Pay-to-Play Developments to Watch For in 2013: Is Federal Lobbyist Pay-to-Play on the Table?
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In a post I wrote for the Politics, Law and Policy Blog, I noted that change is coming to Washington in the form of an anticipated overhaul of federal election and tax laws. You can read the whole post here but federal lobbyists – and those who employ them – should take particular note of an initiative launched this week by an organization known as “United Republic”. This group represents the tip of a grass-roots spear pointed at Washington and no one can argue they have a political agenda. Any organization with as diverse a Board of Advisors as United Republic can boast (representing as they do Wall Street, the Occupy Movement, Jack Abramoff, former FEC Chairman Trevor Potter, academics, nonprofits and political operatives) defies partisan categorization.
A little-noticed element of United Republic’s recent proposal – termed the American Anti-Corruption Act – seeks to impose elements of municipal pay-to-pay prohibitions on the federal lobbying community and the Congress they woo. While UR’s proposal has a certain emotional charm, one must be mindful of the myriad unintended consequences and compliance challenges that accompany all feel-good populist proposals.
First, the specifics. To counter a perceived lack of transparency in federal lobbying, the AACA proposes federal legislation amending the Lobbying Disclosure Act to expand the definition of the term “federal lobbyist” to capture greater “consulting” activities by insiders (referred to derisively by United Republic as “historical advisors” – cheap shot United Republic). The proposal on the table is to accomplish this by defining “lobbying” as
(1) Two lobbying contacts or providing strategic advice to lobbying efforts or directing or supervising the provision of strategic advice to lobbying efforts, and (2) 12 hours or more spent [per quarter?] engaging in lobbying activities.
Once the universe of “lobbyists” has been expanded, United Republic proposes implementation of a pay-to-play prohibition with severe restrictions on the ability of those lobbyists to contribute to, or raise money for, Members of Congress. The proposal calls for a $500 cap on lobbyist contributions, a ban on lobbyist bundling, and a requirement that lawmakers recuse themselves from committee hearings if they have received a contribution from a lobbyist or a lobbyist client that has a particular interest in that hearing. Finally, the proposal seeks to extend the “government contractor” ban on contributions to “the lobbyists, high-level executives and government relations employees and PACs of federal government contractors.”
It is certainly conceivable that legislation could be drafted to accomplish these objectives which would survive first amendment scrutiny. Less clear is whether such legislation – however well meaning and however grounded in legitimate concerns – makes for good public policy when one considers the compliance burden such legislation would impose. The devil, as they say, is in the details. Does the definition of “high level executives” extend to spouses, siblings, pets, and anyone within two degrees of separation on LinkedIn? This blog is replete with examples of the challenges public interest “bans” impose on the regulated community when the rubber actually hits the road.
This will be the battlefield in the coming year. Keep your head on a swivel out there.
