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.