Q: We are currently reviewing our process for complying with the various reporting requirements established under the Lobbying Disclosure Act (LDA) and would like some advice on how we can improve our accuracy moving forward. I don’t think we have been capturing all the relevant expenditures that we need to include. Can you review what expenditures are required to be reported on the LD-2 quarterly activity report?

A: Thank you for your question. I applaud your effort to review and improve upon your existing processes.  Continually taking a look at how and what information is being compiled is an important part of any comprehensive compliance process. The LDA requires registrants to provide a good faith estimate of all lobbying expenditures within the organization on a quarterly basis. This seemingly simple requirement can prove to be somewhat complex given the number of moving parts involved in accurately reflecting reportable expenditures.

Relevant expenditures required to be included in the organization’s quarterly calculation:

1. The value (including compensation and associated overhead and expenses)  of any and all employee time spent on lobbying activities. This includes employees who spend 20% or more of their time engaged in lobbying activities (and are, therefore, listed by name on the report thereby becoming a “registered lobbyist”) and those who do not meet the statutory definition of a “lobbyist” (employees with activity below 20% during the quarter – non-lobbyists).

While it is often straightforward to collect this information for your registered lobbyists, it can be more nuanced to properly capture this activity for those folks under the 20% threshold. Non-lobbyist activity can come in many forms.  Generally, it includes direct (with a covered official) and indirect (internal or with an outside organization) communication such as planning activities, research, coordination, conference calls, meetings, strategy discussions and any other work that is undertaken to augment or further the lobbying objectives of the organization.

Examples of capturable indirect activities:

Research and/or preparation of talking points to be used in connection with a lobbying contact with a covered official.

Engaging in an internal discussion regarding strategic lobbying plan to support organization’s position on proposed legislation or administrative policy.

Drafting bill language, presentations, or letters to be shared with Covered Officials regarding federal policy or administrative actions.

CEO or other leadership meeting with or otherwise communicating with covered officials on the Hill or in the Administration.

Participation with an outside organization to accomplish any of the above listed ends.

2. Payments accrued to outside lobbyists and lobbying firms;
3. Federal lobbying portion of any dues or other payments made to trade associations, membership organizations and the like.

As you undoubtedly know, there are a variety of subtle reporting details that organizations must review and understand when establishing processes and procedures to ensure compliance with the federal law.  For tailored advice centered around your organizational realities, contact us directly for assistance. In addition, details regarding reporting requirements can be located in the Federal Lobbying Compliance Law section of our online publication resource.

Q. We file our federal LD-2 quarterly lobbying reports under the IRC definitions.  Does the IRC 5 percent de minimus rule apply to capturing reportable expenditures on our quarterly LD-2 disclosure?

A. In short, yes, but with a caveat.  If your organization has opted to compile lobbying expenditures using Method B or Method C, the 5 percent de minimus rule applies.  As a frame of reference, the IRC allows taxpayers an exception for including the time of individuals who spend less than 5 percent of their time engaged in lobbying activities as defined by the IRS…

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We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or email with questions about your particular company or organization. As always, we will confidentially and directly provide answers and information. Our replies are not legal advice, rather analysis of laws, rules, and regulations.