Q. We recently hired a lobbyist that is coming to our company directly from spending a number of years as a Senate staffer.  What restrictions should we be aware of as her new employer in terms of who she can contact on the Hill?

A. Both the House and the Senate have post-employment restrictions for certain individuals leaving their employment on the Hill.  Importantly, the House and Senate ethics committees will discuss with the staffer prior to his or her departure the restrictions under which he or she must operate.  That said, as her new employer you should definitely be aware of what restrictions are applicable to her situation so neither the company nor she violates the rules.

For the Senate, senior staff (currently defined as individuals whose annual salary is $130,500 or more) are subject to a one-year, Senate-wide ban.  Essentially, senior staff leaving the Senate may not lobby the entire Senate for one year following their departure – this includes lobbying contact with personal, committee, and leadership offices.  Staff making less than $130,500 a year are subject to a one year ban from lobbying their particular office – whether personal, committee, or leadership office.

The House restriction for senior staff is a one year ban from lobbying the particular office for which the former staffer worked and there is no ban in the House for staffers making less than $130,500.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. I would like to contribute to political candidates in my state, but my company is a state vendor. Are there laws prohibiting me from making personal contributions?

A. Whether an employee of a state vendor may contribute to political candidates varies widely based on jurisdiction. The answer may depend on the employee’s role in his or her company, as well as the position held by the candidate receiving the contribution.

Ohio, for example, prohibits a partner, shareholder, administrator, executor, or trustee of a state vendor from making personal contributions exceeding $1,000 to the public official with ultimate responsibility for awarding a contract during the contribution blackout period if the contract is not competitively bid. In this instance, the prohibition depends both on the title of the employee, as well as the position of the public officer receiving the contribution.

Other states prohibit contributions for contracts in certain industries. Florida prohibits individuals or firms providing legal or financial advisory assistance to the Division of Bond Finance of the State Board of Administration from making contributions to any candidate for governor or for a Cabinet position in Florida, during the contribution blackout period.

Connecticut goes so far as to prohibit certain state vendor employees from contributing to candidates, even if the employees are located out of state. For example, employees of a state vendor with the title of treasurer or executive vice president may not contribute to restricted Connecticut candidates, even if they work in another state for their company. Spouses and dependent children over age 18 of restricted employees are also prohibited from contributing.

Each jurisdiction structures its pay-to-play restrictions differently. Be sure to review the campaign finance law for the state in which you plan to contribute to determine if there are restrictions on state vendor employees or their family members.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. I will be attending several upcoming conferences where legislators and other public officials will be present.   I’m not a registered lobbyist at the state level—do I still need to worry about gift limits?

A. Even if you are not a registered lobbyist, you will still need to be mindful of the various gift limits applicable to legislators and public officials you engage at these conferences.  Depending on your company’s status as a lobbyist employer, you may be subject to more stringent limits in certain jurisdictions.  It’s important to remember there is no one-size-fits-all approach to determining permissibility.  Each state addresses gift limits differently, and what will be permissible in one jurisdiction will not be permissible in another.   Further, you should not depend on the legislator or public official to know applicable gift limits.  Because gift limits may vary depending on your company’s status as a lobbyist employer, officials may not be aware of which limit to apply when accepting gifts and benefits.

Numerous states have gift exceptions specifically applicable to expenditures at national conferences to which all members of the legislature are invited (such as NCSL) as long as the expenditures are part of the conference agenda.  Examples of this include lunch/dinner events, or a sponsored state night.  However, for private dinners and events and other expenditures not included on the official agenda, you will still be subject to a state’s regular gift limits and restrictions.

In some cases, your expenditures on behalf of these individuals will need to be disclosed on a lobbyist employer report.  You will need to coordinate closely with your company’s government affairs or legal department to not only determine permissibility, but to determine whether the expense is reportable. For jurisdictions requiring disclosure, you may need to report the date of the expense, the name of the individual(s) receiving the benefit, a brief description, and the value of the expense.   Make sure to save itemized receipts.  Some jurisdictions require you to report the name and address of the vendor (such as a restaurant or catering company) and may additionally require you to determine the reportable amount by specific benefit received.  Some states do not permit meal expenditures to be calculated on a prorated basis (i.e., a dinner valued at $375, divided by the number of attendees) but instead require disclosure of a specific amount attributed to a particular legislative official or employee (i.e., $15.75 for the salmon entrée).

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. I recently became a registered lobbyist in my company’s home state.  I am also very active politically.  Are there any restrictions on my political contributions now that I am a registered lobbyist?

A. An individual’s status as a registered lobbyist can place additional restrictions and requirements on him or her related to his or her political contributions. Some jurisdictions place strict restrictions on a lobbyist’s ability to make contributions.  South Carolina prohibits registered lobbyists from making contributions to a candidate or anyone acting on behalf of a candidate if the lobbyist engages in lobbying the public office or public body for which the candidate is seeking election.  California has a similar prohibition, providing lobbyists may not contribute to a state candidate or officeholder, or their controlled committees, if registered to lobby the governmental agency for which the candidate seeks election or to which the officeholder belongs.  Other jurisdictions limit the amount a registered lobbyist can contribute compared to a nonregistered individual.  Registered legislative and executive agents in Massachusetts may contribute no more than $200 in the aggregate to any one candidate and such candidate’s committee during a calendar year.

A number of jurisdictions require reporting of lobbyist contributions.  Pennsylvania has extensive registration and reporting requirements for lobbyists who make personal political contributions, requiring them to register with the state before making a personal contribution and to file reports on the same schedule as a PAC.  Maryland’s reporting requirements are not as extensive, requiring certain political contributions to be disclosed on the lobbyist’s activity report.

When an individual becomes a registered lobbyist, he or she must review the applicable rules on his or her political contributions.  If unsure as to the requirements, please be sure to review our website at www.stateandfed.com for up-to-date information.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. The Canadian branch of our company would like to set up some meetings with the federal government.  Does Canada have lobbying laws too?

A. Canada does have lobbying laws at the federal, provincial, and even municipal levels of government.

For the federal government, in-house lobbyists must register when the collective time devoted to lobbying activities by all of its employees reaches or exceeds 20 percent of the duties of a single equivalent-paid employee of the corporation or organization during a calendar month. Lobbying is communicating with public officeholders on behalf of another person or entity.

If the above threshold is reached, the senior most paid person of the company is required to file a registration and become the registrant. This registration will contain a list of all the names of the employees whose job duties include lobbying in some fashion.

Once registered, the registrant is required to file monthly returns. A return is the Canadian form of a report. The returns are due on the 15th day of the month. On this return, the registrant simply reports any communications that were had with public officeholders and the date and content of those meetings. The monthly return does not need to be filed if: (1) no communications with public officeholders took place that month; (2) no information on the registration needs to be amended; and (3) the undertaking has not been performed or terminated.

It isn’t just lobbying the federal government that you have to worry about, either. Almost all of the provinces have a separate lobbying law, and the major cities throughout the country are starting to pass lobbying laws as well. If you have specific questions related to your company’s activities in Canada, we will be more than happy to help you.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

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.  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 $12,500 on lobbying activity during a quarterly period;
2. An organization has at least one employee who spends 20 percent of his or her time engaged in lobbying activity; and
3. That same 20 percent 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, overhead, payments to outside lobbyists, and the portion of any dues paid to outside membership organizations that are allocated toward lobbying.  Likewise, when determining whether an individual employee meets the 20 percent standard, all time engaged in any activity that is intended to support lobbying contacts must be considered including background and preparatory work, research, strategy sessions and conversations.

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 semiannual contribution reporting.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. Many of the state legislatures I lobby are currently in session. Does this affect when my lobbying reports are due?

A. While some states have reporting schedules that do not vary from year to year, others tie their lobbyist reporting schedules to their legislature’s activity. Currently, 11 states have reporting schedules that vary to some degree with their legislative sessions: Alaska, Arkansas, Connecticut, Georgia, Hawaii, Idaho, Mississippi, Montana, Nebraska, Nevada, North Carolina, and Rhode Island. Some of these states require additional reports during the legislative session, while others tie reporting dates to the session’s adjournment.

For example, Georgia requires legislative lobbyist reports twice per month while the Legislature is in session. Reporting frequency decreases to once per month once the Legislature adjourns. Connecticut, Arkansas, and Alaska all require monthly legislative lobbyist reports while their legislatures are in session.

Other states have reports tied to the official adjournment of the legislature. Mississippi requires an end-of-session report 10 days after the Legislature adjourns sine die. Some legislatures, such as Mississippi and Nebraska, have the flexibility to change their planned adjournment date, in which case a report may be due earlier or later than previously announced. It is also important to note only official adjournment dates affect the reporting schedule. State legislatures concluding business for the year, but not officially adjourned, may still require a lobbyist to use the “in session” reporting schedule. Rhode Island, for example, requires monthly reports only when the Legislature is in session, but the Legislature does not officially adjourn until January of the following year.

Special legislative sessions may also trigger a lobbying report. States such as Nebraska and Hawaii require an additional report following the adjournment of a special legislative session. In states requiring special session reports, a report may be required even if the full legislature did not convene in special session.

Each jurisdiction’s statutory reporting schedule is different. Be sure to know your state’s reporting schedule and whether a legislative session will change your requirements.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. With the start of the New Year, are there any changes I should be aware of in political contribution limits?

 A. Aside from changes as a result of new legislation, the most common adjustment of contribution limits is indexing for inflation.  Typically, adjustments are made biennially for inflation according to the Consumer Price Index.  The Consumer Price Index is calculated by the United States Department of Labor, Bureau of Labor Statistics.

This concept was addressed by the United States Supreme Court in Buckley v. Valeo (1976).  The court allowed federal contribution limits to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the Consumer Price Index for the 12 preceding months.

The principal behind this is quite simple:  it is based on the recognition that the cost of campaigning steadily increases each year based on the increase to cost of living.  Campaign fliers, mailers, yard signs, and media buys do not cost the same in 2013 as they do in 2015.

This year, California adjusted its contribution limits for the 2015-2016 biennium.  In doing so, corporate contributions limits for general assembly candidates increased from $4,100 per election to $4,200.  Washington adjusts its limits in even-numbered years, so the 2014 corporate contribution limit of $950 per election for state legislative candidates will remain the same for 2015.   Illinois adjusts its limits in odd-numbered years, so the 2014 corporate contribution limit of $10,500 per election cycle for legislative candidates will increase to $10,800.

Finally, the indexing of contribution limits usually results from amendments to a state’s administrative code as opposed to its statute.  In order to ensure compliance, a contributor should review both of these sources.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. I will be having meetings with state legislators to introduce myself and my employer. I do not have any legislation of interest yet, though I anticipate that I will. Will this require lobbyist registration?

A. Goodwill lobbying is covered in many jurisdictions. The following 19 states may require lobbyist registration for goodwill activities: Alaska, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Maryland, Minnesota, Missouri, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Texas, and Vermont. Some jurisdictions have specifically addressed goodwill lobbying. Connecticut covers “door opening,” including such things as telephone calls that you make to set up informational meetings with officials. The Maryland State Ethics Commission has indicated generating goodwill or engaging in educational discussions with officials or employees is considered lobbying.

Some states consider additional activities in determining whether an activity is goodwill lobbying. In Pennsylvania, lobbying includes providing hospitality to a state official or employee for the purpose of advancing the interest of the lobbyist or principal. Kansas also includes entertaining or providing a gift to a state officer or employee in its definition of lobbying in certain circumstances.

Any time you interact with a state official or employee, you must consider whether your activities constitute lobbying, even if you are not engaging in lobbying in a traditional manner. Your activities may count toward the threshold requiring lobbyist registration.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

 

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

A. In a word: maybe – It depends 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 nondeductible 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 nondeductible 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.

 

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

 

Q. I am a registered lobbyist and have been asked to serve on a state board. Are there any laws preventing me from serving?

A. Generally, there are no laws preventing a registered lobbyist from serving on a state board or commission. However, many states have laws regulating the board service of registered lobbyists.

For example, in South Carolina a lobbyist is prohibited from serving as a member on any state board or commission. Illinois also has a general prohibition; however, their prohibition extends to the spouses and immediate family members of a lobbyist who are living at home. Such individuals are prohibited from serving on a board, commission, authority, or task force authorized by state law or executive order.

Other states only prohibit a registered lobbyist from serving on certain boards or commissions. In Ohio, both legislative and executive branch lobbyists are prohibited from serving on the Ohio Elections Commission. In New York, lobbyists are prohibited from serving as a member of the Joint Commission on Public Ethics and the Legislative Advisory Council.

Some states only prevent lobbyists from serving on boards that could possibly benefit themselves or their employers. In Tennessee, lobbyists are prohibited from serving as a member of a board, commission, or governmental entity with jurisdiction to regulate the business endeavors or professional activities of any employer of the lobbyist. In Wisconsin, lobbyists are prohibited from serving on a state board or commission related to who and what they are lobbying.

Every jurisdiction’s rules on lobbyists serving on state boards and commissions is different. Before agreeing to serve on a board or commission, you should consult that jurisdiction’s ethics commission.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. I am a registered lobbyist, and I receive a contingency fee as part of my compensation.  Should I be worried?

A. In a majority of jurisdictions, there are express provisions prohibiting registered lobbyists from receiving a contingency-based fee.  Every jurisdiction treats this issue differently, and there is a wide range of statutory oversight.  This issue becomes especially problematic for in-house employees who wear dual hats—you may be required to register as a lobbyist because of your interactions with government officials on behalf of your company, but you may additionally be involved in sales work.

In some jurisdictions, including Louisiana, New Hampshire, and Wyoming, there are no prohibitions whatsoever. Other jurisdictions, such as Nevada, only narrowly prohibit contingency fees for influencing the outcome of legislative action. However, there are even more restrictive bans in other jurisdictions, including Florida and Arkansas, that not only prohibit registered lobbyists from receiving a contingency-based fee, but prohibit this for anyone involved in government procurement, absent meeting a limited exception for salespersons or sales agents.

New York is one example of a jurisdiction banning lobbyists from receiving contingency fees, although the state does have a well-defined registration exception for individuals who qualify as commissioned salespersons. To qualify, the primary purpose of employment must be sales, other lobbying activity must be limited, and the individual must meet specific requirements regarding the percentage of the commission. Another example is North Carolina, where the contingency fee ban is not applicable to an individual doing business with the state whose regular remuneration includes commissions based on these types of sales.

Bottom line, if you are required to register as a lobbyist, you must be aware of the laws applicable in your jurisdiction if you receive a contingency-based fee for your work.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: experts@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. I provided a state legislator with a permissible gift.  I will be sure to include it on my next report.  Is there anything else I need to know regarding proper disclosure of this expenditure.

A. There are sometimes additional disclosure requirements related to an expenditure on a covered state official or employee.  You should be sure to consider two possibilities: a notification to the official or a supplemental report in addition to your routine lobbying report.

A number of states have a notification requirement if you are going to list the name of a covered public official on your lobbying report.  For example, Illinois actually requires two notifications.  You must provide the official with a contemporaneous notification at the time of the expenditure, and a post- notification is required within 30 days after the report has been filed.  In other jurisdictions, the notification is related to whether you must itemize the expenditure or list the official’s name on your report.  In Arkansas, you must list the state official’s name if payment for food (including beverages), lodging, or travel is in excess of $40.  Once the official is named on your report, you must provide him or her with a notification of this at least seven working days prior to the filing of your report.  Pennsylvania imposes a yearly aggregate threshold on the listing of an official on the principal’s lobbying report and corresponding required notification.  This threshold is $250 per calendar year for gifts and $650 per calendar year for transportation, lodging, and/or hospitality (which includes food and beverage).  Please keep in mind that notifications are not filed with the state, but sent to the official named on your report.

Some jurisdictions require an additional report to be filed with the state when making certain permissible expenditures.  For example, if you invite all members of a Maryland legislative unit to a meal or reception, you must extend a written invitation to all members of the legislative unit and register the meal or reception with the Maryland Department of Legislative Services at least five days before the date of the meal or reception.  You must then report the details of the meal or reception to the Maryland Ethics Commission within 14 days after the date of the meal or reception.  In Indiana, you must file a report within 15 days if you make a gift or gifts to a legislative person if the value of the gift or gifts equals $50 or more in one day or together totals more than $250 in a reporting year.

Proper disclosure of a permissible expenditure can include additional steps.  Be sure to check with your jurisdiction’s ethics agency to ensure all disclosure requirements are met.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Q. Several employees from my organization engage in selling to the states.  Do they have any lobbyist registration or reporting requirements?

A. The answer to your inquiry depends on two things:  first, does the state regulate procurement lobbying, and second, is there an applicable bona fide salesperson exception to the registration requirement.  To determine whether a state regulates procurement lobbying, you can use our Executive Source Guide on Procurement Lobbying.  The regulation of individuals attempting to influence the selection of a vendor has increased significantly, and this trend is expected to continue.

In states where procurement lobbying is regulated, individuals engaging in sales activity may be exempt from the registration requirement where a bona fide salesperson exception exists.  For example, in Maryland, a regular full time employee of a vendor paid to engage primarily in sales activity on behalf of the vendor is exempt from lobbyist registration.  In New York, the exception even extends to sales agents with contracts to represent their clients for a period longer than six months.

Absent an exception, sales employees who meet the lobbyist registration threshold in a state regulating procurement lobbying will be required to register.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.