On Lobby Blog we have often discussed “unlobbyists,” or those who participate in lobbying activities without ever formally registering as a lobbyist.  In October 2014, we wrote about Tim LaPira, a political scientist from James Madison University whose research suggests that the $3.3 billion spent on lobbying in 2012 was actually closer to $7 billion due to the massive number of unregistered lobbyists. Further, as noted in the Lobby Blog post “Registration Crackdown”, unregistered lobbyists have rarely, if ever, been pursued by the Office of Congressional Ethics or the Department of Justice. Between 1995 and 2010, only three lawsuits filed by the U.S. Attorney’s Office against lobbyists were settled, and since 2010, at least five suits have been filed related to Honest Leadership and Open Government Act (HLOGA) and Foreign Agent Registration Act (FARA) violations.

There are, however, signs of heightened awareness and enforcement interest emanating from within the Department of Justice. Interested parties may wish to register their concerns with Bill Miller, Media Contact for the DC Attorney’s Office who handles this issue at DOJ.

Perhaps there are some of you amongst our readership who have experienced business/revenue loss at the hands of an unregistered competitor. If so, we’d like to hear from you, maybe even publish your story in future blog installments. Self-policing is an effective tool. Today on Lobby Blog we have the pleasure of talking with Norman Ball about “unlobbyists,” and his particular experiences in this arena. Norm is a business developer and Program Management Professional (PMP) as well as a writer in Northern Virginia. After encountering some of his recent lobbying-related articles on-line, we felt he had a story worth sharing with our readership. So we asked him to sit down with us for an interview. Here is the result of that meeting.

Matt: First of all Norm, thank you for helping to shed light on a long-overlooked and shadowy area of lobbying known as ‘unlobbying’. I know our readership will be interested to learn more about this strange subgroup in their midst.

Norm: No problem, Matt.

M: I should also say that, while we loved your graphic, it’s fair to say you’re not a teenager, yes?

N: The cobwebs behind ‘teenage’ are there for a reason Matt (laughs). I felt my stint as an Unlobbyist Assistant qualified as a monstrous transformation. Hence the hairy cuffed claw. I’m better now.

M: Well that’s good to hear. First, we should probably familiarize folks with just what we mean by an unlobbyist. We took a swing at defining an unlobbyist above. What’s your definition?

N: By way of analogy, I would only add that an unlobbyist is like a practicing attorney who isn’t state-barred or an individual who practices medicine without a license. These folks are often employed by their clients via business development contracts. In some cases, the client hasn’t performed the necessary due diligence to ascertain the professional legitimacy of the individual. In fairness, how many people would think to question an attorney’s bona fides when they encounter him in the ‘Attorney’ section of the Yellow Pages? Many unlobbyists exploit this naiveté.

M: Of course.

N: Other times, the clients are either unaware of HLOGA’s ethical implications, or perhaps turn a blind eye because they feel they’re getting an insider on the cheap. But again, the onus rests with the individual who’s essentially orchestrating the deception. Most clients, I believe, are unwittingly implicated.

M: Everybody wants bang for their buck as long as it’s on the right side of the law. (Chuckling) I still don’t know how one who is engaged in the world of lobbying can still be unaware of HLOGA, especially with such fantastic compliance resources out there such as Lobbyists.info’s Lobbying Compliance Handbook.  Why don’t the organizations tasked with the enforcement of lobbying make unlobbying a higher priority?

N: Interestingly, the Secretary of the Senate and the Clerk of the House tend to focus their attention on those who conscientiously register and file the necessary reports. Thus unlobbyists often travel under the radar on Capitol Hill. I liken it to the police stopping a bank robber just outside the bank only to let him go when they discover he’s not a registered bank robber.

M: You might say that much of our readership is held to a higher standard simply because they do the right thing by disclosing their profession. That seems a tad unfair, especially given the image problems lobbyists must already contend with.

N: An image problem created in part by unlobbyists.

M: Exactly. So in order to get your own arms around the lobbying universe, you decided to conduct a series of interviews. They’re very good by the way.

N: Thank you. Although we haven’t gotten to the particulars of my situation, I came to suspect that, contrary to the assurances of the individual I was working with, he was in fact operating outside of the law.  So as you say, this led me on my own quest for information.

M: In your interview with Craig Holman, lobbyist for Public Citizen and a driving force behind the drafting and passage of HLOGA, he implies there may be ethical and legal implications for both the Congressional staffs and clients who, knowingly or otherwise, engage with unlobbyists.

N: Yes, he does. Look, I’m not sure whether a ‘carding system’ is required. But transparency and full disclosure are critical to the democratic process. Surely some sort of verification protocol is warranted in order to protect, not only the integrity of the system, but those who register as the law requires of them.

For the elected official and his staff too, they have a right to know whether they are sitting across the table from a citizen petitioning a genuine civic grievance, a registered lobbyist or a businessman with an undisclosed economic interest who’s sort of unethically ‘playing the gap’. As an elected official, I think I’d be upset if the latter posed himself as the former since it could rebound back on my office, creating at the very least the appearance of impropriety.

M: That makes sense. Appearances can be everything in politics.

N: As for the unlobbyist and his client, if the former has misrepresented his professional credentials to the latter, that seems more of a contractual or business risk issue. The analogy would be hiring an individual to audit your books who you subsequently discover is not a CPA. We’re in the realm of effective due diligence or, in the event of lapsed due diligence, potential grounds for dismissal upon subsequent discovery.

M: We at Lobby Blog share your concern about the troubling opacity of the lobbying profession. Unfortunately the ‘Casino Jack’ (Abramoff –whom I note you interviewed recently) stereotype is embedded in the public psyche. No one would argue the vast majority of lobbyists fulfill a crucial role in the legislative process and are hard-working and ethical professionals. It’s a shame a few rotten apples create an image problem for the majority.

N: I concur fully with that, Matt—both with the necessity of the lobbying function for the promulgation of good law and with the competency and integrity I’ve encountered in my dealings with industry professionals. For example, Meredith McGehee, Policy Director at the Campaign Legal Center and a long-time registered lobbyist herself was a great source of information as was the Sunlight Foundation’s Jenn Topper.

Clearly, the issues facing the government today are simply too complex to be dealt with, absent competent expertise. One current debate is whether this expertise should reside within government itself or should instead be ‘fed’ to it by external conduits such as lobbyists. Lee Drutman (Senior Fellow at New America), whom I interviewed recently, makes an excellent (and highly readable) case for the absolute criticality of the lobbying function in his new book, The Business of America is Lobbying. However he feels this information-gathering function should be brought more under the direct auspices of Congress itself.

Then you have Abramoff who’s ideologically a small government guy. Perhaps not surprisingly, his current reform efforts focus more on a ‘less government equals less lobbying’ theme. Another angle arrives via Public Citizen’s Holman, a huge advocate for increased transparency and accountability. These varying approaches notwithstanding, you’ll find little argument from any of them that traveling salesmen in the Senate cloak room are not conducive to the public interest.

M: We’re seeing more energy on the HLOGA enforcement side. What are you seeing?

N: There’s no doubt the secret TPP trade bill has stoked populist ire against hidden corporate hands. But even before that, DOJ spokesman Bill Miller, who I’m speaking with (and who’s requested a copy of this interview by the way), said that, “the issue of illegally unregistered lobbyists isn’t outside the purview of the U.S. Attorney’s Office for the District of Columbia.” So while Congress may be more focused on registered lobbyists, DOJ recognizes a broader mandate.

M: There is movement within this broader mandate to be sure.

N: Yes indeed. I am speaking with some advocacy groups who are eager to put more fire beneath the unlobbyist issue. They just needed some case studies and a ‘poster child’ or two. That’s where my story’s helpful. These sorts of ethics drives tend to galvanize around an Abramoff-type figure.

M: Great background. Now to your story. How did your involvement all come about?

N: Well, without delving all the background details, I got involved with a gentleman who had had extensive prior consulting experience with the Department of Energy, specifically the nuclear division. He’d secured a business development contract with a manufacturer of patented dissolvable nuclear suits or what the industry calls Personal Protective Equipment (PPE).

M: Sort of like DuPont’s Tyvek suits?

N: Exactly. In fact, part of the initiative involved attempting to dislodge Tyvek suits from the Federal space as well as the traditional laundered, or reusable, suits. This company had achieved a commanding market share in the private sector. However they’d had limited success with Uncle Sam.

As you mention Tyvek, another important point is that DuPont sustains a significant Government Affairs effort which, one suspects, operates within the law. There’s something patently unfair about a legally compliant and significant investment (Est. at $9 million in 2014 according to Open Secrets) being undermined by what amounts to an underfunded, unregistered competitive rearguard action.

M: That almost goes without saying. Non-compliance shouldn’t enjoy a built-in competitive advantage. What gives here?

N: Again, the profession could do more to amplify its concerns. Hopefully this interview will help raise awareness. Anyway, the game plan was to break the bureaucratic impasse by sending letters to various Congressmen and Senators in an effort to coax a letter from one of them to Secretary of Energy Moniz, urging him to initiate a departmental review that would include the represented product. To that end, I undertook research, visited Congressional offices, DOE nuclear field facilities such as Hanford and the manufacturer’s facility down south, co-wrote explanatory letters and white papers, developed marketing materials and videos, accompanied and overseen in most instances by my colleague.

M: What was your economic or business interest?

N: None during this formative phase beyond the expectation of reaping future compensation via public sector sales. Our agreement was to share any commissions that followed on from this effort. However for other reasons beyond just the lobbying, the endeavor was starting to ring alarm bells in my mind by the end of 2014. So I commenced my own side-research.

M: What did you conclude?

N: Well, the structure of the letters to Congress and the whole meeting approach was, I felt, less than above-board. I had deferred to my colleague’s long history of interfacing with Congress, and had even asked him on one occasion whether he was a lobbyist (he wasn’t) and whether that presented a problem. He assured me he was acting in the capacity of a concerned citizen and thus was merely petitioning Congress in that capacity.

M: How did you feel the letters were misleading?

N: They would begin by describing my colleague’s background interfacing with DOE in order to imply—or at least suggest—his professional standing and the source of his expertise on the matter. From there, the letter would tout the advantages of the product he was representing and end with an appeal to have the relevant Congressional office contact, as I mentioned above, the DOE Secretary. Stapled to the back of the letters was the company’s sales literature. So the sales objective was barely camouflaged. However the implicit economic self-interest was never discussed, and at times deflected altogether.

M: That’s interesting. How did the various Congressional offices respond to these letters? Are there any specific occasions that stick out in your mind to give our readership a sense of how ‘direct sales lobbying’ works?

N: Well, more often than we’d speak with a mid-level staffer who’d sort of forward the information into a black hole. This came about often by talking our way into the office based on a previously sent letter.

M: Can you relate any of the more fruitful meetings?

N: One occurred in mid-2014 with Rep. Charles “Chuck” Fleischmann (R) of Tennessee’s 3^rd District and his Legislative Director, Alek Vey. The Congressman is on the House Energy and Water Subcommittee and has been a committed and passionate leader in nuclear waste cleanup. DOE’s decommissioned Hanford Site is also in his district. It was a very interesting meeting.

M: How so?

N: My colleague launched into his pitch about going back a long way on Capitol Hill as a page, having an Uncle who was a former Senator, etc. As a 79-year-old with a cane, my colleague strikes a grandfatherly pose which gets him more time than probably you or I would on our own. The persona was that of a retired grandfather concerned about the nuclear waste problem and wanting to leave a better planet behind for his grandchildren.

M: And yet, stapled to the back of the letter were un-grandfatherly sales brochures?

N: Yes.

M: How did this selfless appeal go over?

N: You have to think these guys get hit on all the time for one favor or another. So I think their antennae are always up for just about anything. Fleishmann was clearly listening, as you might expect, given his interest in the subject matter. Yet as he and Vey flipped though the pitch material, they would sort of glance back and forth at one another, asking at regular intervals who exactly we were and what our interests were, to which my colleague would revert back to grandfather mode and regale them with tales of yesteryear.

M: …all the while avoiding disclosure of his ‘official unofficial’ capacity as unlobbyist.

N: I found it all vaguely humorous though troubling at the same time. In fact it was after this meeting that I pointedly asked him whether he was a lobbyist and if not, did he perhaps need to be one? He conceded he wasn’t, but again dismissed the necessity of it. As he’d been involved on the Hill for decades, I deferred to his greater knowledge. Throughout the meeting, Congressman Fleischmann and Vey were polite, respectful, attentive, but in the end, I would say, a little confused over the purpose and intent of our mission. Who could blame them? But that’s entirely my own impression. To the best of my knowledge as of December, nothing had come of the contact.

M: All in all, it sounds like a deliberately mixed message. Caveat emptor.

N: It felt a little sideways to me. On the Executive side, we had meetings with what HLOGA defines as Covered Officials. By the end of 2014, I was feeling uncomfortable about the whole undertaking. My discomfort morphed into resentment and annoyance as I realized I’d been conscripted into what amounted to a legally dubious undertaking. It also prompted me to pursue a better understanding of Federal lobbying disclosure guidelines and sort of educate myself.

M: Well you’ve certainly done that, and educated others in the process too, I might add.

N: Thank you, Matt. I appreciate that. If my efforts help others, that’s great.

M: What advice would you give for industry participants, both government and client-side, to avoid getting tied up in questionable activities?

N: In two words, due diligence. When someone knocks your door offering to trim your trees, it’s good practice to request verification of their contractor license. Lobbying is no different. I know your organization maintains up-to-date lobbying databases. The Lobbying Disclosure Act (LDA) mandates that the Senate and House maintain databases too. Those can be found here and here, respectively. As a matter of course, these databases should be accessed by all parties. Congressional staffers tend to err on the side of openness and accessibility in the interest of providing responsive constituent services. However this openness can be taken advantage of by unscrupulous parties. At the least suggestion of commercial intent, a visitor’s lobbying credentials should be politely requested, in the spirit of fostering civic discourse and discouraging undisclosed special interests.

M: What further steps are you involved in to bring this issue to proper closure?

N: Well, I’m talking to a number of entities both within the Senate, House and on the Executive side as well as advocacy groups who’ve expressed an interest in raising awareness of the unlobbyist phenomenon. As a ‘prophylactic measure’, I was also advised to contact the various House, Senate and DOE offices I interfaced with in order to formally disavow my prior role.

M: Thanks so much for talking with me today Norm, it has been a pleasure!

N: You too Matt. Thank you.

HAVING PREVIOUSLY DISCUSSED state level lobbying, this week Lobby Blog dives a little deeper, looking at local lobbying oversight. City Ethics, a nonprofit, nonpartisan organization that provides information and advice on local government ethics issues nationwide, has recently released the final draft of the chapter, “Local Government Lobbying,” from its free e-book, Local Government Ethics Programs. This chapter is a new resource on the subject of local lobbying, a subject that has received very little attention.

In the chapter Mr. Wechsler, Director of Research at City Ethics, discusses many topics surrounding local lobbying including: the ways in which local lobbying differs from state and federal lobbying; a consideration of the reasons for setting up a lobbying oversight program; a look at the all-important definitions of what constitutes “lobbying” and who is a “lobbyist”; an in-depth look at the disclosure requirements and the obligations and prohibitions that local governments have instituted; and a consideration of the oversight and enforcement processes that will ensure that local lobbying is done openly and without improper conduct. The chapter also includes a draft Model Lobbying Code for local governments.

The draft has been made available online with the goal of receiving feedback from lobbyists, academics, and lobbying programs and good government staff members. The 312-page draft is available for free in four digital formats on the City Ethics website.