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Secretary and Clerk Close Lobbying Loophole

The Secretary of the Senate and Clerk of the House have just issued a “clarification” that closes the “one free lobbying contact per quarter” loophole that I have discussed here, here and here in the last few days.  Under the clarified guidance, a registered lobbyist cannot be de-listed merely because that “individual did not in the current quarter and does not reasonably expect in the upcoming quarter to make more than one lobbying contact per quarter.” 

In the event that a registered lobbyist no longer reasonably expects to make any future lobbying contacts, the clarified guidance would still permit de-listing.  Although the statute does not directly address this situation, it seems to me a reasonable inference from the statutory definitions is that a “lobbyist” or an employee “acting as a lobbyist” is someone who is expected to make at least an occasional lobbying contact.  Otherwise, someone who technically qualified as a lobbyist at one time (even a junior employee who attended a couple of meetings) could remain so for years merely because he or she provided, or was expected to provide, even incidental support for lobbying contacts made by others.   

            It undoubtedly will be argued that this will enable de-listing of someone who functions as a “de facto lobbyist” behind the scenes, but who avoids lobbying contacts in order to escape the burdens of being designated as a registered lobbyist.  This problem, however, exists in any case for “de facto lobbyists” who never engage in more than one lobbying contact.  Moreover, to make de-listing unreasonably difficult would itself tend to discourage people from registering as lobbyists in the first place.  All in all, it seems to me that the Secretary and Clerk have reasonably resolved this issue.

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