“The voter may have a vote every few years, and that should not be discounted, but it cannot possibly match the effect of people who are there day in and day out, wielding the resources many of them can bring to bear.”
Although one does not have to be a lawyer in order to engage in the profession of legislative lobbying, the fact of the matter is that the vast majority of lobbyists are lawyers.
Both domestically and in the realm of overseas lobbying, Big Law firms, as well as specialized boutique firms, practice in what has for decades been well-established as a lucrative niche specialty. The lawyer-lobbyist is particularly in demand by clients whose interests involve complex regulatory systems, whether related to consumer product approval, the food industry, pharmaceuticals, military and weaponry funding, or a broad assortment of other special interests. We will examine what practical as well as ethical considerations come to the fore when lawyers lobby legislators.
ABA Task Force Recommendations
The American Bar Association (ABA) has played a pivotal role in developing rules to maintain integrity and transparency in the legislative lobbying sector. It has published a compliance manual lending guidance on the practice of federal lobbying law. The ABA section which addresses lobbying practice is the Section of Administrative Law and Regulatory Practice. It has previously organized a Task Force on lobbying comprised of groups dedicated to improving the quality of government, lawyer-lobbyists, and heads of lobbying firms. The Task Force’s 2011 report, titled ‘Lobbying Law in The Spotlight: Challenges and Proposed Improvements’, set out recommendations for enhancing transparency in the practice of lobbying. Interestingly, the Task Force did not limit its comments to lobbying by law firms and, in fact, rather briefly referred to lawyers in its report.
A key takeaway from the Task Force report is the issue of disclosure. The challenge for lobbyists is to abide by the disclosure requirements while at the same time providing the advice, policy advocacy, and analyses for which they were hired. Another important point cited in the report is the fact that by engaging in lobbying, the attorney establishes an attorney-client relationship, one that requires adherence to all of the common attorney-client ethics, such as confidentiality.
Congress’s Definition
One widely accepted definition of lobbying comes from, of all places, Georgetown University’s Woodstock Theological Center. In their “Principles for the Ethical Conduct of Lobbying”, lobbying is defined as ‘the deliberate attempt to influence political decisions through various forms of advocacy directed at policymakers on behalf of another person, organization or group.’ This rather broad definition contrasts, however, with that of Congress’s Lobbying Disclosure Act of 1995 (LDA), the hallmark federal legislation that regulates the lobbying of Congress. The LDA excludes activities that might otherwise be considered lobbying pursuant to the Woodstock definition, including offering congressional testimony, overall public relations work, and even advocacy on behalf of religious organizations. In sum, the LDA definition only applies to paid lobbyists.
State Legislation
Almost all states have statutes that require not only lobbyists—but also those who hire them—to submit disclosure statements. Included in the reports filed by lobbyists are such data as the amount spent on the lobbying, the legislative proposals being lobbied, and who will benefit from the lobbying and its expenditures. Where the various statutes tend to vary is on the matter of how often such disclosures need to be made: some states require this on a monthly basis, others monthly but only while the legislature is in session, some require quarterly reporting, and some only annually.
Another cautionary note is as to the definition of a ‘thing of value’ being expended on a public official. As an example, Alabama’s lobbying statutes require reporting that includes the cost of items over $250 in value and expended within a day on a public official, employee, and members of his or her respective household over $250 with the names of the recipients and the date of the expenditures. That state’s reporting also must include the nature and date of any financial transaction to a public official, candidate, or household member of such person, of a value in excess of $500 in the prior quarter, excluding campaign contributions. Furthermore, a detailed statement showing the exact amount of any loan given or promised to a public official, candidate, public official or candidate, and a detailed statement as to any direct business association or partnership with any public official, candidate, or members of the household of such public official or candidate must be reported per statute.
The National Conference of State Legislatures (NCSL) provides a comprehensive resource as to the particular lobbying reporting requirements of various states, and the practitioner would do well to thoroughly investigate the do’s and don’ts of a given state before attempting to conduct a lobbying campaign with its legislators.
Lobbying Overseas
The U.S. and the EU have similarities as well as differences as to the regulation and practical implications of lobbying. It is important to be well-versed in the nuances due to the fact that U.S.-lobbying and EU-lobbying are frequently interrelated, so much so that observers have found that the legal lobbying environment in Brussels is quite comparable to that in Washington. Because the U.S. and the EU respective legislatures are so influential globally and frequently operate under parallel legal and political structures, both policies and standards adopted in those two regulatory and political arenas tend to have a global impact.
It is particularly important that complex regulatory policies be lobbied for (or against) correctly, lest the results for the multi-national client become entangled in what could turn out to be irreconcilable confusion and exposure to unintended regulatory and civil liability.
Where Exemption from Regulation Applies
Some overseas lobbying regulations define lobbying as excluding preliminary work and the providing of client advice. Law firms typically provide legal services that consist of giving advice, as opposed to making actual contact with policy-makers on behalf of a client, and therefore, many law firms will not fall under lobbying laws that exclude such background legal services. An example of this is the Irish Lobbying Act of 2015 which, although otherwise rather broad in scope, defines lobbying as the act of making contact, for which registration as a lobbyist is required.
Australia’s Code of Conduct (2013) excludes from regulation and registration lawyers who only occasionally make representations to government bodies, and Austria’s lobbying laws similarly provide that the activities of law firms are not deemed to be lobbying and are therefore exempt from regulation.
A Benchmark of Democracy
Although various scandals involving lobbying have surfaced over the years, thereby giving lobbying somewhat of a tarnished image, proponents point out that it is, in fact, enshrined in the First Amendment: “Congress shall make no law abridging the right of the people to petition the government for a redress of grievances.” The concept has been expanded to assume that the people of the United States—given their right to be involved in the decision-making that affects them—also have the right to petition and advocate for the passage of laws based on their various, albeit often disparate, interests. However, such petitioning and advocacy must at all times be conducted pursuant to doctrines of fairness and transparency in order to meet the highest ethical foundations.
Executive Summary
The Issue
What are some of the considerations that lawyer-lobbyists should bear in mind?
The Gravamen
Advocating for a client before legislative decision-makers is a hallowed right but must be conducted within the bounds of fairness and ethics.
The Path Forward
Lobbyists play a huge role in a wide variety of policy-making both domestically and globally and must be mindful of what the rules are in all jurisdictions.
Action
1. Does the Practice Constitute Lobbying?
The definition of lobbying varies widely from place to place, and the lawyer-lobbyist must understand what conduct is regulated and what is exempt.
2. Defining A ‘Thing of Value’:
Different monetary limits apply in different states as to when the lobbyist has conveyed a ‘thing of value’, and whether, via gift, loan, or business association, the statutory limit must be understood by the lawyer and his client.
3. Disclosure Reporting:
Disclosure is not only a matter of disclosing financial value but also involves contact with members of a politician’s or even a candidate’s family.
4. Don’t Underestimate Complexities:
Before lobbying in the minefield of complex regulatory policy, understand fully the impact that seemingly minor regulatory nuance can have on your client’s best interests.
Further Reading:
- https://www.ncsl.org/research/ethics/tools-of-the-trade-guidelines-to-ethical-lobbying
- https://link.springer.com/article/10.1057/s41309-022-00169-w
- https://generalcounsel.ncsu.edu/legal-topics/compliance-ethics/ethics-and-lobbying-laws/
- https://www.scu.edu/government-ethics/resources/what-is-government-ethics/lobbying-ethics/
- https://www.oecd-ilibrary.org/sites/c6d8eff8-en/1/3/3/index.html?itemId=/content/publication/c6d8eff8-en&_csp_
- http://press.georgetown.edu/book/georgetown/ethics-lobbying
