SHADOW LOBBYING IS UP IN AMERICA!

People in the U.S. can elude the lobbying law’s registration requirement by simply interpreting the strict statutory definition of “lobbyist” as not applying to them. That is, so long as they are not spending 20% of their time—think one full day in a normal work week—on behalf of any single client for an entire quarter, then they do not need to register or report their lobbying activities. Think about that: do you ever spend one full day per week for three months straight working on any one project at work? You can do a lot of lobbying for somebody when you’re only doing 19 percent of your time for the client.

Loopholes are not new. What is new though is that today unregistered (shadow) lobbyists actually outnumber registered lobbyists . That is, there are now more stealth lobbyists—roughly 13,000 than there are those who register under the LDA.

There has been a quiet upheaval in the lobbying industry. On the surface, the firms that represent thousands of businesses, trade associations and special interests are taking a beating. In practice, however, the lobbying industry is moving below the radar. More than $3 billion is still spent annually, more of which is not being publicly disclosed. Corporate America is relying on new tactics to shape the legislative outcomes it wants. The adoption of innovative practices by the influence industry, combined with legal reporting requirements that are full of loopholes, have created misleading indicators which suggest that there has been a decline in the clout of the lobbying sector.

In fact, lobbying techniques have evolved so as to elude the regulations that implement the 1995 Lobbying Disclosure Act. These regulations are revised every 6 months in “written guidance on LDA registration and reporting requirements” issued by the Clerk of the House and The Secretary of the Senate.

Lobbyists and their lawyers are capitalizing on arcane gaps in regulatory guidelines. For example, constricted definitions of lobbying contained in Congressional regulations have been construed to exempt from disclosure money spent on grass roots mobilization; on television, digital and social media campaigns; and on public relations efforts to build support among voters and key elites. With these exemptions not counted, an analysis of annual lobbying revenues shows that after increasing by 153.3 percent between 1998 and 2010 (from $1.4 billion to $3.55 billion), disclosed fees have dropped by $250 million, to $3.3 billion in 2012. At some of the top firms, reported drops have been dramatic.

Increasingly sophisticated forms of political engagement on both the left and the right have outrun old forms of regulation. The activities of the blossoming industry of digital and specialized communications firms using data analysis, mircro-technology and computerized list-building to create public support for or opposition to legislative and policy initiatives – virtually all go effectively undisclosed. There are other factors pushing lobbying activity into the shadows. Obama administration regulations bar any lobbyist hired by the executive branch from participation “in any particular matter involving specific parties that is directly and substantially related” to a “former employer or former clients, including regulations and contracts”; they prohibit the appointment of lobbyists to federal boards and commissions; and they restrict former federal appointees from lobbying for two years after leaving federal employment.

Taken together, these regulations have encouraged those interested in public service to find jobs that do not require them to register as lobbyists. Or, put another way, those who are eager for government work are not going to formally register themselves as lobbyists and thus make themselves ineligible.

At the same time, in part because the administration has painted such a dark picture of lobbying, corporations are seeking alternative mechanisms to achieve their legislative and regulatory goals without public disclosure of their expenditures.

To address diminishing revenues, lobbying firms have created their own public relations operations, subsidiaries with the same goals as the lobbying arm, that charge similarly high fees, but which do not have to be publicly reported to either the House or the Senate or the Senate.

The most explosive growth in the field of lobbying in America today is taking place in the use of digital technology to mobilize and direct public and elite opinion. The growing network of “strategic communications,” digital practitioners and the newly created PR subsidiaries of old-line lobbying firms is, in effect, supplanting special pleaders’ traditional tactics while simultaneously enhancing their ability to operate out of the limelight. Many of the activities most people would call lobbying now fall outside of its legal definition. They have become a large but almost invisible part of special interest influence on public policy