The Clerk of the House and Secretary of the Senate last week released new guidance on the requirements of the Lobbying Disclosure Act. Among other things, this guidance addressed when a registrant may “terminate” a lobbyist (i.e., remove an individual from the list of persons who act as lobbyists on that registrant’s reports). This is an issue that has become important only in the last couple of years, as being a “registered lobbyist” now involves both regulatory burdens and restrictions on one’s ability to obtain employment in the Obama Administration.
The new guidance states: “A registrant may remove a lobbyist only when (i) that individual’s lobbying activities on behalf of that client did not constitute at the end of the current quarter, and are not reasonably expected in the upcoming quarter to constitute, 20 percent of the time that such employee is engaged in total activities for that client; or (ii) 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.”
As pointed out by the law firm of Caplin and Drysdale (hat tip: Rick Hasen’s Election Law Blog), this guidance is problematic because “[t]he LDA, as well as prior House and Senate guidance, make clear that an individual qualifies as a lobbyist by spending 20% of his/her time engaged in lobbying activities for a client in a calendar quarter and making two or more lobbying contacts over the course of services provided for that client (even if the second contact occurs in a later quarter). Thus, an individual qualifies as a lobbyist if he/she made two or more lobbying contacts at any point during their work for a client, and not merely in the current or subsequent calendar quarter.”
Under the new guidance, someone who has made more than one lobbying contact for a client in the past, and continues to spend more than 20 percent of his or her time on lobbying activities, could apparently be de-listed if he or she made no more than one lobbying contact in the current quarter and did not expect to make more than one in the upcoming quarter. This would essentially mean that one could be an unregistered lobbyist so long as one is careful to limit one’s lobbying contacts to one per quarter, though this would seem contrary to the language and prior interpretation of the LDA.
This would seem to open up a very significant new loophole in the LDA.