Intended to Rein in Lobbyis

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DAVID D. KIRKPATRICK

Published: Monday, January 18, 2010 at 6:01 a.m.

WASHINGTON — Ellen Miller, co-founder of the Sunlight Foundation, has spent years arguing for

rules to force more disclosure of how lobbyists and private interests shape public policy. Until

recently, she herself registered as a lobbyist, too, publicly reporting her role in the group’s

advocacy of even more reporting. Not anymore.

In light of strict new regulations imposed by Congress over the last two years, Ms. Miller joined a

wave of policy advocates who are choosing not to declare themselves as lobbyists.

“I have never spent much time on Capitol Hill,” Ms. Miller said, explaining that she only supervises

those who press lawmakers directly. “I am not lobbying, so why fill out the forms?”

Her frankness makes Ms. Miller a standout among hundreds of others who are making the samedecision. Though Washington’s influence business is by all accounts booming, a growing number of

its practitioners are taking a similar course to avoid the spotlight of public disclosure.

“All the increasing restrictions on lobbyists are a disincentive to be a lobbyist, and those who think

they can deregister are eagerly doing so,” said Jan Baran, a veteran political lawyer who has been

fielding questions from clients hoping to escape registration. “It is creating some apparent

contradictions.”

Before the new rules, the number of advocates who registered as lobbyists appeared to have grownsteadily, peaking in late 2007. A tally by the nonpartisan Center for Responsive Politics (another

group founded by Ms. Miller) put the count at about 13,200. The number fell by nearly 2,000 by

the fall of last year.

The falloff began shortly after Congress passed a sweeping ethics and lobbying law that imposed on

registered lobbyists both heavier reporting requirements and potential criminal penalties. The law

required lobbyists to report four times a year instead of two, and to detail any campaign

contributions and certain meetings with public officials. The law also made it a crime for registered

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lobbyists to provide gifts or meals to lawmakers or their aides.

But for all its penalties, the law left the definition of a lobbyist fairly elastic. The criteria included

getting paid to lobby, contacting public officials about a client’s interests at least twice in a quarter

and working at least 20 percent of the time on lobbying-related activities for the client.

Enforcement is also light. Lobbyists suspected of failing to file receive at least one official letter

offering a chance to rectify their status before any legal action is taken.

After the rules changed, private companies and nonprofit groups immediately began to rethink

their registration.

The Union of Concerned Scientists, which advocates on arms control, energy policy and

environmental issues, had previously registered almost anyone who went to Capitol Hill on its

behalf, said Stephen Young, a senior analyst for the group. That changed after the new law.

“We thought: ‘Hmm, this is now not such an easy thing. Let’s see if we are required to do it. We arenot? Let’s take them off,’ ” he said. The group terminated the registrations of “virtually all” its

former lobbyists, he said.

Lobbyists were further motivated to adopt new tactics after President Obama limited their access

to meetings and to government officials. He barred administration officials from talking to

registered lobbyists about any projects involving federal stimulus money. He blocked lobbyists

from working on his transition or taking jobs in his administration.

Some Democrats said the president’s prohibitions had motivated them to terminate theirregistrations and keep lobbying below the registration threshold; all insisted on anonymity to

discuss the reasons for their decision.

“Lobbying isn’t a crime,” said one recently deregistered lobbyist who is looking for a job. “It is a

profession, and in my view it is an honorable one. But this administration has made a decision

about who can serve and who can’t.”

Some corporate lobbyists, speaking anonymously for fear of irking the White House, said they

were revising job descriptions in light of the administration’s decision to bar registered lobbyistsfrom sitting on industry advisory panels. “Wait a minute, who is going to be on this board?” a

lobbyist for a major aviation company recalled thinking. “Are we going to actively manage people

to not be lobbyists?”

The pattern has set off a debate on K Street and Capitol Hill. Many lobbyists argue that the decline

in registration demonstrates the unfairness of cracking down on their trade while ignoring the

campaign contributors, corporate executives, union chiefs and others who seek the ears of public


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officials. Advocates for the rules, on the other hand, argue that they should be tighter still, with

tougher enforcement.

“In a world of two and a half years ago,” said Thomas M. Susman, director of government affairs

for the American Bar Association, “people in Washington would have said: ‘If in doubt, register. I

like the publicity. I like to be in periodicals that list lobbyists. I want to be able to tell potential

clients how many I am already registered for.’ Those are people who I believe have reconsidered.”

“To the extent that people now say the Obama restrictions and prohibitions are driving lobbyists

underground and having a perverse effect, in a sense that is right,” Mr. Susman said. “But if you

want more people to be disclosed as lobbyists, well, change the law and require them to disclose.”

Of course, even before the new rules, there were some public policy advisers who avoided

registration while nonetheless profiting handsomely by helping private clients influence Congress

and the White House. Under the Obama administration, the most conspicuous example is Tom

Daschle, the former Democratic Senate leader. He advises colleagues and private clients on healthcare policy as a member of the lobbying firm Alston & Bird. And he also informally consults on

health care policy with Mr. Obama, senior White House officials and former Senate colleagues. But

he is not registered as a lobbyist. (Mr. Daschle has said he complies with all the rules.)

Advocates of stricter disclosure requirements say they want the rules extended to cover policy

advisers like him. Ms. Miller, of the Sunlight Foundation, said her organization was working to

lower the registration requirements to cover anyone spending even a “de minimus” amount of time

on lobbying.

“There are influence peddlers who have gotten away with not disclosing because they are under

the 20 percent rule,” she said, “and we want to shut down that loophole.”

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Intended to Rein in Lobbyis