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Andy Stern and the Unbearable Lightness of Being (a Lobbyist)

           Andrew Stern (no relation), president of the Service Employees International Union (SEIU), was a registered lobbyist for SEIU until February 20, 2007, when SEIU de-listed him and 15 others in a Lobbying Disclosure Report.  Prior to that time, SEIU had listed Stern as a lobbyist on several issues, including health care, immigration and labor matters.    

            Stern’s de-listing has been challenged by two limited government advocacy groups, who point to publicly available information that Stern continues to engage in extensive lobbying activities.  In a letter to the Clerk of the House, Secretary of the Senate, and Acting U.S. Attorney, they point to the fact that White House logs show that Stern visited covered executive branch officials on 11 occasions in the first quarter of 2009, and on 10 occasions in the second quarter.  In addition, they provide evidence suggesting that Stern regularly met with Members of Congress and other covered legislative branch officials during this period. 

            There can be little doubt that Stern had sufficient “lobbying contacts” (defined by the LDA as communications with covered officials regarding virtually any policy matter) to qualify him as a “lobbyist” under the law.  However, to qualify Stern must also have spent at least 20% of his time on “lobbying activities,” which are defined to include both lobbying contacts and efforts in support of such contacts, including preparation, research, planning and coordinating with the lobbying activities of others. 

            If Stern is assumed to work a 40 hour week, he would have 520 work hours in a quarter.  Thus, he would have to spend 104 hours on “lobbying activities.”  It seems unlikely that Stern, or almost anyone else, would spend that much time on lobbying contacts alone.  If Stern spent an average of two hours on each White House visit and spent a like amount in direct communications with the Hill, this would still be less than half the amount of time required to qualify as a lobbyist.   

            Thus, even if one could identify all of Stern’s lobbying contacts and determine exactly how much time he spent on them, it is unlikely that it would add up to 104 hours.  Therefore, one would have to come up with some way of determining how much time Stern spent on other activities in support of lobbying contacts.  No doubt Stern spends some amount of time on direct preparation for lobbying contacts.  But it is likely that he spends a good deal more time on activities, such as learning about and discussing the public policy issues at the core of SEIU’s lobbying, that cannot be unambiguously categorized as lobbying or non-lobbying. 

            In order to determine whether Stern qualifies as a lobbyist, one would first have to have some source of information to determine the number and duration of his lobbying contacts, then to identify and quantify the time spent on direct lobbying support, then to identify and allocate the time spent on ambiguous activities and finally to compare the resulting number to an estimate of Stern’s total work hours (which are probably much higher than 40 hours a week).  This might be doable for some people who are full-time lobbyists and/or bill by the hour, but it would be very difficult for Stern and many others. 

            In short, while there seems little doubt that Andy Stern spends a good deal of time lobbying the highest levels of government (indeed just today he was scheduled to meet with the President to discuss a proposed tax on high-cost insurance plans), the determination of whether he qualifies as a “lobbyist” within the meaning of the LDA will likely come down to his own guesstimate.  The simple fact is that the LDA was designed to provide a broad overview of the amount and type of lobbying performed by various interest groups; but the vagueness of its definitions, the lack of recordkeeping requirements and the minimal enforcement make it a very unreliable instrument for determining who is a “lobbyist.”

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