Justice Department Documents Illustrate Need for More Disclosure on LDA Enforcement

The U.S. Department of Justice (DOJ) recently released compliance information for the first time in the 10-year history of the Lobbying Disclosure Act (LDA). The information reveals that it has pursued only 13 violations out of approximately 200 referrals in the past two years. Recent legislation introduced by Reps. Marty Meehan (D-MA) and Rahm Emanuel (D-IL) in the House and Sen. Russ Feingold (D-WI) in the Senate calls for lobbyists to file quarterly lobbying statements and would require disclosure and regulation of grass-roots activity. There is some question whether reform is needed, especially in light of the lack of disclosure and enforcement from the DOJ. Of the 13 cases pursued by the Justice Department, seven are "still open" reported Channing Phillips, a U.S. Attorney for the District of Columbia spokesperson. The six completed cases include three, in which the office declined to act and three others that resulted in civil settlements and fines. The DOJ has previously always refused to release information, citing Privacy Act restrictions. Two of the three settlements involved small firms, Natsource LLC and CHG & Associates. The third involved an unnamed lobbyist, whose name was withheld in compliance with the Privacy Act. The settlements with the firms were reached earlier this year. Natsource was fined $25,000 for failing to file reports in 2003, while CHG was fined $12,000 for failing to file in 2000. The LDA requires federal lobbyists that meet a set threshold to report their activities to the Clerk of the House and Senate's Offices in the form of semi-annual reports. Neither the Senate nor House Clerk's Office has formal enforcement authority. The office of the U.S. Attorney for the District of Columbia receives referrals from the Secretary of the Senate and Clerk of the House of Representative's Office. The U.S. Attorney's Office then makes a determination to pursue the "most egregious" cases. Penalties are imposed on a person who "knowingly fails to (1) remedy a defective filing within 60 days after notice of such a defect by the [Senate Secretary or House Clerk's Office] or (2) comply with any other provision of the Act". It is not clear from the information released by the DOJ why the firms involved in the settlements were penalized and how they made the determination. According to Phillips, the U.S. Attorney's Office has "culled through" about 200 referrals of possible LDA violators over the past two years and decided to pursue 13 cases. He did not provide information on what factors led to the 13 being chosen. The recently released documents provide a window into the world of LDA enforcement. In a Roll Call article, Pam Gavin, superintendent of the Senate Office of Public Records, which oversees the LDA in the Secretary's Office, stated, "From my perspective, I think it's working pretty well. Anybody in the world can go to our Web site and look at lobbying reports and see what's being done." So far this year, the Senate has received 25,500 lobbying disclosure documents. However, details about enforcement activities can be difficult to come by. The LDA is mute on the issue of disclosure of violations to the public. Gavin's office has never made public the number of LDA-related referrals it has made to the U.S. attorney's office, much less any details about individual cases. Consequently, it is difficult to find out how well the current law is working, and if there is adequate enforcement. According to Kenneth Gross, an attorney with Skadden, Arps, Slate, Meagher and Flom, and author of The Ethics Handbook on Entertaining and Lobbying Public Officials, while "people do not play fast and loose with the rules, after 10 years, there is some lack of understanding of what gets included in a report." Additionally, he explained that "[w]hen errors surface, they tend to be inadvertent. As soon as a company corrects an error, it has absolved itself from a violation. You really have to work at getting referred under this law."
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