A reader responded to my comments over the weekend on ways to strengthen Hawaii’s system of lobbyist registration and disclosure.
He believes the definition of “lobbyist” needs fundamental recrafting.
Here’s how the current law defines a lobbyist Section 97-1(6) HRS:
“Lobbyist” means any individual who for pay or other consideration engages in lobbying in excess of five hours in any month of any reporting period described in section 97-3 or spends more than $750 lobbying during any reporting period described in section 97-3.
This seems straightforward, but it has the makings of a huge loophole. Take the case of a paid lobbyist who spends all day at the capitol while the legislature is in session. On a typical day, he might attend several hearings to track the progress of bills he is shepherding, present testimony in a public hearing, talk to reporters in order to get favorable coverage of his client’s issues, hang out “on the railing” to catch key legislators for brief consultations, and check in with legislative staff, both just to build relations as well as to further his legislative agenda.
At the end of the day, has he spent eight hours lobbying? Under one view, the answer is clearly “yes.” All those activities, including waiting to testify and waiting in hallways to catch the attention of legislators, are part of the process of lobbying and should be counted.
But others apparently take the position that perhaps only a few minutes of the day have to be counted towards the “lobbyist” threshold. Suppose that it comes to three minutes presenting testimony, perhaps 15 minutes talking directly to legislators. So instead of eight hours, they would argue that only 18 minutes have to be counted, far short of the time necessary to fall under the lobbyist law.
The State Ethics Commission does not offer clear guidance on this issue. Its manual for lobbyist registration and disclosure is silent on the question of how the time spend lobbying should be calculated.
“This loophole really has huge ramifications,” the reader argues.
Another reader suggested that regulation of lobbyists is really a violation of their 1st Amendment rights.
This isn’t a new argument. The U.S. Supreme Court rejected the underlying arguments back in a 1954 decision in U.S. v. Harriss.
The court found:
Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the 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. This is the evil which the Lobbying Act was designed to help prevent.
Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. It acted in the same spirit and for a similar purpose in passing the Federal Corrupt Practices Act—to maintain the integrity of a basic governmental process. See Burroughs and Cannon v. United States, 290 U. S. 534, 545.
Under these circumstances, we believe that Congress, at least within the bounds of the Act as we have construed it, is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of self-protection. And here Congress has used that power in a manner restricted to its appropriate end.
By the way, my earlier post discussed the need to amend the definition of “administrative action” in order to obtain disclosure of executive branch lobbying. I notice that Hawaii County already has incorporated such a definition in the county’s lobbyist registration law (see Chapter 2, Article 15, Section 2-91.3 Hawaii County Code).
“Administrative action” means the proposal, drafting, consideration, amendment, enactment, or defeat by any administrative agency of any matter pending or proposed before the administrative agency, except ministerial matters.
I think that would work in the state law as well.
For those interest, there’s a Congressional Research Service report that might be of interest: “Grassroots Lobbying: Constitutionality of Disclosure Requirements,” February 26, 2008. FYI, the report was made public by Wikileaks.
Seems to me that “disclosure” will have to be the mantra since donation/spending limits are basically history under current First Amendment jurisprudence. Disclosure requirements can be constitutionally imposed, as discussed in the CRS report. I also analogize, again, to the USSC decision last term that held that signers of petitions to place questions on the ballot have no First Amendment right to not to be publicly identified. Other than the right to a secret ballot, those who wish to influence elections should be subject to laws requiring them to identify themselves; with every right there is a responsibility.
BTW, without taking a position here regarding Wikileaks, I note that Wikileaks is not the only entity to release CRS reports. While those reports do not become public unless and until released by a member of Congress, once released they are collected and made available by organizations such as OpenCRS whose website can be found here: http://opencrs.com/
Ian & Others:
Is there any interest in putting together a forum on this issue by inviting major lobbyists in all areas to attend & share their thoughts as well as those who may not actually get paid to do what they do but are still powerful influences on decision-makers.
Actually, I would like to see all advocates who spend much of their time at the Capitol, City Hall, or Congress or the various administrative agencies at all three levels of government be identified and classified. But probably the Supremes would invalidate the legislation.
Anyone paid or otherwise compensated to influence the passage or defeat of legislation.
Ian, as the former director of the HSEC, I would like to point out that you have quoted the definition of the term “lobbyist” in the law, which refers to one engaging in “lobbying”. Since “lobbying” as a term also has its own definition in the law (not just a dictionary definition), that definition has to be examined–and is controlling (since we are dealing with law here) regarding what constitutes lobbying. The definition of lobbying in chapter 97, HRS, can be subject to both broad and narrow interpretation legitimately in terms of statutory interpretation. In any event, the focus should be on the interpretation of how “lobbying” is defined in the statute, in accordance with statutory construction. Another approach would be to introduce legislation to amend the definition of lobbying to avoid vagueness. Having testified on lobbying legislation for 24-plus years, these laws are hard to amend, as you know. A large part of the problem is the lack of a movement to amend the law–besides on the average one other person or less other than me testifying, no one else testified. And often there were lobbyists testifying in opposition. Legislators want to hear in the main from lots of other people and see editorials, and not the views of the director of the State Ethics Commission, its Chair, etc.,–we tend to be looked at as overzealous, believe it or not. The laws will not be changed without lots of “the people” speaking up. While I was with the Commission, the Commission for decades consistently went with the narrower interpretation, and anyone who asked was told this was the case. How clearly this is portrayed in any manuals I cannot recall, and would have to look. Of course, one can petition the Commission for a broader interpretation–but it is all back to statutory line-drawing, plus the fact that lobbying laws involve free speech rights, and in the past, the laws of other states were struck down wholesale as being too vague. Thus, there is a very real risk with going with a broad interpretation–if the law is appealed to court and struck down, the likelihood of a better law being enacted at the moment and in the past is highly unlikely. So the question comes down to one of practicality along with reading the law as it is written. Another thing that complicates all of this is that the expenditures requiring disclosure are for the “purpose” of lobbying, which can be read in a broad or narrow way. Believe it or not, there were I believe other states when I was with the Commission that could not even get lobbyists to file reports at all. Thousands of non-filers. When I was with the Commission, we got everyone to file. Whether the reports were accurate or not is hard to determine without someone with personal knowledge coming forth, which was extremely unusual. I was never told how long anyone spent at the legislature, lobbying or not. Among those regulating lobbying, it is well understood that it is a difficult law to monitor. Hawaii enacted its lobbying law in 1975. The law at that time was in the Auditor’s office. It was transferred to the HSEC in 1978–thus in effect doubling the work of the Commission. For a comparison, there was no federal code for Congress until around 1995 or 1997. I was told the law was not enforced at all until sometime around 2003 or so. I think there are some states that still do not have an ethics commission. In any event, the Commission has to work with the law currently on the books, and with concerns of losing a whole law or large parts of law due to vagueness in the free speech arena. Lots of work left to do.
Mlollway said, ” Thousands of non-filers. When I was with the Commission, we got everyone to file.”
i call BS on this. As stated before, Lowell Kalapa is one of the most visible people lobbying at the Legislature, and he brags about never filing. Kalapa is just one example of dozens. Why does Mollway wear blinders while walking on “The High Road”?
Yobo, whether Kalapa needed to file with us was never brought to my attention. I was aware of his testifying but thought he was not compensated to lobby, or had been invited by the Legislature to testify–an exemption to the law, or did not meet the minimum thresholds requiring registration–the law has minimum thresholds for registration. He is so well known, I assumed that he was providing pro bono service or was under one of the exceptions in the law, or its thresholds. If he needed to file and if I understood this, he would have been asked to, as others were. This would not have been a big deal. If you believe he is lobbying without following the legal requirements, you should contact the Commission. I said we got everyone to file–that is everyone who we knew had to either register as a lobbyist or file reports. I was talking about those we knew about. The law does not require everyone who lobbies to register–certain conditions must be met. There are many others who lobby often and are not required to register, for various reasons, like the thresholds in the law for the time spent lobbying or compensation. Just because one lobbies does not necessarily require registration.
Kalapa lobbies under none of those exceptions. He is simply and pointedly flouting the law. If you look at the Tax Foundation’s 990, you will see he is well compensated.A few years ago he even publicly threatened a shutdown of the Tax Foundation unless it received a big infusion of cash donations.
There is also no point in filing a complaint, because the penalties are meaningless. If Kalapa can so easily get away with what he is doing in plain sight, then there is no chance of catching those who are just a little more discreet than Kalapa is to brag about it so openly.
The idea that well known lobbyists should more easily escape scrutiny because surely they can’t be in violation and are given the benefit of the doubt is quite curious.
Though the penalties might seem minor in the lobbying arena to many people, the public attention and media attention is enough alone to motivate compliance with the law–at least that is what I saw over 29 years. Major law firms in other states advise lobbyists and their big-company clients to abide by the lobbying laws so as not to embarrass a legislator or Member of Congress with public attention, say, through an inappropriate gift, etc.,–or embarrass their own company. I don’t think those who are involved with or donate to a non-profit would be happy to hear publicly that their director was allegedly and in a cavalier manner not in compliance with state law. In my experience, that alone would be enough to have the person raise the matter with the HSEC. Whenever we found a problem, we got complete compliance. The simple fact that one is paid a lot is not synonymous with lobbying a lot–you have to show a lobbyist meets the time and money thresholds set forth in the law. I am sure that if you know the evidence is there, the State Ethics Commission will act–I presume they have already looked into the situation, and it is not inconceivable that one of the attorneys offered advice in the past based on facts presented. If you look even at the recent past (or back to the early 90′s), big companies here have amended their forms and ways when problems surfaced. Without an active Ethics Commission and public and media, this would not have happened. Things have improved for all watch-dog agencies in Hawaii in a relatively short amount of time. This is due to dedicated people working at these agencies. It is not an easy job, but is worth the effort. With more involvement, things can only get better. I don’t and didn’t take the cynical view. As one of my mentors, the late Allan Saunders used to say, lots of problems can be fixed with “merciless publicity”. In 1985, I could not even get a state agency to give me an employee’s job description despite acting on behalf of the Commission. Things have advanced greatly. Much remains to do.