Lobbying Registration and Disclosure: The Role of the Clerk of the House and the Secretary of the Senate
Released: 2017-04-19T00:00:00

Background

During the past six decades, Congress on four occasions has approved legislation designed to regulate lobbyist contact with Members of Congress. The initial provisions, which were contained in the Legislative Reorganization Act of 1946, required that lobbyists register with the House of Representatives and the Senate and dis close certain receipts and expenditures. In 1995, Congress passed, and the President signed into law, the Lobbying Disclosure Act, which repealed the 1946 act and created a detailed system of reporting thresholds. In 1998, technical amendments to the 1995 law were passed. Finally, in 2007, Congress amended the 1995 act to further enhance disclosure and reporting requirements for lobbyists and lobbying firms.

The Lobbying Disclosure Act (LDA) of 1995 provided specific thresholds and definitions of lobbyists, lobbying activities, and lobbying contacts, compared to the 1946 act. In reporting the LDA, the House Judiciary Committee summarized the need for new lobbying provisions:

The Act is designed to strengthen public confidence in government by replacing the existing patchwork of lobbying disclosure laws with a single, uniform statute which covers the activities of all professional lobbyists. The Act streamlines disclosure requirements to ensure that meaningful information is provided and requires all professional lobbyists to register and file regular, semiannual reports identifying their clients, the issues on which they lobby, and the amount of their compensation. It also creates a more effective and equitable system for administering and enforcing the disclosure requirements.

The technical amendments made to the LDA in 1998 clarified the definition of covered executive branch officials, more clearly defined what constitutes a lobbying contact, and provided that organizations, whose lobbying activities are limited by their Internal Revenue Code (IRC) non-profit status, could use their tax estimates to report lobbying activities. In reporting the 1998 technical amendments, the Senate Committee on Governmental Affairs explained the need for change:

Once the LDA was implemented by the Clerk of the House and the Secretary of the Senate, several minor problems with the language of the statute materialized. The offices of the Clerk and the Secretary have sought to interpret the LDA with respect to these problems in accordance with the original intent of the law, but it is necessary and appropriate to conform the language of the law to intent, and that is the motivation behind the introduction of S. 758 .

The most recent amendments to the LDA, the Honest Leadership and Open Government Act of 2007 (HLOGA), mandated additional and more frequent disclosures.

Pursuant to the 1946 act, the 1995 LDA, as amended by the 1998 act, and the HLOGA, the Clerk of the House and the Secretary of the Senate have had joint responsibility for implementing systems to register lobbyists. Under the 1946 act, individuals, groups, and organizations involved in lobbying activities were required to keep detailed financial records and to file financial statements with the Clerk. Lobbyists also were required to register before engaging in lobbying activities and file quarterly reports with the Clerk and the Secretary. The Clerk was then required to maintain these records for two years.

The 1995 act, as amended, modified the responsibilities of the Clerk and the Secretary in registering lobbyists and collecting disclosure documents. In addition to collecting registration and disclosure documents from lobbyists the Clerk and the Secretary are required to

1. provide guidance and assistance on the registration and reporting requirements of this Act and develop common standards, rules, and procedures for compliance with this Act; 2. review, and, where necessary, verify and inquire to ensure the accuracy, completeness, and timeliness of registration and reports; 3. develop filing, coding, and cross-indexing systems to carry out the purpose of this Act, including— a. a publicly available list of all registered lobbyists, lobbying firms, and their clients; and b. computerized systems designed to minimize the burden of filing and maximize public access to materials filed under this Act; 4. make available for public inspection and copying at reasonable times the registrations and reports filed under this Act; 5. retain registrations for a period of at least 6 years after they are terminated and reports for a period of at least 6 years after they are filed; 6. compile and summarize, with respect to each semi-annual period, the information contained in registrations and reports filed with respect to such period in a clear and complete manner; 7. notify any lobbyist or lobbying firm in writing that may be in noncompliance with this Act; and 8. notify the United States Attorney for the District of Columbia that a lobbyist or lobbying firm may be in noncompliance with this Act, if the registrant has been notified in writing and has failed to provide an appropriate response within 60 days after notice was given under paragraph (7).

The 2007 HLOGA further refined the role of the Clerk and the Secretary in collecting and reporting information on lobbyists under the LDA. The Clerk and the Secretary are required to electronically register lobbyists and collect quarterly and semi-annual reports; make registrations and filings available on the Internet; and review each registration and filing for accuracy, notify lobbyists of a misfiling, and refer appropriate cases to the U.S. attorney's office for the District of Columbia. Pursuant to these responsibilities, the Clerk and the Secretary have chosen to use a single electronic filing system, whereby lobbyists and lobbying firms register once and documents are automatically transmitted to both the Clerk and the Secretary.

Role of Clerk of the House and Secretary of the Senate

The Clerk of the House and the Secretary of the Senate are responsible for implementing lobbyist registration and disclosure provisions of the LDA, as amended by the HLOGA, for the House of Representatives and the Senate, respectively. As neither the Clerk nor the Secretary have rule-writing or regulatory authority under the LDA or its amendments, but are directed in law to provide guidance and assistance, they issue a joint guidance document to inform lobbyists and the public of how they intend to carry out their registration and disclosure duties. Under the HLOGA amendments, the first quarterly reports were required by April 21, 2008, and new registrations continued to be required no later than 45 days after the first lobbying contact is made or an individual is employed to make a lobbying contact. All lobbyists and lobbying firms filing registration and disclosure statements are required to file with the Clerk and the Secretary through a joint portal maintained at http://lobbyingdisclosure.house.gov , or http://www.senate.gov/lobby .

Electronic Filing

Prior to the HLOGA amendments, the LDA did not require electronic submission of registration and reporting documents. Under the 1995 act, as amended, the Secretary of the Senate provided lobbyists and lobbying firms the means to file electronically or to use paper forms. The Clerk of the House did not provide a method of electronic filing. The HLOGA amended Section 5 of the LDA to make electronic filing mandatory, except when an individual is amending documents filed under the previous system, or in instances where electronic filing is not possible for an individual with a condition covered by the Americans with Disabilities Act.

Pursuant to Section 5, as amended, the Clerk and Secretary created a single electronic registration system, using the previous Senate system's user ID and password protocols, and have developed a website that provides the necessary software applications to make all filings. The website has features for use on Microsoft Windows and Macintosh operating systems. Detailed instructions on the registration and disclosure process and a summary of filing requirements are available on both the House and Senate lobbying disclosure websites. The Clerk and the Secretary are responsible for maintaining the electronic filing system website and for providing updated information in response to lobbyist questions and congressional amendments.

Civil and Criminal Penalties

2 U.S.C. §1605(a)(7) and (8), as amended by HLOGA Section 210, requires the Clerk and the Secretary to notify lobbyists of noncompliance and to notify the U.S. attorney for the District of Columbia of a lobbyist's or lobbying firm's noncompliance, after giving 60 days' notice.

The Clerk of the House's Legislative Resource Center and the Secretary of the Senate's Office of Public Records have been given responsibility for reviewing each filing to ensure accuracy and for issuing notices to those who have not complied. If a notice is issued to a registrant, the registrant has 60 days to respond, after which the Clerk and the Secretary may forward instances of noncompliance to the U.S. attorney's office for the District of Columbia.

Publicly Available Registration and Disclosure Data

2 U.S.C. §1605(a) (3), (4), and (5), as amended by HLOGA Section 209, instructs the Clerk and the Secretary to make registration and disclosure information publicly available for at least six years.

(3) develop filing, coding, and cross-indexing systems to carry out the purpose of this Act, including—(A) a publicly available list of all registered lobbyists, lobbying firms, and their clients; and (B) computerized systems designed to minimize the burden of filing and maximize public access to materials filed under this Act; (4) make available for public inspection and copying at reasonable times the registrations and reports filed under this Act; (5) retain registrations for a period of at least 6 years after they are terminated and reports for a period of at least 6 years after they are filed.

To satisfy the requirements of Section 6 of the LDA, as amended by the HLOGA, the Clerk and the Secretary established websites for the public to inspect registration and disclosure documents on the Internet. The Lobbying Disclosure Act Guidance (in Section 10) states that the Clerk and the Secretary will use the Internet to deliver the content of the reports.

Lobbying Disclosure Guidance Document

The HLOGA lobbying provisions were effective as of January 1, 2008. As required by Section 6 of the LDA, the Clerk and the Secretary on December 10, 2007, issued a joint guidance document. The guidance document is updated, as needed, to reflect changes in guidance from the Clerk and the Secretary. Table 1 lists when the guidance document has been updated since it was first issued. The guidance document was most recently updated on January 31, 2017. The guidance document is posted on both the Clerk's and Secretary's lobbying websites.

The guidance document is divided into 12 sections. The LDA does not provide the Clerk and the Secretary with the authority to write regulations or issue opinions on the law. The guidance document is only meant as an interpretation of the law, and is not enforceable as law. A brief summary of the 12 sections of the guidance document follows:

Section 1—Introduction . Provides background information on the LDA and the responsibilities of the Clerk of the House and the Secretary of the Senate in providing guidance to the lobbying community. Section 2— What's New? Identifies changes made to the guidance since the last update. Section 3—Definitions . Repeats terms defined in the LDA. These terms include affiliated organizations, reports of certain contributions, client, covered executive and legislative branch officials, lobbying activities, lobbying contact, lobbying firm, lobbying registration, lobbying report, lobbying, and public official, among others. Section 3 also adds the definition of "actively participates" from Section 207 of HLOGA. Section 4—Lobbying Registration . Explains the lobbying registration process, including who must register and when registrations are necessary. This section also clarifies the preparations for filing registrations, exceptions to lobbying contacts, the 20% activity threshold, the difference between a lobbying contact and lobbying activity, alternative reporting methods, and the relationship between the 20% activity and monetary thresholds. The monetary thresholds are updated periodically to reflect changes in the Consumer Price Index (CPI). For each area, the guidance document provides examples to illustrate the operation of the section for the lobbying community. In addition, this section provides guidance on when and how to report foreign entity contributions to lobbying activity. Section 5—Special Registration Circumstances . Outlines conditions that could affect the registration of lobbyists or lobbying firms under the LDA. These special circumstances include lobbying firms retained by contingent fees; registration by entities with subsidiaries or state and local affiliates; the effect of mergers and acquisitions; registration for associations, coalitions, churches, and associations of churches; registration for firms hired by churches or church associations; and the registration of professional associations of elected officials. Section 6—Quarterly Reporting of Lobbying Activities . Explains when and why quarterly reports are needed, and provides instructions on how to complete lobbying disclosure forms LD-1 and LD-2. In addition, Section 6 defines how to report firm income, indicates when it is appropriate to report income or expenses, provides examples on the type of material that should be included in a quarterly report, indicates that organizations that pay dues to other organizations must report the portion of their dues used for lobbying activities, removes previous guidance that registrants who previously filed LD-2 forms could be required to file again in the future, even if they did not meet reporting thresholds in a given quarter, reminds filers that "all expenses of lobbing activities incurred during a quarterly period are reportable," provides for a specific reporting code for lobbying on tariff bills, reminds filers that all new lobbyists must list "previous covered executive or legislative branch positions held within twenty (20) years of first acting as a lobbyist for a client," and reiterates that the "requirement to disclose a foreign interest ... is not contingent upon the entity making a contribution ... to the registrant during that particular reporting period." Section 7—Semiannual Reporting of Certain Contributions . Discusses when and why semiannual reports are needed, the basics of form LD-203; who is required to file LD-203; the required contents of the semiannual report (regardless of whether they make a reportable contribution), including examples; that third-party preparers should "retain appropriate documentation to demonstrate that they have authorization to make such filing on behalf of all filers (including lobbyist-employees of registrants) using their services, and that in-kind contributions should be reported. Section 8—Termination . Explains the procedure for the termination, for recording purposes, of a lobbyist from a lobbying firm or of a registrant's relationship with a client, including when removing a registrant is appropriate. Section 9—Relationship of LDA to Other Statutes . Briefly explains the relationship between LDA and three other statutes. These statutes are the Foreign Agents Registration Act (FARA), the Internal Revenue Code (IRC), and the False Statements Accountability Act of 1996. Section 10—Public Availability . States that the LDA requires the Clerk of the House and the Secretary of the Senate "to make all registrations and reports available for public inspection over the Internet as soon as technically practicable after the report is filed." Section 11—Review and Compliance . States that the Clerk of the House's Legislative Resource Center and the Secretary of the Senate's Office of Public Records "must review, verify, and request corrections in writing to ensure the accuracy, completeness, and timeliness of registrations and reports filed under the Act." Section 12—Penalties . Restates the civil and criminal penalties for filing incorrect or false information.

Semiannual Report of Certain Contributions

Pursuant to 2 U.S.C. §1604(e), the Clerk and the Secretary created a contributions reporting system and website that allows lobbying organizations and individual lobbyists to register electronically using their existing ID and password. The website contains a help feature to assist lobbying organizations and lobbyists navigate the new form.