Last month, a government auditor noted steps the U.S. Attorney’s Office for the District of Columbia has taken to improve its efforts to take down lobbyist scofflaws. Officials contracted a paralegal to work on such cases, for example, and they set up a database to better manage records on infractions.
The office has sent hundreds of letters and e-mails and made calls to lobbyists who may have violated the law. And often, lobbyists are heeding prosecutors’ requests. In 2010, for example, the office notes that half the lobbyists contacted have complied with their communications.
But among those who haven’t complied, the enforcement efforts have yielded no court actions, and since 2007 — when a new federal lobbying ethics law was passed in response to the Jack Abramoff scandal — just one settlement has been reached over lobbying violations.
The numbers are leading critics to try to move the government’s lobbying disclosure enforcement efforts from the U.S. attorney’s office to Main Justice. And they’re causing lobbyists to say they’ve learned not to fear any backlash from prosecutors. “It seems to me that these folks really don’t have an interest in enforcing the law,” said Howard Marlowe, president of the American League of Lobbyists, the leading trade group for the industry, which has sought tougher lobbying standards.
U.S. Attorney Ronald Machen Jr. defended his office. “We have devoted additional resources to meet our responsibilities under the Lobbying Disclosure Act,” Machen said in a written statement. “We take violations of the [act] very seriously and are doing whatever is necessary to encourage technical compliance and to identify willful violators who are not acting in the required and transparent manner.”
Prior to its most recent settlement, quietly reached last November, the office had settled with three lobbyists over allegations of lobbying disclosure noncompliance from 1995 to 2008, according to the U.S. Government Accountability Office (GAO), which performs audits for Congress. The office collected $47,000 from the three lobbyists.
A STRUCTURED APPROACH
The U.S. attorney’s office is responsible for enforcing the Lobbying Disclosure Act of 1995 (LDA) and the Honest Leadership and Open Government Act of 2007, the latest update to the almost 20-year-old law. Except under special circumstances, individuals are required to notify Congress when they start lobbying to not run afoul of the law. They also have to file periodic reports about their advocacy work, the amount of money they receive for their lobbying efforts and their political contributions.
In its first report on compliance with lobbying disclosure requirements, the GAO in 2008 said the office under then-U.S. Attorney Jeffrey Taylor should implement “a structured approach to focus limited resources on those lobbyists that continually fail to file as required or are otherwise not in compliance.”
In 2011, the GAO said the office had addressed those concerns. In September 2010, the office contracted a paralegal to work full time on lobbying compliance matters, joining 17 employees, including Assistant U.S. Attorney Keith Morgan, the deputy civil division chief who oversees LDA enforcement, who work on LDA issues on a part-time basis. The office also set up in the past few years a database that allows it to better manage records on potential LDA infractions and established a list of top noncompliant lobbyists.
As of Jan. 25, the clerk of the U.S. House and secretary of the U.S. Senate referred to the office for the 2010 reporting period 446 cases concerning lobbyists who may have failed to properly report their lobbying work, according to this year’s GAO report, released last month. The secretary and clerk make a referral after they send a letter to the potential scofflaw and don’t receive an adequate response. During the 2010 reporting period, the office issued 193 letters and 48 e-mails or phone calls about that type of potential noncompliance as of Feb. 22. The last year with complete data was 2010.
Half of the registrants the office contacted were compliant as of Feb. 22. Almost all of the other registrants could face legal action. A registrant could be an individual, firm or other organization.
Congress also sent the office referrals concerning lobbyists suspected of not reporting federal political contributions and certifying that they understand gift rules. The office, however, didn’t have all of the numbers for the 2010 filing period ready in time for the GAO.
Despite the number of noncompliance letters and e-mails sent out, according to Marlowe, many apparently are being ignored because lobbyists believe the chance of follow-up from prosecutors is slim. “Right now, most of those [letters] go ignored because there is no retribution, no fear, no punishment likelihood coming, and that includes no publicity,” Marlowe said.
In its recent report, the GAO also briefly mentioned that they had reached a rare settlement last November. According to a report from the U.S. attorney, the office quietly reached a $45,000 settlement with WayPoint Consulting LLC over allegations concerning the timely submission of disclosure reports. Before the release of the GAO report, which performs audits for Congress, it appears that the only public information online, at least, about the settlement could be found in Wiley Rein and K&L Gates client alerts.
This goes to another criticism of the office: that it has kept too low of a public profile. Most details about the office’s work come from limited reports that the U.S. Justice Department and the GAO are required to put out about how the office is meeting its mandate to enforce lobbying disclosure law.
With little information on LDA enforcement work publicly available, some lobbyists say the office is fueling a perception that it isn’t doing enough to monitor their community.
Holland & Knight partner Christopher DeLacy, who leads his firm’s political law group, said he is “a little surprised” that the office hasn’t touted its efforts about its work on LDA compliance issues. “Making these enforcement actions public would go a long way,” he said.
Morgan said the office was “happy” to resolve the WayPoint case. But the office decided not to issue a news release on the settlement because it expected that the GAO would disclose it in its annual report on compliance with lobbying disclosure requirements, he said.
When asked about criticism that prosecutors aren’t devoting enough time or energy to LDA enforcement, Morgan said his office takes LDA enforcement “seriously.” But he declined to elaborate on where exactly LDA enforcement falls among his office’s priorities. “We’ve devoted what we think is the appropriate amount of resources,” he said.
The LDA enforcement process at the U.S. attorney’s office involves several steps. When the office receives a referral from the clerk of the House or the secretary of the Senate about a potential LDA infraction, the paralegal ensures that information in the paperwork is complete and then enters it into the database, according to information the office submitted to the GAO. The office’s civil division then checks congressional lobbying disclosure databases to confirm whether the referral is warranted.
If the division confirms that a referral is justified, the paralegal sends a letter to the registrant. The letter says that failing to abide by the LDA “threatens to undermine the public’s confidence in the integrity of the legislative process” and “is unacceptable and warrants action on the part of the United States.” The document adds that the office isn’t “making a demand at this time” and only is “interested in talking with you.”
Failure to reply to the letter or to respond to it and not comply with the LDA after one to two months could result in legal action taken against registrants after the office makes additional attempts to contact them. A registrant could face up to $200,000 in fines in a civil case and a maximum of five years in prison in a criminal case.
The whole process can take several years.
Some in Congress, and some lobbyists, are looking to move the LDA enforcement process to Main Justice, under the belief that it makes sense for all lobbying registration compliance efforts, including those for foreign lobbying, be housed under the same agency roof.
Rep. Michael Quigley (D-Ill.) last year introduced legislation that would have the U.S. attorney general — not the D.C. U.S. attorney — handle noncompliance referrals. The legislation, which is still in a House subcommittee, would direct the attorney general to create a task force that would investigate and prosecute LDA cases, disclose information on enforcement, regularly report on how lobbyists obey the law and set up a toll-free telephone number and online system for the public to report noncompliance.
The American League of Lobbyists made a similar proposal in a lobbying reform plan that the group is pushing Congress to take on. The DOJ unit that handles registration paperwork for individuals who lobby for foreign government entities would be “a logical place” to put an LDA enforcement unit, Marlowe said.
DOJ spokeswoman Laura Sweeney declined to comment.
But some lawyers who advise clients on LDA compliance said they aren’t sure what relieving the U.S. attorney’s office of enforcement responsibilities would accomplish.
“It’s the same thing,” said Skadden, Arps, Slate, Meagher & Flom partner Kenneth Gross, who leads his firm’s political law practice. “It’s the same unwieldy process.”
Andrew Ramonas can be contacted at email@example.com.