Last month, Senator Elizabeth Warren introduced her Anti-Corruption and Public Integrity Act, a 300-page blueprint for how to counter the structural enablers of public corruption in the United States. Included among her many proposals (which are detailed at length here) is a set of new lobbying regulations. Many civil society groups—most notably Oxfam—have praised the bill for bringing “an end to lobbying as we know it.” This enthusiasm is understandable, as few professions are decried with the special fervor Americans reserve for lobbyists. The very word conjures up images of slick, well-heeled, sleazy political operators who manipulate and corrupt the political system for their corporate clients. But of course lobbyists are a much more diverse group. Some lobbyists work for big pharma, banks, or the gun industry, but others work for the girl scouts, the environment, or the poor. Indeed, some work within anticorruption organizations. And so while there are many things to like about Senator Warren’s bill, including many of the proposed new lobbying regulations, it’s a bit odd that none of the anticorruption organizations that have praised the bill (see, for example, here and here) appear to have acknowledged (at least publicly) how the bill’s lobbying restrictions would affect their own work.
With that in mind, there are at least four aspects of the Warren bill that should concern anticorruption groups and other civil society advocacy organizations:
- First, the Warren bill expands the definition of a “lobbyist” to include more individuals who work for advocacy groups. The 1995 Lobbying Disclosure Act currently defines a “lobbyist” as “any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than 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 3-month period” (emphasis added).” It does not matter if one’s client is also one’s employer, as the statute makes clear that an “entity whose employees act as lobbyists in its own behalf is both a client and an employer of such employees.” A “lobbying contact” is further defined as “any oral or written communication … to a covered executive branch official or a covered legislative branch official that is made on behalf of a client” with respect to legislative proposals, federal rules, the execution of federal policy, or the nomination of individuals subject to Senate confirmation with certain exceptions for religious groups, taskforce submissions, etc. The Warren bill would eliminate the exemption for individuals who spend less than 20% percent of their professional time engaged in lobbying. It defines a lobbyist as someone whose services “include making 1 or more lobbying contacts,” full stop. If you work for an NGO doing some, but not a lot, of advocacy in Congress, the Warren bill might well classify you as a lobbyist, even if you weren’t so classified under current law. For example, let’s say you work for Transparency International’s Defense Program, a team I know well. While it’s possible that your job could be mostly research-based, it’s likely that over the course of a year, three to four members of your team will meet with DC policymakers to discuss an upcoming piece of legislation. Under the current law, you would not be a lobbyist unless you did this sort of work 20% of the time over a three month period. But under the Warren bill, you’d qualify as a lobbyist if you do any advocacy work of this kind. Now, whether you are a lobbyist who needs to register would still depend on whether your income for lobbying work exceeded $2,500 and/or your organization spent more than $10,000 per quarter on lobbying work. But if you spend even 10% of your time on lobbying, your income would probably exceed the $2,500 threshold. Though eliminating the 20% time threshold is well-intentioned, in my view it should be preserved, or at least preserved for lobbying by non-profit organizations.
- Second, the Warren bill enhances federal reporting requirements, which could adversely affect those anticorruption advocates who do end up classified as lobbyists. The Lobbying Disclosure Act currently requires that registered lobbyists file quarterly reports listing the issues that they work on, the US officials they’ve contacted in the legislature or federal agencies, and a description of the interest of any foreign entity in their work; registered lobbyists must also file semi-annual reports documenting certain campaign contributions. The Warren bill would require lobbyists to list, in addition, every phone call and email made that constituted a lobbying contact, as well as every person in their organization who supported the lobbying contact through independent “lobbying activities,” broadly defined as preparatory work. These additional requirements would be too burdensome for most non-profit advocacy groups. Suppose you work for TI and you are preparing for a meeting with a Senator’s staff to discuss on a major anticorruption bill on Monday, and then you have a major State Department meeting on Wednesday. Monday, you plan to discuss a report looking at how corruption impacts national security; Wednesday, you plan to do the same. For that one week, you would need to report 1) all the people you emailed to set up the meetings, which could be 4-5 people in some cases; 2) every follow-up email you sent, which could be 5-10 because some State Department meetings can be big; 3) every person who contributed in some way to the report you presented, which in the case of some reports can be 5-8 people; and 4) any additional phone calls you had to facilitate the process. Recalling the difficulty involved in sometimes even circulating meeting notes, I have a hard time believing these new rules are practical for many organizations. Given that many non-profits subsist on their ability to send many emails and make many phone calls, it’s easy to imagine that this bill would lead to either less advocacy by groups like TI or, alternatively, unintentional non-compliance. An easy way to remedy this might be to minimize reporting requirements for non-profits and/or small organizations whose operating budget is below a certain amount.
- Third, the Warren bill amends the Foreign Agents Registration Act (FARA) in way that might incidentally curtail international advocacy work. FARA requires US-based organizations acting on behalf of foreign principals to disclose their foreign connections; meanwhile, the Lobbying Disclosure Act exempts communications “made on behalf of a government of a foreign country or a foreign political party and disclosed under [FARA]” from its definition of a “lobbying contact.” Many regard this lobbying exemption as an egregious loophole that encourages individuals, like Paul Manafort, to hide the work they do for foreign organizations. The Warren bill includes a flat prohibition, mandating that “covered lobbyists may not accept financial or other compensation for services that include lobbying activities on behalf of a foreign entity.” While curtailing the lobbying efforts of foreign governments and nefarious organizations based abroad is a great idea, this provision in the Warren bill is overbroad, and would likely impede the work of international advocacy organizations whose agendas reflect the shared goals of their foreign counterparts. For example, if you’re a covered lobbyist at the US chapter of an international organization like Transparency International (based in Berlin) or Global Witness (based in London), are you acting on behalf of a “foreign entity” when you communicate the advocacy messages of your German and British colleagues? If so, it’s hard to imagine how US organizations would collaborate with their foreign partners in pursuit of shared anticorruption/global governance goals. That said, perhaps the term “foreign entity” in the Warren bill is not intended to refer to non-governmental actors, or that it’s meant to refer to instances of control, as opposed to coordination. If so, it would be best to clarify this, or better still, to limit the flat prohibition on foreign lobbying to for-profit lobbyists.
- Fourth, the Warren bill imposes more drastic limits on campaign contributions by lobbyists. As stated previously, the Lobbying Disclosure Act already requires lobbyists to disclose certain kinds of campaign contributions; in addition, the Federal Election Campaign Act and associated regulations require special reporting of contributions that are collected or “bundled” by lobbyists or by political action committees controlled by lobbyists. While greater controls are needed to limit outsized corporate influence in US elections, the Warren bill casts too wide a net, making it “unlawful for any lobbyist to make a contribution to any candidate for Federal Office or member of Congress” (emphasis added). This problem could be remedied fairly easily: Because the Warren bill distinguishes between corporate lobbyists and other kinds of lobbyists, it might make more sense to impose tighter regulations for donations given by corporate lobbyists, while preserving the existing rules for other lobbyists. (It’s possible that any ban on lobbyists’ campaign donations would be unconstitutional, but that’s a separate matter).
There can be no doubt that Senator Warren is right when she says that we have now “the most nakedly corrupt leadership this nation has seen in our lifetimes.” She’s also right in believing that we need more ambitious anticorruption legislation to limit the influence of corporate interests on our political process. That said, anticorruption organizations should not embrace her recent bill without serious consideration of what it actually says and how it, paradoxically, might limit their work. Small tweaks could make a big difference.
I love this post! You seem to have looked deeper into this than anyone else and given that most of these proposals are summarizing the latest discussions on some of the hottest issues in anti-corruption, I think this is extremely valuable.
Regarding the reporting requirements, you write that an easy way to solve the problem of how not to overburden NGOs with reporting requirements on their lobbying activities would be “to minimize reporting requirements for non-profits and/or small organizations whose operating budget is below a certain amount”. I would take this even further and say that it is crucial to have reporting that is user friendly for ALL (not just NGOs), does not take too much time, but at the same time is connected to certain bills / policies or topics when there are no bills yet. The registry should be searchable by the name of bill, topic, name of politician and name of lobbyist. It would thus automatically generate a legislative footprint that can be publicly accessed by choosing a specific bill and reviewing a list of interest groups/persons who have submitted proposals for that particular piece of legislation. I would dream of a system where any lobbyist willing to report lobbying activities could just go online, use his registration number to sign in, select a bill or topic from a drop-down menu and put it what kind of lobbying is being made and to which politicians it is directed. It would be short and simple. True, this would probably be almost impossible to oversee completely, but I believe it would start creating a culture where politicians become interested in having their contacts recorded by the lobbyists (and thus encouraging them to report). In order for this to happen, of course, civil society and journalists would need to start using the registry and raising uncomfortable questions – for example, how come some politicians have very little recorded contact with the interest groups? It might sound naive (and I agree that to some extent it is), but I have not yet thought of any other way to make lobbying more accountable and I do not believe that less transparency is the answer here (as some critics who argue that NGOs should be exempt from this altogether or that we don’t need registries at all claim).
On a different note – I have frankly never thought of the constitutionality of banning lobbyists from donating to political campaigns. Having thought about it now, I think you raise a good question – it probably would be a constitutional issue! My initial reaction to this is that in that case such donations should be at least public and probably accessible in the same dream registry I describe above. Wouldn’t it be great if you could just open the profile of a lobbyist in that registry and see an automatically compiled list of all the bills he/she lobbied, the list of lobbied politicians and the list of political donations! It would encourage uncomfortable questions! Or would such disclosure also be unconstitutional for revealing the personal political preferences?
Hilary, great post, thanks for this. And Ruta, great comment. I love the idea of easing and simplifying what otherwise might be onerous reporting requirements through the use of tech. This is one of the places where tech can be used as a force for good, to make government more transparent, accessible, and accountable. I agree too that there’s an important role for civil society and journalists in monitoring a potential lobbying registry, in order to hold politicians accountable and lobbyists accountable. I think as well that, to make this work, we need to think about what the enforcement mechanism will be to ensure compliance with the reporting requirements. I suspect housing some sort of inspection and auditing body in an administrative agency that was empowered to bring administrative enforcement actions against recalcitrant groups might be effective, assuming such an organization was sufficiently funded. Perhaps this could be supplemented by D.O.J. enforcement. Of course, Senator Warren’s bill likely already contemplated some kind of enforcement structure, I merely wonder if that structure would be adequate or best designed to enforce the kind of automated reporting we’re discussing here.
Great post! It seems that the proposed regulation fails to draw a relevant line among different kinds of advocacy work. The non-profit v. for-profit distinctions seems to make sense initially when thinking about reshaping the reporting requirements potentially imposed to those groups. My consideration is whether the difference on non-profit v. for-profit is really accurate to avoid what seems to be the rational (controlling the interference of financially interested agents in policy design). I believe many entities acting as NGOs or non-profit organizations are created or financially supported by financially interested economic agents. As they may vary in independence, some of them seem to act deliberately to achieve a pro-industry agenda. Controlling these types of situations seem to be even more difficult as they would technically fall under the non-profit/non-coportate definition. Drawing the line elsewhere, by inquiring the origin of the funds used by the NGOs for instance, could increase the costs for monitoring and classifying their activities.
Great post Hilary. Thank you for both introducing Senator Warren’s recent bill and highlighting some of its concerns with regard to advocacy groups. I love how you integrated your personal experience working for TI into your substantive arguments.
Regarding the first concern that you raised (elimination of the 1995 Lobbying Disclosure Act’s “exemption for individuals who spend less than 20% percent of their professional time engaged in lobbying”): Both the 1995 act and Senator Warren’s new bill apply to individuals, rather than organizations. Focusing on advocacy groups, I think that one could argue that the original 1995 act’s exemption is actually discriminatory against non-profit organizations with a low operating budget. Bigger, more wealthy organizations could simply hire a large number of employees each capable of devoting less than 20% of his or her time to lobbying work so as not to be legally defined as a “lobbyist”. Of course, this option is not realistic for many smaller organizations. Therefore, at least in that sense, the Warren bill is more equal than the 1995 act, and there is a good argument against preserving this exemption even for lobbying by non-profit organizations.
I totally take your point that we might separate good from bad NGOs for the purpose of lobbying laws by focusing on the origin of funds used by those NGOs. After all, surely an NGO funded by the Krelim should be viewed with greater suspicion than an NGO funded by a long-time ally like Australia. Indeed, we see some of this logic in the creation Foreign Agents Registration Act (FARA),which — as I mention in my post — requires disclosure of which groups service foreign principles.
That said, it’s hard to know how to operationalize these distinctions in a lobbying bill without seeming capricious. For example, would we say that no lobbying could be done by organization which accepts money from X countries. Well, outside of certain pariah states, I imagine that rule would be hard to work out. It’s even more complicated with individuals. How would we go about figuring out which individuals are “no good” such that any NGO receiving funding from them needs to abide by more stringent lobbying restrictions.
At the end of the day, I have to think corporate versus non-profit seems like the most logical – albeit imperfect – benchmark by which to draw these lines in the sand. But, tell me if you think I’m wrong!
Thanks, Hilary, for this in-depth analysis of what seems to be a few overlooked side effects of Senator Warren’s proposed bill. I am particularly interested in what you think may have been the impetus for eliminating the exemption for individuals who spend less than 20% of their time lobbying. I wonder if this could have been some kind of provision to ensure reciprocity, to eliminate backlash from corporate lobbyists—as in, if corporate lobbyists need to register, then advocacy groups should too. Your analysis of just how burdensome it is to impose the same conditions on advocacy groups, however, underscores the need for more troubleshooting to this proposed legislation and certainly the need for more input from all affected stakeholders. I cannot imagine advocacy groups affected by the exemption elimination would support the bill given the drain on their resources to fulfill the reporting requirement.
Thank you for taking the time to do a deep dive into this bill, Hilary! Your post illustrates how there can be many unintended consequences when tackling such a complex issue. Following up on Joao’s point and your response, it seems like it would be difficult to distinguish between the “good” non-profits that are doing important advocacy work, and the non-profits set up as vehicles for corporations or other actors. Thus, any distinction is at risk of being coopted by corrupt actors. Perhaps our focus should be less on finding the line between the two and more on making compliance easier for everyone (including NGOs). For example, I think Ruta and Jason’s points about using technology to ease reporting requirements could be useful here. This way, there is more transparency across the board and less risk of letting something slip through the cracks.
Thanks Ms. Hurd for fascinating insights. But, let us not overly focus on those very small parts of the bill that may create some difficulty for us NGO-types, because my guess is that if this bill really got traction, then Senator Warren would give us a good hearing. This is not to minimize the importance of your good points. But, I think that the Warren bill overall is really enormously positive and overdue. This is unprecedented anticorruption legislation that those of us engaged in seeking to curb corruption everywhere need to welcome and get behind.
Co-founder, Transparency International
I actually believe that even the creation of some potential difficulties for the NGOs in terms of reporting are long overdue and should not be viewed in the negative light either! Just like I described in my comment above, I think that if the reporting would be user-friendly, it would not be too much of a burden for NGOs and this would make decision-making more accountable.