Q: Our organization is under the impression that we don’t have to register as lobbyists at the Federal level if we keep our lobbying activity isolated to our internal employees and don’t hire outside consultants.  I don’t think this is accurate.  Can you let me know the registration requirement for federal lobbying?

A: You are correct to be skeptical of this viewpoint.  Keeping lobbying activity isolated to in-house personnel does not impact the need to register.  Registration at the federal level is based on three criteria.  All three must be met in order to warrant registration, or, stated differently, registration is required when all three criteria are met.  The criteria are:

1. An organization spends or is expected to spend at least $14,000 on lobbying activity during a quarterly period;
2. An organization has at least one employee who spends 20% of their time engaged in lobbying activity; and
3. That same 20% employee makes more than one lobbying contact.

When considering whether the monetary threshold has been met, all expenses must be considered including, compensation and reimbursed expenses associated with lobbying activities of all employees (not just designated “government relations” employees), overhead, payments to outside lobbyists and the portion of any dues paid to outside membership organization that are allocated toward lobbying.  Likewise, when determining whether an individual employee meets the 20% standard, all time engaged in any activity that is intended to support lobbying contacts must be considered including background and prepatory work, research, strategy sessions and conversations inside and outside the organization.

Once your organization meets all three thresholds, registration with the House and Senate is required within 45 days.  As a federal registrant, quarterly activity reporting is required as well as semi-annual contribution reporting.

Q: What are the different types of lobbyists in Arizona? Which expenditures are required to be reported on the quarterly or annual report? Do expenditures by my contract firm need to be disclosed?

A: In Arizona, there are three main types of lobbyists required to be listed on the principal registration: the designated lobbyist, authorized lobbyists, and Lobbyists for Compensation (LFC). The designated lobbyist acts as the single point of contact for the principal and is required to file quarterly and annual reports. Authorized lobbyists are employed by the principal for the purpose of lobbying, other than the designated lobbyist, listed on the registration and permitted to perform lobbying activities on behalf of the principal.  An LFC is a third-party lobbyist or contract firm compensated for the primary purpose of lobbying on behalf of a principal. While an LFC can act as the designated lobbyist for a principal most companies prefer to use an in-house employee to serve as point of contact for accountability purposes.

The designated lobbyist and each LFC are required to file four separate quarterly reports. The fourth quarter report also requires a cumulative total for the calendar year. While quarterly reports do not require personal expenditures by an authorized lobbyist to be reported, all expenditures must be disclosed in the principal annual report. The principal annual report must also include all reportable expenditures previously disclosed by each LFC on their quarterly reports.

Reportable expenditures provide a benefit to an individual state officer or state employee, whether or not the expenditure was made in the course of lobbying. All expenditures must be reported in one of the following categories: food and beverage; speaking engagement; travel and lodging; flowers; or other expenditures.

Expenditures more than $20 must be itemized and include the name and title of the state officer or employee benefiting; date, amount, and category of expenditure; and the name of the person who made the expenditure on behalf of the principal. Expenditures less than $20 may be reported in the aggregate. Additionally, expenditures for special events require the disclosure of the legislative body invited, date, location, description of event, and the total amount to be disclosed.

Question:  I am the Senior Officer in Quebec for my company.  I have been receiving emails concerning a new website.  What do I need to know?

Answer:  Lobbying to design and administer a new platform to replace the current Registry of Lobbyists.  This new platform is called Carrefour Lobby Quebec.  Carrefour Lobby Quebec aims to be a modernization and update of the current registry.

On June 21, 2022, the first phase of Carrefour Lobby Quebec was deployed.  Senior officers of companies and organizations carrying out lobbying activities were invited to create their individual accounts in the new system, along with the corresponding account for their company or organization.  Authorized representatives and consultant lobbyists were also permitted to proceed with account creation in Carrefour Lobby Quebec.  Users can gain additional information on Carrefour Lobby Québec by viewing an introductory video. They can also review the methods of administration of the new system.

The second and final phase of the deployment will take place this fall.  The Commissioner of Lobbying recommended, as provided for in Bill 13, a decree be adopted fixing the final deployment of Carrefour Lobby Quebec for October 13, 2022.  The functionalities for entering lobbying activities will then be operational in the new system.   On October 13, 2022, the current Registry of Lobbyists will be officially closed and all information in the current registry will be transferred to Carrefour Lobby Quebec.  There will then be a 60-day validation period for all transferred information.

More information will be provided by the Commissioner of Lobbying as the deployment of the second phase approaches.  Until the new system is online, lobbying activities must be entered into the current registry.

The information from this response can easily be found on our website in the Lobbying Compliance section of the Canada Compliance Laws publication.  Please do not hesitate to contact us if you have questions.

Q: I have taken on a new role handling our company’s government outreach in Florida. I will likely be lobbying both state and local officials. Where do I get started?

A: Florida offers a labyrinth of compliance issues for state and local lobbyists. The decentralized nature of the regulatory landscape means you may need to register at the state level, as well as in each individual city or county where you will be active.

At the state level, registration is required prior to engaging in lobbying activities. This includes any attempt to obtain the goodwill of a legislator, executive official, or employee of either branch. Registrants must select whether they will be lobbying the Legislative Branch, Executive Branch, or both. Activity reports for the state are limited to lobbying firms, who must disclose compensation received on a quarterly basis. Gift disclosures may also be required for any registered lobbyist, but we will discuss these in a moment.

Engaging with city or county officials is where staying compliant can be complicated. Most cities and counties have their own registration and reporting ordinances. Luckily, a general theme throughout is the requirement to register prior to engaging with officials. Most locales require annual registration, for either the calendar year or fiscal year, and reporting of lobbying activities. Be careful here to note the reporting periods as they can differ from the registration period. Some cities, such as Orlando, do not require the submission of a report if no expenses were incurred during the reporting period.

Also, be sure to note additional requirements such as meeting logs, lobbyist trainings, or registrations with subgroups of a municipality. For example, Miami-Dade County Publics Schools has its own registration requirement separate from Miami-Dade County.

Finally, whether you are registered with the state or a municipality, state statutes require quarterly disclosures of gifts to certain officials and employees. These reports include gifts valued at more than $25 given to officials or employees who file financial disclosures with the state; however, no such report is required if no reportable gifts were given. And, as always, please be sure any gift is permissible according to the relevant ethics rules.

For more information, be sure to check out the “Registration” and “Reports Required” sections of the Lobbying Compliance Laws online publication for Florida and its municipalities. If you have any questions, please feel free to learn more and contact us at www.stateandfed.com

Question: I am hiring an outside lobbying firm soon. What sorts of compliance issues should I be watching for?

Answer: You no doubt have a list of criteria you use when evaluating an outside firm’s ability to advocate for your company, but there are other issues you should be looking for.

Many lobbyists are former government officials and staffers, which means they are likely subject to revolving door provisions. While those restrictions will have expired for the majority of lobbyists if there is a new hire at the firm they may still be subject to time or subject matter restrictions and unable to lobby on your behalf. Revolving door restrictions can be a general ban on any lobbying in that jurisdiction, a ban specific to a particular issue in which the former government employee was heavily involved, or a ban only on lobbying their former government agency. If your firm is recommending a lobbyist who recently left government employment, you will want to confirm the lobbyist has no restrictions that will affect their work.

You will also want to ensure the firm is properly filing required registrations and reports. This information is publicly available on state websites, so it is not difficult to determine if the firm is meeting its obligations. Look for reports that are past due and reports that were filed after the due date. This is especially critical if you are going to be relying on the firm to file your company’s principal reports for you.

Finally, search the state’s website for fines, penalties, and reprimands issued to the firm. Again, your company’s reputation, both with the public and with the government officials contacted, will be tied to the firm.

More information about these topics can be found in the Lobbying Compliance Guidebook on the State and Federal Communications subscriber website. Specifically, information regarding revolving door restrictions can be found in the Important Features of the Law section, report due date information can be found in the Reports Required section, and the Contact Information section has links to state ethics websites.

Question: I am planning to give a state legislator a permissible gift. I know I need to include it on my next lobbying disclosure report. Do I need to worry about anything else to make sure I am compliant with state laws?

Answer: Yes, some states have additional requirements when an expenditure is made on a covered state official or employee. You may be required to provide the official with a notification or file additional reports.

California requires filers reporting gifts aggregating $50 or more in a calendar year to an official to provide the beneficiary with the date and amount of each gift reportable and a description of the goods or services. This information must be provided to the beneficiary within 30 days following the end of each calendar quarter in which the gift was provided.

In Virginia, lobbyists must send each legislative and executive official who is required to be identified by name on schedule A or B of the Lobbyist’s Disclosure Form a copy of schedule A or B or a summary of the information pertaining to that official. Notifications are due to the official by January 10 for the preceding 12 months. Additionally, lobbyists must send post-session notifications to covered officials summarizing all gifts made by the lobbyist during the period beginning on January 1 complete through adjournment sine die of the regular session.

Maryland requires additional reporting for certain permissible expenditures. A lobbyist who invites all members of a legislative unit to a meal or reception must, at least five days before the date of the meal or reception, extend a written invitation to all members of the legislative unit and register the meal or reception with the Department of Legislative Services on Form 13E by filing the report electronically. A post-event filing is then required within 14 days after the date of the meal or reception meal or reception.

Proper gift disclosure can involve more than simply including the gift on your normal lobbying disclosure reports. It is always a good idea to check the jurisdiction’s specific disclosure requirements on our website prior to giving a gift.

You can find this information under the “Reports Required” section of the U.S. Lobbying Compliance Laws online publication.

QUESTION:  Are there any rules that pertain to making contributions in the weeks leading up to an election?

ANSWER:  With this being an election year, it is wise to know what the rules are when making contributions in the days and weeks leading up to an election.  Usually, there is a monetary threshold that must be exceeded and typically there is a short turnaround time to disclose the contribution, usually within 24 hours.  In some instances, there is an outright ban on contributions.

In California, contributions of $1,000 or more per candidate made by a major donor during the 90-day period before an election must be disclosed within 24 hours of making the contribution.  Contributions to ballot measure committees and political party committees are also included within this reporting requirement.  The candidate and the ballot measure committee must be on the ballot at the election for which the 90-day period applies.  California’s 90-day pre-election period is the longest in the country.  If numerous special elections are being held, the 90-day periods may overlap.

In Washington, a contribution of $1,000 or more per candidate made by a registered lobbyist during the seven days before a primary election and 21 days before the general election must be disclosed within 24 hours of making the contribution.  This includes contributions to candidates and ballot measures appearing on the ballot at the election for which the seven day and 21-day period applies, as well as contributions to political party committees and PACs.  The Washington Public Disclosure Commission has a link on its home page that allows for the electronic filing of this report.

In Florida, opposed candidates must return contributions received less than five days prior to an election.

In Tennessee, a PAC is prohibited from making a contribution to a candidate for office after the 10th day before an election until the day of the election.  This prohibition only applies if the contribution is going to a candidate who is running in that election.

These are just a few examples.  As we always advise, verify the rules in your state before making political contributions.

For more information, be sure to check out the “Registration and Reports Required” section of the U.S. Political Contributions Compliance Laws online publication on our website.   Please feel free to contact us if you have any questions.

Question: For federal income tax purposes, our organization has been using the aggregate amounts reported on our quarterly LD-2 lobbying activity report as our non-deductible lobbying expenses.  Can the expenditures we compile for LDA reporting be used interchangeably for tax purposes?

Answer: In a word: maybe – depending on the method of LDA reporting you’ve opted to follow.  If you file your LD-2 report using the IRC definitions (method C), then the number you compile and report on your LD-2 can be used interchangeably for tax purposes.  However, if you compile and report your quarterly lobbying expenditures using LDA definitions (method A), the results will not accurately reflect non-deductible lobbying expenses as defined by the IRS.  Because the definition of “lobbying” differs between the LDA and the IRC, the two compilation methods will produce very different results.  If you use LDA definitions to compile your quarterly LD-2, your organization must employ a second process by which to determine your non-deductible lobbying expenses for tax purposes.  A lobbying registrant can determine each year which method they will use to compile the LD-2 report.  Once a method has been selected, a registrant must use that method for all four quarterly reports during that year.  The upcoming first quarter report is a good time to revisit the compilation method used and make changes if elected for 2022.

For more information about filing methods and reporting requirements visit our online publication Federal Lobbying Compliance Law section.

Question: Our company is in the process of hiring a former public official. Are there any issues we should be aware of during this process?

Answer: There are some jurisdictions with revolving door policies restricting what former officials or employees can do once they have entered the private sector. These restrictions are in place to avoid the appearance of impropriety.

Many states require a cooling-off period when officials leave office and transition to the private sector. In South Carolina, a former public official is prohibited, for one year after terminating public service or employment, from serving as a lobbyist or representing clients before the agency or department on which the individual formerly served in a matter the individual directly and substantially participated during public service or employment. The restriction also prohibits a former public official from accepting employment if the employment is from a person who is regulated by the agency or department on which the individual served or was employed and involves a matter in which the individual directly and substantially participated during public service or public employment. A public official who participates directly in procurement may not resign and accept employment with a person contracting with the governmental body if the contract falls or would fall under the individual’s official responsibility.

New York law includes a similar restriction but requires a two-year cooling-off period. A former state officer or employee is prohibited, within two years after termination of employment, from appearing or practicing before such state agency or receiving compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation, or association in relation to any case, proceeding, or application or other matter before such agency. In New York, a former state officer or employee is prohibited, after the termination of employment, from appearing, practicing, communicating, or otherwise rendering services before any state agency or receive compensation for any such services rendered by such former officer or employee on behalf of any person, firm, corporation, or other entity in relation to any case, proceeding, application, or transaction with respect to which such person was directly concerned and in which the individual personally participated during the period of service or employment or which was under the individual’s active consideration.

These are just a few examples of revolving door restrictions. We advise you follow best practices to verify the rules in your jurisdiction.

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Here is your chance to “Ask the Experts” at State and Federal Communications, Inc. Send your questions to experts@stateandfed.com. (Of course, we have always been available to answer from clients that are specific to your needs, and we encourage you to continue to call or email us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies are not legal advice, just our analysis of laws, rules, and regulations.

Q: The Hawaii State Ethics Commission just released updates to their administrative rules. As a registered lobbyist in the state, how do these changes affect me?

A: First, the Ethics Commission’s changes clarify gift rules for registered lobbyists and their clients. “Gifts of aloha,” items with a value of less than $25, are no longer permitted. Lobbyists were previously allowed to give legislators and their staff items such as food, reusable water bottles, and other trinkets because of ambiguity in the governing statutes; however, the new rules make it clear that this practice is now prohibited. Furthermore, any gift given to a legislator’s office where a recipient is not specified will be deemed a gift to the legislator.

Other items, however, are still permitted. Lei, excluding money lei, as well as promotional pens, notebooks, hats, etc. are allowed. Travel to bona fide professional conferences, including modest food and beverage, are also still permitted. To determine if a gift is permissible, the Ethics Commission strongly encourages consultation with a member of the staff to avoid potential monetary penalties.

A few additional items of clarification simply spell out longstanding advice from the Commission.  All expenditures should be reported on an accrual basis beginning January 1, 2021, and time drafting and providing testimony, as well as time spent waiting to testify, are included in determining if the registration threshold has been met. Finally, individuals engaging in “background work” at the direction of a registered lobbyist do not have to register so long as they do not communicate directly with public officials.

Can I use my company’s federal PAC to make contributions to candidates for state office?

With the exception of Massachusetts, contributions from a federal PAC to non-federal state candidates are permissible.  However, the challenging aspect of making these types of contributions is that every jurisdiction has different rules regarding how to register and report such contributions.  To make this a little easier to digest, we have broken down the states into five categories.  Please note:  regardless of the registration and reporting process, in all jurisdictions the federal PAC is subject to the contribution limits according to the law of that jurisdiction.

Category #1:  You do not have to do anything.  Simply make the contribution to the state candidate as you would any other contribution from your federal PAC.  This option is usually only available if your FEC filings are current and complete.  Examples of these jurisdictions include Alabama, Delaware, South Dakota, and West Virginia.

Category #2:  You must register and report as a state PAC.  In these instances, your federal PAC is treated no differently than any other out-of-state PAC.  You must register your federal PAC using that jurisdiction’s registration forms.  You must report your contributions using state forms and file your reports according to that jurisdiction’s filing deadlines.  Examples of these jurisdictions include Connecticut, Georgia, and Tennessee.

Category #3:  You may file your FEC registration and reports in lieu of state registrations and reports. The tricky thing about these jurisdictions is keeping track of whether you file your reports according to the jurisdiction’s reporting schedule or the FEC’s reporting schedule.  Examples of these jurisdictions include Kentucky, New Mexico, and North Dakota.

Category #4:  You have to register using state form and report using your FEC filings, or vice versa. Examples of these jurisdictions include Illinois, South Carolina, and Virginia.

Category #5:  You have a choice regarding how to register and report.  These two jurisdictions include Iowa and Kansas.

As was mentioned, in Massachusetts, federal PACs may not contribute to campaigns in that state.  Federal PACs must establish a separate segregated fund for contributions in Massachusetts and comply with the same requirements as in-state committees.  The separate segregated fund must be established as a depository account in a financial institution authorized to transact business in Massachusetts and having its main office, or a branch office, in Massachusetts.

We have not listed PAC rules for all the states, only examples of some states. If you have a question on a state not listed here, please contact us at 330-761-9960

Before I can make a political contribution using my own funds, my employer requires that I obtain permission first.  Can my employer legally do this?

Yes, employers may require employees to seek preapproval before making personal political contributions. Not only can your employer require this, it’s smart business to do so. Employers may even require preapproval from family members of employees.

This preapproval requirement has evolved as a result of the increased number of jurisdictions enacting pay-to-play laws. A seemingly innocuous contribution by an employee could result in the loss of government contracts, fines, and a ban on future contracting. Criminal sanctions may apply when repeated violations occur. By requiring pre-approval, your employer can properly vet the contribution for compliance with a jurisdiction’s pay-to-play law, including disclosure requirements.

In a majority of jurisdictions, employees covered by pay-to-play laws include officers, partners, directors, senior management, salespersons, and their spouses and dependent children. In Pennsylvania and Kentucky, all employees are covered in the instance of a no-bid contract.

Requiring preclearance of employee personal political contributions is certainly more preferable than imposing a ban on employee contributions, which could result in a violation of applicable labor laws. Various jurisdictions bar employers from retaliating against employees for engaging in political activities, which can include everything from participating in a political rally to making campaign contributions. Even though an employer can require preapproval, an employer cannot directly or indirectly affect an individual’s employment by means of discrimination or threat of discrimination based on the individual’s personal political contributions.

Don’t miss Nola’s October 2022 LobbyComply Pod episode for more information on this important issue.

Q. As a company, we would like to organize site visits for agency officials, so they can better understand our company and industry.  Can we cover expenditures for these visits?

A. State and local gift restrictions will apply to company expenditures associated with a site visit by a government official or employee, especially if your company is a lobbyist employer or state contractor.  Food, beverage, entertainment, travel, lodging, or other promotional/welcome gifts could be restricted or banned.  However, many jurisdictions have specific gift exceptions allowing expenditures in conjunction with site visits.  Each jurisdiction has its own requirements for gift law compliance…

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For more information, be sure to check out the Gift Law and Reports Required sections of the Lobbying Compliance Laws online publication for any  jurisdiction. Please feel free to contact us if you have any questions.

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Q. I’m an in-house lobbyist planning to meet with California legislators to influence state government action. If I go to the meeting accompanied by a registered lobbyist, isn’t my time at the meeting exempt from counting toward the lobbyist registration threshold under the “ride-along” exception?

A. That depends. The California Fair Political Practices Commission (FPPC) amended its regulations in 2016 to narrow the so-called “ride-along” exception.  The exception is now only available to in-house employees who act as “subject matter experts” in communicating with California government officials while accompanied by a registered lobbyist employed or retained by their employer. If the exception does not apply to your circumstances, you must…

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