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.