Lobbying Law Exempts Many

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The Obama administration aims its new ethics rules at federally registered lobbyists, but when Congress wrote the Lobbying Disclosure Act, it drew some arbitrary lines. The law exempts thousands who work in the lobbying business, from "strategic advisers" to organizers of grassroots campaigns.

ROBERT SIEGEL, host:

The collapse of Tom Daschle's cabinet nomination this week showed how hard it can be to apply legal definitions to ethics rules. Daschle's battle centered on unpaid taxes, but the battleground was his business life after leaving office. The former Senate majority leader works in a part of Washington's influence business, a part that has no regulation or public disclosure.

NPR's Peter Overby reports.

PETER OVERBY: On President Obama's first full day in office, he set new ethics rules for his administration. It sounded simple.

President BARACK OBAMA: Lobbyists will be subject to stricter limits than under any other administration in history.

OVERBY: But there are speeches, and then there's the law. For example, what exactly is a lobbyist? The Obama ethics rules revolve around what federally registered lobbyists can or can't do. Federal law defines both lobbyist and lobbying activities. Plenty of people engage in lobbying activities. Once you spend at least 20 percent of your time for a client on lobbying activities, and have at least two lobbying contacts with government officials and get paid at least $3,000 per quarter, you're legally a lobbyist, and you have to register with clerks in Congress.

It seems that the vast majority of people who cross that threshold really do register. But Robert Kelner, an ethics lawyer in Washington, says some Washington lawyers make sure they don't cross it.

Mr. ROBERT KELNER (Ethics Lawyer): There are some consultants in Washington who strategically game the way the Lobbying Disclosure Act works. And the reason they do that is that they don't want their role to be publicly known. They want to lurk in the shadows.

OVERBY: Shadows that so far have been pretty safe. There's been essentially no enforcement of the lobby disclosure laws. Kelner gives two reasons. Here's one.

Mr. KELNER: Prosecutors traditionally, when they think of public corruption cases, think of bribery.

OVERBY: And the other.

Mr. KELNER: The most egregious kind of violation is failure to register at all, or filing a report that is misleading. Both of those things are largely invisible to the clerk's office.

OVERBY: However practitioners end up in this grey area, they're often called strategic advisors. Many used to be high-ranking officials, such as former Senate Majority Leaders Tom Daschle and Bob Dole. This morning, Jim Christian at the law and lobby firm, Patton Boggs, walked me through some of the nuances of taking a lawmaker to dinner. Members of Congress can't accept gifts from registered lobbyists, but if you're a strategic advisor...

Mr. JIM CHRISTIAN (Patton Boggs): Presumably, a member could accept a gift.

OVERBY: Okay, so if I were a strategic advisor, I could take a member of Congress to dinner if I brought up some project that my firm was working on.

Mr. CHRISTIAN: It would be a contact.

OVERBY: And then if I did that with that member twice in...

Mr. CHRISTIAN: In a quarter.

OVERBY: In a quarter then...

Mr. CHRISTIAN: You would've met part of the threshold.

OVERBY: The threshold to become a federally registered lobbyist, but only part of it. For every answer, Christian suggests there's a "yes, but" in the law.

Mr. CHRISTIAN: Well, I think these ethics wars, if you will, are always difficult to execute with bright lines.

OVERBY: And those who write the laws have their own agendas. Longtime reform advocate Fred Wertheimer remembers trying to toughen up the law that delays former lawmakers on the path to lobbying.

Mr. FRED WERTHEIMER (Reform Advocate): We didn't get a sense that a whole lot of senators wanted to take themselves out of the potential for engaging in lobbying activities after they left the Senate.

OVERBY: Wertheimer says it's much too soon to tell if President Obama's brand new ethics rules will work.

Mr. WERTHEIMER: These rules cover thousands of potential appointees. We're kind of in a shakedown period because no one has ever done this before.

OVERBY: And few in Congress have seemed eager to climb onboard and enact more strict ethics laws.

Peter Overby, NPR News, Washington.

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