Part IA The Lobbying Disclosure Act of 1995: Reform Efforts and Current Law

Part IA The Lobbying Disclosure Act of 1995: Reform Efforts and Current Law 1

Introduction to Part IA The Lobbying Disclosure Act of 1995 represented Congress s first attempt in half a century to reform the principal federal statute that governs lobbying the United States Government, whether the executive branch or the Congress. This Part of The Lobbying Manual first surveys the history of federal lobbying disclosure legislation to the present time, including amendments to the LDA adopted in 1998 and 2007. Then follow detailed descriptions of the scope of coverage of the LDA, the specific disclosure obligations that arise under that statute, the administrative and enforcement scheme as it exists today, and the constitutional issues presented by various aspects of the LDA and its administration. * *While Chapter 6 of this Part focuses largely on the administration and enforcement of the LDA, it also canvasses various miscellaneous federal restrictions on lobbying, including lobbying by federally chartered or created entities and new restrictions on LDA-registered lobbyists imposed by the Obama Administration. 3

CHAPTER 1 Federal Lobbying Regulation: History Through 1954 BY WILLIAM N. ESKRIDGE, JR. 1-1 Introduction 1-2 Background on Federal Regulation of Lobbying 1-2.1 Lobbying Abuses and Early Government Responses (1860 1913) 1-2.2 Proposed Federal Regulation (1913 1946) 1-3 Federal Regulation of Lobbying Act (1946) 1-3.1 Statute and Early Experience Under It 1-3.2 Difficulties of Early Implementation (1946 1954) 1-3.3 Supreme Court s Decision in United States v. Harriss (1954) 1-3.4 Subsequent (Post-Harriss) Developments and Enforcement 1-1 Introduction There are few problems as intractable in our representative democracy as the regulation of lobbying, that is, the efforts of groups and individuals to secure the enactment or defeat of legislation by their elected representatives. The lobbying problem is difficult because it brings into focus the tension between two images of government, both of which are important to our democracy. On the one hand, we have traditionally believed our elected representatives should be responsive to the desires of their constituents; thus our system of politics assumes a vigorous contest among competing interests for the attention, and the votes, of legislators. This model of government suggests that individuals and groups should be permitted in fact, encouraged to make their views known to their representatives. This is reflected in the First Amendment s guarantee that no law shall abridge the people s right to petition the government for redress of grievances. 1 One of the goals of the right to petition is to encourage and foster a pressure system of politics, in which interest groups are expected to influence representatives through a wide array of techniques, with very few out-of-bounds, in a continuing game of struggle and domination. At the same time, few Americans would endorse an unrestrained pressure system; and a variety of lobbying techniques are widely considered deplorable, or 5

6 CHAPTER 1 at least unethical. To take a dramatic example, bribery is a form of lobbying that not only is unprotected by the right to petition, but is a criminal offense. 2 More generally, the public often discerns in the lobbyist an unsavory figure, an influence peddler who secures for his clients an unfair advantage in the deliberations of government. (The series of scandals commonly associated with lobbyist Jack Abramoff and coming to light during 2005-6 3 did nothing but reinforce this image in the popular mind.) The impulse to safeguard the integrity of government decision making is recurrently fueled by allegations (well-founded or otherwise) that lobbyists have made secret deals with legislators to benefit special interests at the expense of the general welfare, or that intense pressures (in the form of bribes, threats, or coercion) have been brought to bear upon legislators, or that some groups have been well-represented in the lobbying process while others have been substantially or completely unrepresented. The recent history of lobbying regulation in the United States reflects the dynamic effort to accommodate both norms to give the citizenry a voice in the system by which they are governed and to regulate or prevent the worst abuses of lobbying. On the national level, this effort was a notable failure at least until 1995. Only time will tell whether the Lobbying Disclosure Act of 1995 achieves a significant success as a reform effort. 1-2 Background on Federal Regulation of Lobbying Lobbying Members of Congress and the executive, by fair means or foul, has been an important and accepted part of national politics since the foundation of the Republic. Complaints about the excessive influence of lobbyists have been equally persistent. As early as 1852, the House of Representatives passed a lobbying-regulation statute prohibiting a newspaperman who shall be employed as an agent to prosecute any claim pending before Congress from being on the floor of the House. 4 In 1854, the House adopted a resolution establishing a select committee to examine whether money has been offered to members or other illegal or improper means used, directly or indirectly, to secure the passage or defeat of any bill before Congress. 5 1-2.1 Lobbying Abuses and Early Government Responses (1860 1913) Citizens concerned with lobbying abuses became increasingly vocal, and increasingly well-organized, in the last third of the 19th century. During that period, federal government expenditures increased substantially, stimulating ferocious competition for government largesse as well as heightened public concern about the means of political competition. For example, the Credit Mobilier scandal during the Grant Administration revealed bribery and pressure tactics by railroad lobbyists seeking participation in the transcontinental railroad project. The public outcry was a harbinger of middle-class good government campaigns that contributed to civil service reform in 1883, the election of Grover Cleveland to the presidency in 1884 and 1892, and the rise of the Progressive movement of the early twentieth century. Growing concern about lobbying abuses was reflected in scattered statutory reforms, especially at the state level, in the late 19th century. In Georgia, after the

Federal Lobbying Regulation: History Through 1954 7 Democrats had regained power, a state constitutional convention was called in reaction to the abuses of power during Reconstruction. 6 These abuses must have included various squalid lobbying practices, since Georgia outlawed lobbying in its 1877 Constitution. 7 Other states also confronted the problem of lobbying. For instance, Massachusetts enacted a law requiring lobbyists to register and disclose the expenses paid and incurred by the person required to register. 8 The Massachusetts approach became the model that many other states followed. 9 During this period, the only successful federal effort to regulate lobbying was a registration requirement that was in force solely for the duration of the 44th Congress. 10 These early governmental responses suggest three different strategies for regulating lobbying that have carried forward to the present day. One strategy is to define and prohibit abusive lobbying practices. This was the approach taken by the Georgia Constitution of 1877, which prohibited lobbying altogether. 11 Today, a broad prohibition, such as outlawing any and all contact with legislators, or even staff, would very probably be held to violate the First Amendment s right to petition. 12 Prohibitory legislation would have to target specifically abusive lobbying practices or set up reasonable prophylactic rules. Thus a regulation that mirrored prohibitions in the Federal Election Campaign Act 13 by placing a limit on how much money is spent during the lobbying contact (for example, the price of the meal or the value of accommodations) would probably be constitutional. 14 A second strategy is to require registration of lobbyists. Under this approach, individuals and organizations that engage in specified lobbying activity must register with some agency or official. The short-lived congressional effort during the 44th Congress exemplifies this approach. 15 The advantage of this approach is that it is almost certainly constitutional. The disadvantage is that it does little to regulate abusive practices. The third strategy of regulation namely, disclosure has traditionally been used in tandem with the registration approach. The disclosure approach requires registered lobbyists to provide details about their activities, such as the amount spent on lobbying, the names and amount given by contributors to the lobbying organization, the amount of time spent communicating with each legislative member or staff, and the precise piece of legislation involved. Although not as detailed as some later disclosure legislation, the 1890 Massachusetts lobbying law was the leading example of the disclosure approach in the nineteenth century. 16 1-2.2 Proposed Federal Regulation (1913 1946) Public concern about lobbying Congress increased markedly during the Progressive Era of the Roosevelt and Wilson Administrations. The first thorough federal investigation of lobbying was undertaken in 1913. President Wilson publicly denounced the extraordinary exertions made by business lobbyists opposing the Underwood tariff bill that year. 17 The Senate immediately adopted a resolution calling for a special investigation of tariff lobbying. 18 The subsequent investigation resulted in no legislation, but did educate the public about the pervasive lobbying on Capitol Hill. 19 Also in 1913, a select committee of the House investigated newspaper charges of unscrupulous lobbying by representatives of the National Association of Manufacturers (NAM). 20 The information uncovered during the investigation of NAM

8 CHAPTER 1 was quite remarkable. For example, there was evidence that NAM controlled some committee appointments, 21 paid the chief page of the House to report conversations by House Members on the floor and in the cloakroom, 22 and enjoyed its own office in the Capitol. 23 Less surprising, though still disturbing, were the large sums of money the lobbyists had at their disposal to influence legislation. In response to the massive misconduct discovered, Members introduced a number of bills to regulate lobbying. 24 In what was to become a familiar pattern of lobbying reform legislation, not a single one of these bills managed to find its way out of either the House or Senate Judiciary Committee. 25 After 1914, lobbying regulation bills were regularly introduced in Congress and just as regularly died in committee. The next burst of serious legislative interest came in the late 1920s. Aggressive lobbying activities by opponents of a federal estate tax bill in 1927 stimulated a number of lobbying reform bills. Senator Thaddeus Caraway s S. 1095 was reported favorably by the Senate Judiciary Committee 26 and passed by the Senate 27 in 1928. The bill died in the House. The public was again shocked in 1929, when it was revealed that an employee of the Manufacturers Association of Connecticut temporarily joined the staff of Senator Hiram Bingham and accompanied the Senator in closed-session deliberations on the Smoot-Hawley tariff bill. This incident generated another investigatory committee, 28 but, as before, no legislation. In 1935, the utility lobby came under scrutiny. The investigation focused on the utility companies efforts to block the passage of the Wheeler-Rayburn bill, designed to end the abuses of the holding company. The bill was still being considered when Senator Hugo Black began his hearings on the lobbying activities of the utility industry. 29 Among other abuses, Black s committee discovered that the utility companies had orchestrated a campaign that sent over 250,000 telegrams to Washington. This campaign hardly reflected the feelings of the American public, since the utility companies paid for the telegrams, and officers and employees of the companies wrote them, often forging the signatures of the senders. 30 In part because of the activities uncovered, Congress enacted the Public Utility Holding Company Act of 1935, 31 which included a registration requirement for utility lobbyists. 32 Senator Black was not content just to require public utility lobbyists to register. Earlier in 1935, he had introduced a broad measure requiring the registration of all persons seeking to influence any government official and requiring disclosure of the interests represented, activities undertaken, and expenses incurred in lobbying. 33 Based upon the evidence assembled in earlier investigations and in his own hearings, 34 Senator Black emphasized that our Government has lost hundreds of millions of dollars which it should not have lost if there had been proper publicity given to the activities of lobbyists. 35 The Senate Judiciary Committee promptly reported a briefer version of Senator Black s bill in May 1935, 36 and the bill passed the Senate soon thereafter. 37 But it ran into problems in the House. While the Senate hearings were dominated by Senator Black s unveiling of lobbyists questionable activities, the House hearings were dominated by the lobbyists themselves, who belittled Senator Black s concerns about influence peddling. 38 The House Judiciary Committee bottled up the Black bill until March 1936 and then reported a much narrower bill of its own, the Smith bill, 39 which the House

Federal Lobbying Regulation: History Through 1954 9 passed. 40 The Committee Report on the Smith bill nicely summed up the competing considerations: This committee believes that every American citizen and interest that may be affected by proposed legislation has the highest right and privilege to be heard, a right that should be neither denied nor abridged. But, on the other hand, the membership of Congress, to whom appeal is made, and upon whom it is sought to exert pressure, and public likewise to whom it is appealed to, and who is asked to exert that pressure, have a right to know by whom and in whose interest such appeals are made, and by whom these movements are financed, and the manner in which the money is expended. 41 The Smith bill was narrower than the Black bill. Both required registration of congressional lobbyists and disclosure of their employers. Unlike the Black bill, the Smith bill did not further require reports of all persons and organizations expending money and receiving contributions, or registration of executive department lobbyists. The House-Senate Conference Committee reported a complex compromise bill. 42 The conference bill applied to individuals or organizations that sought (1) to enact or defeat legislation in Congress, 43 (2) to influence the election of any candidate for federal office, 44 or (3) to influence any federal agency or official. 45 Lobbyists before Congress had to register with the Clerk of the House and Secretary of the Senate; the registration would disclose, among other things, the interests represented, the compensation, and which of their expenses would be met by their employers or clients. 46 Lobbyists before Congress were also required to file monthly reports naming their contributors and amounts contributed, the recipients of their expenditures in excess of $10 and the amounts expended, and the total contributions received and expenditures made in the calendar year. 47 The broad coverage of the conference bill doomed it in the House, where opponents argued that the bill reached far beyond the utility lobbyists whose activity had triggered congressional concern about the issue. One Member feared that the law would be applicable to all farm organizations, all patriotic organizations, all women s clubs, all peace societies in fact to every group or organization which might, directly or indirectly, be interested in the passage or in preventing the passage of any given legislation. 48 The House rejected the conference bill by a threeto-one vote. 49 Lobbying regulation was a dead issue for the next ten years. 1-3 Federal Regulation of Lobbying Act (1946) After decades of occasionally intense, but frustrating effort, Congress enacted comprehensive federal lobbying regulation almost by accident in 1946. The Federal Regulation of Lobbying Act 50 succeeded where so many other lobbying bills had failed in the past, partly because it was a component (Title III) of the much larger Legislative Reorganization Act. 51 The Lobbying Act provisions had been placed in this larger bill because the Joint Committee on the Organization of Congress had heard many complaints during its hearings of the attempts of organized pressure

10 CHAPTER 1 groups to influence the decisions of the Congress on legislation pending before the two Houses or their committees. 52 The mere fact that the Joint Committee was interested in the lobbying provisions did not mean that lobbying was the focus of its activities, however. Apparently, the Joint Committee held no hearings on lobbying, and its report devoted little more than a page to the contours of lobbying regulation. 53 Based upon this report, the Office of Legislative Counsel drafted the Lobbying Act provisions of the Reorganization Act. Given the scant legislative guidance and great time pressure (only a few months to draft comprehensive lobbying rules and the remainder of the Reorganization Act), the Legislative Counsel simply adopted the 1936 compromise, with a few modifications. 54 The reports of the standing committees that considered the Reorganization Act were not much more illuminating than the Joint Committee s report on the proposed requirements of the lobbying title. Thus, the Senate Judiciary Committee reported that lobbying regulation should not apply to newspaper publishers, witnesses in committee hearings, those seeking to influence Congress without compensation, and organizations whose lobbying activities were only incidental. On the other hand, the Committee believed that the regulation should embrace those who inspire letter campaigns, those who come to Washington under the false impression that they exert some mysterious influence over Members of Congress, and honest and respectable representatives of business who seek openly and frankly to influence legislation. 55 Floor discussion of the lobbying provisions reflected confusion over their effect and some concern that the provisions would intimidate citizens desiring to petition Congress. 56 But, as Senator John Kennedy later wrote, Congress was in no mood to hold up the Legislative Reorganization Act and Title III was in effect carried through on the coattails of the other congressional reforms regarded as most important by Congress. 57 As enacted, the Federal Regulation of Lobbying Act 58 closely tracked the 1936 conference bill, except that the 1946 Act, following the Legislative Counsel s draft, did not regulate lobbying of the executive branch. 59 The critical portions of the Lobbying Act were Sections 305, 307, and 308, specifying who had to register and the conditions under which a registrant s receipts and expenditures for lobbying had to be reported. 60 Individuals and groups had to register if they engage[d] [themselves] for pay or for any consideration for the purpose of attempting to influence the passage or defeat of any legislation. 61 A registration statement had to specify the person by whom the lobbyist was employed, the interest the lobbyist represented, compensation, and expenses. 62 Each registered lobbyist had to make quarterly reports of all money received and expended for lobbying activities and had to specify in the reports the proposed legislation that the lobbyist was paid to support or oppose. 63 More generally, the sum of all contributions and expenditures whose purpose was the passage or defeat of any legislation or whose purpose was to influence the passage or defeat of any legislation had to be reported. 64 The statute required more than a general sense of how much money was being spent for what purposes. Registrants had to disclose names and addresses of contributors to the lobbyists making contributions aggregating $500 or more. 65 They also had to report names and addresses of persons to whom they made expenditures aggregating $10 or more. 66 The Act contained a number of exceptions: individuals who merely appeared before congressional committees, public officials

Federal Lobbying Regulation: History Through 1954 11 acting in their official capacity, and newspapers (as long as the newspaper did not engage in any other influencing of legislation outside of its pages). Those required to register had to file reports every quarter and keep receipts for two years. 67 1-3.1 Statute and Early Experience Under It The passage of comprehensive lobbying regulation was a significant victory for reformers. Unfortunately, the birth of the statute was attended by a number of complications. The time pressure during the drafting stage, the use of a previous compromise, and the inherent problems of regulating political speech combined to result in the enactment of a weak statute. While all three factors caused problems, the inherent difficulty of regulating political speech was doubtless responsible for many of the Lobbying Act s flaws. The most serious practical problem with the 1946 Act was the lack of a workable enforcement mechanism. The Act required a host of filings with the Clerk of the House and Secretary of the Senate, 68 but nowhere did it authorize the Clerk of the House or the Secretary of the Senate to penalize lobbyists who did not comply or even to investigate to determine compliance. The sanctions provided for in the Act were criminal penalties, 69 which seemed rather harsh for most violations of the statute. Though the responsibility is never made explicit, it appeared that the Department of Justice was charged with enforcement because the only sanctions were criminal ones. 70 There was no provision for coordination between the Clerk of the House and the Secretary of the Senate (each charged with receiving registration statements and reports), or between them and the Department of Justice (responsible for enforcement of the requirements). Since the normal channels of bureaucratic paper flow did not exist between Congress s administrators and the Department, this omission created a framework conducive to nonenforcement of the statute. A second major problem was a central conflict on the face of the statute. Congress appears to have constructed the Lobbying Act to bring under public scrutiny two different practices. The first was the employment of lobbyists and the expenditure of funds for and by these paid lobbyists. The Lobbying Act addressed this concern in Section 308 by requiring registration by these lobbyists and the filing of quarterly financial reports. The second was the collection of contributions principally by trade associations and special interest groups to be used to influence legislation by means of hiring lobbyists or otherwise. Because of threshold prerequisites to coverage found elsewhere in the Lobbying Act and potential constitutional imperatives, as well as practical considerations, the distinction between these two practices ultimately lost its meaning. Yet Congress s attempt to meld together treatment of the two resulted in a statute of remarkable opaqueness. 1-3.2 Difficulties of Early Implementation (1946 1954) The problems evident on the face of the statute made it difficult to implement. From the time of its enactment to the mid-1950s, compliance with the registration and disclosure requirements was very uneven. For example, between 1946 and 1950, only 3,494 quarterly reports were filed under the Act, 71 representing, surely, a small fraction of the active lobbyists during that period.

12 CHAPTER 1 Notwithstanding these small numbers, few people were investigated for failing to file. 72 Moreover, through 1954 there were only three reported prosecutions. 73 None of the defendants was convicted in any of these prosecutions. In a fourth case, National Association of Manufacturers v. McGrath, 74 Judge Alexander Holtzoff (for a three-judge district court) ruled that the Lobbying Act was unconstitutional in two respects. First, he held that various provisions violated the Due Process Clause because they were manifestly too indefinite and vague to constitute an ascertainable standard of guilt. 75 Second, he held that the provision of Section 310(b) prohibiting violators from further lobbying for three years was inconsistent with the First Amendment. 76 The statute was off to a bad start. Judge Holtzoff was also the judge to whom the government s prosecution in United States v. Harriss 77 was assigned. The information named the following parties as defendants: Robert Harriss, a commodities broker; Tom Linder, Commissioner of Agriculture for the State of Georgia; James McDonald, Commissioner of Agriculture for the State of Texas; Ralph Moore, a trader of commodities futures; and the National Farm Committee. 78 The information alleged that Linder, McDonald, and Moore, as directors of the National Farm Committee, used the organization (ostensibly organized to further the interests of farmers) to influence Congress and advance their private interests in commodities futures trading. In addition, Moore received money during this time from Harriss to influence Congress so commodities futures prices would rise. 79 Moore would pay for dinners and the like for Members of Congress, held in the name of groups such as the Farm Commissioners Council, Southern Commissioners of Agriculture, and the North Central States Association of Commissioners. The real purpose of these organizations was never revealed, since no statements were filed under the Lobbying Act. 80 The case never reached a jury. Judge Holtzoff granted a motion to dismiss in 1953 based upon his earlier decision in McGrath that the learned jurist considered at least stare decisis, if not res judicata. 81 The government took a direct appeal to the United States Supreme Court. 1-3.3 Supreme Court s Decision in United States v. Harriss (1954) By 1953, the last-minute, awkwardly drafted lobbying statute was on the verge of extinction. Three judges had found it unconstitutional, 82 and the results of the two other reported cases were equally inauspicious one acquittal 83 and one dismissal. 84 Defending Judge Holtzoff s opinion in the Harriss appeal, defendants asserted the unconstitutionality of the Lobbying Act on three grounds. First, Sections 305, 307, and 308 (registration and reporting) were too vague to satisfy due process. Second, they violated the First Amendment s guarantee of freedom of speech, freedom of the press, and right to petition. Third, Section 310(b) (the threeyear ban on lobbying by those who violated the Act) was inconsistent with the right to petition. 85 By a five-to-three vote, the Supreme Court rejected these attacks in United States v. Harriss. To avoid the constitutional doubts, it so construed the statute as essentially to rewrite it. Chief Justice Warren s decision for the Court began with the issue of vagueness. A statute violates the Due Process Clause if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. 86 But, the Chief Justice continued, if there is a reasonable

Federal Lobbying Regulation: History Through 1954 13 construction that leaves the statute constitutionally definite, the Court ought to give the statute that construction. 87 To cure the perceived vagueness, the Court found Section 307 to be the controlling provision of the Lobbying Act. Thus, to be covered by the Act, one had to be within Section 307, which the Court found established three prerequisites for the application of the statute: 1. the person must have solicited, collected, or received contributions; 2. one of the main purposes of such person or one of the main purposes of such contributions must have been to influence the passage or defeat of legislation by Congress; and 3. the intended method of accomplishing this purpose must have been through direct communication with Members of Congress. 88 The Court thus rejected the government s view that Section 305 required reports by any person making expenditures to influence legislation, even though that person did not solicit, collect, or receive contributions. In spite of or perhaps because of the narrowing of persons covered by the Act to those who solicited, collected, or received contributions, the Court defined the limiting word of Section 307 (that money be received or expended principally for the purpose of influencing legislation) broadly to mean that influencing legislation had to be one of the main purposes of that receipt or expenditure. The Court then spun another 180 degrees, returning to a narrow construction by adding a new limitation to the Lobbying Act the requirement of direct communication with Congress. 89 After both narrowing and expanding the Federal Regulation of Lobbying Act to deflect the due process challenge, the Court proceeded to the First Amendment argument. Chief Justice Warren pointed to the danger of unregulated lobbying: [T]he voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. 90 The Court then balanced the prevention of this evil against the possible chilling effect of minimal disclosure required by the Lobbying Act and found the Lobbying Act constitutional. 91 Justice Douglas, joined by Justice Black, 92 dissented on the ground that the formula adopted to save this Act is too dangerous to use. It can easily ensnare people who have done no more than exercise their constitutional rights of speech, assembly, and press. 93 Justice Douglas began his analysis by stating that, in determining whether a statute is constitutionally definite, the Court must judge the statute on its face. Phrases such as any other matter which may be the subject of action by Congress, principally to aid, and retained for the purpose of influencing used throughout the statute prevented the Lobbying Act from being precise enough to satisfy due process, according to Justice Douglas. 94 Justice Douglas strongly objected to the Court s having significantly rewritten the statute to render it constitutional. 95 For example, there was nothing on the face of the statute to suggest (as the Court did) that it covered only direct communication with Congress, and there was clear legislative history to the contrary. 96 Justice Douglas was not entirely opposed to reading a statute with the gloss a court has placed on it, 97 but objected to such a drastic salvage operation where

14 CHAPTER 1 the First Amendment was involved. The vagueness of the statute that confronted the people prosecuted, and others who worried about prosecution, could not be undone by the Court. As the Lobbying Act collided directly with First Amendment activities, the statute s vagueness had some of the evils of a continuous and effective restraint, a chilling effect on protected activity. 98 Justice Jackson dissented separately. He shared Justice Douglas s concern about the statute s vagueness, its infringement of First Amendment rights, and the Court s wholesale rewriting of it. 99 Justice Jackson s dislike for the rewriting of the Lobbying Act stemmed in part from his fear that a narrowly construed statute might at some later point again be expanded, leaving individuals at the mercy of the Court s interpretation, after the potential violation of the Lobbying Act had occurred. 100 On the First Amendment issue, Justice Jackson went further than Justice Douglas. Justice Douglas was concerned with the impact of a vague statute on the right to free speech, implying that the Act might have been constitutional had it been written more clearly. Justice Jackson, however, found the Lobbying Act to endanger the right to petition. Justice Jackson s approach was anchored in a decidedly pluralistic image of the American polity: [O]ur constitutional system is to allow the greatest freedom of access to Congress, so that the people may press for their selfish interests, with Congress acting as arbiter of their demands and conflicts. 101 1-3.4 Subsequent (Post-Harriss) Developments and Enforcement It is not clear that Chief Justice Warren and his majority colleagues did the Lobbying Act a good turn by rejecting the efforts of Justices Douglas, Black, and Jackson to invalidate it. The Supreme Court s decision in Harriss crippled an already frail statute. By considering Section 307 controlling, the Court excluded from coverage individuals and organizations that did not solicit or receive money to be used principally to influence legislation, or one of the main purposes of which was to influence legislation. 102 Thus, if an entity such as a giant corporation or a labor union spent money to influence legislation, but lobbying was not the principal purpose or one of the main purposes for which the group received that money, it did not have to register. 103 The Harriss decision dealt a further blow by limiting coverage to direct lobbying, leaving indirect solicitation of Members votes largely unregulated. Harriss all but ended any effort by the Department of Justice to prosecute violations under the Act. On November 2, 1955, the government dropped the charges against the last defendant in Harriss, Ralph Moore. 104 After 1955, only a few indictments were returned under the Lobbying Act. As the Department of Justice told Congress in 1979, the law has been reduced to virtually a nonentity by interpretation. 105 Of course, the Clerk of the House and the Secretary of the Senate still accepted registration statements and reports and encouraged compliance, but without effective monitoring and enforcement there was incomplete compliance with the requirements of the Act. Although an exact figure is impossible to calculate, partially due to the vagueness of the Lobbying Act itself, one estimate was that only 20 to 40 percent of those required to register actually did so. 106 According to the

Federal Lobbying Regulation: History Through 1954 15 General Accounting Office, of the reports filed, 48 percent were incomplete 107 and 61 percent were late. 108 No one dared to guess how many were inaccurate or misleading. These and other weaknesses attracted the attention of lawmakers and reformers, who, almost from its enactment, made a variety of proposals to strengthen the Lobbying Act, especially after Watergate. 109 Notes 1. Congress shall make no law... abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. amend. I. 2. See, e.g.,18 U.S.C. 201(b) (deeming it a federal crime to give or receive a bribe), 201(c) (deeming it a federal crime to give or receive an unlawful gratuity ) (2006). See generally William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes & the Creation of Public Policy 301 10 (4th ed. 2007); Daniel H. Lowenstein, Political Bribery & the Intermediate Theory of Politics, 32 UCLA L. Rev. 784 (1985). See also infra Chapter 26. 3. See infra Chapter 2, Section 2-15. 4. Cong. Globe, 32d Cong., 2d Sess. 52 (1852). The prohibition was expanded in 1867 to exclude from the House floor former Members of Congress who were interested in any claim before Congress. On the history of federal lobbying regulation, see Cong. Research Service, Report to Subcomm. on Intergovernmental Relations, Senate Comm. on Governmental Affairs, 99th Cong., Congress and Pressure Groups: Lobbying in a Modern Democracy 8 10, 34 39 (1986). 5. H.R. Rep. No. 33-353 (1854). 6. See Albert B. Saye, A Constitutional History of Georgia 284 (1948). 7. Lobbying is declared to be a crime, and the General Assembly shall enforce this provision by suitable penalties. Ga. Const. of 1877 art. I, 2 5. The Georgia legislature in the next year defined lobbying as any personal solicitation of a member of the General Assembly to favor or oppose or to vote for or against any legislation by a person employed by a person or corporation interested in the legislation. Such lobbying was punishable by a prison term of one to five years. The definition and the penalties survived until 1992. Ga. Code Ann. 28-7-1 (1981) (repealed by 1992 Ga. Laws p. 1075, 18, effective April 6, 1992). 8. 1890 Mass. Acts 456 (repealed 1973). Lobbying in Massachusetts is now regulated under Mass. Gen. Laws ch. 3 (2008). 9. See Note, Control of Lobbying, 45 Harv. L. Rev. 1241, 1244 (1932). 10. This House resolution required: [t]hat all persons or corporations employing counsel or agents to represent their interests in regard to any measure pending at any time before this House, or any committee thereof, shall cause the name and authority of such counsel or agent to be filed with the Clerk of the House; and no person whose name and authority are not so filed shall appear as counsel or agent before any committee of this House. 4 Cong. Rec. 3230 (May 20, 1876). 11. See supra note 7. 12. See Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). See infra Chapter 7, Section 7-2. 13. 2 U.S.C. 431 442 (2006).

16 CHAPTER 1 14. Indeed, the Honest Leadership and Open Government Act of 2007 adopted just such a prohibition in amending the Lobbying Disclosure Act of 1995 to prohibit (subject to both civil and criminal penalties) a lobbyist from making a gift to a Member or staff if the gift violates congressional gift rules. 2 U.S.C.A. 1613 (Supp. 2008). See infra Chapter 6, Section 6-2.3. 15. See supra note 10. Congressman George Hoar of Massachusetts introduced a resolution in reaction to counsels who accosted members of the Judiciary Committee. He exclaimed, [i]t would be a great protection... to require any person or corporation who employs an agent to represent his or its interest here to file the name of that agent with the House, so that the House may know who is the responsible agent in such cases. 4 Cong. Rec. 3230-31 (May 20, 1876). 16. See text supra note 8. 17. At the time President Wilson was quoted to the effect that Washington was full of these representatives of special interests and that a brick couldn t be thrown without hitting one of them. And I certainly feel like throwing some bricks. Wilson Denounces Tariff Lobbyists, The New York Times, May 27, 1913. 18. A Resolution Instructing the Committee on the Judiciary to Investigate the Charge That a Lobby Is Maintained to Influence Legislation Pending in the Senate, S. Res. 92, 63d Cong. (1913). 19. Hearings Before a Subcomm. of the Comm. on the Judiciary United States Senate on S. Res. 92, A Resolution Instructing the Committee on the Judiciary to Investigate the Charge That a Lobby Is Maintained to Influence Legislation Pending in the Senate, 63d Cong. (1913). The Senate hearings began with each Senator appearing before the committee and naming every individual who appeared before him for the purpose of influencing the tariff bill. Id. at 4 5. 20. Hearings Before the Select Comm. of the House of Representatives Appointed Under H.R. 198, 63d Cong. (1913). 21. H.R. Rep. No. 63-113, at 30 (1913). 22. Id. at 41. 23. Id. at 71. 24. See, e.g., H.R. 15,466, 63d Cong. (1914) (consisting of the bill introduced by the Judiciary Committee as a result of its investigation). 25. See John F. Kennedy, Congressional Lobbies: A Chronic Problem Re-examined, 45 Geo. L.J. 535, 542 (1957); see also infra Chapter 2 (discussing post-1954 lobbying law reform efforts). 26. S. Rep. No. 70-342 (1928). 27. 69 Cong. Rec. 3931 35 (1928). 28. The famous Caraway Committee produced 5,000 pages of testimony about the pervasive power of lobbyists in Washington. S. Rep. No. 71-43 (1929-1930) (consisting of 10 parts). Yet another committee investigation was launched in 1929 when a lobbyist sued to recover $257,655 in fees from a shipbuilding company for his services in attempting to sink the Geneva Naval Limitation Conference and otherwise increase naval appropriations. See Hearings Before a Subcomm. of the Comm. on Naval Affairs, 71st Cong. (1929 1930). 29. Hearings Before a Special Comm. to Investigate Lobbying Activities, 74th Cong. (1935 1936). 30. See William A. Gregory & Rennard Strickland, Hugo Black s Congressional Investigations of Lobbying and the Public Utilities Holding Company Act: A Historical View of the Power Trust, New Deal Politics, and Regulatory Propaganda, 29 Okla. L. Rev. 534, 553 (1976).

Federal Lobbying Regulation: History Through 1954 17 31. 15 U.S.C. 79-79z-6 (2000) (originally enacted as 49 Stat. 838) (repealed 2005). 32. Id. 79l(i) (2000) (repealed 2005). This Act, along with its specialized lobbying regulations, was repealed in 2005. See infra Note to Readers, following Chapter 12. 33. S. 2512, 74th Cong. (1935). Section 1 defined a lobbyist as anyone who attempts to influence any Member of Congress, executive agency or bureau, or any federal official. Section 2 included not just direct contact with these officials, but also causing to be published articles seeking or opposing federal legislative or executive action. Section 3 required registration for congressional lobbyists, and Section 4 required registration for executive branch lobbyists. Section 5 directed each lobbyist to file monthly reports of all moneys received and expended by him in carrying on his work as a lobbyist, to whom paid, and for what purpose, giving the names of all government officials, agents, or employees entertained by him. Sections 6 through 8 provided stiff criminal penalties. 34. In addition to the utility investigation, Senator Black had chaired a committee investigating contracts to carry mail (the notorious air mail scandal). Hearings Before a Special Comm. on Investigation of Air Mail and Ocean Mail Contracts, 73d Cong. (1933 1934). 35. Registration and Regulation of Lobbyists: Hearings Before a Subcomm. of the Senate Judiciary Comm., 74th Cong. 12 (1935). 36. S. Rep. No. 74-602 (1935). Sections 1 3 of the reported S. 2512 read as follows: Sec. 1. That any person who shall engage himself for pay, or for any consideration, to attempt to influence legislation, or to prevent legislation, by the National Congress, or to influence any Federal bureau, agency, or Government official, or Government employee, to make, modify, alter, or cancel any contract with the United States Government, or any United States bureau, agency, or official, as such official, or to influence any such bureau, agency, or official in the administration of any governmental duty, so as to give any benefit or advantage to any private corporation or individual, shall, before entering into and engaging in such practice with reference to legislation as herein set out, register with the Clerk of the House of Representatives and the Secretary of the Senate, and shall give to those officers his name, address, the person, association, or corporation, one or more, by whom he is employed, and in whose interest he appears or works as aforesaid. He shall likewise state how much he has been paid, or is to be paid, and how much he is to be paid for expenses, and what expenses are to be included, and set out his contract in full. Sec. 2. Any person, before he shall enter into and engage in such practices as heretofore set forth, in connection with Federal bureaus, agencies, governmental officials, or employees, shall register with the Federal Trade Commission, giving to the Federal Trade Commission the same information as that required to be given to the Clerk of the House and Secretary of the Senate in section 1 of this act. Sec. 3. At the end of each month each person engaged in such practices as aforesaid shall file, either with the Federal Trade Commission or the Clerk of the House or the Secretary of the Senate, as required herein, a detailed report of all moneys received and expended by him during such month in carrying on his work as aforesaid, to whom paid, and for what purpose, and the names of any papers, periodicals, or magazines in which he has caused any articles or editorials to be published. 37. 79 Cong. Rec. 8306 (1935).

18 CHAPTER 1 38. See Registration of Lobbyists: Hearings Before the House Judiciary Comm., 74th Cong. (1935). 39. H.R. Rep. No. 74-2214 (1936) (reporting the Smith bill, H.R. 11,663). 40. 80 Cong. Rec. 4541 (1936). 41. Subcomm. on Rules of the House Judiciary Comm., 74th Cong., Report on H.R. 11,663 (Comm. Print 1936), reprinted in 80 Cong. Rec. 4541 (1936). 42. H.R. Rep. No. 74-2925 (1936), reprinted in 80 Cong. Rec. 9430 34 (1936) [hereinafter Conference Report]. 43. Id. 6(a) (b), 80 Cong. Rec. at 9431. 44. Id. 6(c), 80 Cong. Rec. at 9431. 45. Id. 8, 80 Cong. Rec. at 9431. 46. Id. 7, 80 Cong. Rec. at 9431; see id. 8, 80 Cong. Rec. at 9431 (similar statement to be filed with agencies lobbied). 47. Id. 4, 80 Cong. Rec. at 9430 31. 48. 80 Cong. Rec. at 9746. 49. Id. at 9752. 50. 2 U.S.C. 261 270 (1994) (repealed 1995). 51. S. 2177, 79th Cong. (1946). The reorganization bill covered a wide range of topics from reorganizing Congress s committee structure to rationalizing administrative procedure, rendering the federal government liable in tort under certain circumstances, and even abolishing the position of committee janitor. The resulting Administrative Procedure Act, 5 U.S.C. 551-559(2006) and the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2690 (2006) became, in the years to follow, crucial protections of governmental accountability, a destiny not shared by the 1946 Lobbying Act. 52. S. Rep. No. 79-1011, at 26 (1946). 53. Id. at 26 27. This report did not accompany a specific bill; rather it was the Joint Committee s broad recommendations for change in the organization of the Congress. See also Comment, Improving the Legislative Process: Federal Regulation of Lobbying, 56 Yale L.J. 304, 317 n.58 (1947). 54. The original 1946 Legislative Counsel draft limited the contributions that must be reported to those exceeding $4,500, prohibited lobbying for three years by persons convicted under the Act, and included an exception for the news media; the 1936 conference bill did not include any such limitation, prohibition, or exception. See Conference Report, supra note 42, 80 Cong. Rec. at 9430 31. The 1936 conference bill covered attempts to influence federal elections and the executive branch; the 1946 bill did not. See id. 6, 80 Cong. Rec. at 9431. There were also several minor differences. 55. S. Rep. No. 79-1400, at 26 (1946). H.R. Rep. No. 79-2614 (1946) has no discussion of the lobbying (or other) provisions of the bill. 56. As one opponent noted: We are violating the Constitution. It is directly implied in the Constitution that we have no right to intimidate them [citizens] so that they cannot petition Congress. What is this but intimidation? 92 Cong. Rec. 6552 (1946). 57. Kennedy, supra note 25, at 548. 58. Federal Regulation of Lobbying Act (Lobbying Act), 60 Stat. 839 (1946) (codified as amended at 2 U.S.C. 261-270 (1994) and repealed in1995). 59. See discussion supra note 54. Compare discussion of S. 2512 3, supra note 36. 60. Section 305 directed persons covered by certain provisions of Section 307 to file statements with the Clerk of the House; Section 307 specified that the Act applied to any person who received anything of value principally for the purpose of influencing the passage or defeat of legislation in Congress; and Section 308 further delineated who had to register under the Act (that is, any person who engaged herself for any con-

Federal Lobbying Regulation: History Through 1954 19 sideration for the purpose of influencing the passage or defeat of legislation by Congress), what she had to do in registering, and certain activities that were not covered by the Act. The scope of the Act s applicability was rendered somewhat unclear by the ambiguous and arguably contradictory description in these sections of the persons to whom the Act applied. 61. Lobbying Act 308(a), 60 Stat. 841 42. 62. Id. 63. Id. 64. Id. 305, 307, 60 Stat. 840 41. 65. Id. 305(a)(1), 60 Stat. 840. 66. Id. 305(a)(4), 60 Stat. 841. 67. Id. 305, 306, 308, 60 Stat. 840 42. 68. Id. 305(a), 308, 60 Stat. 840 42. 69. Id. 310(a), 60 Stat. 842 (stating that any person who violates any of the provisions of this title, shall, upon conviction, be guilty of a misdemeanor, and shall be punished by a fine of not more than $5,000 or imprisonment for not more than twelve months, or by both such fine and imprisonment ); 310(b), 60 Stat. 842 (stating that a person convicted of violation loses right to lobby for three years). 70. For a short time the Department of Justice set up an enforcement division, but no specific division concentrated on enforcement of the Act after the early fifties. See Kennedy, supra note 25, at 555. 71. H.R. Rep. No. 81-3239, at 45 (1951). 72. Between 1947 and 1954 approximately 50 investigations were initiated. Oversight of the 1946 Federal Regulation of Lobbying Act: Hearings Before the Committee on Governmental Affairs United States Senate, 98th Cong. 192 (1983) (statement of Mark Richard, Deputy Assistant Attorney General, Criminal Division). 73. United States v. United States Sav. & Loan League, 9 F.R.D. 450 (D.D.C. 1949) (dismissed); United States v. Slaughter, 89 F. Supp. 876 (D.D.C. 1950) (ending in acquittal); United States v. Harriss, 347 U.S. 612 (1954).There was one successful, but unreported prosecution of violations of the Lobbying Act where defendants pleaded guilty. See United States v. Neff, No. 768-86 (D.D.C. Dec. 14, 1956). 74. 103 F. Supp. 510 (D.D.C.), vacated as moot, 344 U.S. 804 (1952). 75. 103 F. Supp. at 514. Judge Holtzoff found the phrase to influence, directly or indirectly, the passage or defeat of any legislation infinitely elastic and the principal purpose test quite ambiguous. 76. Id. 77. 109 F. Supp. 641( D.D.C. 1053) 78. Information filed Aug. 31, 1949, United States v. Harriss, reprinted in Record at 1 ff., United States v. Harriss, 347 U.S. 612 (1954) (No. 1212-49). 79. In the last three months of 1946 alone, Harriss paid Moore $50,000. 347 U.S. at 616. 80. A further aspect of this scheme were payments by Moore and Harriss to Commissioners Linder and McDonald via accounts at Harriss s brokerage firm. Similar payments were made to other individuals, though those individuals were not charged in this information. Not surprisingly, this activity was not reported as required by the Lobbying Act. 81. Harriss, 109 F. Supp. at 642. 82. Namely, the three-judge court in McGrath, 103 F. Supp. 510 (D.D.C. 1952), whose decision was followed by the author of the McGrath opinion, Judge Holtzoff, in Harriss.