The Return of Enforcement

March 26th, 2014 by James Cameron

NO ONE ENJOYS filling out paperwork, but if you’re a lobbyist, failure to do so can be costly. The Washington Post reported last week that Alan Mauk and his firm, Alan Mauk Associates, failed to file required quarterly lobbying reports at least 13 times in the past four years—an indiscretion that carries a hefty price of up to $200,000 per violation. The civil complaint filed against Mauk and his firm is the latest of several lawsuits the government has filed in the past year as a result of negligence.

Back in June, the Blog of the Legal Times reported that the U.S. Attorney’s Office for the District of Columbia slapped Biassi Business Services Inc., a consulting firm based in New York, with a  lawsuit that could cost the firm up to $33 million in fines. Biassi reportedly filed several disclosures for 2012 and 2013 after the lawsuit was filed, and it remains to be seen how much of the fine Biassi will ultimately have to pay.

But lobbyists aren’t merely being fined for domestic lobbying violations. In August, this blogger wrote on how federal prosecutors filed a criminal complaint against two lobbyists for alleged violations of U.S. sanctions and the Foreign Agents Registration Act (FARA) by lobbying on behalf of Zimbabwe and its president, Robert Mugabe. Likewise, in 2011, a lobbyist was charged with FARA violations for failing to disclose lobbying activities for a foreign entity.

So, why are we just recently seeing the Feds come down hard on disclosure violators? As noted before on this blog, between 1995 and 2010 the U.S. Attorney’s Office settled with just three lobbyists, yet since 2010 there have been at least five lawsuits filed related to HLOGA and FARA violations.

One explanation is that we’re entering the enforcement stage of a cycle that begins with complacency (itself a symptom of lax enforcement) and ends in scandal. With the lobbying industry moving underground, it’s only a matter of time before a lobbyist or firm stretches the current rules too far, at which point we may see a successor to HLOGA.  Until then, we’ve yet to experience the kind of enforcement that these laws originally intended.  But it looks as if we’re getting closer.

8 Terms to Describe the Lobbying Landscape

March 21st, 2014 by Geoffrey Lyons

THE PRESS HAS employed a unique terminology to describe recent trends in federal lobbying.  Replete with shadows and suspicion, here are eight terms readers are likely to encounter:

DASCHLE LOOPHOLE – The details of current federal lobbying law that allow de facto lobbyists to legally to go unregistered.  The loophole’s namesake is former Senate majority leader Tom Daschle (D-S.D.), who currently lobbies for DLA Piper yet calls himself a “Policy Advisor.”

DEACTIVATE -  to remove oneself from disclosure responsibilities by going UNDER THE RADAR. (Not to be confused with DEREGISTER).

DEREGISTER -  to remove oneself from disclosure responsibilities by terminiating lobbying contracts.  Since there is no deregistration paperwork, lobbyists are considered formally deregistered when they terminate all of their contracts. (Not to be confused with DEACTIVATE).

SHADOW LOBBYIST – A term used to designate a de facto lobbyist who is not legally registered.

STRATEGIC ADVICE – A cunning alternative to “lobbying” that can allow de facto lobbyists to go UNDER THE RADAR.  “Consulting” is another popular choice, although one can obviously act as a consultant or strategic advisor without actively lobbying (i.e., there’s a distinction between genuine consultants and lobbyists who merely call themselves consultants).  Asked about his lobbying for Freddie Mac, Newt Gingrich claimed that he was hired by the company as a “historian.”

UNDERGROUND – To go “underground” is to go “UNDER THE RADAR,” although the former is more commonly used as an alternative explanation for a recent decline in the number of registered lobbyists.  Many in the press had originally attributed this decline to a general descent of lobbying.  Closer examination revealed that lobbyists hadn’t left town, nor had they left work–they had simply “gone underground.”

UNDER THE RADAR – The status of a de facto lobbyist who is not legally registered.  Someone who works “under the radar” is operating through the DASCHLE LOOPHOLE.

UNLOBBYIST – Short for “underground lobbyist,” “unlobbyist” is synonymous with SHADOW LOBBYIST.

Camp vs. Washington

March 6th, 2014 by Geoffrey Lyons

DAVE CAMP’S (R-Mich.) raison d’etre is to change the way Washington does taxes.  Washington’s is not to change at all.

Last week, Camp revealed plans for the Tax Reform Act of 2014, which aims to simplify the current tax code by reducing the number of tax brackets and significantly scaling back deductions and exemptions that The Economist claims “leak $1 trillion in revenue a year and make compliance a nightmare.”

As good as these proposals sound (despite many kinks), essential to the political terrain of Washington are two insurmountable obstacles that will keep them from becoming law.  The first is partisanship.  Neither party is in the habit of giving a passing thought to tax reform without strings attached.  The Democrats want to see their projects funded and the Republicans won’t consider higher revenue.

The second obstacle is what this blogger is for the first time calling “special interests.”  The term is misused, abused, and overworked for a variety of reasons, but applies quite nicely to the special treatment afforded to certain groups and industries through tax preferences.  Anyone who currently enjoys such treatment is vehemently against the bill.  The National Association of Realtors, a lobbying powerhouse, is “extremely disappointed.”  The Private Equity Growth Capital Council also finds it all “so disappointing.”  These groups enjoy the mortgage interest and carried interest deductions respectively, two features of the status quo that Camp would like to see vanish.

Since Camp’s logic is to simplify brackets, widen the base, and patch the leaks caused by preferences, the bill is expected to generate revenue. The House Joint Committee on Taxation predicts that, were the bill to pass, it would generate an extra $3 billion in the next decade.  Sadly, however, Camp’s most vocal opponents don’t care much for its overall impact.  They care about their industry, and that’s enough to keep them going.  As one reads this, “a tribe of lobbyists is pressing conservatives to snuff Camp’s proposal, threatening to withhold precious campaign dollars.”  Such is the fate of someone who dares challenge Washington.

Not Their Finest Hour

February 28th, 2014 by Geoffrey Lyons

THE “SPECIAL RELATIONSHIP” between the U.S. and U.K. is defined by many shared characteristics, the most salient being a common tongue and a commitment to democracy.  Such a bond is more than just quaint: similarities make it easy for one country to learn from the mistakes of the other.  Noah Webster, for example, famously purged American spelling of much of its inherited inconsistencies.

Yet last month, when “The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill” became an Act of Parliament (law), the U.K. proved that it hasn’t learned a thing about the ongoing blunder that is U.S. lobbying law.

The law, apparently modeled on HLOGA, establishes a registrar to enforce lobbying registration and imposes limits on campaign spending for non political parties (trade associations, faith groups, etc.). Critics have been quick to pounce.  The measure has already earned a negative reputation as the “gagging law” for its arbitrary restrictions on the freedom of association, the same alarm that’s still being sounded on this side of the Atlantic.  The EU Observer calls it “misdirected,” and predicts that it will “further cleanse the political sphere not of corruption, but of the public itself.”

The Nottingham Post’s reaction to restrictions on non-party campaigning, which is the most contentious part of the law and which will be enforced in the run-up to elections–”crazy.”   “The run-up to elections is just the time we want to have our say. That is the time we want to have debates in public space about what matters to us down our streets and in our playgrounds and workplaces.”  Ekklesia, a Christian political think tank, is even more indignant, predicting the law will  “gravely damage democracy and human rights.”

How can such flawed legislation achieve Royal Assent?  The EU Observer summarized it beautifully, writing that proponents must rely on the “transforming [of] a democratic right such as lobbying…into an object of suspicion.”  Congress has been there, done that, and active citizens are still facing the consequences.  It’s a shame that Parliament has opted for a similar fate.

Wage War

February 27th, 2014 by James Cameron

PRESIDENT OBAMA HAS called the proposed federal minimum wage hike “giving America a raise,” but whether the legislation succeeds or not, lobbyists are likely to enjoy a windfall.  Raising the minimum wage from its current rate of $7.25/hr to $10.10/hr is a centerpiece of congressional Democrats’ 2014 legislative agenda, and groups on both sides of the issue have already spent millions of lobbying dollars to influence lawmakers on the fence.  With recent news that a vote on the legislation will be put off, lobbying campaigns for both sides are heating up.

The Hill reports that Senate Majority Leader Harry Reid has delayed a vote on the legislation as support for the hike has waned among vulnerable congressional Democrats. A coalition of labor unions and liberal advocacy groups has hailed the move, saying that it gives them time to mount a national grassroots lobbying campaign to drum up support for the legislation.

Vowing to fight the bill are numerous retail, restaurant, and service organizations. The American Hotel & Lodging Association, which overhauled its lobbying team last year, strongly opposes a minimum wage hike, claiming that it would inhibit companies’ ability to hire more workers.

Complicating the issue is the difficulty of sifting through a myriad of reports from disparate sources to piece together an accurate picture of the hike’s potential impact. Although it seems likely that the Congressional Budget Office’s recent report that the hike could cost as many as 500,000 minimum wage jobs but increase earnings for more than 16.5 million workers is accurate and nonpartisan, data from other sources may be suspect. The New York Times reports that some nonprofits and think tanks that publish economic reports on legislation are in fact funded (often secretly) by groups with a significant stake in the legislation. The Employment Policies Institute, for example, has published academic reports warning that raising the minimum wage would adversely impact poverty, unemployment, and the economy. But the Times also notes that the group is run by a PR firm that also represents the restaurant industry, which strongly opposes the wage hike. Just as lobbying has gradually moved underground and become more opaque, so too are groups attempting to influence policy in nebulous and indirect ways, as the current fight over the minimum wage illustrates.

Although the Congressional battle over “America’s raise” has been delayed for now, the lobbying fight over the wage hike has just begun. With heavy hitters like Wal-Mart still out of the fray, the battle is likely to get even more intense before it’s over.

The Book Behind Current Lobbying Law

February 21st, 2014 by Geoffrey Lyons

THE LATEST EDITION of The Nation has as its cover story a detailed expose of what it calls “the shadow lobbying complex,” an issue explored at great length in this blog.  While reading the article and delighting in its infographics, this blogger decided that a brief timeline of modern disclosure laws would make for an interesting post.

And so I began with the summer of 1935, when Rep. Denis Driscoll (D-Pa.) received 816 telegrams from constituents pleading him to oppose a measure that would break up the utility trust companies, which were then being run by a handful of remarkably wealthy men.  The telegrams would have made for an impressive case study in lobbying from the bottom up, or “grassroots lobbying,” except for one important detail: the constituents behind the telegrams were completely fabricated.  The whole thing was a sham, conjured together and funded by the utility companies.

This incident and the broader debate surrounding the Wheeler-Rayburn Utility Holding Company Act set the gears in motion for modern disclosure law, which today is ridiculed as an utter failure.  Were I actually to have posted a timeline of lobbying disclosure, I might have used just five dates:

  1. 1946: The Federal Regulation of Lobbying Act is passed as a late response to the utility company debate
  2. 1991: the GAO exposes the law’s shortcomings
  3. 1999: The Lobbying Disclosure Act (LDA) is passed as a second try
  4. 2006: Jack Abramoff reports to prison, proving LDA a failure
  5. 2007: The Honest Leadership and Open Government Act (HLOGA) is passed as a third try, a significant amendment to LDA that adds criminal sanctions and stricter reporting requirements

Yet this would appear a very lopsided timeline, with  nearly half a century separating the first two dates.  Did nothing relevant transpire between the passage of The Federal Regulation of Lobbying Act and the GAO report that deemed it a failure?

In fact, something did.  In 1977, a book was published that would become the basis for the GAO’s report.  According to The Nation, the report found that “10,000 lobbyists listed in an industry guidebook had failed to register. Of those who had, as many as 94 percent failed to complete their registration forms as required by law.” This “industry guidebook” just happens to be Washington Representatives, a Lobbyists.info publication entering its 37th year.  If one accepts The Nation’s claim that the GAO report was the “impetus” for LDA, and former Rep. Charles Canady’s (R-Fla.) assertion that the Washington Representative’s finding “underscored” the need for LDA, then to a significant extent Washington Representatives is responsible for LDA.  The innumerable ironies that come packed with this are too rich and detailed for this blog.  Needless to say it’s a fascinating discovery.

Candy Gets No Love From Washington

February 14th, 2014 by Geoffrey Lyons

THE CANDY HEART: to a smitten valentine, it means love; to a sugar farmer, it means profit.  What, pray, does it mean for “Big Candy”?

Considering the retail statistics, which put candy well in front of flowers and jewelery (yet slightly behind cards) as one of the most commonly purchased Valentines Day gifts, the candy industry is just as much a winner on the 14th as the sugar that coats its products.

So why are candy lobbyists (yes, they exist) making a fuss on what for them should be a day of celebration?  The heavy snowfall certainly didn’t help.  Many who would have happily purchased candy yesterday instead took up the shovel, bravely straining their back against nature’s caprice.

But weather is only part of the story. Candy is mostly cranky because of the farm bill.  Even with confectionary sales on the rise and profit margins of over 12% through 2013, the candy industry despises the fact that sugar prices are still being propped up by cushy subsidies, tariffs, and production quotas.  A recent House amendment that sought to chip away at this antiquated policy lost by slim margins in both the House and Senate.   According to the LA Times:

…the House amendment would have passed easily if not for opposition from 74 lawmakers from states with no sugar growers, as well as 30 House members from California who have no sugar growers or refiners in their districts. That’s a testament to the lobbying muscle of sugar growers…

As evidenced by its name, the Coalition for Sugar Reform vocally opposes current policy, which it claims costs billions of dollars every year.  The chairman of the coalition, Larry Graham of the National Confectioners Association, said in a statement that “the impact of sugar policy is felt everywhere, from local food manufacturers to the grocery store aisle to the kitchen table. Now is the time to make a change.”

That statement must have been penned before the defeat of the House amendment, which effectively dashed the hopes of confectioners to make Valentines Day a twofold victory: one of both big sales and big policy changes.

Which leads us back to the candy heart: to a bachelor it means disappointment and melancholy; to a candy lobbyist it means, well, pretty much the same.

Revolving Door Spinning at Cyclone Speed

February 10th, 2014 by James Cameron

IT’S WELL KNOWN in Washington that congressional staffers tend to be underpaid and overworked. One might assume that they accept these conditions in exchange for the connections and prestige that Congress affords. Increasingly, however, the motivation is a lucrative job on K Street.

Despite HLOGA, more than 1,650 former Congressional aides have registered to lobby less than a year after leaving Congress, according to the New York Times. These freshly-minted lobbyists often return to the Hill to lobby on the very legislation that they worked on while they were staffers. The rules that intended to prevent this “revolving door” effect are so weak, particularly in the House, as to be practically nonexistent. As the Times points out, former House staffers can avoid the one-year moratorium on lobbying as long as their salaries are less than the paltry sum of $130,500.

In fact, restrictions on the revolving door have been so easily circumvented that, according to the Sunlight Foundation, the number of registered lobbyists with previous government experience actually peaked in 2009, two years after the passage of HLOGA. To make matters worse, as LobbyBlog reports, even though lobbying registrations are on the decline, there is a well-known shadow industry of unregistered lobbyists who are working as “strategic advisors” while still technically complying with current disclosure rules. It stands to reason that there are even more former staffers who are “unlobbyists” to whom the current lobbying restrictions don’t apply at all.

So why is this a big deal? The biggest concern is that staffers and members who are eyeing a cushy job on K Street will try to influence legislation to favor their future employers before they even leave Capitol Hill. Indeed, as the Times points out, staffers are often hired because of specific legislation or issue areas on which they worked, and when the turnaround from staffer to lobbyist can be measured in months or even weeks,  the current system’s potential for abuse becomes apparent.

Another Day, Another Hurdle

February 4th, 2014 by Geoffrey Lyons

LOBBYISTS HAVE TAKEN a lot of damage over the years.  Abramoff inflicted a wound that was salted by HLOGA.  Obama campaigned on combating special interests, and landed his first blow by way of executive order.

The obstacles these produce, both real and imagined, make the business of advocacy more challenging than it should be.  Yet lobbyists have reason to enjoy the status quo while it lasts, because things could soon get worse.

According to Karen Hinton, an advocate representing Ecuadorians in a long-standing oil pollution suit against Chevron, lobbyists could soon be vulnerable to racketeering charges by their opposition.  If Chevron wins their case on the grounds that Hinton and others are colluding in a fraudulent lawsuit, then a precedent will be set whereby “hard-hitting press releases and lobbying before Congress and government agencies by (insert you and your client) against (insert your client’s competitors or opponents) about (insert issue that financially benefits your client) could equal extortion and be a violation of the RICO statute.”

RICO stands for Racketeer Influenced and Corrupt Organizations Act.  By law, a plaintiff who wins a RICO case “…shall recover threefold the damages he sustains and the cost of the suit.”  Hinton argues that because of this “treble damages” clause, companies and trade associations targeted by RICO cases could go bust.  Pursuing this to its obvious conclusion, advocates with less to spend could be bullied out of lobbying altogether.

That would be bad indeed, and is something for which lobbyists should collectively oppose.

Much Ado About SOTU

January 30th, 2014 by James Cameron

MANY AMERICANS VIEW the State of the Union address as a lot of rhetoric and not much substance.  But for lobbyists and policymakers, what the president does (or doesn’t) say can make or break an issue.

As POLITICO notes, if Obama even briefly mentions an issue or a piece of legislation, it can make the difference between the issue gaining traction in Congress or wasting away. Further, if the President talks about something for which a lobbyist is advocating, it can generate massive credibility for both the lobbyist and his firm, even if they had no part in getting it mentioned in the speech.

Following this year’s speech, for example, LGBT groups were disappointed that Obama made no mention of the Employment Non-Discrimination Act (ENDA), which would ban employers from discrimination on the basis of sexual orientation or gender identity. Indeed, Obama barely touched on LGBT issues at all, making only a brief reference to marriage equality.  As the Huffington Post notes, this may be indicative of the administration’s view that it has enough political capital with the LGBT community that it can afford to ruffle some feathers.  The case nonetheless demonstrates both the impact of the SOTU as well as the delicate political maneuvering involved.

Likewise, the guests invited by members of Congress (each lawmaker is allowed one) can have legislative implications for the coming year.  Predictably, as PBS notes, more than a dozen Republican members brought business owners and individuals who were negatively impacted by the Affordable Care Act.  By the same token, Democrats brought guests who benefitted from the ACA.  Democrats (especially the Illinois delegation) also brought at least five immigration advocates.  Some lawmakers took a decidedly less conventional approach, though.  POLITICO reports that Rep. Vance McAllister (R-La.) brought Willie Robertson, star of “Duck Dynasty.”  This blogger wonders if Rep. McAllister will now get to appear on the show.

As with most things in Washington, the State of the Union comes with a side of rhetoric and political bluster.  Although every word of the State of the Union need not have far-reaching policy implications, it’s clear that for lobbyists, policymakers, and political forecasters, the Address can have a significant impact on the year to come.

Retailers Request More Regs

January 24th, 2014 by Geoffrey Lyons

IN WASHINGTON, pressure to regulate big business is no novelty.  But things seem rather topsy-turvy when the source of that pressure is big business itself.

The National Journal explains why retailers have concluded that more federal intervention is a good thing.  At least, that is, when it comes to data.

In the wake of the holiday data breaches, Target and others are “begging Congress to tell them what to do.”  That’s because they’re currently subject to 47 different compliance standards for 46 states plus D.C.  They’d much rather have just one.

But building support for a “unified standard” isn’t easy.  As the Journal notes, “educating conservatives” is the most daunting obstacle. Those with purist laissez-faire sentiments have a visceral dislike for all regulations, so it takes some convincing to disabuse them of the idea that a single standard is “just another nanny-state intrusion into companies’ private affairs.” Even Mary Bono, a former Republican Congresswoman from California and supporter of the standard, admits that the whole thing is “sort of counterintuitive.”

And so it may be. Yet it remains perfectly logical for a behemoth like Target, with 1,797 stores in the U.S. alone, to want to answer to the State and not the states. Another giant, Amazon, has faced a similar challenge with regard to state sales tax.  It seems that for the mega retailers, more government can actually mean less.

2013 in 12 Posts

January 15th, 2014 by Geoffrey Lyons

2013 WAS AN eventful year for K St.  Two hours after the ball dropped on Times Square, the Senate averted dropping the ball on the country by passing a fiscal cliff compromise.  Yet the deal only kicked the proverbial can and did nothing to alleviate the preceding months’ political paralysis, which lobbyists blamed for their abysmal first quarter expenditures.

Throughout the year, different lobbies got more aggressive when the time was ripe: pro- and anti-gun lobbies in the wake of Sandy Hook, for example, and pro- and anti-marijuana lobbies in response to shifting public opinion on pot.  Even animal welfare groups came out of the woodwork when a bill was on the table to crack down on the breeding of big cats.

Popular tech companies continued their K St. colonization.  Twitter hired a lobbyist in August; Yelp in October.  (In fact, I write this barely a week after Snapchat snagged their own lobbyists from Heather Podesta).  The Yelp hire was announced ten days into the third-longest government shutdown in U.S. history, which predictably exasperated lobbyists.

Finally, some lobbyists were punished for their negligence.  Biassi Business Services Inc. was fined $33 million for failing to submit 124 compliance forms, and two men in Chicago were prosecuted for lobbying on behalf of Robert Mugabe.

Much is left out of this Cliff Notes version of the year in review.  To help fill some of the gaps, here’s 2013 in 12 LobbyBlog posts:

January – GW Professor David Rehr kicks off the New Year with some advice to lobbyists.

February – A graduate student at the University of Michigan argues against the idea that lobbying is inherently unethical.

March – Amy Showalter on “The One Thing You Aren’t (But Should Be) Thinking About When Hiring a Lobbyist.”

April – A disastrous first quarter has everyone talking.

May – A lobby battle kindles over cats.

June – In vino controversy: The first wine consumer advocacy group launches.

July – The world’s richest man leads an unpopular lobbying campaign.

August – Whoops: Chicago men caught lobbying for Robert Mugabe.

September – POLITICO: “Can we see your lobbying records?” CIA: “Absolutely not.”

October – So there’s no government.  Did K St. shut down too?

November – Who’s the best lobbyist? LobbyBlog interviews The Hill.

December – Roses are red, red tape is too: House Ethics dabbles in poetry.

Yelp Gives Lobbying Five Stars

January 10th, 2014 by James Cameron

IT’S UNDERSTOOD WITHIN the beltway that to remain successful, companies should lobby. As Apple learned the hard way, not having friends in Washington can backfire when the political winds are unfavorable. That’s a lesson fellow tech company Yelp has taken to heart, as they’ve dramatically boosted their Washington lobbying presence in the last few months.

Before this fall, it seemed as though Yelp didn’t think much of having advocates on the Hill, but that’s rapidly changing. In October, The Hill reported that the tech company hired its first lobbyist in Laurent Crenshaw, a former aide to Rep. Darrell Issa (R-Calif.) on the House Oversight Committee.

Unlike fellow tech companies like Google and Facebook, both of which have had a lobbying presence on Capitol Hill for years, Yelp is late to the lobbying game. But they seem intent on making up for lost time. Ars Technica reports that Yelp registered its first PAC with the Federal Election Commission on December 31st, a sure sign that the company intends to step into the influence game.

So on what issues will Yelp focus its lobbying efforts? As The Hill notes, Yelp depends on user-generated reviews, so it must ensure that it can host negative reviews of businesses without being vulnerable to libel suits. Further, Yelp is seeking the creation of a federal anti-SLAPP (strategic lawsuits against public participation) law. Supporters of the bill argue that such lawsuits are used to intimidate users of companies such as Yelp who post negative reviews of businesses. By supporting an anti-SLAPP bill, Yelp would ensure that its livelihood (namely user reviews) is protected.

Of course, as The Huffington Post notes, Yelp will also likely lobby on many of the same issues that Facebook and Google have backed, in particular the Innovation Act, which seeks to curtail patent trolls and which passed the House of Representatives last month.

Will Yelp’s efforts pay off?  History suggests that they will. As The Sunlight Foundation found in 2012, companies who lobby do better than companies that don’t, and with Apple’s advocacy face plant fresh in Silicon Valley’s mind, it seems likely that other tech companies will take Yelp’s lead.

Do Expenditures Matter?

January 8th, 2014 by Geoffrey Lyons

“Q3 LOBBYING EXPENDITURES DOWN,” “Lobbing Spending to Rebound in 2014,” “K St. Outlays Dip in December,” – such headlines splash across the pages of Washington-based newspapers. It has become so routine to discuss the business of lobbying exclusively in these terms that one feels the itch to challenge convention and to pose the following question: can expenditures stand alone as a reliable measure of advocacy’s vitality?

The answer is obviously no, which most people with a critical eye on Washington lobbying recognize . The shrewd reporter will temper his headline with subtler analysis, explaining, for instance, how the de-registration phenomenon (so frequently discussed in this blog) distorts the data, and supplying opinions of industry leaders apt to tell a story that contradicts the numbers.

Yet the appeal to quarterly spending has become so common, has sunk so deeply into the collective consciousness, that it may be corroding our understanding of how lobbying really functions. Firstly, much as money matters on K St., success is often rooted in the intangibles. Making new contacts, for example, and cultivating existing ones. These things often precede spending both in time and in importance, and they’re difficult, if impossible, to measure.

Secondly, even if spending were as important as it’s typically portrayed, it doesn’t follow that it’s best divided into neat three-month and one-year increments, as it is now by virtue of disclosure requirements. Some issues take years to appear on the legislative calendar–it’d be ludicrous to claim that everything is on the same timetable. In fact, the only thing that’s more ludicrous is to assume this is the case, which is precisely the current problem.

Finally, a lobbyists’ success in Washington is strictly bounded by the political environment in which he works. To get something through committee may be a small victory one year and a large one the next. By definition, a “do-nothing Congress” is the sort of setup that renders doing anything a grand success. So, to impose an overworked phrase on the reader, “it’s all relative”–especially in Washington.

Much of this is common knowledge within the beltway. Yet even reminding oneself of what one already knows can be a useful defense against lazy thinking, especially that which tends to overemphasizes the importance of something.  And if anything at all tends to be overemphasized by the coterie of reporters covering Washington lobbying (great as they are), it’s the importance of lobbying expenditures.  They just don’t matter that much.

Lobbyists as “Strategic Advisers”

January 3rd, 2014 by Geoffrey Lyons

IN TUESDAY’S New York Times, opinion writer Thomas Edsall wrote about the changing face of lobbying since the passage of HLOGA, echoing many themes that have recently appeared on this blog.  On earmarks, for example, Edsall wrote that “…the lobbying firm Cassidy and Associates has paid a heavy price for the earmark ban.”  LobbyBlog had previously asserted that “for Cassidy and others, losing earmarks was like losing the ground on which they stood.”  Edsall also cited a recent study that used Lobbyists.info data:   “Using LaPira’s reasoning, total spending to influence legislative and regulatory outcomes in 2012 doubled from $3.1 billion to $6.7 billion.”  LobbyBlog had, of course, cited the same study: “The current figure, which only accounts for legally disclosed spending, is $3.31 billion.  LaPira estimates that over twice that – an eye-watering $6.7 billion – was actually spent last year.”  (For the record, $3.31 (not $3.1) billion is the correct figure).

If these excerpts are indications that Edsall is a fan of this blog, then your humble bloggers are pleased.  If, more likely, they merely highlight the general consensus among the few of us who write about lobbying that certain undeniable trends are reshaping the business, then your humble bloggers are no less pleased.  This is mostly because Edsall casts refreshing new light on the phenomenon of de-registration to supplement the old arguments about lobbying drifting into the shadows, or the inaccuracy of disclosure numbers (Edsall: “If you look at the numbers, it may seem that lobbying is in decline, but it isn’t; it’s just taking different forms.”  LobbyBlog: “A decline in reported lobbying is not always synonymous with a decline in lobbying.”)

For example, most commentaries on de-registration or the “driving underground” of a formerly functioning disclosure framework don’t even attempt to explain what these newly underground lobbyists are doing with themselves.  Edsall’s, on the other hand, focuses entirely upon this point.  “The action has shifted,” he writes, “to what is known in the business as strategic advice: how to convince and mobilize voters and opinion elites in support of a client’s agenda.”  This description demands greater clarity, which Edsall is quick to supply:

So what does this new strategic adviser actually do? He or she can plan out a legislative campaign or a drive to affect the implementation of regulation, determine which officials and agencies must be dealt with, and propose potential coalition partners….Interestingly, all this can be done without making direct contact with elected officials, congressional aides or top-ranked department and agency appointees and employees. This arms-length approach permits strategic advisers to avoid lobbying registration and reporting requirements.

Something is striking about the idea that “…all this can be done without making direct contact with elected officials….”  If this is so, are we still talking about lobbying?  The case can be made here that if the “unlobbyist” is refraining from the fundamental activities that define lobbying, then maybe lobbyists aren’t being driven underground but rather driven out.  Even if Edsall doesn’t make direct appeal to this point, he at least provokes one to explore it, and to explore lobbying’s future, rather than dwell on its present.   The future of lobbying: that, alas, is for another blog post.  Or, if he gets to it first, another article by Thomas Edsall.