Dec 7, 2007 -- CQ: Questions Abound About New Disclosure Forms For Lobbyists
By: Emily Cadei

The new disclosure forms for registered federal lobbyists required by the new lobbying and ethics law will be released Dec. 10, but a lack of transparency in the drafting process has left many affected players and observers wondering aloud what the final product will look like.

The lobbying law signed by President Bush in September, mandates more extensive reporting for registered federal lobbyists, expanding upon the Lobbying Disclosure Act of 1995. It is the job of the congressional records offices — the Offices of the Clerk of the House, headed by Lorraine C. Miller, and the Secretary of the Senate, Nancy Erickson — to interpret several of these new requirements and determine the reporting logistics.

To that end, the offices are scrambling to update forms and filing systems for lobbyists before many of the new regulations kick in Jan. 1.

Much of the law is straightforward. There is no way around the fact, for example, that lobbyists will to have to file quarterly disclosure reports, rather than semi-annually, as they have up to this point.

There are, however, areas of regulation that Congress left vague, and it will be up to the House Clerk and Senate Secretary to determine how much they want to push the transparency envelope.

"How [the Clerk and Secretary] interpret these rules and the kind of guidance they give will be very important in determining how effective they are," said Meredith McGehee, policy director at the Campaign Legal Center, an organization that advocates for ethics reform.

At issue: the types of expenditures that now qualify as contributions for reporting purposes, disclosure of members of lobbying coalitions and associations, and, more generally, the level of detail registrants will be expected to provide in each section.

According to Holland && Knight attorney Chris DeLacy, an expert in lobbying compliance issues, his clients are especially concerned with new semi-annual reporting requirements in which lobbyists must disclose contributions to legislative and executive branch officials or entities affiliated with these officials. What remains unclear is just how closely an official must be linked to an organization to trigger disclosure on these counts.

Another area where the clerk and secretary will have to exercise some discretion is the extent to which association and coalition groups that file lobbying reports will have to disclose their members. The new law stiffens earlier disclosure requirements for associations by mandating these groups report any member who "actively participates in the planning, supervision, or control" of any lobbying activity. What that means in practice is yet to be determined.

"To be able to comply, we need very clear direction," said U.S. Chamber of Commerce Chief Counsel Steve Law. "And this particular provision is just extremely vague and would appear to require the disclosure of people who have only a tangential connection to our government affairs activities."

Moreover, government transparency advocates and lobbyists alike worry that the filing procedures put in place by the Clerk of the House and the Secretary of the Senate could make an arduous process even more convoluted.

"There are ways to interpret [the regulations] that make them so burdensome that they lose support," said McGehee.

Such was the case in the original lobbying law, when each records office mandated its own separate filing system.

"There are all these disclosure requirements . . . that tend to be somewhat discombobulated," said Craig Holman, Legislative Representative for Public Citizen's Congress Watch.

And, noted Holman, "It is perfectly within [the Clerk and Secretary's] authority to sit down and agree that they are going to create one central disclosure office between the two."

In a welcome step for those filing, the congressional offices have announced that the new forms they are creating can be filed with both offices.

"I was pleased to see they've already moved forward on that, and they've gotten the word out to the lobbying community," said McGehee.

"I'm hoping that that will be the start of a good pattern here."

But on most other fronts, the House Clerk and Senate Secretary have been less forthcoming, leaving affected parties in the dark on their deliberations.

Unlike the Federal Election Commissio n, which has been very public in its rule making for the portions of the new law under its jurisdiction, the congressional offices do not have any formal mechanism for public input. Instead, they have operated almost entirely behind closed doors, rebuffing requests for meetings from stakeholders, as well as inquiries for this article.

"It's a very unusual situation because here you have the House and Senate offices which are not regulatory agencies, there's no rule making, there's no opportunity for public comment," DeLacy said.

Lacking direct contact with the decision makers, interested groups have been left to air their concerns in open letters and public relations campaigns. A coalition of pro-transparency groups — Campaign Legal Center, Democracy 21, Common Cause, League of Women Voters, Public Citizen and U.S. PIRG — sent a letter to the Clerk and Secretary last month urging tight enforcement of the rules, particularly those related to disclosure of associations and spending on behalf of government officials.

In response, the U.S. Chamber of Commerce, National Association of Manufacturers and American Society of Association Executives issued a letter urging the Congressional offices to respect coalition members' rights to free association.

The FEC's openness, meanwhile, has led to far more publicity of the changes they are overseeing than those managed by the House Clerk and Senate Secretary, despite the fact that the FEC rules — concerning air travel and lobbyists who raise funds for federal campaigns — deal with a much smaller population.

Said DeLacy: "I think this is a lower profile issue, but it is one that is going to affect a lot more people than the FEC regulations."