SHADOW LOBBYING IN THE U.S.A.

The U.S. lobbying industry raked in $ 3.42 billion in 2018. Among the rules laid by Trump in 2017, former lobbyists are barred from working on behalf of the U.S. government on the same specific issue for which they had previously lobbied for a period of two years; a lifetime lobbying ban is imposed on anyone from his administration lobbying the U.S. government on behalf of a foreign government; and  there is five-year “cooling off” period restricting those employees from lobbying the agency they worked for. 

However, today, political operatives and lobbyists continue to take spins through the revolving door between government and the private sector and without action from Congress to change lobbying rules, undisclosed lobbying activities are still running rampant. When an individual engages in advocacy to influence public policy but does not register as a lobbyist, it's typically referred to as "shadow lobbying."

It's common, for example, that a top government affairs employee oversees lobbying activity but never actually registers under the Lobbying Disclosure Act (LDA) by exploiting its various loopholes.

This phenomenon extends to former members of Congress who advise lobbying firms but don't register, or heads of trade associations who run multi-million dollar lobbying operations but don't register. This can leave a portion or, in some cases, all of a lobbying operation's details hidden from the public. Also not disclosed in public lobbying filings are the millions of dollars corporations and trade associations spend on public relations and ad campaigns to influence policymakers.

The number of registered federal lobbyists (11,100) remains stagnant despite hundreds of millions more in spending. Hundreds of lobbyists terminate their registrations every year while keeping positions at lobbying firms. Large numbers of powerful Washington insiders aren't registered as lobbyists, effectively keeping their influence activities hidden from the public.

A lobbyist must register under the LDA if they meet all of these requirements:

• Are paid to lobby on behalf of a client.
• Make more than one contact with covered government officials regarding the client's issues.
• Spend at least 20 percent of their time on lobbying activities, including preparing for these "contacts," for a given client.

The "20 percent rule" has proven difficult to enforce, as many government affairs employees say they don't spend one-fifth of their time doing explicit lobbying work. At the same time, some former members of Congress who are now "strategic advisers" say they don't need to register as they don't make direct contact with their former colleagues about specific issues. The law only requires very specific kinds of activity before the Congress to be reportedy. The reasons why people don't register are they prefer not to have their names reported or they just feel it's not required by law.

Under the LDA's current language, most "shadow lobbyists" likely aren't violating the law. And if they did violate the law, they probably wouldn't have much to worry about. The Secretary of the Senate has referred a total of 19,705 cases of potential non-compliance under the LDA to the U.S. Attorney for the District of Columbia, which is tasked with enforcing the law. However, only nine violations have been publicly enforced in the law's 24-year history, all of which resulted in fines.

Lobbyists do, however, have their reasons to refrain from registering. High-profile Democratic presidential contenders are rejecting contributions from anyone who is registered as a federal lobbyist. And as usual, prominent lawmakers want to ban former members of Congress from becoming registered lobbyists. Moving a lobbying operation into the shadows can be helpful for a client, too. If you don't register, you don't have to reveal your strategy and tactics, like how much you're spending on certain things that your opponents would find useful in the battle over a certain issue,.

The actual number of lobbyists is disputed among lobbying experts — ranging anywhere from double the number or registered lobbyists yo upwards of 90,000. Everyone agrees, however, that the real number is far higher than the 11,100 lobbyists who register. A quick search on the private government relations research firm Washington Representatives' database reveals a list of 31,489 government affairs professionals, nearly half of whom work in Washington.

Moving into the Shadows

This year, 1,621 federal lobbyists who were active in 2018 did not report lobbying activities under LDA through the first half of 2019. Of those, two-thirds, or 1,067 of them, continued to work for the same employer or took a job in a similar industry. Of those who didn't register, 56 percent worked for companies or groups that have in-house lobbying operations, while the rest worked at lobbying firms that contract with clients.

When a lobbyist does not show up in LDA, that lack of disclosure obscures any conflict of interest the lobbyist or firm might have over a specific issue.

Major lobbying outlets and companies often hire former lawmakers and their aides, as well as government employees, who have close connections to those they are tasked with lobbying. There are thousands of infuencers who jumped from government agencies and congressional committees into the world of consulting and lobbying. The phenomenon extends to every major industry.

With their extensive knowledge of Congress' inner workings and its members, along with special access to its halls, former senators and representatives are well suited to transition into lobbying. That natural fit, and the pay raise that typically comes with a lobbying gig, drives large numbers of lawmakers to go to lobbying firms and other influential organizations.

Since the 111th Congress, which ended in 2011, at least 176 former members of Congress have taken a spin through the revolving door to enter the world of advocacy. Of the 32 senators to go into the influence world, only 13 have registered as lobbyists. House members are more likely to register, with 55 percent of the 144 former representatives registering as a lobbyist at some point.

The cooling off period doesn't stop former members from signing up at lobbying firms right away, where they can assist registered lobbyists with strategy and outreach without violating the prohibition. They can call themselves strategic advisers, government affairs advisers, there are all kinds of names for it, but they're lobbying. Many ex-members call themselves strategic advisers and do not register

Leaders of powerful trade associations bear as much influence as any individual in Washington. They often have significantly more access to government officials than the average lobbyist, and their words carry more weight as they are considered top experts in their industry.

Having connections with government officials and lawmakers is invaluable for the Washington-based trade groups whose members depend on pushing industry-friendly policies.

Among the top 25 trade associations by lobbying spending through the first half of the year, 18 are run by executives who previously held a position in government.

Registration by trade associations leaders is wildly inconsistent. Twelve of the top trade association executives are registered as lobbyists, while 13 are not registered. While the top trade associations are frequently listed among the top lobbying spenders, they shell out millions more in untraceable spending on public relations campaigns and Washington-area events meant to sway the opinion of policymakers.

Proposed Lobbying Reforms

Then-candidate Trump promised to "drain the swamp" in 2016, introducing a number of proposals to change lobbying laws including a solution to crack down on shadow lobbying by expanding the definition of a lobbyist. But President Trump's ethics policy wasn't as rigorous. It was similar to the Obama administration's rules and in some cases actually loosened some of the restrictions. Plus, the Trump administration's ethics policies aren't strongly enforced, as Trump has used ethics waivers to allow a record numbers of lobbyists to enter the administration.

On the other side, former Trump aides have found great success as lobbyists — and several other Trump aides appeared to conduct influence work in the shadows. .

Over the years, there have been a number of congressional proposals to keep lobbying in check. Few of those have gained traction. Some pieces of legislation have been proposed by some heavy hitting congressional delegates recently, but none have been taken up by their committees yet.

Proposal of Joe Biden (Democratic Presidential Contender)

• Expand the law to include the public officials who are the subject of lobbying.
• Expand lobbying disclosure laws so the obligation for transparency falls on the office-holder, as well as on the lobbyist. Call for elected officials to disclose monthly any meetings or communications with any lobbyist or special interest trying to influence the passage or defeat of a specific bill – whether seeking the officeholder’s vote, or assistance in introducing or developing legislation.
• Call for Members of Congress to disclose any legislative language or bill text submitted by any lobbying party.
• Call for Executive Branch officials to disclose any regulatory text submitted by any outside entity.
• Call for Members of Congress and senior executive branch officials to develop and disclose any access policy they have that governs requests for appointments. 
• Lower the threshold for when those seeking to influence government decisions must register as “lobbyists” to include anyone who earns more than $1,000 annually to be involved in developing or overseeing a lobbying strategy. 
• Call for disclosure in detail exactly what they’re doing: with whom they’re meeting, the materials they’re sharing, any specific legislative (or regulatory) language they are proposing, and precisely what outcomes they’re seeking. 
• Bar lobbying by foreign governments; and require that any foreign business seeking to lobby must verify that no foreign government materially owns or controls any part of it. 
• Call for Members of Congress and senior Executive Branch officials to develop and disclose to the public any policies that their office has instituted on when to accept or prioritize appointments.
• Disclose White House visitor lists.