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NEW LOBBYING DISCLOSURES AND CERTIFICATIONS DUE JULY 30th
CONGRESS RELEASES SIGNIFICANT LAST MINUTE GUIDANCE CHANGES
The new semi-annual federal lobbying disclosure reports and certifications mandated under the Honest Leadership & Open Government Act (HLOGA) are due July 30, 2008. There has been considerable debate on what activities and expenditures need to be reported and both the Clerk of the House and the Secretary of the Senate have attempted to address those concerns. The Clerk and the Secretary issued new guidelines on July 16, 2008 that replace all previous guidance on completing and filing this new Lobbying Disclosure Act report which is subject to possible civil and criminal penalties under HLOGA.
Background
HLOGA requires Registrants for the first time to disclose to the Secretary and the Clerk on the new LD-203 forms certain political contributions of $200 or greater made by their political action committees, contributions of $200 or more made to a presidential library or an inaugural event, and any costs for events that honor or recognize covered officials in the Legislative or Executive Branches. In addition, any contribution to entities named for a covered official, or contribution to an entity in recognition of a covered official, or amounts paid to an entity established, financed, maintained or controlled by a covered official, must be disclosed on the LD-203 form. Individual listed lobbyists for each registered lobbying entity must also submit their own LD-203 form listing their personal contributions in these same categories.
Certification
In addition, each Registrant and individual lobbyist must now certify that they have read and are familiar with the gift and travel rules of the House and Senate and have not provided, requested or directed a gift, including travel, with knowledge that receipt of the gift would violate either Chamber’s rules. False certifications are subject to civil and criminal penalties. By now, every organization should have implemented an appropriate compliance program by which they can demonstrate their good faith efforts to educate their staff and ensure compliance if questioned during a random GAO audit, Department of Justice referral, or IRS audit. It is not, however, too late to still do so.
July 16, 2008 Guidelines
Due to the many questions and concerns raised in regard to an earlier guidance, the Secretary and Clerk issued a clarifying guidance document on July 16, 2008. This new guidance significantly narrowed the previous interpretations of the reporting requirements and supersedes all previous guidelines. The revised guidance makes clear the following:
- The rules only require disclosure where a covered federal official in either the Legislative or Executive Branch is being “honored or recognized” in some special way.
- The mere attendance of a covered official at an event does not trigger the reporting requirement. Nor does the fact that a covered official may speak at the event trigger the reporting requirement. However, if the covered official is being given an award or being honored in some special way, then the cost, date of the event, and the name of the honoree must be reported by the "sponsor" of the event.
- The new guidelines make clear that it is only the “sponsor” of the "honoring" event that must report the cost of the event on their LD-203 form, not an organization or individual who merely buys a ticket or even a table for the event. Likewise, attendees who paid a registration fee to attend a meeting or conference where a covered official was "honored" would not be required to report such an event. The House ethics manual states that even being listed as a sponsor is not enough, unless the Registrant also has a substantial role in organizing the event. However, the revised guidance cautions that an event would need to be reported "if enough tickets/tables [are purchased] so that it would appear that they are paying the costs of the event."
- The new guidelines also clarify that “if a lobbyist makes a reportable payment but is reimbursed by a Registrant, the Registrant reports the payment as its own, rather than the lobbyist reporting the payment.”
- A new example used in the July 16 guidelines states that a covered official lending his or her name as “honorary co-host” does not in and of itself prompt the reporting requirements for the sponsors of the event, as long as the covered official has a "passive" role in the event.
- The guidelines provide new guidance on who has to report contributions of a connected PAC (e.g., a separate segregated fund or SSF). If a reporting lobbyist is on the board of a connected PAC and the PAC contributions are otherwise being reported by the Registrant on its LD-203, then the lobbyist does not need to also list the contributions of the PAC on his or her individual LD-203. The lobbyist should, however, note in the comments section on the lobbyist's individual LD-203 form that the lobbyist is on the board of the connected PAC and that the PAC contributions are being reported separately by the Registrant (usually the lobbyist's employer). The same would apply where the lobbyist for a corporation sits on the board of the corporation's trade association PAC.
The Political Law Group of McKenna Long & Aldridge, in coordination with the American Society of Association Executives, has issued an updated “Q & A on the LD-203 and HLOGA”. In addition to covering these LD-203 issues in depth, this document provides a general HLOGA update and addresses other LDA compliance issues that have arisen during the first six months under the new law, including LD-2 filing requirements, GAO audits, Congressional ethics rules changes, HLOGA convention requirements, and the still pending FEC bundling rules.
The July 16 revision to the official Lobbying Disclosure Act Guidance can be found at http://www.senate.gov/legislative/resources/pdf/S1guidance.pdf. The new examples regarding reporting of campaign contributions and expenditures for “honoring” covered officials are discussed on pages 20-22. |
