangements apply across the board. For example, Miami-Dade County uses this language in its lobbying code:
“contingency fee” means a fee, bonus, commission, or nonmonetary benefit as compensation which is dependent on or in any way contingent on the passage, defeat, or modification of: (1) an ordinance, resolution, action or decision of the County Commission; (2) any action, decision or recommendation of the County Manager or any County board or committee; or (3) any action, decision or recommendation of County personnel during the time period of the entire decisionmaking process regarding such action, decision or recommendation which foreseeably will be heard or reviewed by the County Commission, or a County board or committee.
Philadelphia has an exception that recognizes that sales representatives are often paid on a commission basis:
It shall not be a violation of this Chapter for an individual who is paid on a contingent or commission basis for the sale of goods or services to contact a City official or employee regarding the purchase by the City of such goods or services, provided that such individual is contacting only those City officials or employees who have responsibility for making purchasing decisions regarding such goods or services in the normal course.
The 2011 ABA Task Force on Federal Lobbying Laws report proposed a compromise federal contingency fee prohibition limited to situations where the subject of the lobbying involved a narrow financial benefit, such as a contract, grant, permit, earmark, or tax relief. Its argument was that this is where the temptations for ethical misconduct are the greatest. As it turns out, this would apply to the great majority of local lobbying.
The most likely occasion for contingency fees at the local level would be with big contracts, grants, and development projects. Richard Briffault suggests in his paper “The Anxiety of Influence: The Evolving Regulation of Lobbying,” Columbia Public Law Research Paper No. 14-367 (January 2014), that the incentive for misconduct would be greater the larger the fee, rather than the more specific the financial benefit. Since contingency fees at the local level would only be used with large expected fees, and these fees would only apply to unusually large matters, and since the same public policy issues apply no matter what the type of matter, it is best that contingency fee bans be across the board.
One interesting question is whom contingency fee prohibitions are intended to protect. In a 2014, the Massachusetts attorney general entered into a settlement agreement with a lobbyist whom, the AG alleged, had a contingency fee arrangement with a hospital. The settlement required the lobbying firm to return 27% of the lobbying fees it had been paid by the hospital. There was no fine. This implies that contingency fee prohibitions are intended only to protect the client. In fact, a contingency fee prohibition is intended to protect the public and its representatives, and the client only secondarily. The biggest problem a client would have is with a lobbyist who insists she has special connections, and will make use of them only in return for a contingency fee.
It is true that some lobbyists might enter into such arrangements without letting clients know there may be legality issues involved. But this too is a secondary issue, and not at all the purpose of the prohibition. It should be assumed that a client’s attorney has consulted the lobbying code before allowing her client to enter into a lobbying agreement. If the client did not run the contract by its attorney, it is not the role of the government to compensate it for its negligence.
The City Ethics Model Lobbying Code follows the Miami-Dade County language in its definition of “contingency fee”:
a fee, bonus, commission, or nonmonetary benefit as compensation which is dependent on or in any way contingent on any action or inaction, or on the passage, defeat, or modification of any decision or recommendation, by any official or employee* during the time period of the entire decision-making process regarding such action, decision, or recommendation.
And the model code has the following contingency fee prohibition language, which places the responsibility on both principal and lobbyist, and provides an exception for true sales representatives, as long as they limit their sales efforts to procurement staff:
Contingency Fees. No person may retain or employ a lobbyist for compensation on a contingency fee* basis, and no person may accept any such employment or render any service on a contingency fee* basis. However, a sales employee who is paid on a commission basis for the sale of goods or services may contact an official or employee* regarding the purchase of such goods or services, provided that such sales employee is contacting only those officials or employees* who have responsibility for making purchasing decisions regarding such goods or services in the normal course and that the contact is permitted pursuant to procurement rules.
3. Gift Ban. In July 2012, former Georgia state representative Roger Hines wrote an op-ed piece for the Marietta Journal with the title “What Does Corruptibility Have to Do with a Dollar Figure?” The op-ed considered the state's $100 limit on gifts from lobbyists. After talking about the value of lobbyists, he talked about the first time (and, apparently, the last time) he accepted sports tickets from a lobbyist:
I didn’t like the feeling I had after accepting the tickets. Not everything that’s legal is right or wise to do. Every citizen in Georgia has the right to go to the Capitol and influence legislation, but most don’t have the time or money to do so. Joe Voter certainly doesn’t have the wherewithal to wine and dine his state representative or senator. ... The gift-giving is corrupting, and the writer of this sentence, and every reader of it, is corruptible.
The best route is a complete ban on lobbyist gifts. That way, a well-paid lobbyist and Joe Voter would be on equal footing. Both would be allowed to use their minds, their gift of language, their willingness to study and research an issue, and their powers of persuasion. Neither would be allowed to use their checkbooks, pricey meals, or an incessant flow of goodies to legislative offices.
Many lobbying codes supplement the ethics code’s gift ban with a gift ban on lobbyists and, sometimes, their principals. After all, consistent with the most common definition of “lobbying,” lobbyists and their principals do not give (and, more important, are not perceived to give) anything to public officials except for the purpose of influencing official action, which is essentially the definition of bribery. Therefore, there is no need to require evidence of influence or motive.
Sometimes a gift ban is absolute, but more commonly there is a maximum allowable gift tied to a period of up to a year. But a partial gift ban opens up a can of worms, which is why some officials feel it is much easier to have an outright ban. They can then say to a lobbyist, “No, it’s illegal, I can’t do that, that’s off the table.” When it comes to pay to play, lobbyists are in the same comfortable position when there is an absolute gift ban. Any exception makes saying “No” uncomfortable.
It is important that a gift limit apply not to each individual or entity (principal or lobbyist), but to the aggregate gifts of an entity, its employees, its owner’s immediate family, and its lobbyists (registered or not). Doing this not only makes it harder for a business to influence through effectively bundling its gifts. It also makes it harder for officials to extort numerous gifts from a business’s employees and lobbyists (known as “pay to play”).
The reason why a lobbyist gift ban is valuable, even if there is a gift ban in the ethics code, is that most gift bans in ethics codes focus on direct gifts. They may include the word “indirectly,” but this is rarely defined or emphasized. With respect to lobbyists, gifts are usually indirect, because they actually come from the principal. These indirect gifts should be treated the same as direct gifts, and be credited to the principal.
When indirect gifts are the norm, as they are with lobbyists, the indirectness needs to be emphasized and defined. Here is how San Diego’s lobbying code does it (§27.4030; note the useful definition of “arranges for the making of a gift,” which complements the use of a similar term in the City Ethics Model Lobbying Code’s gift ban):
(a) It is unlawful for a lobbying firm or any of its lobbyists to make a gift, act as an agent or intermediary in the making of a gift, or arrange for the making of a gift if:
(1) the gift is given to a City Official, and
(2) the aggregate value of all gifts from the lobbying firm and its lobbyists to that City Official exceeds $10 within a calendar month ...
(b) For purposes of this section, an entity or individual “arranges for the making of a gift” if the entity or individual, either directly or through an agent, does any of the following:
(1) delivers a gift to the recipient;
(2) acts as the representative of the donor, if the donor is not present at the occasion of a gift, except when accompanying the recipient to an event where the donor will be present;
(3) invites or sends an invitation to an intended recipient regarding the occasion of a gift;
(4) solicits responses from an intended recipient concerning his or her attendance or nonattendance at the occasion of a gift;
(5) is designated as the representative of the donor to receive responses from an intended recipient concerning his or her attendance or nonattendance at the occasion of a gift; or,
(6) acts as an intermediary in connection with the reimbursement of a recipient's expenses.
San Diego’s lobbyist gift ban applies to any situation where a lobbyist is involved. The only situation where an involved lobbyist is not responsible for a gift is where he knows about an illegal gift someone else is making. He may do nothing. This could be dealt with by a complicity and knowledge provision, but such provisions are sadly rare (see the provision in the City Ethics Model Code).
It is questionable whether even the best lobbyist gift ban is necessary when there is an effective gift ban in the ethics code. It is better to have a gift ban that applies to everyone and to all sorts of indirect gifts, and then include that gift ban in the lobbying code, as well. This makes it clear that a gift ban is not really about lobbying, but rather about people seeking special benefits from the government (“restricted sources”) making gifts to its officials.
At the local level, only a small percentage of these restricted sources are contract lobbyists. And, in fact, there are numerous other sorts of intermediary involved, such as ward bosses, party officials, fixers, bagmen, go-betweens, and power brokers, few of whom ever register as lobbyists. Limiting gift bans to registered lobbyists causes gift-giving to go through other channels. It is better to spread the gift ban to include all indirect gifts, whoever may be involved.
In addition, a lobbyist gift ban, like San Diego’s, usually applies only to gifts made directly to an official. This allows gifts to be given to an official’s family members, pet charity, legal defense fund, etc. It also allows gifts to be made to PACs, party committees, and independent groups that then pay for officials to travel with lobbyists and their principals or to attend conferences where lobbyists and principals get special access to them. A well-drafted general gift ban will deal with gifts given indirectly in both senses, that is, through and to others, whether they are given through intermediaries or to those for whom a gift indirectly benefits an official.
It is important to recognize how often gifts are indirectly made. It is easy to get around rules by making gifts to an official’s spouse, children, siblings, parents, or pet charity. It is also easy to get around rules by making valuable gifts that have no defined economic value, such as putting in a word for an official’s child at a university or private school she is applying to, or helping a family member, or even an official, get a job or a client.
There is another issue that is rarely raised in the U.S., but was raised in the European Community in an April 2013 report by the Alliance for Lobbying Transparency and Ethics Regulation (ALTER-EU): the invasion of privacy involved in contacting an official at home, contacting family and friends of an official, and making gifts to an official’s family members in an attempt to further a reciprocal relationship and the influence this provides.
Gift bans also need to take into account the fact that individuals own companies, and that companies have both subordinates and affiliates (and that company owners have other companies, sometimes set up solely for the purpose of making campaign contributions and other gifts) that should not be allowed to use their separate legal status to get around gift bans and limitations, including those involving campaign contributions. All affiliated entities should be treated as one giver, even if only one part has a contract with or grant from a local government.
It is important that officials, lobbyists, and principals have the same obligation to prevent gift-giving. If only one or two of them has the obligation, it is difficult for the other(s) to turn down a request, whether spoken or tacit. As lobbyist-turned-jailbird Kevin A. Ring said in an October 2014 Washington Post op-ed piece:
“Every lobbyist knows that conflicted feeling when a lawmaker whose help you need asks you for something you know he or she probably should not take. You want to say ‘yes’ for your and your client’s benefit. And, let’s face it, if a gift prohibition applies only to the officeholder, a lobbyist will find it easy to do the wrong thing.”
Some jurisdictions also prohibit lobbyists from offering honoraria to government officials. Again, it is best that these be prohibited in the ethics code, and the provision reproduced in the list of lobbyist prohibitions.
Some jurisdictions merely require the disclosure by lobbyists of the gifts they make to officials (although rarely to officials’ family members, business associates, pet charities, or the like). A Washington state representative told the Bellevue Reporter in June 2014, “If you have this friendly, comfortably thing where you know somebody’s been buying you a lot of meals, do you feel a direct obligation for a vote? No. But do you feel a personal relationship and a fondness that may be a little out of kilter? You probably do, but you don’t even know it. That’s how it works.” Add that to the public perception of lobbyists schmoozing with officials over cocktails and dinner, and you have more than enough reason for a gift ban rather than mere disclosure, which only legitimizes the gift-giving, adding fuel to the public’s negative perception of both government officials and those who lobby them.
Sometimes, making gifts to local officials can undermine a lobbyist’s goals. This happens, for instance, when a government action or contract can be voided due to the illegal acceptance of a gift. This situation arose in Honolulu in 2014, in conjunction with the approval of a rail transit project. Multiple council members are alleged to have accepted gifts over the limit and then voted to approve the project. If it turns out that they did accept illegal gifts, the vote may be voided and the principals will have to go through the process all over again.
Below is the City Ethics Model Lobbying Code’s gift ban provision, which is intended to complement the City Ethics Model Ethics Code’s gift ban, which is reproduced in the model lobbying code:
Gifts. A lobbyist or principal may not give, seek to give, or arrange to give anything of value to any official or employee,* or to a an official or employee’s immediate family member or business, nor act as an agent or intermediary in the making of such a gift.
For other issues involving gifts, see the relevant section of this book.
4. Making Officials Personally Obligated. Another popular prohibition is the prohibition against acting in such a way as to make officials personally obligated to them. It is, at least in part, a way of prohibiting lobbyists from making bribes. The government ethics way is to prohibit gifts from restricted sources and those acting on their behalf. By prohibiting gifts, one prohibits bribes and prevents officials from feeling personally obligated. The one concrete thing that the prohibition of making officials feel personally obligated adds is protection against non-financial gifts, such as a call to a dean to help get an official’s child into a university. Aspirationally, such a prohibition is a way of stating a societal problem with lobbying.
Here is New York City’s language, in its section on lobbyist obligations:
To abstain from doing any act, with the express purpose and intent of placing a member of the city council, the mayor or any officer or employee charged by law with making a decision on a matter pending or proposed, under personal obligation to him or her or to his or her employer
Although this provision appears to involve bribery, the language is vague and, therefore, does not provide clear guidance to lobbyists or to officials. And yet it is worded as clearly enforceable, rather than aspirational.
A principal goal of lobbying is to make officials feel personally obligated to them. Lobbying, like politics in general, is based on personal relationships, on give and take. Lobbyist prohibitions are supposed to limit the sort of give and take that is allowable. If a jurisdiction wants to prohibit acts, it should name them as clearly as it can, to provide better guidance and to make enforcement of the provision both more likely and more fair. It hurts an ethics program’s reputation to be seen accusing officials or lobbyists of common acts that are not expressly prohibited. In addition, it can be used, and be seen, as the sort of Gotcha! provision that officials and lobbyists believe is used unfairly against them, leading them to oppose effective government ethics enforcement and reform.
Oakland’s manual says that its personal obligation provision “primarily relates to arranging or making loans.” If that’s the case, then why not simply prohibit the making of loans, as some jurisdictions do, including Chicago, Philadelphia, and Baltimore (the City Ethics Model Lobbying Code has a special prohibition on making loans; see the discussion below)?
According to a November 2014 article in the Los Angeles Times, a state lobbyist was fined $5,000 under a personal obligation provision because he had done political consulting for two campaigns without demanding full payment for the work he did. The state ethics commission said that the lobbyist failed to comply with the provision because he “did not make adequate efforts to collect debts owed to him and therefore did not receive full and adequate consideration for his services.” Effectively, forgiving the money owed was a gift to the state legislators. Gifts such as this can just as easily be prohibited via the definition of prohibited “gift.”
As with the prohibition against deception, this catchall prohibition should be included in a lobbying code, if at all, only as a clearly aspirational, nonenforceable provision. For better catchall prohibitions, see the wrongful influence prohibitions below.
5. Bell Ringing. If the term “bell ringing” doesn’t ring a bell for you, don’t feel bad. It didn’t ring a bell for me either when I first encountered the term in Baltimore’s ethics code. The term refers to a crafty little ploy, whereby a lobbyist gets a friendly legislator to introduce legislation so that the lobbyist can oppose it. It is hard to imagine legislators introducing legislation simply to give a lobbyist business but, as I keep saying, lobbying (and politics in general) is all about personal, reciprocal relationships. Mutual back rubbing can take much odder forms than bell ringing. And remember that many lobbyists are former government officials, whose relationships with current officials sometimes go back decades. What’s a throwaway bill between friends?
As it happens, bell-ringing provisions are one of the most popular prohibitions. Here’s Baltimore’s provision:
A lobbyist may not initiate or encourage the introduction of legislation for the purpose of opposing that legislation.
Los Angeles uses language that makes it more clear that lobbyists use this ploy to get work for themselves, and that getting a legislator to propose a bill, apparently with the lobbyist getting credit, can also be used as an unacceptable way to get work:
No lobbyist may ... Cause or influence the introduction of any municipal legislation for the purpose of thereafter being employed or retained to secure its passage or defeat.
Oakland has an even more expansive version of this provision, taking it beyond legislation.
No lobbyist shall cause or influence governmental actions for the purpose of creating future business for the lobbyist.
The problem with enforcing the language in the last two forms of this prohibition is that it requires a show that (1) the government official was influenced by the lobbyist and (2) the lobbyist sought the official’s action to cause him to be hired. Those are hard things to prove, and very easy for the official and lobbyist to naysay. Baltimore’s language has the virtue of dispensing with the first part. There is no need to prove influence or even the creation of future business, only to show that encouraging the legislation was done to oppose the legislation.
One wonders why bell ringing isn’t illegal for the legislator, as well. Just because the conduct is for the lobbyist’s financial benefit, it clearly reflects the fact that the underlying reciprocal relationship also benefits the legislator. And a legislator has a fiduciary duty to the community not to introduce legislation he does not feel is in the public interest, a duty that a lobbyist lacks. Just because lobbying codes apply primarily to lobbyists and their principals does not mean that its prohibitions should apply only to lobbyists. In fact, some lobbying codes do place responsibility on officials to, for example, keep logs of their contacts with lobbyists. Officials should also not accept the gifts that lobbyists offer. Similarly, they should refuse a lobbyist’s request to ring a bell for them.
City Ethics Model Lobbying Code’s bell ringing prohibition both makes it more clear what bell ringing consists of, applies to all governmental actions (not just legislation), dispenses with the need to prove that the lobbyist influenced the official, and extends the prohibition to government officials:
Bell Ringing. A lobbyist may not initiate or encourage a governmental action for the purpose of creating future business for the lobbyist, such as opposing the governmental action or being employed or retained to secure the passage or defeat of legislation. Nor should an official or employee* be complicit in such a scheme.
6. False Appearances and Wrongful Influence. Even more fascinating than bell ringing are the various ways lobbyists can use fraud and fiction, coercion and promises, to try to get the results they want, at least if one believes there is a basis for a number of prohibitions local legislators have placed in lobbying codes.
Here is a basic False Appearances provision from the Dallas lobbying code:
A person who lobbies or engages another person to lobby, or any other person acting on behalf of such person, shall not cause any communication to be sent to a city official in the name of any fictitious person, or in the name of any real person except with the consent of such real person.
This provision implies that there are lobbyists who write letters or make calls in the name of people they do not represent and in the name of fictitious persons. This is where we can let our imaginations go. “Hello, I am calling for Local 123, and I want you to know that our union is 100% behind Bill 321. We can’t wait until the next election, so that our phone bank can do its magic for you.” Whether or not there is a Local 123 doesn’t really matter. What matters is that the caller does not represent it, whether it is real or not.
It’s hard to believe that a registered lobbyist would pull a fraudulent stunt like that. But legislators in multiple jurisdictions must have been hoodwinked like this, and want to stop lobbyists from doing it.
Oakland adds another wrinkle to this provision to cover what is known as “astroturf” groups, the creation of grassroots groups that have no real base in the community. Its provision starts by saying that no lobbyist may “attempt to create a fictitious appearance of public support or opposition to any governmental action.” This could be considered a subset of the provision of deception through false information. But here it is not information that is false, but the level of support or opposition to governmental action. Therefore, it’s worth including it in the False Appearances provision.
There is another provision that belongs with this one, because it involves another sort of false appearance, the kind of false statement it is much easier to imagine a lobbyist making: that he can control or obtain a government official’s vote or action. Here is the language from the Dallas lobbying code:
A person who lobbies or engages another person to lobby, or any other person acting on behalf of such person, shall not represent, either directly or indirectly, orally or in writing, that the person can control or obtain the vote or action of any city official.
This provision goes to the essential distinction between professional lobbying and bribery. A lobbyist who takes money from a principal in order to try to influence a government official is doing nothing different from what the principal would have done if it had the necessary expertise and relationships with officials. In fact, at the local level, where local business people do have good relationships with officials, they usually don’t bother to hire a lobbyist. They try to influence officials themselves.
However, when a lobbyist tells a client that he can obtain an official’s vote or action, he is effectively promising a result and, therefore, taking money from the client in return for a promise of governmental action, that is, a promise that the client’s money will bring about a particular governmental action. This is arguably bribery even according to the limited definition of the U.S. Supreme Court, and it is what the client intends. It doesn’t matter whether the promise is true or false, or whether the action or vote is actually affected by the lobbyist’s actions. The promise turns lobbying into bribery, even if the prohibition most likely cannot be enforced, because it was most likely made in a private conversation (unless, of course, there is a sting operation).
Ironically, in 2014 this issue arose in Dallas County, the county that includes the city of Dallas, but does not have the city’s lobbying code and program. According to an indictment, a lobbyist let it be known to contractors that she had special influence with a county commissioner. The commissioner supported the bids of the lobbyist’s clients and provided them with confidential information that gave them a “strategic advantage” over other bidders. The lobbyist and the commissioners allegedly shared kickbacks, but also brought in other people, so that the web of reciprocity would be large enough to protect them. For more on this matter, see this City Ethics blog post.
If the lobbyist did make a false appearance and the permit were not given or the council voted against the legislation, this harms the principals, but does not exonerate them, because they knowingly paid money to get a specific result rather than to attempt to get a specific result. However, the Dallas language would let the principals off, because it wasn’t the principals who made the representation. The principal accepted the representation as the truth, whether or not it was. Whether true or false, accepting the representation turned the transaction into a bribe, where the lobbyist rather than the official (or in addition to, when some of the money is handed over to the official) got the money. So this language should be added to the provision in order to place an obligation on a principal in this situation:
If such a representation is made to a lobbyist’s principal, including by an employee to an entity’s officers or directors, the principal must immediately report the representation to [the lobbying oversight office] and stop employing the services of whoever made the representation and of that individual’s firm.
Philadelphia has two provisions that deal with other sorts of wrongful influence:
A lobbyist or principal may not: ...
Influence or attempt to influence, by coercion, bribery or threat of economic sanction, a City official or employee in the discharge of the duties of office.
Attempt to influence a City official or employee on legislative or administrative action by the promise of financial support or the financing of opposition to the candidacy of the City official or employee at a future election.
The conduct reflected in these provisions consists of trying to influence officials not with language and ideas, but with bribery, threats, or promises. Although these provisions are unusual, they go to the heart of one of the biggest problems that people have with lobbyists: not just that they get special access, influence and, sometimes, actual power, but that they obtain these not by seeking a redress of grievances by presenting their principals’ positions to officials, but rather through underhanded methods. Provisions such as Philadelphia’s sum up all the limits and prohibitions on gift-giving, campaign contributions, charitable contributions, etc., provisions that can never cover everything, and take them further to include coercion, threats, and promises. These are catch-all provisions of a different nature than those at the end of subsection 10 below, and they are different, as well, from aspirational provisions like those discussed in section A and subsection 1 above. Although these provisions are difficult to enforce, because their language is specific, they provide useful guidance. They are not simply Gotcha! provisions.
Philadelphia has a related provision that applies to what might happen when the lobbyist’s attempt at influence fails or appears to the lobbyist to be failing. This provision prohibits any retaliation against the official:
A lobbyist or principal may not: ... Extort or otherwise unlawfully retaliate against a City official or employee by reason of the City official's or employee's position with respect to or vote on administrative or legislative action.
This is the only instance I know of a local law that prohibits retaliation against rather then by a government official. Officials in Philadelphia must have had some bad experiences with lobbyists.
Another sort of wrongful influence is seeking to influence an official through the official’s employer. This sort of inappropriate indirect influence is prohibited in Arizona and Utah. It should be extended to include an official’s family members, as well.
The mildest form of wrongful influence that some jurisdictions prohibit is lobbying in the legislative chamber. This is more of a conduct rule than a prohibition, and usually follows an embarrassing incident where the press catches a lobbyist coaching a legislator, or simply too many instances of lobbyists not knowing when and where to stop. There is usually no enforcement, or only enforcement by the legislative body or its ethics or conduct committee.
The City Ethics Model Lobbying Code includes all of these wrongful influence prohibitions in two provisions, and adds an official’s immediate family to the prohibition on influencing an official through his employer. The first provision requires a principal to report a lobbyist’s representation that he can control or obtain an official’s vote or action and to stop employing that lobbyist’s services. Here are the two model code provisions (§305.2(d) and (e)):
False Appearances. No lobbyist may attempt to create a fictitious appearance of public support for or opposition to any governmental action. No lobbyist may cause any communication to be sent to an official or employee* in the name of any fictitious person, or in the name of any real person except with the consent of such real person. No lobbyist may represent, either directly or indirectly, orally or in writing, that he or she can control or obtain the vote or action of any official or employee.* If such a representation is made to a lobbyist’s principal, including by an employee to one or more of an entity’s officers or directors, the principal must immediately report the representation to the lobbying oversight office and stop employing the services of whoever made the representation and of that individual’s firm.
Wrongful Influence. A lobbyist or principal may not attempt to influence an official or employee* by coercion, by threat of economic sanction, through an outside employer or client of an official, through an official’s spouse, domestic partner, or child, by the promise of financial support or by the threat of financing opposition to the candidacy of the official or employee.* Nor may a lobbyist or principal retaliate against an official or employee* by reason of his or her action on a matter upon which the lobbyist has lobbied.
7. Procurement. At the local level, procurement is one of the areas in which lobbying communications are most problematic, because competitive bidding is supposed to be objective and fair, and the relationships that lobbying depends upon involve being subjective and preferential. Therefore, some jurisdictions, especially those in Florida and California, have provisions in their lobbying codes that apply specifically to procurement.
One such provision involves ex parte communications. In Florida, these provisions are known as Cone of Silence provisions, after the glass cone that Maxwell Smart and his boss, Chief, used to use for top-secret conversations in the 1960s TV comedy series Get Smart. A cone of silence is defined as “a period of time during which there is a prohibition on communication regarding a particular Competitive Solicitation.” According to Robert Meyers, the former Miami-Dade County ethics commission’s executive director, the purpose of the provision is to “insulate county officials and employees from pressure that bidders and their lobbyists try to exert on decision-makers to win lucrative county contracts. ... This assures the public that the county's purchasing and procurement decisions are not compromised by backroom dealings and secret negotiations. ... [all communication has to be in writing and, therefore, accessible to the news media, to all government officials, to all bidders, and to the public] ... it creates a level playing field — all competitors have access to the same information.”
In other words, all acceptable communication must be public, equal, and above board. Lobbying, on the other hand, is mostly private, unequal, and under the table.
In Florida municipalities, the Cone of Silence provisions in lobbying codes are the same as those in the jurisdictions’ ethics codes and/or procurement rules. But it is good to include them in lobbying codes, as well, so that lobbyists will have all prohibitions involving their conduct in one place.
It is valuable to have a Cone of Silence provision relate not only to communications with procurement officials, but also to communications with high-level officials who may influence these officials as well as to such aspects of procurement as the specifications, division of contracts, timing, no-bid contracts, renewals, change orders, etc. Here is San Antonio’s provision:
A lobbyist or a lobbyist’s agent is prohibited from lobbying activities with city officials, including elected officials, and employees regarding a proposed contract from the time a Request for Proposal (RFP), a Request for Qualifications (RFQ) or other solicitation has been released until the contract is posted as a City Council agenda item. If contact is required, such contact will be done in accordance with procedures incorporated into the solicitation document. Violation of this provision by respondents or their agents, including lobbyists, may lead to disqualification of the respondent’s offer. There is a parallel no-contact provision for contractors and their agents.
If an ethics code’s or procurement rules’ Cone of Silence provision does not apply to communications with officials other than procurement officials, a provision such as this, which also includes principals, would be useful to include in a lobbying code.
The failure to include elected officials in Phoenix’s provision led to some serious appearance problems in 2009, when bidders for a big airport transportation contract hired lobbying firms in which the mayor’s sister worked, in which the chairs of campaign committees for the mayor and a council member worked, and in which the former firefighters union president worked (he was also a close friend of and fundraiser for the mayor).
Another problem that arose in this Phoenix situation is that the bidders insisted that, although they hired lobbyists, the lobbyists were not engaged in lobbying activities, but instead were guiding the bidders through the procurement process and introducing them to the officials and business executives they needed to meet. The appearance problems that arise from such excuses for not registering as lobbyists show how important it is for a “lobbying activities” definition to be inclusive and refer to procurement situations in the language, in comments, or in interpretations by the lobbying oversight office.
An issue once arose in Toronto regarding conflicts between the Cone of Silence provision and other parts of the lobbying code. The lobbying registrar recommended, and the council passed, an amendment to give express precedence to the Cone of Silence provision:
In the event of a conflict or inconsistency between [the Cone of Silence provision] and any other provision of this chapter, [the Cone of Silence provision] prevails.
Here is the City Ethics Model Lobbying Code cone of silence provision (§305.2(n)):
Cone of Silence. Agent and principal lobbyists, as well as lobbying supporters,* are prohibited from lobbying officials and employees* regarding a proposed contract from the time a Request for Proposal (RFP), a Request for Qualifications (RFQ), or other solicitation has been released until the contract is posted as a legislative agenda item. If contact is required, such contact will be done in accordance with procedures incorporated into the solicitation document. Violation of this provision may lead to disqualification of an offer or avoidance of a contract. In the event of a conflict or inconsistency between this provision and any other provision of this code, this provision prevails.
Another kind of procurement-related provision requires that contractors expressly certify that they and their lobbyists have and will comply with all the requirements of the lobbying code. It is also helpful for the lobbying code to require that the lobbying code be included in every bid solicitation and in contracts and subcontracts. Here is language from Los Angeles (§48.9.H):
Any bidder for a contract ... shall submit with its bid a certification, on a form prescribed by the City Ethics Commission, that the bidder acknowledges and agrees to comply with the disclosure requirements and prohibitions established in the Los Angeles Municipal Lobbying Ordinance if the bidder qualifies as a lobbying entity .... The exemptions contained in Section 48.03 of this article and Los Angeles Administrative Code Section 10.40.4 shall not apply to this subsection.
Each agency shall include the Municipal Lobbying Ordinance in each invitation for bids, request for proposals, request for qualifications, or other solicitation related to entering into a contract with the City. The ordinance must be provided in at least 10-point font and may be provided on paper, in an electronic format, or through a link to an online version of the ordinance. The ordinance is not required to be printed in a newspaper notice of the solicitation.
There is no reason to limit this requirement to contracts. The same requirement should apply to grants, permits, and licenses, as the City Ethics Model Lobbying Code does in its Purpose and Intent section, right at the beginning of the code.
See the section in this book for further information about procurement communication provisions.
8. Identification. It is a best practice for lobbyists to have to wear an identification badge, stating that they are a lobbyist and whom they are representing, when they visit government offices or attend affairs that include government officials. This is common practice at the state level, but less common at the local level. However, some local jurisdictions have requirements that either require identification badges or which can easily be satisfied by wearing an identification badge. Along with the badge, each registered individual and entity should be given a unique identifying number.
One reason more jurisdictions lack such a provision is that their lobbying codes focus on prohibitions rather than on obligations. Here is how Baltimore phrases the obligation as a prohibition:
A lobbyist may not ... while engaging in lobbying activities on behalf of a person, knowingly conceal from a public servant the identity of that person.
Philadelphia also goes the prohibition route:
A lobbyist or principal may not ... While engaging in lobbying on behalf of the principal, refuse to disclose to a City official or employee, upon request, the identity of the principal.
Prohibitions such as these are not the best way to require identification. The Baltimore language is not effective because a lobbyist can fail to disclose and, when asked, can easily say he thought that the official he was speaking to knew he was a lobbyist and whom he was representing. The Philadelphia language is better, but still requires people to ask. An identification badge constitutes knowing disclosure, which is far better than the prevention of knowing concealment. It also puts the principal burden on the lobbyist rather than on the official.
Toronto does a much better job of making identification an obligation. There is no explicit mention of an identification badge, although that is the easiest, most certain way to fulfill the obligation. However, this language takes the obligation beyond in-person meetings, so that electronic communications must include a disclosure that the speaker is a lobbyist and why the communication is being made:
Lobbyists communicating with a public office holder shall disclose the identity of the individual, corporation, organization or other person, or the partnership, on whose behalf they are acting, as well as the reasons for the communication.
Denver expressly requires lobbyists to wear an identification badge, but not one that identifies the principal:
No person engaging in lobbying shall ... Lobby a covered official in any city building unless the lobbyist is wearing a clearly visible badge identifying his or her name and firm, and unless the lobbyist discloses to the covered official the person whom the lobbyist is representing if requested by the covered official
It is best to take a positive approach and combine the Toronto and Denver language, as the City Ethics Model Lobbying Code has done. Its identification badge provision (§302.4) appears not in the Prohibitions and Obligation section, but rather in the Registration section, since this is when the badges are provided. Note that identification is required not only in all direct communications with officials, but also in grassroots lobbying efforts and in speaking at a public meeting, as well.
Each registered agent and principal lobbyist will be given a unique identifying number and a separate identification badge for each principal represented. The number and name of the principal(s) being represented must be conspicuously used in any communication with an official or employee* and in any communication that is part of a grassroots lobbying* effort. The identification badge must be worn in a clearly visible manner whenever visiting a city/county facility, the facility of any independent agency that has any relationship with the city/county, and any event attended by multiple officials or employees.* In addition, each registrant appearing before a city/county body must complete a speaker identification card prior to the appearance and orally identify him/herself and the principal(s) before addressing the body. No official or employee* may permit an individual who would be required to register under this code to communicate with him or her regarding any official matter before being given the lobbyist’s unique identifying number or, if in person, being presented with the lobbyist’s identification badge.
9. Conflicts of Interest I. The most peculiar prohibition on lobbyists is that on conflicts of interest that arise from representing multiple clients. Whereas the other prohibitions and obligations are intended to ensure transparency and honesty, and to prevent the creation of conflicts of interest on the part of government officials, all with the good of the community in mind, this one is intended to protect the personal interests of those seeking special benefits from the government from abuses by lobbyists, who have put their personal interest in fees above the interests of their clients.
The likely reason why such provisions appear in lobbying codes is that this sort of conflict of interest is central to lawyers’ rules of professional conduct. Therefore, the lawyers who sit on and advise local legislative bodies want to ensure that these conflicts of interest are prohibited for lobbyists as well (many of whom are lawyers themselves).
In fact, lobbyists have recognized that preventing such conflicts and requiring withdrawal or consent when they exist is important to their professional conduct. Article IV of the Association of Government Relations Professionals’ (the national lobbyists association) own (unenforced) Code of Ethics states:
A lobbyist should not continue or undertake representations that may create conflicts of interest without the informed consent of the client or potential client involved.
4.1. A lobbyist should avoid advocating a position on an issue if the lobbyist is also representing another client on the same issue with a conflicting position.
4.2 If a lobbyist's work for one client on an issue may have a significant adverse impact on another client's interests, the lobbyist should inform and obtain consent from the other client whose interests may be affected of this fact even if the lobbyist is not representing the other client on the same issue.
4.3. A lobbyist should disclose all known conflicts to the client or prospective client and discuss and resolve the conflict issues promptly.
4.4 A lobbyist should inform the client if any other person is receiving a direct or indirect referral or consulting fee from the lobbyist due to or in connection with the client's work and the amount of such fee or payment.
These requirements are greater than those in most local lobbying codes’. Philadelphia’s conflicts of interest provision is the most detailed in its requirements. It also contains a valuable exception for budget issues, except where budgetary interests are directly adverse, since there are so many different interests involved in a budget. Here is the Philadelphia conflict provision:
(5)(a) Except as permitted by subsection (b), a registrant may not lobby on behalf of a principal on any subject matter in which the principal's interests are directly adverse to the interests of another principal currently represented by the lobbyist or previously represented by the lobbyist during the current four-year session of Council, or directly adverse to the lobbyist's own interests.
(b) A lobbyist may represent a principal in circumstances described in subsection (a) if:
(i) the lobbyist reasonably believes that the lobbyist will be able to provide competent and diligent representation to each affected principal;
(ii) the lobbyist provides written notice to each affected principal upon becoming aware of the conflict; and
(iii) each affected principal provides written informed consent waiving the conflict of interest.
(c) If a lobbyist represents a principal in violation of this Section or if multiple representation properly accepted becomes improper under this Section and the conflict is not waived, the lobbyist shall promptly withdraw from one or more representations to the extent necessary for remaining representation to not be in violation of this Section.
(d) If a lobbyist is prohibited by this Section from engaging in particular conduct, an employer of the lobbyist or a partner or other person associated with the lobbyist may not engage in the particular conduct.
(e) A principal or lobbyist required to file an expense report under this Chapter shall include in the report a statement affirming that to the best of the principal's or lobbyist's knowledge the principal or lobbyist has complied with this Section.
(f) A lobbyist and principal shall maintain the records relating to the conflict of interest set forth in subsection (b) for a four-year period beginning on the date the conflict is discovered and provide copies of the records to the Board upon request.
(6) Multiple Principals. Nothing in this Section shall be construed to require a lobbyist representing multiple principals who each have an interest in the budget process to comply with subsection (5)(c) unless a conflict of interest exists under subsection (5)(a).
Toronto goes one step further than Philadelphia’s (5)(e) by requiring lobbyists to advise officials that they have received informed consent before engaging in lobbying activities with respect to the officials. Here is the language:
Lobbyists shall advise public office holders that they have informed their clients of any actual, potential or apparent conflict of interest and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking.
New York City’s minimal prohibition provides less guidance: “Not to represent or solicit representation of an interest adverse to such person's employer nor to represent employers whose interests are known to such person to be adverse.”
The City Ethics Model Lobbying Code does not include a conflicts of interest rule that relates solely to conflicts among the representation of non-governmental principals. I believe that these conflicts are for the lobbying profession to deal with, just as lawyers and other professionals deal with these conflicts in their professional rules. The more professional lobbyists are, the less likely they are to engage in ethical misconduct that harms the community. It is good to encourage them to have such rules, but it is not the role of a lobbying oversight program to protect their principals.
A related and, for a lobbying code, more appropriate issue to deal with involves a lobbyist who represents a government or agency with respect to higher levels of government, and who also represents clients before the government or agency. For example, according to an October 2014 article in the Tampa Bay Times, the Pasco County Commission’s lobbyist guided a discussion of the county’s priorities before the state legislature, and then the commission voted on an ordinance that would benefit one of the same lobbyist’s clients, an ambulance company. One commissioner who voted for the ordinance said he didn’t see a problem with this, because “I believe in his character and his integrity.” Another commissioner, who voted against the ordinance, said, “It just doesn't look right and if that's the way it's going to be, he won't get my vote next time.” This is not something each commissioner should decide for himself. This sort of conflict (especially when, as here, it is combined with campaign contributions) should be prohibited, even if other lobbyist conflicts are not.
The best way to protect the community from this conflict situation is by prohibiting lobbyists from getting into it. Here is the language from the Los Angeles County Metropolitan Transit Authority that deals with this conflict situation:
Any person or entity that receives compensation pursuant to a contract or subcontract to lobby on behalf of, or otherwise represent the MTA, may not lobby the MTA on behalf of any person or entity.
The City Ethics Model Lobbying Code follows this language in §305.2(k):
City/County Lobbyists. Any individual or entity that receives compensation pursuant to a contract or subcontract to lobby on behalf of, or otherwise represent (including as an attorney), the city/county may not lobby the city/county.
Much more rare is a provision that deals with the use of confidential information, not by officials to help others (which is a common ethics code provision), but rather by lobbyists to help those other than their clients. Here is Toronto’s provision:
Lobbyists shall not divulge confidential information unless they have obtained the informed consent of their client, employer or organization, or disclosure is required by law.
Lobbyists shall not use any confidential or other insider information obtained in the course of their lobbying activities to the disadvantage of their client, employer or organization.
This too is wrongly written to protect principals, not the public. It is important that a confidential information provision prevent the misuse of government information by lobbyists working closely with officials, for any purpose, not only for purposes harmful to the principal. Below is the City Ethics Model Lobbying Code provision on confidential information (§305.2(j)), which is similar to the model ethics code’s confidential information provision for government officials. Since lobbyists seek and obtain special access to information that is not public, they take on the obligations of a government official:
Confidential Information. A lobbyist may not use confidential information, obtained formally or informally as part of his or her lobbying activities, for his or her own benefit or for the benefit of any other person or entity, or make such information available in a manner where it would be reasonably foreseeable that a person or entity would benefit from it.
10. Conflicts of Interest II. Some jurisdictions have in their lobbying codes other sorts of conflicts of interest provisions that apply specially to lobbyists. It is hard to believe, but in some jurisdictions it is legal for a government official to work for a lobbying firm, and even to lobby on matters before the official’s own government. Such basic conflicts should be expressly prohibited in a lobbying code, even if it appears that the ethics code’s conflicts of interest provision would apply to such situations. The prohibition should be extended to include an official’s spouse, siblings, and business associates.
It is one thing for an elected official to be a businessperson who withdraws from participation in any matter involving his business. Elected officials work outside of government, and much of this work is inevitably going to give rise to a conflict. Such conflicts need only be dealt with responsibly. Any prohibition applies only to the creation of new conflict situations.
It’s another thing to be a lobbyist for businesses and others seeking special benefits from one’s government, because this is an ongoing conflict that the official chose to create and which continues to give rise to new conflicts. Withdrawal from participation is not a sufficient cure.
Lobbying Down: The most basic conflict is when a government official acts for the interests of her employer or client, that is, when a government official acts as a lobbyist with respect to matters before her government or a government or other entity over which her government has power, that is, “lobbying down.” State and county governments have power over the municipalities within them, as well as over the independent agencies that receive funds from the state or county or have board members appointed by state officials or by the county commission. Katy Sorenson, CEO of the Good Government Initiative at the University of Miami, has said that “because [state] legislators are in a position to approve or deny money and laws sought by counties and cities, their lobbying carries a much bigger threat than local officials lobbying in Tallahassee, because the local officials don't have power to help or hurt the legislators they lobby. I remember a very uncomfortable situation when a sitting senator came to lobby on behalf of a private client, when I was a county commissioner. And at the time the county had some interests in a committee he was heading ... [I]n the back of my mind I was thinking, if I vote against this guy and his private client, is it going to be held against us?”
Broward County, Florida has a provision that prohibits county commissioners from lobbying down to governments within the county. It contains the language, “This form of employment and activity is deemed to be in substantial conflict with the proper discharge of a commissioner's duties in the public interest.” One Broward County town, Lauderhill, prohibits any higher-level representative of its community (county commissioner, state representative, congressional representative) from lobbying town officials. Its mayor said in a comment to a blog post that when this had happened in the past, “]I]t put an enormous pressure on us to satisfy someone in a position that can make a decision that impacts us in the future. We didn’t want to upset them, for which they could hold a grudge.”
The City Ethics Model Lobbying Code has a conflict of interest provision in its Prohibitions and Obligations section (§305.2(l)) that includes both of these prohibitions:
No county legislator or his or her staff member may lobby any local government entity within the county. Nor may any official or employee* allow a higher-level representative of all or part of the city/county’s residents to lobby him or her.
Lobbying Up: But there are problems as well with government officials lobbying up, that is, lobbying at a higher level of government. Two different problem arise when a city official lobbies a county official or a local official lobbies a state official. One, it is not clear to the official being lobbied whether the lobbyist is acting as an official, for her community, or for a client or her own business’s private interests. Two, both officials involved in such lobbying sit together on political party and, sometimes, municipal association committees and, therefore, develop personal and professional relationships, even alliances, based solely on the offices these individuals hold. These relationships should not be taken advantage of for the benefit of private clients. Therefore, it is fine for a local official to lobby up for her government, but not for anyone else.
Matters Involving a Principal: Another sort of conflict arises when a government official who lobbies for (or whose firm lobbies for) a principal at any level of government encounters a matter involving that principal. For example, according to an article in the New York Times, in 2011 a village trustee in Rosemont, Illinois voted to award a contract to a client of his lobbying firm. This was perfectly legal in Illinois and Cook County, as long as the representation was disclosed. But disclosure, while appropriate to lobbying, does not cure a conflict of interest. This should be prohibited by an ethics code conflict of interest provision.
One would think that no high-level official could get away with acting as a lobbyist with respect to her own government, but this happens more than one would think, because many people argue that they are not acting as a “lobbyist.” For example, it became an issue in Honolulu when the council chair was also head of the local chamber of commerce. These roles may seem to be similar, since a chamber of commerce is such an important civic institution. But the head of a chamber is not a neutral figure, but rather acts as a lobbyist for particular interests in the community. These roles conflict.
Prohibitions: There are two ways of dealing with this conflict: (1) prohibiting government officials from lobbying at any level or (2) requiring that they withdraw from any matter involving anyone represented by the official or the official’s firm. The latter may deal with conflicts like the one in Illinois, but does not deal with the problems that arise from officials misusing the power of their position to help their clients when they lobby down, and officials’ uncertainty about who is being represented when an official lobbies up.
The easiest thing would be simply to prohibit government officials from lobbying. This is one of the recommendations of a 2009 report published by the Organisation for Economic Co-operation and Development (OECD), entitled “Self-Regulation and Regulation of the Lobbying Profession.” But since there is agreement that lobbying is protected by the First Amendment, it is not possible to have a blanket prohibition. There has to be a good reason for each kind of prohibition.
The City Ethics Model Lobbying Code prohibits county legislators and their staff lobbying down (see above). Other county officials have less power over municipalities. In its Revolving Door provision (§305.2(m)), the Model Code also deals with the situation where a lobbyist takes a job with the city/county government. It sets out exactly what such a lobbyist must do with respect to a cessation of its lobbying activities with respect to that government.
If a lobbyist is hired by or takes a position with the city/county, the lobbyist must immediately cease engaging in lobbying activities, terminate his or her registration, and within 30 days file any remaining disclosure reports. The lobbyist’s firm may no longer represent principals before the former lobbyist’s board or agency or, if the lobbyist serves on the local legislative body or is the mayor or other CEO, the government. The lobbying oversight office may waive this rule upon a determination that there is no conflict of interest and that the lobbyist’s position cannot be used to influence officials or employees with respect to the areas or topics for which he or she is lobbying.
Lobbying by Development Agencies: Another intra-governmental lobbying situation that can be problematic is that where a local public-private economic development agency effectively represents a business seeking a grant or subsidy. The agency can generally represent its client not only without registering as a lobbyist, but even without disclosing to the public whom it is speaking for. This allows grants and subsidies to be given to businesses that no one knew were seeking these benefits, thereby preventing public input. When this is allowed, as it is, for example, in Florida, it makes a mockery of lobbying oversight programs and undermines their goals of transparency and the public participation this allows.
Lobbying by Family Members: Another basic conflict involves the lobbying of officials by their family members, as well as the lobbying of officials by the immediate family members of high-level officials, especially of a mayor, county executive, or legislator. It’s a great way for such officials’ family members to get work, because they, more than anyone, are seen as having special access at least to one high-level official, and most likely to that official’s friends, allies, appointees, and subordinates, as well. This is why, for example, the younger sibling of a Chicago alderman not only got elected to the state legislature, but also set up a lobbying firm to lobby the city (while his partner lobbied the state). In his excellent book, Getting the Government America Deserves: How Ethics Reform Can Make a Difference (Oxford U.P., 2009), Richard Painter recommends the prohibition of lobbying by high-level officials’ family members.
In 2014, Utah state representative Ken Ivory defended his wife’s lobbying him on the grounds that she too is a constituent of his. But a spouse is a constituent who has a special relationship with a government official, she has special access to and can make it uncomfortable for her spouse’s colleagues when she lobbies them, and she can use her spouse’s office to help her get clients or, as in the Utah situation, create her own lobbying organization, which can raise money based on legislation sponsored by her spouse.
Broward County, Florida is one jurisdiction that has a provision relating to this problem:
A spouse or registered domestic partner, immediate family members and office staff of a County Commissioner shall not engage in lobbying activities before the Board of County Commissioners or before other local governmental entities within Broward County...
The City Ethics Model Lobbying Code’s conflicts of interest provision (§305.2(l)) not only prohibits government officials, employees, and consultants from lobbying their own government, but also prohibits intra-family lobbying, extends this prohibition to intra-business lobbying, and places the responsibility on both the official and the lobbyist:
No city/county official, employee, or consultant, or any high-level official’s spouse, domestic partner, child, or sibling, may lobby the city/county or any affiliated independent agency. No one may lobby a relative (immediate family, parent or grandparent, child or grandchild, including the equivalent step-family members), a relative of a member of his or her lobbying firm, a relative of the principal or an owner, partner, or officer of his or her principal, or a business associate. No city/county official may allow a relative or business associate to lobby him or her.
Lobbying by Political Party Officers: Yet another kind of conflict of interest arises when a political party officer lobbies. Party officers determine the support the party gives to local candidates when they’re running locally and when they’re looking to run for higher office. It is hard for an elected official, or an official considering a run for elected office, to get on the bad side of party officers. This gives party officers a great deal of clout, solely from their position. It may not be a government position, but it involves conflicts of interest in the public sphere.
West Virginia state representative Justin Marcum said in January 2015, with respect to a bill to create such a prohibition at the state level, “It’s vital that the people have that trust in the legislators to show, yeah we’re going to stand up to our party or any other party and speak for integrity. If you want to be ethically sound, step aside as a party chair or as a lobbyist. Pick your fruit, you can’t have both.” Both major parties’ state chairs were lobbyists at the time.
Therefore, it is worth considering a prohibition of at least local party officers lobbying local officials, as City Ethics Model Lobbying Code does in §305.2(l):
...no local party officer [county for county officials, and county or city for city officials] may lobby a local official.
But note that there is a special exception (§302.3(k)) for political party officers communicating with elected officials when it “does not relate to a matter that may specially benefit the party officer or a family member, business associate, or client of the party officer.”
Endorsements: A different sort of conflict provision that belongs in a lobbying code is one that prohibits lobbyists from asking government officials for endorsements of their work to others, and officials providing such an endorsement. Many ethics codes have a provision that does not allow officials to endorse any products or services (see City Ethics Model Ethics Code §100.15). But this prohibition involves public endorsements. With lobbyists, the endorsements are usually private and to the last people officials should be advising, restricted sources.
It is inappropriate for a council member to recommend a lobbyist to the officer of a company seeking to influence the government, but it is even more inappropriate for a lobbyist to ask a council member for such a recommendation or for an endorsement that the lobbyist could use more generally (e.g., a letter of recommendation) to get himself business.
The same is true with respect to officials recommending clients. They should not be involved in helping lobbyists in any manner. Hence the City Ethics Model Lobbying Code endorsements prohibition (§305.2(o)):
Endorsements. No lobbyist may ask an official or employee* for an endorsement of his or her work to others, nor may any official or employee* provide such an endorsement. Nor may an official or employee* suggest a possible client to a lobbyist.
Loans: Some jurisdictions, including Chicago, Philadelphia, and Baltimore, expressly prohibit loans between lobbyists and government officials. Loans are a form of gift that some officials will, if not expressly prohibited, disingenuously argue is not a gift. Loans create an ongoing obligation to the lender. If the terms are good, then a loan is a gift by anyone’s standards. If the terms are fair market, then there is still the issue of getting a fair market loan (not everyone can, especially when credit is tight), the possibility of the terms being changed if the official acts in the lender’s interest, and what happens if the official doesn’t make payments. Loans between officials and restricted sources should be prohibited by a gift provision, but it is useful to emphasize in a lobbying code that loans are especially inappropriate between officials and lobbyists or their principals. The City Ethics Model Lobbying Code has the following loan prohibition provision (§305.2(q)):
Loans. No official or employee,* member of his or her immediate family, or associated business may request or make a loan from or to a lobbyist or principal, or any officer, partner, owner, or employee or a lobbying firm or principal.
Charitable Fundraising: Baltimore has a very useful lobbyist conflict provision that involves the always problematic area of charitable fundraising. The following provision from the City Ethics Model Lobbying Code (§305.2(r)) extends the provision to include principals and changes the language a bit:
Charitable Fundraising. No lobbyist or principal may engage in any charitable fundraising activity at the request of an official or employee.* “Fundraising activity” includes the solicitation, transmission, and transmission of a solicitation of a charitable contribution.
Such a provision not only prevents lobbyists from using charitable fundraising as a way to deepen an official’s feeling of obligation. It also prevents officials from using their pet charities in pay-to-play schemes.
Converted Contributions: Another way to prevent pay to play, as well as illegal contributions, is, as Philadelphia does, to prohibit lobbyists from receiving economic consideration (including a lobbying fee) based on an agreement, written or oral, that any part of the economic consideration will be converted into a campaign contribution. The City Ethics Model Lobbying Code has a provision to this effect, §305.2(h):
Pay to Play. A lobbyist may not charge a fee or receive economic consideration based on a contract, either written or oral, that any part of the fee or economic consideration will be converted into a contribution to a candidate for any public office or to any political committee.
Complicity: A complicity provision — making complicity with an ethics violation itself an ethics violation — is a necessary part of an ethics code. Such a provision should appear in a lobbying code, as well, either copied from the ethics code or made to apply specially to lobbyists. Here is Toronto’s language:
Lobbyists shall not place public office holders in a conflict of interest or in breach of the public office holders' codes of conduct or standards of behaviour.
Lobbyists shall not propose or undertake any action that would bestow an improper benefit or constitute an improper influence on a public office holder.
This language provides too little guidance. Tampa has better language, which makes someone who “aids, abets, counsels, hires, or otherwise procures [a] violation to be committed” in violation of the lobbying code. Philadelphia uses prohibition language, prohibiting a lobbyist from “knowingly counsel[ing] a person to violate this Chapter or any other provision of this Code or of any Federal or State statute.”
The sixth of lobbyist Nicholas W. Allard’s “Seven Deadly Virtues of Lobbying” (from an essay by that name, Election Law Journal (2014)) is that lobbyists “makes sure others comply [with the rules].” Not only does he feel that lobbyists should not be complicit in others’ ethical misconduct, but also that they have a positive obligation to make sure others comply or, if they do not, report them to the lobbying oversight office.
The Code of Ethics of the Association of Government Relations Professionals, the national lobbying group, does not go this far. It only requires that lobbyists do not “cause” others to violate rules. However, it would certainly go a long way to show the public that lobbyists, due to their role as a conduit for communication between a government and its citizens, especially considering their common past role as government officials and often their current roles as attorneys, have positive obligations to protect the public from ethical misconduct about which they have knowledge.
The City Ethics Model Lobbying Code reproduces the Model Ethics Code provision on complicity:
Complicity with Others’ Violations. No one may, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this code. One who has knowledge of another’s possible violation is encouraged to report it to the appropriate authority.
Campaign Officers and Consultants: Philadelphia has a provision that prohibits lobbyists from serving as officers of campaign committees for city office candidates or for PACs controlled by such candidates. Such service is another way that lobbyists both deepen an official’s feeling of obligation to them and create a close personal and professional relationship that will not only help their clients, but also make it easier for them to get clients. In other words, this service creates a conflict of interest.
The same sort of relationship, and conflict, can be created between a candidate and a campaign consultant. Not only are these consultants vital to a campaign, but they can also make undisclosed contributions on behalf of their clients by accepting a lower hourly rate, and letting it be known that clients are making up the difference. They can get special access and favoritism for their clients if the candidate wins. And this relationship can lead to the sharing of confidential information that is valuable to the campaign consultant’s principals. In short, it is not good to allow anyone to wear both these hats. Here is language from San Francisco’s lobbying code, which prevents campaign consultants from lobbying those officials they have consulted to:
No campaign consultant, individual who has an ownership interest in the campaign consultant, or an employee of the campaign consultant shall communicate with any officer of the City and County who is a current or former client of the campaign consultant on behalf of another person or entity (other than the City and County) in exchange for economic consideration for the purpose of influencing local legislative or administrative action.
A situation involving a campaign consultant led to an ethics complaint in San Francisco in October 2014. The complaint alleged that, while a firm was organizing AirBnB customers to contact city supervisors (council members) in favor of legislation that would benefit AirBnB, a member of the firm was a consultant on one supervisor’s campaign. While insisting it was not lobbying for AirBnB, the firm says that it created a firewall between the consultant and the ten-person firm’s employees working on the AirBnB matter. But there is no way for anyone to know whether this firewall was actually in place, that is, whether the consultant discussed AirBnB with the supervisor. In any event, it is hard for the public to believe that the supervisor was not influenced on the issue by knowing that his consultant’s firm was working with AirBnB.
An alternative is to require that an official must withdraw from any matter that involves a former campaign committee officer or consultant.
If there is no prohibition, officials still have a choice. They can say to a lobbyist-consultant, “I'd like you to be my campaign consultant, but if you accept the job, you can't lobby me for at least a couple of years.” Or they can choose not to hire any local lobbyist to consult to them.
Lobbyists have an obligation here, as well. Although they have no fiduciary duty to the public, as officials do, they do have a special duty to their principals. And their principals do not want their names associated with scandals that arise from conflict situations. Principals want special access based on a special relationship, but not a front page article about that special access based on wearing two hats with respect to one high-level official such as, for example, the speaker of the New York City council in 2013-2014 (see my blog post on it). Wearing two hats, although lucrative for the lobbyist in the short run, may be harmful to the lobbyist in the long run, because it will cause her other clients to question her judgment, it will cause other officials to steer clear of her, and it will cause regulators to pay more attention to everything she does, as if she were driving a bright red Corvette down the government ethics highway.
Below is City Ethics Model Lobbying Code provision, §305.2(g), which prohibits lobbyists and officers or employees of principals from serving as campaign committee officers, and also prohibits campaign consultants from lobbying those they have consulted to.
Political Activity. Neither a lobbyist nor an officer or employee of a principal may serve as a treasurer or other officer for the political committee or political action committee of any candidate seeking a city/county elected office or of any candidate for another elected office who is a city/county official or employee.* City/county officials may not speak at political fundraising events sponsored in whole or in part by lobbyists or other restricted sources. No campaign consultant or employee of a campaign consultant may lobby any official or employee who is a current or former client of the campaign consultant or whose superior is a current or former client of the campaign consultant. “Former” in this provision means within the past two election cycles.
Lobbyings on Government Boards: The Los Angeles Unified School District has an excellent provision that should be in every lobbying code. It prevents lobbyists from sitting on government boards:
A Lobbying Organization, Lobbying Representative(s) or any other agent(s) acting on their behalf are prohibited from ... Serving on an LAUSD board or commission while acting as a Lobbying Representative ...
Keeping lobbyists off of boards and commissions is sometimes controversial. Restricted sources want a seat at the table when issues relating to their interests are being discussed, whether or not the board has authority or is primarily advisory in nature. In fact, sitting on an advisory committee is an important lobbying activity. As Anthony Nownes wrote in his book Total Lobbying: What Lobbyists Want (and How They Try to Get It) (Cambridge University Press, 2006), “Because advisory committees have the ear of agency personnel, lobbyists value advisory committee assignments.”
Even where a board is only advisory, its recommendations are usually accepted and, even when they are not accepted wholesale, they have a great deal of authority. Having lobbyists — contract, in-house, or principal — sit on zoning boards or on boards involved in the contract or grant approval processes, needs to be recognized as a form of preferential treatment given to favored lobbyists, not as a way of getting a variety of views. After all, lobbyists will make their recommendations whether or not there is an advisory board. These views will be communicated to agency personnel and local legislators. An advisory board consisting primarily of lobbyists is not about obtaining views, but rather about making certain lobbyists’ recommendations appear official, so that it is easier for government officials to accept them, even when they are controversial. Lobbyists should not even communicate with these boards, except in the form of public testimony. If lobbyists want to make joint recommendations to an agency or body, they can either form a coalition or set up a board on their own, without any need for government involvement.
Officials usually argue that expertise is needed to help them make the right decisions for the community. But those who have both expertise and a current financial interest in decisions do not have to actually sit on boards and commissions. Boards and commissions need to have access to those with expertise, of course, but this can be supplied by government employees and attorneys, and by those who publicly come before the board (in person or on paper) arguing their points.
Lobbyists can share their expertise with government boards through public meetings and written communications. They can testify before boards and disagree publicly with advisory board recommendations. Sitting on a board is never necessary. There are other individuals with expertise who are not involved in current projects, who are retired or work elsewhere. But the most valuable expertise for a board member is the ability to listen, learn and, independently of special interests, responsibly make recommendations and decisions. When you know what you want, and when it benefits you or your client, you are much less likely to listen.
The best argument in favor of allowing lobbyists to sit on boards is that, when they are prohibited from doing so, they are more likely not to register. This is what happened when the Obama administration prohibited lobbyists from sitting on boards. But this can be prevented by using a broader definition of lobbying, one that does not contain the loopholes federal lobbyists use to say that they are merely consulting or practicing law. Definitions such as those in the City Ethics Model Lobbying Code will do this.
In fact, lobbyists should not be prohibited from sitting on boards because they are lobbyists, but rather because they are restricted sources. That is, any such prohibition should include principals as well as lobbyists. As co-author of the American Bar Association’s Lobbying Manual Thomas M. Susman wrote to the District of Columbia’s ethics board on this topic, “What is undesirable is anyone who serves on a commission or board that has a financial interest in any industry or entity subject to regulation by that board.” In other words, this is a conflict of interest issue.
At the local level, principal and lobbyist are more likely to be the same person, or to work in the same company, so there is even less reason to differentiate between the two in this context. As Susman suggests, the prohibition should only apply to boards or areas where the lobbyist lobbies or the principal has a financial interest. A developer should be permitted to sit on an arts commission, and a procurement lobbyist should be permitted to sit on a planning commission. However, even where there is not a financial interest, for example, when an environmental organization director wants to sit on a conservation board, there is still, as Susman says, “an appearance problem that would cause hesitation on the appointing authority as a practical matter.”
An August 2014 decision of the federal Office of Management and Budget (OMB) is erroneous and should not be followed at the local level. The decision was to allow lobbyists to sit on advisory boards in their representative capacity (as employees for companies), but not in their individual capacity (as individuals who happen to be lobbyists).
If anything, it should be the other way around. Someone who happens to be a registered lobbyist, but is not representing anyone in matters relevant to an advisory board, is not conflicted and, therefore, should be allowed to sit on the advisory board. It is only when a lobbyist is representing someone who could benefit from the board’s recommendations that she should withdraw (or be asked to withdraw) from participation or, if the matters about which she is conflicted form a significant part of the advisory board’s work, not sit on the board at all.
The OMB decision was a response to a federal appellate court decision in Autor v. Pritzker, 740 F. 3d 176 (D.C. Circ. 2014), which treated the issue not as a conflict of interest issue, but rather as a constitutional government benefit issue (the benefit is the opportunity of sitting on an advisory board). If this decision stands and gets support from other circuits, the best solution is for governments to end the practice of having official advisory boards. Instead, officials can hold open meetings, at which various interests present their cases publicly. Or unofficial advisory boards could be formed independently by those debating an issue or project, without government involvement. Since possible members would be able to insist on balance or, at least, on separate recommendations (or dueling boards), and the boards' recommendations would be less likely to be rubber-stamped by officials who had selected the board members in the first place, there would be fewer real or apparent government ethics problems with such boards.
If no such boards were created and those without a financial interest in a matter were not as well organized and able to pay for lobbyists, officials could take initiative by inviting their input. If this were the only result of the decision in this case, it would actually be helpful. But this decision could lead to problems, even for those jurisdictions that do not prohibit lobbyists and their principals from sitting on advisory boards. Will officials feel they have to invite lobbyists to meetings even if they prefer to speak to their clients? Will officials feel that they can't turn down requests from lobbyists to meet with them?
Below is the City Ethics Model Lobbying Code prohibition (§305.2(p)) relating to lobbyists and principals serving on boards in any area related to their interests:
Service on Boards. No lobbyist or principal (including owners, partners, officers, board members, and employees) may serve on a city/county board or commission, including advisory boards, in any area related to a principal’s financial interests, business, or assets.
Use of City Equipment: The conflict provisions in a lobbying code that I have found the most surprising involve lobbyists’ misuse of city supplies and copying equipment, and entering or using an official's office, phone, or parking space without explicit permission. These Denver provisions imply that there is a problem with lobbyists not only wandering city hall trying to buttonhole officials, but also walking into and using their offices and office equipment, and even their parking spaces. It would be inappropriate for officials to give permission to certain lobbyists to do this, unless they give permission to all lobbyists and, for that matter, to all city/county residents. The best way to prohibit this is through a well-written ethics provision like that in the City Ethics Model Code (§100.11; emphasis added):
An official or employee may not use, or permit others to use, any city funds, property, or personnel for profit or for personal convenience or benefit, except (a) when available to the public generally, or to a class of residents, on the same terms and conditions, (b) when permitted by policies approved by the local legislative body, or (c) when, in the conduct of official business, used in a minor way for personal convenience.
It is worth repeating the basic ethics code conflict of interest provision in a lobbying code, making it expressly applicable to lobbyists and principals. Here is the City Ethics Model Lobbying Code language (§305.2(l)):
No lobbyist or principal may propose or undertake any action that would bestow a financial benefit on an official or employee* or an official or employee’s spouse, domestic partner, family member, or business associate.
11. The Revolving Door. At the federal level, lobbying firms often make job offers to officials and their aides in order, as the infamous lobbyist Jack Abramoff himself has put it, “to own them. ... Every request we make, they're going to do it.” At the local level, there are few lobbying firms and these are less likely to have open positions, unless they’re divisions of large law firms. But principals have lots of jobs to offer.
When an official leaves public service to work for a principal, it puts into question everything the official did with respect to that principal. If the official accepts a position at a lobbying or law firm, it puts into question everything the official did with respect to that lobbying or law firm’s clients. The hope or promise of such a job can seriously influence the acts of a government official. This is a major reason why post-employment provisions are so important to include in a lobbying code. If there is already a good one in an ethics code, it should be reproduced in the lobbying code. Where necessary, the provision should be supplemented with provisions that apply specifically to lobbyists.
In his essay “Regulating Lobbyists: Ethics, Law and Public Policy,” 16 Cornell Journal of Law and Public Policy 1-61 (2007), Vincent R. Johnson gives another important reason for post-employment provisions: “a public-servant-turned-lobbyist will have, or will appear to have, an unfair advantage in petitioning the government.” This is equally true whether the former public servant works as a contract lobbyist, as an in-house lobbyist, or as the head of an association, organization, or institution that seeks special benefits from the local government, such as a local chamber of commerce, social service agency, university, or hospital. This advantage may derive from special personal knowledge of and a special personal relationship with a former colleague. As Archibald Cox wrote (quoted in Richard Briffault’s essay “The Anxiety of Influence: The Evolving Regulation of Lobbying”),
“[T]he ex-official will often be able to trade upon habits of deferring to his advice and wishes engendered during the days when he was senior to, or at least a more influential official than those with whom he now deals in a different capacity.”
There are also issues relating to confidential information the former public servant learned while in office, which can give his new employer or clients an advantage.
The most basic revolving door provision is that used, for example, by the Los Angeles County Metropolitan Transit Authority:
No former authority official shall become a lobbyist for a period of one year after leaving the authority.
Of course, by “lobbyist” the MTA means someone who lobbies the MTA.
The Los Angeles Unified School District extends this basic provision, so that officials, employees, and consultants (it is important to include consultants, too) are prohibited from lobbying the school district both during and for a year after their employment.
A rule was once proposed in Miami that would have prohibited campaign consultants to city commissioners from lobbying the city commission for two years after working on a campaign. This was a response to a particular situation. But it is valuable to consider lobbying-oriented revolving door rules for other than elected officials, because those with especially close relationships — such as aides and campaign managers and treasurers — should not be able to immediately use these relationships to benefit restricted sources.
What less commonly appears in ethics codes and, therefore, is more important to include in a lobbying code is a pre-employment (or “reverse revolving door”) provision, such as Chicago’s:
No city employee or official shall personally participate in a decision-making capacity, for a period of two years from the date of employment or becoming a city official, in a matter that benefits his or her immediate former employer or immediate former client who the employee or official represented or on whose behalf he or she acted as a consultant or lobbyist prior to commencing his or her city employment or prior to becoming a city official.
Pre-employment provisions are necessary to prevent special interests from putting a lobbyist in office, where access and influence are even stronger. Even more than post-employment rules, pre-employment laws involve conflicts of interest and, therefore, appear in ethics codes, as Chicago’s does. It is best that such a provision appear in both the ethics code and the lobbying code or section of an ethics code, so that lobbyists can find in one place all the prohibitions and obligations that apply to them (this useful inclusion of relevant provisions applies to county, state, and federal prohibitions and obligations, as well).
As for the cooling-off period — the period during which a former official should not lobby or a former lobbyist must withdraw from participation or not work for the government — the common lengths are one year or two years. Reasons for cooling-off periods include (1) after they have passed, the confidential information a former official knows is less likely to give her client or employer an advantage, and (2) many of the former official’s contacts will be gone from government and not in a position to give the client or employer preferential treatment due to having a former colleague on staff.
For post-employment laws, the argument for a shorter period is that, the longer the period, the harder it will be to get people to enter into public service, since their post-government prospects would be limited for a long time. It is understood that officials will use the expertise they gain in public service when they go into the private job market. It is, therefore, necessary to balance this reasonable use of skills against the misuse of confidential information and one’s position to benefit prospective employers.
This argument about cooling-off periods does not apply equally with respect to pre-employment provisions, because jobs are not what is prohibited, only lobbyists’ involvement in particular matters they were involved in as lobbyists or that their clients are involved with. Therefore, although one year may be acceptable (although not optimum) for a post-employment rule, two years is more reasonable for a pre-employment rule. In fact, the best practice is for lobbyists not to be involved in any matter in which their former employer or clients are involved, either for the entire time they are in public service or, since that could conceivably last decades, for at least five years.
There is a federal district court decision, Brinkman v. Budish, 692 F. Supp. 2d 855, 864 (S.D. Ohio 2010), which found unconstitutional a one-year ban on lobbying state government by former state legislators, at least to the extent the lobbyist is not being paid directly for his services. But many consider this a questionable extension of the U.S. Supreme Court’s decision in Citizens United. For example, Richard Briffault argues in his paper “The Anxiety of Influence: The Evolving Regulation of Lobbying,” Columbia Public Law Research Paper No. 14-367 (January 2014), that revolving door laws “are much more tightly limited than the spending ban at issue in Citizens United. [These laws apply] for a limited time [and] with respect to a limited set of matters.” He also argues that the burden on political expression is “quite modest.” And “the essence of the nineteenth and early twentieth century anti-lobbying decisions – the reliance on personal importunities, private solicitation, and the use of inside knowledge – is at the heart of the rationale for the revolving door ban, and would apply even to uncompensated lobbying.”
In addition, the money issue is secondary with respect to a revolving door provision. It isn't the fact that a legislator is paid for his lobbying that makes the lobbying inappropriate. What is important is that there might have been a deal with the client to act in its favor while the legislator was still in office. In addition, a legislator may lobby for free while receiving his compensation indirectly, say, through legal work for the same client. It is the lobbying itself, in matters related to government work or to people who were colleagues and subordinates, that makes the revolving door a sign to citizens that their government officials are pawns of special interests — selling them their special relationships with colleagues and subordinates — rather than representatives of those who elected them. Payment for lobbying services is a very minor part of the problem.
Revolving door rules may be waived with respect to individuals who have been or will be lobbying for nonprofits, as in-house or contract lobbyists, strictly about policies, not about contracts, grants, or other financial benefits. See the discussion above about the differences between for profits and nonprofits from a government ethics point of view. But a general exception is problematic, even an exception for uncompensated lobbying done for nonprofit organizations. The reason is that there is the possibility that a nonprofit is merely a front for one or more special interests, as many are either as part of an “astroturf” lobbying effort or as part of a relationship with major contributors. It is better to handle such issues via a public waiver process than by a blanket exception.
It’s worth noting that an April 2013 report by the Alliance for Lobbying Transparency and Ethics Regulation (ALTER-EU) recommends that lobbying firms be responsible for not hiring former officials during the cooling-off period. In the U.S., there is an assumption that officials should carry the entire burden of complying with ethics laws. It is best if everyone is brought into the program and given responsibility for following ethics laws.
The City Ethics Model Lobbying Code’s revolving door provision, §305.2(m), has both pre- and post-employment rules. These rules are strict, because the appearance of impropriety in the mixture of lobbying and public service is so strong.
Revolving Door. For a period of two years from the date of employment or becoming a city/county official, an official or employee may not participate in a matter that may benefit his or her immediate former employer or immediate former client. If an agent lobbyist is hired by or takes a position with the city/county, the lobbyist must immediately cease engaging in lobbying activities, terminate his or her registration, and within 30 days file any remaining disclosure reports. The agent lobbyist’s firm may no longer represent principals before the former lobbyist’s board or agency or, if the lobbyist serves on the local legislative body or is the mayor or other CEO, the government. The lobbying oversight office may waive this rule upon a determination that there is no conflict of interest and that the lobbyist’s position cannot be used to influence officials or employees with respect to the areas or topics for which he or she is lobbying. No individual may lobby an official or employee* for two years after that individual has left city/county service or after a member of his or her firm or an owner, partner, or office of his or her principal has left city/county service.
This provision is intended to complement City Ethics Model Ethics Code Post-Employment provision §100.10(d), which has a two-year cooling off period for government officials and employees, which applies to employment with and representation of restricted sources.
12. Secondary Obligations. There are several obligations that are secondary to a lobbying code’s basic prohibitions and obligations, but are important to mention.
Indirect Means: For example, San Diego and San Francisco require that lobbyists “not attempt to evade the obligations in this section through indirect efforts or through the use of agents, associates, or employees.” It is useful to sprinkle the words “directly or indirectly” throughout an ethics or lobbying code, but it is valuable to also have a provision such as this to remind people that, even where indirectness is not expressly included in a provision, or where rules could be evaded through indirect efforts that were not contemplated, doing something indirectly is just as wrong as doing it directly. The only difference is that such indirect efforts are harder to contemplate and prohibit in specific situations. A lawyer’s creative mind should not be used to take advantage of the limitations of those drafting ethics and lobbying provisions.
This is the sort of catch-all provision that provides clear guidance and, therefore, is not problematic. Here is the City Ethics Model Lobbying Code language of §305.2(w), which extends that of San Diego and San Francisco to include lobbyists’ and officials’ family members:
Indirect Means. Agent and principal lobbyists may not attempt to evade the prohibitions or obligations in this code through indirect efforts or through the use of their or their principals’ agents, associates, employees, or family members, or through the agents, associates, employees, or family members of officials or employees.*
For more on the subject of indirectness, see the section devoted to the subject, below.
Responsibility for Grassroots Lobbying: Philadelphia has a valuable provision that relates to indirect or grassroots lobbying communications, requiring the lobbyist or principal to publicly take responsibility for such communications:
Whenever any person makes an expenditure for indirect communication for the purpose of disseminating or initiating a communication, such as a mailing, telephone bank, print or electronic media advertisement, billboard, publication or education campaign, the communication shall clearly and conspicuously state the name of the person who made or financed the expenditure for the communication.
Retention of Records: Another secondary obligation is the retention of documents. New York City requires that lobbyists “retain all books, papers and documents necessary to substantiate the financial reports required to be made under this subchapter for a period of five years.” This does not go without saying. The City Ethics Model Lobbying Code contains the following provision, §305.2(t):
Retention of Records. All lobbyists and principals must retain, for a period of five years, all books, papers, and documents necessary to substantiate the disclosures required to be made under this code.
Limits on Hiring Lobbyists: A fourth important secondary obligation is for lobbyists to tell their principals about any law that might limit or prohibit their hiring or payment with particular funds. This is especially important when the principal is a government or agency. For example, the failure of multiple lobbyists to tell the Buffalo government that federal Department of Housing and Urban Development funds cannot be used for lobbying got Buffalo into a lot of hot water in 2014. It’s a good idea for principals to place this obligation in every lobbying contract.
Requirement to Report Lobbying Violations: Another secondary obligation is on officials who deal with lobbyists: to report lobbying violations. Chicago requires the reporting of a lobbyist’s failure to register. But this obligation should cover all violations and should apply to all government officials and consultants, as in City Ethics Model Lobbying Code provision §305.2(v):
Reporting Violations. Officials, employees*, and consultants, as well as lobbyists and principals (and their officers and employees), are required to report to the lobbying oversight office possible violations of this code of which they have knowledge, including the failure of a lobbyist to register or fully disclose.
13. Other Prohibitions and Obligations. Toronto has three uncategorizable prohibitions and obligations that are worth sharing:
Lobbyists shall inform their client, employer or organization of the obligations under this chapter.
Lobbyists shall not conduct lobbying activities at a charitable event, community or civic event, or similar public gathering.
Lobbyists communicating with a public office holder on a duly registered and disclosed subject matter shall not use that opportunity to communicate on another subject matter, unless first having registered as required and disclosing the identity and purpose.
The first of these does not go without saying, at least in those lobbying programs that do not directly involve principals through training and disclosure. In such programs, it is important to make lobbyists responsible for enabling their principals to realize what they, and their lobbyists, must and must not do. If the lobbying oversight office is not given authority to involve principals, lobbyists should be required to effectively share their training with their principals. Here is the City Ethics Model Lobbying Code’s language (§305.2(u)):
Informing Principals. All agent lobbyists must inform their principals about any law that might limit or prohibit their hiring, expenditures, or other acts or be jointly liable for their violations of such laws.
The second involves timing. There is a time and place for everything, and it is worth considering whether lobbying should take place at public, non-governmental events, where it is inappropriate. A judge recommended further that “Business meetings between lobbyists and elected officials should be conducted in a business environment, during business hours whenever possible. If lobbyists expect access to government decision-makers to persuade them directly, they should also expect that opportunities to persuade will be granted only in places of business, during appropriate work hours.” It is unusual to set limitations on the time and place of lobbying, but it is certainly an aspiration worth discussing. Here is the City Ethics Model Lobbying Code’s language (§305.2(i)):
Lobbying Venues. Lobbyists may not engage in lobbying activities at a charitable event, a community or civic event, or a similar public gathering. So far as possible, business meetings between lobbyists and officials should be conducted in a business environment, during business hours and at city/county offices whenever possible.
Prohibiting Campaign Contributions: The prohibition of campaign contributions from lobbyists and their principals sounds like a serious obstacle to lobbying and one that is of questionable constitutionality. However, many lobbyists support such a prohibition, because otherwise they have little choice but to pay to play, that is, to make contributions to elected officials who let it be known that not only the officials’ support, but access to them, is dependent on the making of sizeable campaign contributions. Even without pay to play, escalation in the campaign activity of lobbyists does nothing to help professional lobbyists, because anyone can spend money. Federal lobbyist Nicholas W. Allard, in his essay “Lobbying Is an Honorable Profession: The Right to Petition and the Competition to Be Right,” 19 Stanford Law and Policy Review 23 (2008), wrote that he “would be first in line to support a prohibition of paid lobbyists from making campaign contributions, especially if it resulted in multilateral disarmament.”
As Allard points out, one growing group of lobbyists already cannot make certain campaign contributions, because they’re already illegal in many jurisdictions. I am referring to in-house public sector lobbyists, the lobbyists who represent local and state governments and agencies with respect to other, usually higher levels of government. Somehow they are able to do their jobs well without making campaign contributions.
In fact, prohibitions and limitations only in areas other than political campaigns can serve to skew lobbying activities toward this area, making political campaigns more important to lobbyists than they would like them to be.
Los Angeles is the only large local government I could find that prohibits campaign contributions from lobbyists (in its charter rather than in its lobbying code). The prohibition applies only to lobbyists, not to their principals. Since the lobbyist is just the principal’s agent, this doesn’t make sense. What is valuable about the language in the provision is (1) the prohibition applies to both lobbyists and candidates, (2) it covers both solicitation and the making or accepting of contributions, and (3) it applies to contributions to candidates for an office that the lobbyist is registered to lobby as well as contributions to officials the lobbyist is registered to lobby, even when they are running for a different office. Here is the language:
No elective City officer or candidate for elective City office, nor any of his or her City controlled committees, shall solicit or accept any contribution to the officer or candidate, or to any of his or her City controlled committees, from any lobbyist or lobbying firm registered to lobby the City office for which the candidate is seeking election, or the current City office, commission, department, bureau or agency of the candidate or officer. No person required by ordinance to be registered as a lobbyist or lobbying firm shall make any contribution to an elective City officer or candidate for elective City office, or to any of his or her City controlled committees, if the lobbyist or lobbying firm is required by ordinance to be registered to lobby the City office for which the candidate is seeking election, or the current City office, commission, department, bureau or agency of the candidate or officer.
Miami Beach, Florida has a better approach, because it prohibits campaign contributions from not only lobbyists, but also from vendors and developers, that is, their principals (or themselves if they do their own lobbying). It also ensures that all documents relevant to vendors and developers gives notice of this rule, so that no one is caught unawares. But it only applies in the areas of procurement and land use, and only to certain elective offices, not to any city/county official running for any office. The language below pulls together several Miami Beach provisions (§2-487ff):
(A) No vendor or lobbyist on a present or pending solicitation or award, and no real estate developer or lobbyist, may give a campaign contribution directly or indirectly to a candidate, or to the campaign committee of a candidate, for the offices of mayor or commissioner. Commencing on the effective date of this ordinance, all proposed city contracts, purchase orders, standing orders, direct payments, as well as requests for proposals (RFP), requests for qualifications (RFQ), requests for letters of interest (RFLI), or bids issued by the city, as well as all applications for development agreements and for changes in zoning map designation as well as future land use map changes, must incorporate this section so as to notify vendors, real estate developers, and lobbyists of the proscription embodied herein.
(B) No candidate or campaign committee of a candidate for the offices of mayor or commissioner must deposit into such candidate's campaign account any campaign contribution directly or indirectly from a vendor, real estate developer, or procurement or land use lobbyist. Candidates (or those acting on their behalf) must ensure compliance with this code section by confirming with the procurement office, city planning department, or lobbyist oversight office’s records to verify the vendor, real estate developer, or lobbyist status of any potential donor.
Such prohibitions are controversial, but they are a reasonable attempt to prevent what appears to the public to be bribery or pay to play, especially if they allow small contributions. Some of these prohibitions, like Miami Beach’s, apply only to procurement or other matters. But this is not reasonable because, in many jurisdictions, elected officials do not have any say in contracts, while they have a lot of say in grants and development projects. And for the sake of fairness, all restricted sources, and their agents, should be treated the same.
A federal appellate court prohibited lobbyist campaign contribution bans in Green Party v. Garfield, 616 F.3d 213 (2d Cir. 2010), concluding that only limits on such contributions could be constitutional. The principal reason was that lobbyists were not implicated in recent scandals, the way contractors were (the campaign contribution ban on state contractors was permitted). The court also disallowed the prohibition of lobbyists soliciting contributions, but did say that specific prohibitions, such as of bundling, would be constitutional. It suggested that an acceptable approach would be “simply to ban lobbyists from soliciting contributions from their clients, and contractors from soliciting contributions from their employees and subcontractors.”
This points to a provision that is too rarely included in local lobbying codes, that is, a provision that prohibits lobbyists and their principals from bundling campaign contributions or otherwise getting involved in campaigns, other than by making legal campaign, PAC, party, and independent organization contributions or independent expenditures, or by speaking out in favor of candidates.
The same federal circuit court upheld a New York City law that lowered contribution limits for both lobbyists and restricted sources, which constitute what is often called a “pay-to-play” law (Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011)). The court stated, “When those who do business with the government or lobby for various interests give disproportionately large contributions to incumbents, regardless of their ideological positions, it is no wonder that the perception arises that the contributions are made with the hope or expectation that the donors will receive contracts and other favors in exchange for these contributions. ... Contributions to candidates for City office from persons with a particularly direct financial interest in these officials' policy decisions pose a heightened risk of actual and apparent corruption, and merit heightened government regulation.”
Below is the City Ethics Model Lobbying Code’s campaign contribution prohibition, §305.2(f). It applies not just to lobbyists, but to all restricted sources; it applies to contributions to entities that make independent expenditures, to prevent an easy evasion of the prohibition; it requires that notice of this prohibition be included in the documents these individuals and entities are likely to encounter in their dealings with a government; it shares responsibility between lobbyists and principals on the one hand and candidates and officials on the other; and it requires government offices to provide up-to-date lists of restricted sources, to make it easier for candidate committees to know which contributions to return. The provision applies a total ban, but it can be changed to allow small contributions. If this is done, it is best to use aggregate amounts that apply to a principal and its agents (including lobbyists) and the employees and board members of all these entities as a whole.
Campaign Contributions and Independent Expenditures
(1) No lobbyist, principal, or other restricted source may, directly or indirectly, give a campaign contribution to or solicit or collect a campaign contribution from a city/county candidate or a candidate who is an official or employee,* the campaign committee or related political committee of such a candidate, or an entity that makes independent expenditures in support of such a candidate or in opposition to such a candidate’s opponent. All proposed city/county contracts, purchase orders, standing orders, direct payments, as well as requests for proposals (RFP), requests for qualifications (RFQ), requests for letters of interest (RFLI), and bids issued by the city/county, as well as all applications for grants, permits, licenses, development agreements, and changes in zoning map designation as well as future land use map changes, must incorporate this section so as to notify vendors, grantees, real estate developers, licensees, and lobbyists of the proscription embodied herein.
(2) No candidate or campaign or related political committee of a city/county candidate or of a candidate who is an official or employee* may deposit into such a candidate's campaign or political committee account any campaign contribution directly or indirectly from a lobbyist, principal, or other restricted source. Candidates, and those acting on their behalf, must ensure compliance with this code section by confirming with the lists to be placed online by the procurement office, city planning department, grantmaking and licensing agencies, or the lobbyist oversight office to verify the status of each potential donor.
The unfortunate reality of local politics is that restricted sources are the principal large campaign contributors. Therefore, any local legislative body that bans or limits their contributions is hurting themselves. This is why this is rarely done, even if it is a very effective way to deal with pay to play and to prevent the principal appearance of impropriety in the funding of campaigns.
There are alternatives besides a ban or dollar limit on such contributions. One alternative is what I call the Westminster Approach, which allows campaign contributions from restricted sources, but requires that officials who receive such contributions withdraw from matters involving contributors. See the section in my book on this approach.
Another alternative is to limit the prohibition to those officials running for an office which the lobbyist is registered to lobby. This only works when registration requirements provide for listing all offices the lobbyist intends to lobby, and the list cannot be expanded to include an office after a campaign contribution has been made. Otherwise, officials could give to candidates they intend to lobby, but have not yet lobbied and, therefore, need not have included on their registration form. Also, this limit allows contributions to officials one is lobbying as long as they are running for a higher office.
Another alternative, employed by several states, is to prohibit campaign contributions only while the legislature is in session, when the appearance of impropriety is the greatest. But local legislatures are almost always in session, so this alternative wouldn’t work at the local level. In any event, such laws have had a mixed reception from courts, which have either said they are overinclusive (i.e., small contributions, which do not appear improper, should be allowed) or underinclusive (why not all restricted sources?).
An alternative employed in Alaska prohibits contributions from lobbyists in districts other than the one in which the lobbyist is allowed to vote. This could be useful in municipalities that have legislative districts. Otherwise, just the lobbyist or one officer or owner of the principal would have to live in the municipality. External contributions are an important issue in state and federal elections, where contributions come from all over. They are less important in local elections, but still a factor in many. One unintended consequence of a requirement for someone living in the jurisdiction is that it would lead out-of-town restricted sources to hire a local lobbyist simply to allow it to make campaign contributions, at least if the prohibition applied to principals (as it should) in addition to lobbyists.
Another alternative is public campaign financing which places a limit on contributions from every individual, including lobbyists. It is no accident that the leading opponent of a referendum to bring public campaign financing to Seattle was a professional lobbyist. Many lobbyists, or their principals, do not see it as in their interest to limit the gifts they can make to the elected officials they seek to influence (although many lobbyists feel otherwise).
The last alternative, which can be combined with another, is to require the disclosure of contributions on an ongoing basis in the lobbying database, as is suggested above.
Here is recommended language for two of the other alternatives:
(1) (the Westminster Approach) “An official must withdraw from participation in any matter that may benefit a campaign or political committee contributor, or his or her business or client, of an aggregate amount greater than $300. The requirement to withdraw remains in effect until the expiration of the term of office which the official was seeking when the contribution was made.”
(2) (where legislators are selected by district) “Lobbyists, principals, and other restricted sources may contribute only to a legislative candidate for the district in which the individual is eligible to vote or will be eligible to vote on the date of the election. This exception applies only to individuals, not to their employers or clients.”
Another reason to limit or prohibit contributions from contract lobbyists is that local governments have been increasingly hiring these lobbyists to represent them at the state and federal levels. This makes any contract lobbyist a potential contractor, who might be making contributions not only to help their clients, but also to help themselves get a lobbying contract with the government. This makes such contributions doubly problematic.
Political Fundraising: The 2011 ABA Task Force on Federal Lobbying Laws report acknowledged that, worse than campaign contributions is lobbyist participation in political fundraising activities. It recommends that “so far as practicable, those who advocate to elected officials do not raise funds for them, and those who raise funds for them do not advocate to them.” Here is its reasoning (the focus is on Congress, but equally applicable to mayors and local legislators):
[T]he multiplier effect of a lobbyist’s participation in fundraising for a Member’s campaign (or the Member’s leadership PAC) can be quite substantial, and the Task Force believes that this activity should be substantially curtailed. A lobbyist who solicits and then “bundles” large numbers of individual donations for the benefit of a particular Member of Congress, or who leads a fundraising effort on behalf of that Member’s campaign, becomes an extremely valuable asset to that politician. In many instances, this role enables the lobbyist to wield particularly strong influence when he or she makes a “lobbying contact” with the Member. Even if the lobbying occurs first, the expectation that the lobbyist may later serve as an important figure in raising money for the Member’s campaign can result in undue influence in the legislative arena. Thus, a self-reinforcing cycle of mutual financial dependency has become a deeply troubling source of corruption in our government. In addition, public awareness of this interplay has contributed to an appearance of corruption and, thus, to widespread mistrust of the legislature.
The ABA Task Force recommends a solution akin to revolving door provisions: no one should not be permitted to lobby an official for whom they have raised funds in the past two years. But what about lobbying first and raising funds later? This solution does not deal with this problem. In fact, with respect to earmarks, which are the federal equivalent of the subject of most local lobbying, the ABA Task Force recognized this limitation.
Only the prohibition of fundraising by lobbyists is adequate to deal with the problem as a whole. And the rule should apply to both principal and lobbyist, as well as to all members of a lobbyist’s firm, the firm itself, and any PAC associated with the principal or with the lobbyist or lobbyist firm. In addition, the prohibition should apply to any campaign, at any level of government, and to any PAC controlled by an official who has been or is soon to be lobbied.
Even here, there is a problem ensuring that lobbyists register, because such a prohibition could only be applied to registered lobbyists, since non-registered lobbyists are not bound by a lobbying code. However, if someone were found to have raised funds and failed to register, their fundraising should also be considered a violation of such a rule. This double violation might make people think twice about trying to fundraise by failing to register.
As Richard Painter says in his book Getting the Government America Deserves: How Ethics Reform Can Make a Difference (Oxford Univ. Press, 2009), the best way for lobbyists to improve their reputation is for them to voluntarily end their involvement in campaign finance, and focus on their subject matter expertise. This is the best way to extinguish their reputation as “well-dressed bagmen.” Doing this would also greatly lessen pay to play.
Other Political Activities: Another valuable prohibition is of officials speaking at fundraising events for organizations that lobby the government or have a contract with or grant from the government. But this is part of a larger issue: lobbyists’ volunteer campaign activities. Although there are laws that consider discounted professional services in-kind contributions, laws look kindly on volunteers, because they are the heart of the traditional political campaign. This allows lobbyists to not only make and bundle contributions, but also to provide a range of free services that will cement their relationship with officials and greatly benefit their clients. In 2014, York University professor Robert MacDermid called these volunteer services “a loss leader. ... That’s why so many people who work at the core of campaigns are people who work in the lobbyist industry.”
A lobbyist’s services to a campaign or political committee should be prohibited above the contribution limit, with volunteer services valued at the fair market value and considered an in-kind contribution. Below is the City Ethics Model Lobbying Code’s ban on participation in political campaigns, §305.2(g). Its ban on fundraising activities appears in the campaign contribution ban above. If a jurisdiction chooses not to ban contributions from lobbyists and principals, it should at least preserve the ban on solicitation of such contributions:
Political Activity. Neither a lobbyist nor an officer or employee of a principal may serve as an officer for or consultant to the committee or political action committee of any candidate seeking a city/county elected office or of any candidate for another elected office who is a city/county official or employee.* City/county officials may not speak at political fundraising events sponsored in whole or in part by lobbyists or other restricted sources. ...
Indirectness involves a series of related situations and issues that have kept coming up in this chapter. This section is intended to bring these issues together in one place, with links back to each specific situation or issue, so that there will be a minimum of repetition.
Indirectness is central to the idea of lobbying. Those who are seeking special benefits from government often contract with or hire individuals or firms to represent their interests by seeking to influence government officials. In the alternative, they have regular employees do this, or the owner or CEO does it herself. Only in the last case, which is more common at the local level than at the state and federal levels, is lobbying not an indirect activity.
Because of the indirectness at the heart of lobbying, those who draft, advise regarding, and enforce lobbying codes need to take into account various kinds of indirectness even more than do those who do the same things with respect to conflicts of interest codes. The simplest way to ensure this is done is to frequently include in a lobbying code the phrase “directly or indirectly,” so that rules are not limited to direct conflicts, direct gifts, direct employment, direct campaign contributions, or direct lobbying.
Here is a list of the various indirect lobbying activities and aspects of lobbying discussed in this chapter:
1. Indirect or “grassroots” lobbying. This involves seeking to influence local officials indirectly by seeking to influence others to communicate with local officials. It includes public relations campaigns, coalition building, and related strategic advising. This kind og activity has become an increasing part of lobbying activities in recent decades. For more information, see here and here.
2. Making indirect gifts and contributions to officials and/or indirectly benefiting an official by making gifts to an official’s family member, business, business associate, creditor, or pet charity. Most gifts from lobbyists are actually gifts from a principal, but if the lobbyist is not registered, this may not be considered a gift from a restricted source. This is one reason it is so important to broadly define “lobbyist” and “lobbying activities.” Also, gifts and contributions can be directed to an elected official via a company or nonprofit, which does not clearly have any relationship to the actual contributor. For more information, see here.
3. Employing a former official to lobby with respect to his government or agency indirectly. For example, a former council member might be hired to lobby the county or council members from neighboring towns regarding a development or transportation project, even when he was involving with the project as a council member, if the revolving door provision only relates to lobbying one’s own agency.
4. Indirectly compensating a lobbyist, either because the lobbyist is a subcontractor or because the principal is a member of an association. For more information, see here.
5. Lobbying officials who lack authority with respect to a matter, but who can influence those who do have authority. For example, a mayor or council member may not have a vote on planning decisions, but they may have influence on planning board members as appointing (and re-appointing) authority and as fellow party member (influence over planning board members’ political future). Similarly, administrators, government attorneys, and agency and department heads have influence in legislative matters due to their ongoing advisory and working relationship with council members; in fact, they often draft bills, contracts, and board decisions. Therefore, the authority of someone who is being lobbied should not be relevant to whether the activity constitutes “lobbying.” What also should not be relevant is the professional status of anyone who is lobbied. That is, a lobbyist’s communications with a government attorney should not be considered confidential, or should be automatically waived. Otherwise, a city or county attorney, who is often the most important official next to a mayor or county executive, becomes the perfect loophole to get around a good lobbying oversight code. Of course, procedural matters, discovery, and settlement talks, where the attorney is acting in a role only attorneys may fill, would still be privileged. In addition, government attorneys should not play a role in campaigns, such as raising funds or bundling contributions, in order to get more influence over elected officials and, thereby, attract the attention of lobbyists seeking an indirect path to high-level officials.
6. The lobbying of local officials not about local matters, but about state or federal matters, especially grants, loans, and subsidies. Local officials have influence on certain state and federal matters, even though they do not make the final decisions. Local governments apply for grants and loans on behalf of local companies or for projects that local companies will build, but they often do not vote on them and they do not have final authority. This leads to much lobbying that may not be considered “lobbying.” Therefore, the definition needs to include this sort of lobbying. For more information, see here.
7. Lobbying for and by principals who benefit indirectly from government action. One example is the situation where an individual paying the lobbyist (or doing the lobbying) would not directly benefit, but a company in which the individual has an interest, or a property partially owned by the individual, might benefit. In such a situation, the principal in name is not a restricted source, but the actual principal is. It may seem on its face to be citizen lobbying, when it is actually lobbying for the purpose of obtaining special personal benefits that accrue indirectly.
8. Indirectly being involved in an ethics or lobbying violation. Through temptation or otherwise, a lobbyist or principal may be involved in an official’s ethics violation, or a principal in a lobbyist’s lobbying violation, without himself being in violation of a law. This is why it is important to have a complicity provision in lobbying and ethics codes. See here and also see the Complicity section of this book.
9. Negative lobbying, intimidation. An example of this can be found here.
10. Influencing through a consulting company’s report. An example of this can be found here.
11. Indirect payment of an apparently pro bono lobbyist or volunteer. An example of this can be found here.
Here are two kinds of intermediaries who play a role in lobbying:
1. Fixers: those who bring people together in an attempt to influence officials, sometimes in ways that do not require direct communication. Also referred to as “power brokers” and “go-betweens.” For more information, see here.
2. Placement agents. For more information, see here.
Another sort of indirectness involves evading obligations pursuant to a lobbying code. For example, San Diego and San Francisco require that lobbyists “not attempt to evade the obligations in this section through indirect efforts or through the use of agents, associates, or employees.” The City Ethics Model Lobbying Code borrowed this language from them for its own §305.2(w).
It is useful to sprinkle the words “directly or indirectly” throughout an ethics or lobbying code, but it is valuable to also have a provision such as this to remind people that, even where indirectness is not expressly included in a provision, or where rules could be evaded through indirect efforts that were not contemplated, doing something indirectly is just as wrong as doing it directly. The only difference is that such indirect efforts are harder to contemplate and prohibit in specific situations. A lawyer’s creative mind should not be used to take advantage of the limitations of those drafting ethics and lobbying provisions. This is the sort of catch-all provision that provides clear guidance and, therefore, is not problematic.
Philadelphia has a valuable provision that relates to indirect lobbying communications, requiring the lobbyist or principal to publicly take responsibility for such communications:
Whenever any person makes an expenditure for indirect communication for the purpose of disseminating or initiating a communication, such as a mailing, telephone bank, print or electronic media advertisement, billboard, publication or education campaign,