At the time this article was published
Matthew J. Abrams, Esq. was President of CANAMCO, a firm that monitors, advises
and lobbies for Canadian companies, trade associations and governments in
Washington. Richard C. Sachs is an analyst in the Government Division,
Congressional Research Service, U.S. Congress.
In 1946, after years of debate and numerous
investigations into the alleged improprieties and illegalities of lobbyists, Congress
passed a registration and reporting statute1 that was to be the
"beginning of a new era; Congress and the public, for the first time, were
given the tools to learn the who, the how and the how much of pressure group
This expectation has not been realized.
Forty years after enactment, the Federal Regulation of Lobbying Act has come to
be viewed as little more than a cautionary symbol and can be ignored with
virtual impunity. Review of the factors that underlie the Act's ineffectiveness
may be instructive for other legislatures that contemplate the adoption of
lobby disclosure measures.3
Lobbying in Washington Today
For better or worse, Washington lobbying is
an integral part of the American political process. Corporations, trade associations,
and other organizations with United States policy concerns including local,
state and foreign governments have come to recognize that tracking the
legislative process is impossible from outside Washington. Issues and
strategies have become increasingly complex; legislative authority has become
widely dispersed among a galaxy of committees and subcommittees with
overlapping jurisdictions; and competition has intensified among opposing and
like interests. In such an environment, the need for swift access to
congressional decision-makers is a paramount concern. In the words of one
Washington regular, If you're not up here [on Capitol Hill] when they're making
decisions, you're a dead duck.4
Acknowledgement of the utility of a lobbying
capability has resulted in a dramatic upsurge in the size and scope of
Washington lobby activity. One measure of the perceived value of a Washington
presence is the growing number of out of town law firms that have opened
branches in Washington. In 1963, only forty-five such firms had offices in
Washington; over 250 maintain a permanent presence in the capital today. More
association headquarters now are located in Washington than in any other
American city. According to one study, forty per cent of these organizations
did not even exist before the 1960s.5
Some Problems with the Lobbying Act
Not all those who "lobby" in
Washington in the broad sense of the term are registered as lobbyists under the
1946 Act. The Act never was intended to cover contacts with officials in the
executive branch departments or at the regulatory agencies. Moreover, in the
1954 case of U.S. v. Harriss,6 the Supreme Court construed the Act
so narrowly in order to meet the constitutional requirement of definiteness
that many were removed from the statute's reach.
As interpreted by the Court in Harriss, the
Act requires registration with the Clerk of the House of Representatives and
Secretary of the Senate as well as the filing of quarterly activity reports if
each of three tests is met:
1) the person in question – either by
himself or through an agent or employee – solicits, collects or receives money
or any other thing of value;
2) the "principal purpose" of
either the person or the contribution is to aid in the passage or defeat of
legislation by Congress; and
3) to accomplish this purpose, there is
direct communication with a member of Congress.
These three prerequisites have not been
uniformly interpreted. Nor have they been well enforced. Among the main
problems in interpreting and administering the Act are: the uncertain meaning
of the "principal purpose" clause; language in the Harriss opinion
that appears to exclude from the Act's coverage contacts between lobbyists and
congressional staff; differing opinions on the extent to which the law covers
"grass roots" lobbying efforts; the lack of timeliness of the
reporting requirements; and the inadequate means and authority for enforcement.
Many companies and trade associations
maintain that they are not required to register and file disclosure reports
because lobbying is not their "principal purpose"; that is, the bulk
of their activity is non legislative. The history of the Act does indicate that
it was not to apply to organizations "formed for other purposes whose
efforts to influence legislation are merely incidental to the purposes for
which formed."7 However, the Supreme Court in Harriss attempted
to clarify that the "principal purpose" language of the Act does not
exclude "a contribution which in substantial part is to be used to
influence legislation ... or a person whose activities in substantial part are
directed to influencing legislation...."8 According to the
Court, if an organization were exempted because lobbying was only one of its
main activities, "the Act would in large measure be reduced to a mere
exhortation against abuse of the legislative process."9
But "substantial part" was not
defined by the Court. In an effort to avoid the pitfalls of "principal
purpose" vagueness, a number of tests have been suggested subsequently in
proposed legislative revisions to the Act. For example, a bill approved by the
Senate in 1976 declared that an organization would fall under the measure's
coverage if: 1) it paid a "legislative agent" $250 or more to lobby
in a quarterly period; 2) the organization's own staff made twelve or more
"oral lobbying communications" in a quarter; or 3) the group spent
$5000 or more on grass-roots solicitations during a quarter.10
Critics charged that the proposed thresholds
were too low and would "capture" smaller groups, burdening them with
record-keeping requirements and "chilling" their First Amendment
rights of speech and petition. Others maintained that the notion of an
"oral lobbying communications" test was onerous and difficult to
monitor and enforce.
Similar tests in varying combinations have
been proposed in other legislative vehicles. None of these has been able to
describe a true picture of the lobbyist or lobbying. The lack of accepted
criteria upon which to base a definition of "lobbyist" or 1obbying
group" means that advocates of lobby disclosure are unable to specify in a
universally satisfactory way the point at which a group is engaged in lobbying
efforts to the extent that it should register."
Another loophole in the Act derives from the
Court's statement in Harriss that the statute should be construed to refer
"only to 'lobbying in its commonly accepted sense' – to direct
communication with members of Congress on pending or proposed federal
legislation. "12 Under this interpretation, contacts with
congressional staff do not require the completion of registration and
Yet congressional staff has multiplied in
both numbers and influence since 1946. In 1947, about 400 staff members were
attached to House and Senate standing committees. By 1983, standing committee
staff in both Houses totalled over 3,000.13 Committee staff,
legislative aides on personal staff, and support agency staff are extremely
influential in shaping legislation and influencing legislative outcomes by
developing new issues and programs, drafting bills and amendments, initiating
hearings, building coalitions for legislative support, and co-ordinating
negotiations on proposed legislation. In short, key staff members often are
regarded as surrogates for their House and Senate bosses and are frequent
It can be argued, therefore, that in this
respect Harriss is no longer good law – that the influence of congressional
staff in the legislative process has increased so dramatically since 1954, when
Harriss was decided, that key staff members today are to be considered the
equivalent of members of Congress for lobbying purposes. Indeed, in a recent
case involving dissemination of the Pentagon Papers for private publication,
the Supreme Court affirmed a lower court's view that for the purpose of
construing the Speech and Debate Clause of the Constitution15 a
member of Congress and his aide are to be "treated as one."16
In view of the complexities of the modern legislative process, with Congress
almost constantly in session and matters of legislative concern constantly
proliferating, "it is literally impossible ... for Members of Congress to
perform their legislative tasks without the help of aides and assistants ....
[T]he day-to-day work of such aides is so critical to the Members' performance
that they must be treated as the latter's alter egos ...17
While this certainly describes the important
role of congressional staff in today's Congress, the Supreme Court has not yet
had an opportunity to retract its restrictive interpretation of the 1946 Act in
Harriss, nor has Congress enacted new lobby disclosure legislation. In
consequence, the law is not conclusive on this point at present. Most in the
United States continue to believe that communications with a member's staff are
not within the scope of the Act and do not require registration.
The Harriss Case language on "direct
communication with Members of Congress" also raises difficult questions
with respect to disclosure for indirect lobbying activities. Although grass
roots lobbying is not a new technique, its use in recent years has grown
dramatically in quality and quantity. Advances in technology, such as computer
software and high-speed laser printers, enable large-scale mailings to be
distributed with ease and speed, while improvements in demographic and
statistical analysis allow more sophisticated targeting and increase response
In an ideal world, members of Congress would
have ample time to read thoughtful, spontaneously written letters from
constituents and accord greater weight to those communications. In fact, if
responses on a given issue arrive in a congressional office in sufficient
quantity they will be heeded even if they are part of an orchestrated campaign.
Grassroots techniques are particularly subject to abuse in that substantial
resources may be expanded in a campaign without disclosure of the sponsor or
ultimate source of the effort.
The Harriss opinion does state that in
passing the Lobbying Act Congress intended disclosure of communications with
Congress "exerted by the lobbyists themselves or through their hirelings
or through an artificially stimulated letter campaign."18
However, the prevailing view is that a grassroots program that induces others
to contact members of Congress does not in itself constitute direct lobbying
and is not covered by the 1946 Act. Although most recent legislative attempts
to amend the Act have included provisions that would more expressly cover
grassroots solicitations, some argue that government regulation of such
indirect efforts to influence the legislative process "would bring
virtually all activity designed to promote a given public policy viewpoint
within statutory reach and would intercept legitimate activities heretofore
protected by the First Amendment.19
Another common criticism of the Lobbying Act
is that the scant information it requires is not provided within a meaningful
time frame to those who might seek to use it. By the time the quarterly reports
are filed and prepared for distribution by the Clerk of the House or Secretary
of the Senate, the information may be as much as six months old. To be most
useful to those with a stake in a legislative outcome, lobbying data would need
to be reported on a much more regular basis, so that immediate action on the
information could be taken, For those with an interest in tax legislation, for
example, it is of little consequence to discover six months after the fact that
an opposing coalition spent more heavily than anticipated to influence a tax
bill when it was before the Senate. By this time, it is too late for anything
but historical analysis.
Finally, enforcement of the Act is non
existent. Staff in the offices of the Clerk of the House and the Secretary of
the Senate do review the reports to see that they are filed correctly, but
neither office has authority to investigate potential violations nor to assure
that report forms are received in timely fashion. Nor since Harriss, has the
Department of Justice initiated any attempts to enforce the Act through criminal
prosecution. According to testimony of a Department representative before
Congress in 1983, justice's view is that the 1946 Act "is ineffective,
inadequate and unenforceable. "20
The inefficacy of the 1946 Act can be
traced, in part, to its initial consideration by Congress. Despite decades of
controversy about lobbying, the measure was only briefly the subject of debate
in the House and Senate and was approved as part of a popular legislative
reorganization plan without amendment.
The objectives of the Act thus never were
made clear. Was the Act intended to deter alleged lobbying abuses? Or was it to
provide some public accounting of lobbying activities? The American experience
with the Act continues to reflect these ambiguities and has hindered efforts at
reform. Until the basic questions of purpose and intent are clarified, the Act
cannot be truly effective. In any event, other issues that relate to lobbying
activity in particular, campaign finance practices and the representation of
foreign clients by former federal government officials currently engage
congressional and public interest.
1. Federal Regulation of Lobbying
Pub. Law 79-601; U.S.C. sec. 261-270. Note that other aspects of Washington representation
are intended to be covered by other statutes, such as the Foreign Agents
Registration Act, the Ethics in Government Act, and various laws
that govern the raising and spending of money in federal elections.
2. U.S. Congress, House Select Committee on
Lobby Activities, Report and Recommendation on Federal Lobbying Act (H.
Rep. No. 81-3239, 1951) p. 5.
3. Although the subject of this article is
the federal system, lobbying is as common at the state level. Indeed, the
influence of lobbyists is at least as great in the fifty state capitals as in
4. New York Times, "Fear and
Shoe Leather Among the Lobbyists," July 31, 1986.
5. U.S. Congress, Senate Committee on
Governmental Affairs, Oversight Hearings on the 1946 Federal Regulation of
Lobbying Act (S. hrg. 98-625, 1983) p. 125.
6. 347 U.S. 612.
7. U.S. Congress, Senate Special Committee
on the Organization of Congress, Report to Accompany S. 2177 (S. Rep. No.
79-1400, 1946), p. 27.
8. 347 U.S. at 622.
9. Id. At 622-23.
10. S. 2477, 94th Congress, 2nd sess.
11. U.S. Congress, Senate Committee on
Governmental Affairs, Congress and Pressure Groups: Lobbying in a Modern
Democracy (S. Print No. 99-161, 1986), p. 49.
12. 347 U.S. at 620; emphasis added.
13. N.J. Ornstein et al., Vital Statistics
on Congress, 1984-1985 Edition (1984), p. 124.
14. See. M.J. Malbin, "Delegation,
Deliberation and the New Role of Congressional Staff," in T. Mann and N.
Ornstein, eds., The New Congress (1981), pp. 134-177.
15. Art. I, sec. 6, clause I of the Constitution
states that members of Congress may not be questioned "in any other
place" for any speech or debate in either House. The purpose of the
privilege is to protect members from threats of prosecution that would impinge
upon the legislative process.
16. U.S. v. Doe, 455 F. 2nd 753, at
761 (1st Cir. 1972).
17. Gravel v. U.S., 408 U.S. 505, at
18. 347 U.S. at 620; emphasis added.
19. H. Eastman, "Lobbying: A
Constitutionally Protected Right," in 1983 Oversight Hearings, op. cit.
At not 5, pp. 455-459.
20. 1983 Oversight Hearings, id., p.