Lobbying law in the spotlight: Challenges and proposed improvements: Report of the task force on federal lobbying laws section of administrative law and regulatory practice American bar association

Administrative Law Review

Volumn 63, Issue 3, 2011, Pages 419-465

  Fried, Charles ^a   Gordon, Rebecca H ^b   Potter, Trevor ^b   Sandler, Joseph E ^b   Levin, Ronald M ^b  

^a HARVARD LAW SCHOOL   (United States)

^b NONE

Author keywords

[No Author keywords available]

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EID: 84855610668     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (71)

1. ABA SECTION OF ADMIN. LAW & REGULATORY PRACTICE, THE LOBBYING MANUAL: A COMPLETE GUIDE TO FEDERAL LOBBYING LAW AND PRACTICE (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) [hereinafter THE LOBBYING MANUAL].
2. See, e.g., ABA House of Delegates, Recommendation 119, AMERICAN BAR ASSOCIATION (Aug. 2006), http://www2.americanbar.org/sdl/Documents/2006-JAM-119. pdf [hereinafter Recommendation 119] (advocating more expansive Lobbying Disclosure Act of 1995 (LDA) disclosure of lobbying coalitions and coverage of paid grassroots lobbying efTorts).
3. William N. Eskeridge, Jr., Federal Lobbying Regulation: History Through 1954, in THE LOBBYING MANUAL
4. Pub. L, No. 79-601, §§ 301-311, 60 Stat. 812, 839-42 (1946) (formerly codified at 2 U.S.C. §§ 261-270 (1994)) (repealed 1995).
5. See William V. Luneburg & A.L. (Lorry) Spitzer, The Lobbying Disclosure Act of 1995: Scope of Coverage, in THE LOBBYING MANUAL.
6. 347 U.S. 612(1954).
7. See Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposab Since 1955, in THE LOBBYING MANUAL.
8. See William V. Luneburg, The Evolution of Federal Lobbying Regulation: Where We Are Now and Where We Should Be Going, 41 McGEORGE L. REV. 85, 86 (2009) [hereinafter Luneburg, Evolution]
9. 2 U.S.C. § 1602(9) (2006) (defining "lobbying firm" to include persons and entities with one or more employees who are "lobbyists" as defined in the Act as well as selfemployed "lobbyists"; in both cases such a firm works on behalf of others for compensation
10. See, e.g., 2 U.S.C. § 1613(b) (Supp. III 2009) (lobbyist liability for breaching congressional gift rules)
11. 2 U.S.C. §1602(10) (2006).
12. See H.R. REP. NO. 104-339, pt. 1, at 4 (1995)
13. 31 U.S.C.§ 1352 (2006).
14. 31 U.S.C.§ 1352(b)
15. See Susan Schmidt et al., Investigating Abramoff-Special Report, WASH. POST, http://www.washingtonpost.com/wp-dyn/content/linkset/2005/06/22/ LI2005062200936.html.
16. Pub. L. No. 110-81, 121 Stat. 735 (2007).
17. 2 U.S.C. §§ 1606, 1613 (2006 & Supp. III 2009).
18. 2 U.S.C. § 1605(a)(7), (8) (2006 & Supp. III 2009).
19. See U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-499, 2009 LOBBYING DISCLOSURE: OBSERVATIONS ON LOBBYISTS' COMPLIANCE WITH DISCLOSURE REQUIREMENTS 17 (2010) [hereinafter 2009 GAO STUDY].
20. 2 U.S.C. § 1614 (Supp. III 2009).
21. See The Obama-Biden Plan, CHANGE.GOV, http://change.gov/agenda/ethics- agenda/ (last visited June 15, 2011).
22. See Exec. Order No. 13,490, §1, 3 C.F.R. 193, 194 (2010).
23. See Memorandum from the President to the Heads of Executive Departments and Agencies, Ensuring Responsible Spending of Recovery Act Funds, 2009 DAILY COMP. PRES. Doc. 177 (Mar. 20, 2009), reprinted at 3 C.F.R. 353 (2010).
24. Memorandum for Heads of Executive Departments and Agencies, Lobbyists on Agency Boards and Commissions, 2010 DAILY COMP. PRES. DOC. 513 (June 18, 2010), reprinted at 75 Fed. Reg. 35,955, 35,955 June 23, 2010).
25. See, e.g., Nicholas W. Allard, Lobbying Is an Honorable Profession: The Right to Petition and the Competition to be Right, 19 STAN. L. & POL'Y REV. 23 (2008).
26. Nat'l Ass'n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Gir. 2009).
27. Compare Canada's Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.) (Can.), which commences with the following preambulatory recitals: WHEREAS free and open access to government is an important matter of public interest; AND WHEREAS lobbying public office holders is a legitimate activity; AND WHEREAS it is desirable that public office holders and the public be able to know who is engaged in lobbying activities; AND WHEREAS a system for the registration of paid lobbyists should not impede free and open access to government⋯.
28. 2 U.S.C. § 1602(10) (Supp. III 2009).
29. See 2 U.S.C. § 1604(b)(2)(B) (2006 & Supp. III 2009) (requiring merely "a statement of the Houses of Congress and the Federal agencies contacted by lobbyists employed by the registrant on behalf of the client").
30. See 2 U.S.C. §§ 1603(b)(6), 1604(b)(2)(A)-(C).
31. See William V. Luneburg & Thomas M. Susman, Lobbying Disclosure: A Recipe for Reform, 33 J. LEGIS. 32,53 (2006) [hereinafter Luneburg & Susman, Recipe for Reform].
32. See, e.g., H.R. REP. No. 104-339, pt. 1, at 2 (1995) ("The Act streamlines disclosure requirements to ensure that meaningful information is provided and requires all professional lobbyists to register and file regular, semiannual reports identifying their clients, the issues on which they lobby, and the amount of their compensation.").
33. See, e.g., Bara Vaida, Shedding the Scarlet 'L', NAT'Lj., July 11, 2009, at 50
34. David D. Kirkpatrick, Intended to Rein In Lobbyists, Law Sends Them Underground, N.Y. TIMES, Jan. 18, 2010, at Al. One empirical study indicates that most of die deregistration in recent years predated the Obama restrictions and thus is attributable primarily to the impact of the Honest Leadership and Open Government Act (HLOGA).
35. See CTR. FOR RESPONSIVE POLITICS, THE DEREGISTRATION DILEMMA: ARE LOBBYISTS QUITTING THE BUSINESS AS FEDERAL DISCLOSURE RULES TIGHTEN? (2010), available at http://www.opensecrets.org/news/Deregistrationreport.pdf. However, even if most registered lobbyists who could potentially have been induced to drop their registrations had already done so when the Obama restrictions were imposed, those restrictions do appear to have contributed to lobbyists' reluctance to be associated with that label. Thus, the restrictions probably do serve as a deterrent to future registrations.
36. See Letter from William V. Luneburg, Chair, ABA Section of Admin. Law & Regulatory Practice, to Norman Eisen, Special Counsel for Ethics and Gov't Reform (Mar. 9, 2010), http://www2.americanbar.org/sections/adminlaw/ Blanket%20Authority/Letter%20to%20Norman%20Eisen%20on%20FACA%20March%209.pdf
37. 2 U.S.C. §§1602(10), 1603(a) (2006 & Supp. III 2009).
38. United States v. Harriss, 347 U.S. 612, 620 (1954) (quoting United States v. Rumely, 345 U.S. 41, 47 (1953)).
39. See 2 U.S.C. §1610 (2006 & Supp. III 2009).
40. See, e.g., H.R. REP. No. 104-339, pt. 1, at 23 (1995).
41. See U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-99-38, FEDERAL LOBBYING: DIFFERENCES IN LOBBYING DEFINITIONS AND THEIR IMPACT (1999). For a more detailed description of the impact of the Internal Revenue Code (IRC) option on LDA disclosure
42. See 2 U.S.C. § 1610(a)(2)(A),(b)(2)(A).
43. see Craig Holman, Public Access to Lobbying Records: The Online Lobbying Disclosure Databases, in THE LOBBYING MANUAL
44. See 2 U.S.C. § 1602(4) (2006).
45. See 2 U.S.C. § 1603(b)(6) (2006 & Supp. III 2009).
46. 2 U.S.C.§ 1602(2) (2006).
47. Joseph E. Sandler, Lobbyists and Election Law: The New Challenge, in THE LOBBYING MANUAL.
48. See Thomas M. Susman, Private Ethics, Public Conduct: An Essay on Ethical Lobbying, Campaign Contributions, Reciprocity, and the Public Good, 19 STAN. L. & POL'Y REV. 10, 15-21 (2008).
49. See Trevor Potter & Matthew T. Sanderson, Federal Campaign-Finance Law: A Primer for the Lobbyist, in THE LOBBYING MANUAL.
50. 168 F.3d 705 (4th Cir. 1999).
51. (citing U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973)). For additional case authority supporting regulation
52. see Preston v. Leake, 743 F. Supp. 2d 501 (E.D.N.C. 2010)
53. Institute of Governmental Advocates v. Fair Political Practices Commission, 164 F. Supp. 2d 1183, 1189-94 (E.D. Cal. 2001).
54. 616 F.3d 189 (2d Cir. 2010).
55. See, e.g., FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 437-38, 440-42 (2001)
56. Buckley v. Valeo, 424 U.S. 1, 14-23, 45-47 (1976).
57. Green Party of Conn., 616 F.3d at 209.
58. N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 717 (4th Cir. 1999).
59. 11 C.F.R. §300.2(m)(2010).
60. Green Party of Conn., 616 F.3d at 209.
61. See, e.g., Kevin Bogardus, Lobbyists and Watchdog Groups Form Coalition to Push for Earmark Reforms, THE HILL, Sept. 28, 2010, http://thehill.com/ business-a-lobbying/121495- lobbyists-and-watchdogs-push-for-earmark-reforms.
62. The House Republican Conference voted in November to establish a two-year moratorium on earmarks, effective in the 112th Congress. House GOP Unanimously Adopts Earmark Ban, GOP.GOV CoNF. BLOG (Nov. 18, 2010), http://www.gop.gov/blog/ 10/11/18/house-gop-unanimously-adopts-earmark (last visited Aug. 3, 2011). However, a similar moratorium was defeated in the Senate soon afterwards.
63. Felicia Sonmez, Senate Rejects Earmark Moratorium, WASH. POST, Nov. 30, 2010, http://voices.washingtonpost.com/44/2010/11/senate-rejects-earmark- morator.html.
64. See, e.g., R. Jeffrey Smith, Thin Wall Separates Lobbyist Contributions, Earmarks, WASH. POST, Mar. 7, 2010, at A6, available at http://www. washingtonpost.com/wpdyn/content/article/2010/03/06/AR2010030602374-pf.html
65. see also Pete Yost, Prosecutors Recommend 57 Months for Ex-Lobbyist, ASSOCIATED PRESS, Dec. 13, 2010, available at LEXIS.
66. See, e.g., Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, §521, 121 Stat. 760-64 (2007). However, some members' disclosures seem to have been obscure and not consistent with the spirit of this requirement.
67. See Matt Viser, Uneven Response on House Earmarks, BOSTON GLOBE, July 12, 2010,http://www.boston.com/news/nation/washington/articles/2010/07/12/uneven- response-on-house-earmarks. Also, in March 2010 the House Appropriations Committee instituted a ban on allowing earmarks to for-profit enterprises.
68. See Press Release, U.S. House of Representatives Comm. on Appropriations, Appropriations Committee Bans For-Profit Earmarks, (Mar. 10, 2010), http://appropriations.house.gov/images/stories/pdf/2010-Earmark-Reforms-Release- 3.10.2010.pdf. In the abstract, this measure was at least roughly consonant with the above-mentioned concerns about money influence and the appearance of corruption in the enactment of earmarks. In practice, however, this prohibition was sometimes circumvented through the creation of nonprofit affiliates to receive the earmarked funds.
69. See Eric Lipton & Ron Nixon, Companies Find Ways to Bypass Earmarks Ban, N.Y. TIMES, July 5, 2010, at Al. In any event, only a small proportion of all earmarks have generally been bestowed for the benefit of for-profit enterprises. For more recent developments.
70. See Thomas M. Susman & Margaret H. Martin, Contingent-Fee Lobbying, in THE LOBBYING MANUAL.
71. Kenneth P. Doyle, DOJ Official Cites Progress on LDA, Says Compliance Action Coming Soon, BNA MONEY & POL. REP. (2010).