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American Bar Association Takes Aim At Lobbying Law Loopholes

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Under current law, lobbyists seeking consideration for their clients can sweeten the pot by throwing massive fundraisers for the members of Congress that they're lobbying.

Former senior members of Congress who are being paid a small fortune to design and coordinate major lobbying efforts don't have to register as lobbyists themselves -- or meet any disclosure requirements -- as long as they mostly supervise and don't make too many calls themselves.

And companies that hire lobbyists don't have to tell anyone which offices their lobbyists actually lobbied.

Those are some of the main things that the American Bar Association would like to see changed in the Lobbying Disclosure Act.

The legal group's house of delegates on Monday passed a resolution advocating a new, broader definition of "lobbyist," a slew of increased disclosure requirements, and an outright ban on lobbyists fundraising for members of Congress who they are also lobbying.

"Lobbyists could still contribute their own money," said Trevor Potter, a campaign finance reform advocate who is co-chair of the bar association's Task Force on Lobbying Regulation (and Stephen Colbert's election lawyer). "But they could not solicit others, serve on host committees for fundraisers, or bundle."

"We're trying to disconnect the raising of money from the substantive act of lobbying -- of persuading the members of the merits of your position -- so that you're arguing on the merits, not because you can raise $50,000 at a lunch the next week," Potter said.

But the latter "is how it works," he said. "And that is the connection we feel is inappropriate and harmful to the system."

The proposal to de-link fundraising and lobbying would inevitably face obstacles in Congress, however.

"I think it would be impractical to think that Congress would pass this," said Joel Jankowsky, a senior lobbyist at megafirm Akin Gump. Some members of Congress "probably have come to rely on it in part," he said, adding, "I don't know there's a constitutional way they could do it," given the free speech issues that would arise.

But Potter said public sentiment could force action.

"Most people don't know how it works and don't know this happens," he said. "What we hope is that people will learn about it and demand some changes."

Lobbying rules were last toughened in 2007, in the wake of public fury over the Jack Abramoff influence-peddling scandal. Abramoff became hugely successful precisely by making his lobbying and his fundraising essentially synonymous.

But some of those new rules had unintended consequences. Disclosure requirements and prohibitions on gift-giving and the paying of travel expenses -- along with President Obama's tough restrictions on appointing lobbyists to the executive branch -- have made the "lobbyist" designation so burdensome in Washington that many have decided to try to wriggle out of it.

Current rules define a lobbyist as an "individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a six month period." Lobbying activities are defined as actual "lobbying contacts" and actions in support of those contacts. But modern lobbying campaigns include much more than just making direct contacts -- they also include strategy, public relations, polling, coalition building, advertising and more.

The Center for Responsive Politics has documented how, ever since the new rules were adopted, thousands of lobbyists have effectively "de-registered" themselves in order to avoid disclosure and other rules -- without necessarily changing what they do. That has had the net effect of decreasing transparency, not increasing it.

Twenty percent is too high a limit, said Potter, "because someone can do a whole lot of lobbying and [it could] still not be 20 percent of their work for a particular client."

The bar group recommends a broader definition, but isn't specific. Potter suggested 12 hours per quarter spent on lobbying or lobbying activities.

Another recommendation from the bar group would require quarterly lobbying reports to include the names of anyone involved in planning, directing or coordinating a lobbying effort, even if they themselves are not making many direct contacts. The reporting requirement would specifically extend to any former senior federal official with any involvement at all in a lobbying campaign.

That rule, like the others, was initially described in a January report from the group's lobbying task force. Some in Washington are calling it the "Daschle Rule", in honor of Tom Daschle, the former Democratic Senate leader who is now employed as a senior policy advisor on health care at lobby shop DLA Piper. Daschle, who has long been considered Washington's quintessential lobbyist in everything but name, did not respond to a request for comment.

The bar group also recommended that companies be required to more fully report who they've hired as part of their broader lobbying support activities, and specifically which congressional offices, congressional committees, and federal agencies and offices their lobbyists have contacted. Current requirements are much less granular.

The group's final recommendation is that enforcement for the act, which is now in the hands of House and Senate staff and the U.S. Attorney's office, be transferred instead to a "suitable administrative authority" with more rule-making and enforcement powers.

Jankowsky said he supports the bar group's broader definitions of who a lobbyist is. "I think it simplifies it and avoids some of the games that are being played and increases transparency," he said, adding that while he thinks its chances of being implemented are slim, he also supports the proposed ban on fundraisers. "I just think a good lobbying strategy certainly does not depend on fundraising," he said.

What he doesn't like about the bar group's resolution, he said, "is that it again reinforces the perception that being a lobbyist and being registered as a lobbyist has adverse connotations rather than positive ones."

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