At a glance: government lobbying in USA

Regulation of lobbying

General

Is lobbying self-regulated by the industry, or is it regulated by the government, legislature or an independent regulator? What are the regulator’s powers? Who may issue guidance on lobbying? What powers of investigation does the regulator have? What are the regulators’ or other officials’ powers to penalise violators?

At the federal level, lobbying is regulated pursuant to two statutes: the Lobbying Disclosure Act (LDA), which is the primary source of regulation over individuals, corporations and other entities seeking to influence the direction of policy by the legislative and executive branches; and the Foreign Agents Registration Act (FARA), which was enacted in the run-up to World War II to ensure that the agents of certain foreign entities (most notably Nazi Germany) acting in a ‘political or quasi-political capacity’ register with the US Department of Justice and provide detailed reports on their efforts to influence US policy. Most foreign corporations that engage lobbyists on their behalf or that engage in lobbying activities directly register under the LDA rather than FARA pursuant to an exception in the law that allows them to do so when they are advancing their commercial interests. 

As a result of a major scandal, Congress substantially strengthened the LDA in 2007 through enactment of the Honest Leadership and Open Government Act, which among other things increased the frequency for filing required reports, increased civil and criminal penalties for noncompliance, put in place limitations on gifts Members of Congress and their staff could receive from lobbyists, and mandated that the Government Accountability Office annually audit a sample of registrants to encourage compliance. The Office of the Clerk of the House of Representatives and the Secretary of the Senate (jointly) have regularly published non-binding guidance to help individuals and entities understand what is required of them to comply with the law. Our law firm regularly advises clients to ensure that they understand and can meet their obligations under the LDA.

Registrants under the LDA are required to provide quarterly reports on their activities, which at a very high level describe their general interests and the amount of money they received or that was otherwise spent on reportable activities.

The US Department of Justice is responsible for enforcing both the LDA and FARA, with the authority to seek civil and criminal penalties. In recent years, the Department has begun to somewhat more aggressively implement both laws, charging individuals with failing to register or properly report their activities under applicable laws and regulations. 

Lobbying at the state level is regulated pursuant to state law. The laws vary from state to state, but essentially seek to capture the same information as at the federal level under the LDA: who is acting on behalf of whom, on what kinds of matters with what desired outcome and for what level of remuneration.

Definition

Is there a definition or other guidance as to what constitutes lobbying?

Yes, under the Lobbying Disclosure Act, a lobbyist is an individual who is employed or retained by…