WHEN LOBBYING BECOMES STRATEGIC ADVICE

In the United States, the federal Lobbying Disclosure Act defines "lobbying activity" as "any efforts in support of such contacts, including preparation or planning activities, research and other background work that is intended, at the time of its preparation, for use in contacts and coordination with the lobbying activities of others." An individual must register as a lobbyist if they spend more than 20 percent of their time on "lobbying activity."

One of the most difficult things about regulating lobbying is defining what it means to lobby. It is getting harder to define lobbying. In the U.S. those who are paid to indirectly affect societal decisions that affect clients and their goals have found ways to do their work without having to register as lobbyists and, therefore, without having to file disclosures or follow rules.

The most important new area of lobbying is known as "strategic advice," which means how to convince and mobilize voters and opinion elites in support of a client’s agenda. In other words, strategic advisers are speaking not directly to legislators and their aides, but rather to the public and to those who affect public opinion, including those who independently support and oppose candidates and legislation.

Strategic advisers do things such as planning out legislative and independent campaigns and drives to affect the implementation of regulations; determining which officials and agencies to deal with; and proposing potential coalition partners. They do this without making direct contact with officials. They make use of their knowledge rather than their contacts, or at least their contacts who still are in government.

What strategic advisers do  is mostly just public relations and strategic communications advice and guidance for a lot of different clients, trade associations and corporations . They help companies and nonprofits to craft effective communications strategies. In a world where public relations and marketing have become all-important, strategic advisers are meta-lobbyists. They work at a level above lobbyists, creating the strategies that lobbyists (companies, as well as their external representatives, are considered lobbyists when they seek to affect government decisions) employ.

Today for every registered lobbyist there is at least one 'shadow lobbyist' who is getting paid to influence public policy without making any public disclosures. These 'shadow lobbyists' are involved in grass-roots work, and fake grass-roots "AstroTurf" work, as mobilizing stockholders, suppliers, and trade association members to contact their representatives. The goal of affecting government decisions is the same. The only difference is that it is being done more indirectly.

By comparison, the EU Transparency Register covers all activities (advocacy, lobbying, promotion, public affairs and relations with public authorities) carried out with the objective of directly or indirectly influencing the formulation or implementation of policy and the decision-making processes of the EU institutions, irrespective of where they are undertaken and of the channel or medium of communication used, for example via outsourcing, media, contracts with professional intermediaries, think tanks, platforms, forums, campaigns and grassroots initiatives and most importantly there is no time threshold pertinent to these activities.

The EU Transparency Register makes a distinction between Directly influencing i.e. influencing by way of a direct contact or communication with the EU institutions or other action following up on such activities and Indirectly influencing i.e. influencing through the use of intermediate vectors such as media, public opinion, conferences or social events, targeting the EU institutions.

By lumping together such activities as advocacy, lobbying, promotion, public affairs and relations with public authorities without precisely defining them, by not setting any time threshold for such activities and by extending the reach to outsourcing, media, public opinion, conferences, social events, forums, campaigns, grassroots initiatives, the EU Transparency Register (although still today voluntary) is de- facto covering the whole range of activities including 'strategic advice'.

It is AALEP's view that in due course more precise definitions of what is advocacy, what is lobbying, what is public affairs, what is promotion and what is relations with public authorities will be called for by stakeholders.