The Government Accountability Office has begun requesting information of various lobbyists registered under the Lobbying Disclosure Act. This action is taken pursuant to Section 213 of the Honest Leadership and Open Government Act, which requires the GAO to “audit [annually] the extent of compliance or noncompliance with the requirements of [the LDA] by lobbyists, lobbying firms, and registrants through a random sampling of publicly available lobbying registrations and reports.”
HLOGA further provides that GAO “may, in carrying out this section, request information from and access to any relevant documents from [any registered lobbyist, organization with in-house lobbyistsor lobbying firm] if the material requested relates to the purposes of this section.”GAO “may notify the Congress in writing if a person from whom information has been requested under this subsection
refuses to comply with the request within 45 days after the request is made.”
According to this article in Roll Call, the failure to comply with a GAO request could then be referred to the Secretary of the Senate and the Clerk of the House, which are responsible under the LDA for notifying any lobbyist or lobbying firm that “may be in noncompliance” with the law.This in turn could lead to a referral to the U.S. Attorney for potential civil or even criminal enforcement.
This, I think, must be wrong.HLOGA gives GAO the authority to request information from certain individuals and organizations, but it does not require that the information be provided.If Congress had intended that registrants and lobbyists be required to provide information requested, it surely would have said so explicitly.To imply such a duty would seem particularly inappropriate given the possibility that requests might infringe on First Amendment rights or other privileges.
A more likely interpretation is that Congress intended that the GAO’s notification would be referred to the committees of jurisdiction, which could then choose to use their subpoena power to obtain the needed information.
Today’s Roll Call suggests that pollsters who present the results of their polling to Members and staff on behalf of private clients may not view themselves as required to register under the Lobbying Disclosure Act:
When it comes to disclosure rules, Brett Kappel, a lobbyist and campaign finance lawyer at Vorys, Sater, Seymour and Pease, said companies or groups that use polling data to persuade Members or staff should report the money spent on those polls in their lobbying disclosures. But they don’t have to disclose the name of the polling company, he said. And pollsters themselves are under no obligation to report their Hill activities unless they advocated a particular position and spent more than 20 percent of their time for that client doing so.
This is not correct insofar as it suggests that “lobbying” has to consist of “advocat[ing] a particular position.” The Lobbying Disclosure Act defines a “lobbying contact” as any written or oral communication to a member (or covered staff) on behalf of a client in regard to (among other things) the “formulation, modification or adoption of federal legislation.” It doesn’t say that the communication has to advocate a particular position on how or whether legislation is adopted or modified.
So, for example, if a pollster does a poll on health insurance and present the results to one or more members of Congress on behalf of a private client, this would seem to be a lobbying contact, even if the pollster makes no statement about how the results should be used in crafting health insurance legislation. Surely the communication would be considered one “in regard to” the formulation, modification or adoption of health insurance legislation– otherwise what would the purpose be?
In order to determine whether the pollster is required to register as a lobbyist, one would have to look at his or her “lobbying activities” (time and expenses incurred in support of the lobbying contact)– in this case that might include the time and expenses of actually conducting the poll (although that could get complicated if the poll was being used for a variety of purposes, not just presentation to Congress). If the lobbying activities meet the expense threshhold and constitute at least 20% of the time spent on behalf of that particular client (and the pollster has made more than one lobbying contact in the reporting period), the pollster should be required to register as a lobbyist.