Part IA
The Lobbying
Disclosure Act
of 1995:
Reform Efforts
and Current Law
1
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Introduction to Part IA
The Lobbying Disclosure Act of 1995 represented Congress’s first attempt in half
a century to reform the principal federal statute that governs lobbying the United
States Government, whether the executive branch or the Congress. This Part of
The Lobbying Manual first surveys the history of federal lobbying disclosure
legislation to the present time, including amendments to the LDA adopted in 1998
and 2007. Then follow detailed descriptions of the scope of coverage of the LDA,
the specific disclosure obligations that arise under that statute, the administrative
and enforcement scheme as it exists today, and the constitutional issues presented
by various aspects of the LDA and its administration.*
*While Chapter 6 of this Part focuses largely on the administration and enforcement of the LDA,
it also canvasses various miscellaneous federal restrictions on lobbying, including lobbying by
federally chartered or created entities and new restrictions on LDA-registered lobbyists imposed
by the Obama Administration.
3
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CHAPTER 1
Federal Lobbying Regulation:
History Through 1954
BY WILLIAM N. ESKRIDGE, JR.
1-1
1-2
1-2.1
1-2.2
1-3
1-3.1
1-3.2
1-3.3
1-3.4
Introduction
Background on Federal Regulation of Lobbying
Lobbying Abuses and Early Government Responses (1860–1913)
Proposed Federal Regulation (1913–1946)
Federal Regulation of Lobbying Act (1946)
Statute and Early Experience Under It
Difficulties of Early Implementation (1946–1954)
Supreme Court’s Decision in United States v. Harriss (1954)
Subsequent (Post-Harriss) Developments and Enforcement
1-1 Introduction
There are few problems as intractable in our representative democracy as the regulation of “lobbying,” that is, the efforts of groups and individuals to secure the
enactment or defeat of legislation by their elected representatives. The lobbying
problem is difficult because it brings into focus the tension between two images of
government, both of which are important to our democracy.
On the one hand, we have traditionally believed our elected representatives
should be responsive to the desires of their constituents; thus our system of politics assumes a vigorous contest among competing interests for the attention, and
the votes, of legislators. This model of government suggests that individuals and
groups should be permitted—in fact, encouraged—to make their views known
to their representatives. This is reflected in the First Amendment’s guarantee that
no law shall abridge the people’s right to petition the government for redress of
grievances.1 One of the goals of the right to petition is to encourage and foster a
“pressure” system of politics, in which interest groups are expected to influence
representatives through a wide array of techniques, with very few out-of-bounds,
in a continuing game of struggle and domination.
At the same time, few Americans would endorse an unrestrained pressure
system; and a variety of lobbying techniques are widely considered deplorable, or
5
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at least unethical. To take a dramatic example, bribery is a form of lobbying that
not only is unprotected by the right to petition, but is a criminal offense.2 More
generally, the public often discerns in the lobbyist an unsavory figure, an “influence peddler” who secures for his clients an unfair advantage in the deliberations
of government. (The series of scandals commonly associated with lobbyist Jack
Abramoff and coming to light during 2005-63 did nothing but reinforce this image
in the popular mind.) The impulse to safeguard the integrity of government decision making is recurrently fueled by allegations (well-founded or otherwise) that
lobbyists have made secret deals with legislators to benefit special interests at the
expense of the general welfare, or that intense pressures (in the form of bribes,
threats, or coercion) have been brought to bear upon legislators, or that some
groups have been well-represented in the lobbying process while others have been
substantially or completely unrepresented.
The recent history of lobbying regulation in the United States reflects the
dynamic effort to accommodate both norms—to give the citizenry a voice in the
system by which they are governed and to regulate or prevent the worst abuses
of lobbying. On the national level, this effort was a notable failure—at least until
1995. Only time will tell whether the Lobbying Disclosure Act of 1995 achieves a
significant success as a reform effort.
1-2 Background on Federal Regulation of Lobbying
Lobbying Members of Congress and the executive, by fair means or foul, has
been an important and accepted part of national politics since the foundation
of the Republic. Complaints about the “excessive” influence of lobbyists have
been equally persistent. As early as 1852, the House of Representatives passed a
lobbying-regulation statute prohibiting a newspaperman “who shall be employed
as an agent to prosecute any claim pending before Congress” from being on the
floor of the House.4 In 1854, the House adopted a resolution establishing a select
committee to examine “whether money has been offered to members or other
illegal or improper means used, directly or indirectly, to secure the passage or
defeat of any bill before Congress.”5
1-2.1 Lobbying Abuses and Early Government Responses (1860–1913)
Citizens concerned with lobbying abuses became increasingly vocal, and increasingly well-organized, in the last third of the 19th century. During that period, federal government expenditures increased substantially, stimulating ferocious competition for government largesse as well as heightened public concern about the
means of political competition. For example, the Credit Mobilier scandal during the
Grant Administration revealed bribery and pressure tactics by railroad lobbyists
seeking participation in the transcontinental railroad project. The public outcry
was a harbinger of middle-class “good government” campaigns that contributed
to civil service reform in 1883, the election of Grover Cleveland to the presidency
in 1884 and 1892, and the rise of the Progressive movement of the early twentieth
century.
Growing concern about lobbying abuses was reflected in scattered statutory
reforms, especially at the state level, in the late 19th century. In Georgia, after the
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Federal Lobbying Regulation: History Through 1954
7
Democrats had regained power, a state constitutional convention was called in
reaction to the abuses of power during Reconstruction.6 These abuses must have
included various squalid lobbying practices, since Georgia outlawed lobbying in
its 1877 Constitution.7 Other states also confronted the problem of lobbying. For
instance, Massachusetts enacted a law requiring lobbyists to register and disclose
the “expenses paid and incurred by the person” required to register.8 The Massachusetts approach became the model that many other states followed.9 During this
period, the only successful federal effort to regulate lobbying was a registration
requirement that was in force solely for the duration of the 44th Congress.10
These early governmental responses suggest three different strategies for regulating lobbying that have carried forward to the present day. One strategy is to
define and prohibit abusive lobbying practices. This was the approach taken by
the Georgia Constitution of 1877, which prohibited lobbying altogether.11 Today, a
broad prohibition, such as outlawing any and all contact with legislators, or even
staff, would very probably be held to violate the First Amendment’s right to petition.12 Prohibitory legislation would have to target specifically abusive lobbying
practices or set up reasonable prophylactic rules. Thus a regulation that mirrored
prohibitions in the Federal Election Campaign Act13 by placing a limit on how
much money is spent during the lobbying contact (for example, the price of the
meal or the value of accommodations) would probably be constitutional.14
A second strategy is to require registration of lobbyists. Under this approach,
individuals and organizations that engage in specified “lobbying” activity must
register with some agency or official. The short-lived congressional effort during
the 44th Congress exemplifies this approach.15 The advantage of this approach is
that it is almost certainly constitutional. The disadvantage is that it does little to
regulate abusive practices.
The third strategy of regulation—namely, disclosure—has traditionally been
used in tandem with the registration approach. The disclosure approach requires
registered lobbyists to provide details about their activities, such as the amount
spent on lobbying, the names and amount given by contributors to the lobbying
organization, the amount of time spent communicating with each legislative member or staff, and the precise piece of legislation involved. Although not as detailed
as some later disclosure legislation, the 1890 Massachusetts lobbying law was the
leading example of the disclosure approach in the nineteenth century.16
1-2.2 Proposed Federal Regulation (1913–1946)
Public concern about lobbying Congress increased markedly during the Progressive Era of the Roosevelt and Wilson Administrations. The first thorough federal
investigation of lobbying was undertaken in 1913. President Wilson publicly
denounced the “extraordinary exertions” made by business lobbyists opposing
the Underwood tariff bill that year.17 The Senate immediately adopted a resolution
calling for a special investigation of tariff lobbying.18 The subsequent investigation
resulted in no legislation, but did educate the public about the pervasive lobbying
on Capitol Hill.19
Also in 1913, a select committee of the House investigated newspaper charges
of unscrupulous lobbying by representatives of the National Association of Manufacturers (NAM).20 The information uncovered during the investigation of NAM
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CHAPTER 1
was quite remarkable. For example, there was evidence that NAM controlled some
committee appointments,21 paid the chief page of the House to report conversations by House Members on the floor and in the cloakroom,22 and enjoyed its own
office in the Capitol.23 Less surprising, though still disturbing, were the large sums
of money the lobbyists had at their disposal to influence legislation. In response
to the massive misconduct discovered, Members introduced a number of bills to
regulate lobbying.24 In what was to become a familiar pattern of lobbying reform
legislation, not a single one of these bills managed to find its way out of either the
House or Senate Judiciary Committee.25
After 1914, lobbying regulation bills were regularly introduced in Congress
and just as regularly died in committee. The next burst of serious legislative interest came in the late 1920s. Aggressive lobbying activities by opponents of a federal
estate tax bill in 1927 stimulated a number of lobbying reform bills. Senator Thaddeus Caraway’s S. 1095 was reported favorably by the Senate Judiciary Committee26
and passed by the Senate27 in 1928. The bill died in the House. The public was again
shocked in 1929, when it was revealed that an employee of the Manufacturers Association of Connecticut “temporarily” joined the staff of Senator Hiram Bingham and
accompanied the Senator in closed-session deliberations on the Smoot-Hawley tariff
bill. This incident generated another investigatory committee,28 but, as before, no
legislation.
In 1935, the utility lobby came under scrutiny. The investigation focused on
the utility companies’ efforts to block the passage of the Wheeler-Rayburn bill,
designed to end the abuses of the holding company. The bill was still being considered when Senator Hugo Black began his hearings on the lobbying activities of the utility industry.29 Among other abuses, Black’s committee discovered
that the utility companies had orchestrated a campaign that sent over 250,000
telegrams to Washington. This campaign hardly reflected the feelings of the
American public, since the utility companies paid for the telegrams, and officers
and employees of the companies wrote them, often forging the signatures of
the senders.30 In part because of the activities uncovered, Congress enacted the
Public Utility Holding Company Act of 1935,31 which included a registration
requirement for utility lobbyists.32
Senator Black was not content just to require public utility lobbyists to register. Earlier in 1935, he had introduced a broad measure requiring the registration
of all persons seeking to influence any government official and requiring disclosure of the interests represented, activities undertaken, and expenses incurred
in lobbying.33 Based upon the evidence assembled in earlier investigations and
in his own hearings,34 Senator Black emphasized “that our Government has lost
hundreds of millions of dollars which it should not have lost if there had been
proper publicity given to the activities of lobbyists.”35 The Senate Judiciary Committee promptly reported a briefer version of Senator Black’s bill in May 1935,36
and the bill passed the Senate soon thereafter.37 But it ran into problems in the
House. While the Senate hearings were dominated by Senator Black’s unveiling of lobbyists’questionable activities, the House hearings were dominated by
the lobbyists themselves, who belittled Senator Black’s concerns about influence
peddling.38
The House Judiciary Committee bottled up the Black bill until March 1936 and
then reported a much narrower bill of its own, the Smith bill,39 which the House
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Federal Lobbying Regulation: History Through 1954
9
passed.40 The Committee Report on the Smith bill nicely summed up the competing considerations:
This committee believes that every American citizen and interest that may
be affected by proposed legislation has the highest right and privilege to
be heard, a right that should be neither denied nor abridged. But, on the
other hand, the membership of Congress, to whom appeal is made, and
upon whom it is sought to exert pressure, and public likewise to whom
it is appealed to, and who is asked to exert that pressure, have a right
to know by whom and in whose interest such appeals are made, and
by whom these movements are financed, and the manner in which the
money is expended.41
The Smith bill was narrower than the Black bill. Both required registration
of congressional lobbyists and disclosure of their employers. Unlike the Black
bill, the Smith bill did not further require reports of all persons and organizations
expending money and receiving contributions, or registration of executive department lobbyists.
The House-Senate Conference Committee reported a complex compromise
bill.42 The conference bill applied to individuals or organizations that sought
(1) to enact or defeat legislation in Congress,43 (2) to influence the election of any
candidate for federal office,44 or (3) to influence any federal agency or official.45
Lobbyists before Congress had to register with the Clerk of the House and Secretary of the Senate; the registration would disclose, among other things, the interests represented, the compensation, and which of their expenses would be met by
their employers or clients.46 Lobbyists before Congress were also required to file
monthly reports naming their contributors and amounts contributed, the recipients of their expenditures in excess of $10 and the amounts expended, and the total
contributions received and expenditures made in the calendar year.47
The broad coverage of the conference bill doomed it in the House, where opponents argued that the bill reached far beyond the utility lobbyists whose activity
had triggered congressional concern about the issue. One Member feared that “the
law would be applicable to all farm organizations, all patriotic organizations, all
women’s clubs, all peace societies—in fact to every group or organization which
might, directly or indirectly, be interested in the passage or in preventing the passage of any given legislation.”48 The House rejected the conference bill by a threeto-one vote.49 Lobbying regulation was a dead issue for the next ten years.
1-3 Federal Regulation of Lobbying Act (1946)
After decades of occasionally intense, but frustrating effort, Congress enacted comprehensive federal lobbying regulation almost by accident in 1946. The Federal
Regulation of Lobbying Act50 succeeded where so many other lobbying bills had
failed in the past, partly because it was a component (Title III) of the much larger
Legislative Reorganization Act.51 The Lobbying Act provisions had been placed in
this larger bill because the Joint Committee on the Organization of Congress had
“heard many complaints during its hearings of the attempts of organized pressure
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CHAPTER 1
groups to influence the decisions of the Congress on legislation pending before the
two Houses or their committees.”52
The mere fact that the Joint Committee was interested in the lobbying provisions did not mean that lobbying was the focus of its activities, however. Apparently, the Joint Committee held no hearings on lobbying, and its report devoted
little more than a page to the contours of lobbying regulation.53 Based upon this
report, the Office of Legislative Counsel drafted the Lobbying Act provisions of
the Reorganization Act. Given the scant legislative guidance and great time pressure (only a few months to draft comprehensive lobbying rules and the remainder
of the Reorganization Act), the Legislative Counsel simply adopted the 1936 compromise, with a few modifications.54
The reports of the standing committees that considered the Reorganization
Act were not much more illuminating than the Joint Committee’s report on the
proposed requirements of the lobbying title. Thus, the Senate Judiciary Committee
reported that lobbying regulation should not apply to newspaper publishers, witnesses in committee hearings, those seeking to influence Congress without compensation, and organizations whose lobbying activities were only “incidental.”
On the other hand, the Committee believed that the regulation should embrace
those who inspire letter campaigns, those who come to Washington “under the
false impression that they exert some mysterious influence over Members of Congress,” and “honest and respectable representatives of business” who seek openly
and frankly to influence legislation.55 Floor discussion of the lobbying provisions
reflected confusion over their effect and some concern that the provisions would
“intimidate” citizens desiring to petition Congress.56 But, as Senator John Kennedy
later wrote, “Congress was in no mood to hold up the Legislative Reorganization
Act and Title III was in effect carried through on the coattails of the other congressional reforms regarded as most important by Congress.”57
As enacted, the Federal Regulation of Lobbying Act58 closely tracked the 1936
conference bill, except that the 1946 Act, following the Legislative Counsel’s draft,
did not regulate lobbying of the executive branch.59 The critical portions of the
Lobbying Act were Sections 305, 307, and 308, specifying who had to register and
the conditions under which a registrant’s receipts and expenditures for lobbying
had to be reported.60 Individuals and groups had to register if they “engage[d]
[themselves] for pay or for any consideration for the purpose of attempting to
influence the passage or defeat of any legislation.”61 A registration statement had
to specify the person by whom the lobbyist was employed, the interest the lobbyist
represented, compensation, and expenses.62 Each registered lobbyist had to make
quarterly reports of all money received and expended for lobbying activities and
had to specify in the reports the proposed legislation that the lobbyist was paid to
support or oppose.63 More generally, the sum of all contributions and expenditures
whose purpose was the passage or defeat of any legislation or whose purpose was
to influence the passage or defeat of any legislation had to be reported.64
The statute required more than a general sense of how much money was being
spent for what purposes. Registrants had to disclose names and addresses of contributors to the lobbyists making contributions aggregating $500 or more.65 They
also had to report names and addresses of persons to whom they made expenditures aggregating $10 or more.66 The Act contained a number of exceptions: individuals who merely appeared before congressional committees, public officials
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11
acting in their official capacity, and newspapers (as long as the newspaper did not
engage in any other influencing of legislation outside of its pages). Those required
to register had to file reports every quarter and keep receipts for two years.67
1-3.1 Statute and Early Experience Under It
The passage of comprehensive lobbying regulation was a significant victory for
reformers. Unfortunately, the birth of the statute was attended by a number of
complications. The time pressure during the drafting stage, the use of a previous
compromise, and the inherent problems of regulating political speech combined to
result in the enactment of a weak statute. While all three factors caused problems,
the inherent difficulty of regulating political speech was doubtless responsible for
many of the Lobbying Act’s flaws.
The most serious practical problem with the 1946 Act was the lack of a workable enforcement mechanism. The Act required a host of filings with the Clerk of
the House and Secretary of the Senate,68 but nowhere did it authorize the Clerk of
the House or the Secretary of the Senate to penalize lobbyists who did not comply
or even to investigate to determine compliance. The sanctions provided for in the
Act were criminal penalties,69 which seemed rather harsh for most violations of
the statute. Though the responsibility is never made explicit, it appeared that the
Department of Justice was charged with enforcement because the only sanctions
were criminal ones.70 There was no provision for coordination between the Clerk
of the House and the Secretary of the Senate (each charged with receiving registration statements and reports), or between them and the Department of Justice
(responsible for enforcement of the requirements). Since the normal channels of
bureaucratic paper flow did not exist between Congress’s administrators and the
Department, this omission created a framework conducive to nonenforcement of
the statute.
A second major problem was a central conflict on the face of the statute. Congress appears to have constructed the Lobbying Act to bring under public scrutiny
two different practices. The first was the employment of lobbyists and the expenditure of funds for and by these paid lobbyists. The Lobbying Act addressed this
concern in Section 308 by requiring registration by these lobbyists and the filing
of quarterly financial reports. The second was the collection of “contributions”—
principally by trade associations and special interest groups—to be used to influence legislation by means of hiring lobbyists or otherwise. Because of threshold
prerequisites to coverage found elsewhere in the Lobbying Act and potential constitutional imperatives, as well as practical considerations, the distinction between
these two practices ultimately lost its meaning. Yet Congress’s attempt to meld
together treatment of the two resulted in a statute of remarkable opaqueness.
1-3.2 Difficulties of Early Implementation (1946–1954)
The problems evident on the face of the statute made it difficult to implement.
From the time of its enactment to the mid-1950s, compliance with the registration
and disclosure requirements was very uneven. For example, between 1946 and
1950, only 3,494 quarterly reports were filed under the Act,71 representing, surely,
a small fraction of the active lobbyists during that period.
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Notwithstanding these small numbers, few people were investigated for failing to file.72 Moreover, through 1954 there were only three reported prosecutions.73
None of the defendants was convicted in any of these prosecutions. In a fourth
case, National Association of Manufacturers v. McGrath,74 Judge Alexander Holtzoff
(for a three-judge district court) ruled that the Lobbying Act was unconstitutional
in two respects. First, he held that various provisions violated the Due Process
Clause because they were “manifestly too indefinite and vague to constitute an
ascertainable standard of guilt.”75 Second, he held that the provision of Section
310(b) prohibiting violators from further lobbying for three years was inconsistent
with the First Amendment.76 The statute was off to a bad start.
Judge Holtzoff was also the judge to whom the government’s prosecution in
United States v. Harriss77 was assigned. The information named the following parties as defendants: Robert Harriss, a commodities broker; Tom Linder, Commissioner of Agriculture for the State of Georgia; James McDonald, Commissioner of
Agriculture for the State of Texas; Ralph Moore, a trader of commodities futures;
and the National Farm Committee.78 The information alleged that Linder, McDonald, and Moore, as directors of the National Farm Committee, used the organization (ostensibly organized to further the interests of farmers) to influence Congress
and advance their private interests in commodities futures trading. In addition,
Moore received money during this time from Harriss to influence Congress so
commodities futures prices would rise.79 Moore would pay for dinners and the like
for Members of Congress, held in the name of groups such as the Farm Commissioners Council, Southern Commissioners of Agriculture, and the North Central
States Association of Commissioners. The real purpose of these organizations was
never revealed, since no statements were filed under the Lobbying Act.80
The case never reached a jury. Judge Holtzoff granted a motion to dismiss in
1953 based upon his earlier decision in McGrath that the learned jurist considered
“at least stare decisis, if not res judicata.”81 The government took a direct appeal to
the United States Supreme Court.
1-3.3 Supreme Court’s Decision in United States v. Harriss (1954)
By 1953, the last-minute, awkwardly drafted lobbying statute was on the verge
of extinction. Three judges had found it unconstitutional,82 and the results of the
two other reported cases were equally inauspicious—one acquittal83 and one dismissal.84 Defending Judge Holtzoff’s opinion in the Harriss appeal, defendants
asserted the unconstitutionality of the Lobbying Act on three grounds. First, Sections 305, 307, and 308 (registration and reporting) were too vague to satisfy due
process. Second, they violated the First Amendment’s guarantee of freedom of
speech, freedom of the press, and right to petition. Third, Section 310(b) (the threeyear ban on lobbying by those who violated the Act) was inconsistent with the
right to petition.85
By a five-to-three vote, the Supreme Court rejected these attacks in United
States v. Harriss. To avoid the constitutional doubts, it so construed the statute as
essentially to rewrite it. Chief Justice Warren’s decision for the Court began with
the issue of vagueness. A statute violates the Due Process Clause if it “fails to give
a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.”86 But, the Chief Justice continued, if there is a reasonable
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construction that leaves the statute constitutionally definite, the Court ought to
give the statute that construction.87
To cure the perceived vagueness, the Court found Section 307 to be the controlling provision of the Lobbying Act. Thus, to be covered by the Act, one had to
be within Section 307, which the Court found established three prerequisites for
the application of the statute:
1. the “person” must have solicited, collected, or received contributions;
2. one of the main purposes of such “person” or one of the main purposes
of such contributions must have been to influence the passage or defeat
of legislation by Congress; and
3. the intended method of accomplishing this purpose must have been
through direct communication with Members of Congress.88
The Court thus rejected the government’s view that Section 305 required reports
by any person making expenditures to influence legislation, even though that person did not solicit, collect, or receive contributions.
In spite of—or perhaps because of—the narrowing of persons covered by the
Act to those who solicited, collected, or received contributions, the Court defined
the limiting word of Section 307 (that money be received or expended “principally” for the purpose of influencing legislation) broadly to mean that influencing
legislation had to be “one of the main” purposes of that receipt or expenditure.
The Court then spun another 180 degrees, returning to a narrow construction by
adding a new limitation to the Lobbying Act—the requirement of “direct communication” with Congress.89
After both narrowing and expanding the Federal Regulation of Lobbying Act
to deflect the due process challenge, the Court proceeded to the First Amendment
argument. Chief Justice Warren pointed to the danger of unregulated lobbying:
“[T]he voice of the people may all too easily be drowned out by the voice of special
interest groups seeking favored treatment while masquerading as proponents of
the public weal.”90 The Court then balanced the prevention of this evil against the
possible chilling effect of minimal disclosure required by the Lobbying Act and
found the Lobbying Act constitutional.91
Justice Douglas, joined by Justice Black,92 dissented on the ground that “the
formula adopted to save this Act is too dangerous to use. It can easily ensnare
people who have done no more than exercise their constitutional rights of speech,
assembly, and press.”93 Justice Douglas began his analysis by stating that, in determining whether a statute is constitutionally definite, the Court must judge the
statute on its face. Phrases such as “any other matter which may be the subject of
action” by Congress, “principally to aid,” and “retained for the purpose of influencing” used throughout the statute prevented the Lobbying Act from being precise enough to satisfy due process, according to Justice Douglas.94
Justice Douglas strongly objected to the Court’s having significantly rewritten
the statute to render it constitutional.95 For example, there was nothing on the face
of the statute to suggest (as the Court did) that it covered only “direct communication” with Congress, and there was clear legislative history to the contrary.96
Justice Douglas was not entirely opposed to reading a statute “with the gloss a
court has placed on it,”97 but objected to such a drastic salvage operation where
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the First Amendment was involved. The vagueness of the statute that confronted
the people prosecuted, and others who worried about prosecution, could not be
undone by the Court. As the Lobbying Act collided directly with First Amendment
activities, the statute’s vagueness had “some of the evils of a continuous and effective restraint,” a chilling effect on protected activity.98
Justice Jackson dissented separately. He shared Justice Douglas’s concern
about the statute’s vagueness, its infringement of First Amendment rights, and
the Court’s wholesale rewriting of it.99 Justice Jackson’s dislike for the rewriting of
the Lobbying Act stemmed in part from his fear that a narrowly construed statute
might at some later point again be expanded, leaving individuals at the mercy of
the Court’s interpretation, after the potential violation of the Lobbying Act had
occurred.100
On the First Amendment issue, Justice Jackson went further than Justice
Douglas. Justice Douglas was concerned with the impact of a vague statute on
the right to free speech, implying that the Act might have been constitutional had
it been written more clearly. Justice Jackson, however, found the Lobbying Act
to endanger the right to petition. Justice Jackson’s approach was anchored in a
decidedly pluralistic image of the American polity: “[O]ur constitutional system is
to allow the greatest freedom of access to Congress, so that the people may press
for their selfish interests, with Congress acting as arbiter of their demands and
conflicts.”101
1-3.4 Subsequent (Post-Harriss) Developments and Enforcement
It is not clear that Chief Justice Warren and his majority colleagues did the Lobbying Act a good turn by rejecting the efforts of Justices Douglas, Black, and Jackson
to invalidate it. The Supreme Court’s decision in Harriss crippled an already frail
statute. By considering Section 307 controlling, the Court excluded from coverage
individuals and organizations that did not solicit or receive money to be used
“principally” to influence legislation, or one of the “main purposes” of which was
to influence legislation.102 Thus, if an entity such as a giant corporation or a labor
union spent money to influence legislation, but lobbying was not the principal
purpose or one of the main purposes for which the group received that money,
it did not have to register.103 The Harriss decision dealt a further blow by limiting
coverage to direct lobbying, leaving indirect solicitation of Members’ votes largely
unregulated.
Harriss all but ended any effort by the Department of Justice to prosecute
violations under the Act. On November 2, 1955, the government dropped the
charges against the last defendant in Harriss, Ralph Moore.104 After 1955, only a
few indictments were returned under the Lobbying Act. As the Department of
Justice told Congress in 1979, “the law has been reduced to virtually a nonentity
by interpretation.”105
Of course, the Clerk of the House and the Secretary of the Senate still accepted
registration statements and reports and encouraged compliance, but without
effective monitoring and enforcement there was incomplete compliance with the
requirements of the Act. Although an exact figure is impossible to calculate, partially due to the vagueness of the Lobbying Act itself, one estimate was that only
20 to 40 percent of those required to register actually did so.106 According to the
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General Accounting Office, of the reports filed, 48 percent were incomplete107 and
61 percent were late.108 No one dared to guess how many were inaccurate or misleading.
These and other weaknesses attracted the attention of lawmakers and reformers, who, almost from its enactment, made a variety of proposals to strengthen the
Lobbying Act, especially after Watergate.109
Notes
1. “Congress shall make no law . . . abridging the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.” U.S. Const.
amend. I.
2. See, e.g.,18 U.S.C. § 201(b) (deeming it a federal crime to give or receive a bribe),
§ 201(c) (deeming it a federal crime to give or receive an “unlawful gratuity”) (2006).
See generally William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases
and Materials on Legislation: Statutes & the Creation of Public Policy 301–10
(4th ed. 2007); Daniel H. Lowenstein, Political Bribery & the Intermediate Theory of Politics, 32 UCLA L. Rev. 784 (1985). See also infra Chapter 26.
3. See infra Chapter 2, Section 2-15.
4. Cong. Globe, 32d Cong., 2d Sess. 52 (1852). The prohibition was expanded in
1867 to exclude from the House floor former Members of Congress who were interested in any claim before Congress. On the history of federal lobbying regulation, see
Cong. Research Service, Report to Subcomm. on Intergovernmental Relations,
Senate Comm. on Governmental Affairs, 99th Cong., Congress and Pressure
Groups: Lobbying in a Modern Democracy 8–10, 34–39 (1986).
5. H.R. Rep. No. 33-353 (1854).
6. See Albert B. Saye, A Constitutional History of Georgia 284 (1948).
7. “Lobbying is declared to be a crime, and the General Assembly shall enforce this
provision by suitable penalties.” Ga. Const. of 1877 art. I, § 2 ¶ 5. The Georgia legislature in the next year defined lobbying as any personal solicitation of a member of the
General Assembly to favor or oppose or to vote for or against any legislation by a person employed by a person or corporation interested in the legislation. Such lobbying
was punishable by a prison term of one to five years. The definition and the penalties
survived until 1992. Ga. Code Ann. § 28-7-1 (1981) (repealed by 1992 Ga. Laws p. 1075,
§ 18, effective April 6, 1992).
8. 1890 Mass. Acts 456 (repealed 1973). Lobbying in Massachusetts is now regulated under Mass. Gen. Laws ch. 3 (2008).
9. See Note, Control of Lobbying, 45 Harv. L. Rev. 1241, 1244 (1932).
10. This House resolution required:
[t]hat all persons or corporations employing counsel or agents to represent their
interests in regard to any measure pending at any time before this House, or
any committee thereof, shall cause the name and authority of such counsel or
agent to be filed with the Clerk of the House; and no person whose name and
authority are not so filed shall appear as counsel or agent before any committee
of this House.
4 Cong. Rec. 3230 (May 20, 1876).
11. See supra note 7.
12. See Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). See infra Chapter 7, Section
7-2.
13. 2 U.S.C. §§ 431–442 (2006).
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14. Indeed, the Honest Leadership and Open Government Act of 2007 adopted just
such a prohibition in amending the Lobbying Disclosure Act of 1995 to prohibit (subject to both civil and criminal penalties) a lobbyist from making a gift to a Member or
staff if the gift violates congressional gift rules. 2 U.S.C.A. § 1613 (Supp. 2008). See infra
Chapter 6, Section 6-2.3.
15. See supra note 10. Congressman George Hoar of Massachusetts introduced a
resolution in reaction to “counsels” who “accosted” members of the Judiciary Committee. He exclaimed, “[i]t would be a great protection . . . to require any person or
corporation who employs an agent to represent his or its interest here to file the name
of that agent with the House, so that the House may know who is the responsible agent
in such cases.” 4 Cong. Rec. 3230-31 (May 20, 1876).
16. See text supra note 8.
17. At the time President Wilson was quoted to the effect that “Washington was
full of these representatives of special interests and that ‘a brick couldn’t be thrown
without hitting one of them. And I certainly feel like throwing some bricks.’” Wilson
Denounces Tariff Lobbyists, The New York Times, May 27, 1913.
18. A Resolution Instructing the Committee on the Judiciary to Investigate the
Charge That a Lobby Is Maintained to Influence Legislation Pending in the Senate, S.
Res. 92, 63d Cong. (1913).
19. Hearings Before a Subcomm. of the Comm. on the Judiciary United States Senate on
S. Res. 92, A Resolution Instructing the Committee on the Judiciary to Investigate the Charge
That a Lobby Is Maintained to Influence Legislation Pending in the Senate, 63d Cong. (1913).
The Senate hearings began with each Senator appearing before the committee and
naming every individual who appeared before him for the purpose of influencing the
tariff bill. Id. at 4–5.
20. Hearings Before the Select Comm. of the House of Representatives Appointed Under
H.R. 198, 63d Cong. (1913).
21. H.R. Rep. No. 63-113, at 30 (1913).
22. Id. at 41.
23. Id. at 71.
24. See, e.g., H.R. 15,466, 63d Cong. (1914) (consisting of the bill introduced by the
Judiciary Committee as a result of its investigation).
25. See John F. Kennedy, Congressional Lobbies: A Chronic Problem Re-examined, 45
Geo. L.J. 535, 542 (1957); see also infra Chapter 2 (discussing post-1954 lobbying law
reform efforts).
26. S. Rep. No. 70-342 (1928).
27. 69 Cong. Rec. 3931–35 (1928).
28. The famous “Caraway Committee” produced 5,000 pages of testimony about
the pervasive power of lobbyists in Washington. S. Rep. No. 71-43 (1929–-1930) (consisting of 10 parts). Yet another committee investigation was launched in 1929 when a
lobbyist sued to recover $257,655 in fees from a shipbuilding company for his services
in attempting to sink the Geneva Naval Limitation Conference and otherwise increase
naval appropriations. See Hearings Before a Subcomm. of the Comm. on Naval Affairs, 71st
Cong. (1929–1930).
29. Hearings Before a Special Comm. to Investigate Lobbying Activities, 74th Cong.
(1935–1936).
30. See William A. Gregory & Rennard Strickland, Hugo Black’s Congressional Investigations of Lobbying and the Public Utilities Holding Company Act: A Historical View of
the Power Trust, New Deal Politics, and Regulatory Propaganda, 29 Okla. L. Rev. 534, 553
(1976).
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31. 15 U.S.C. §§ 79-79z-6 (2000) (originally enacted as 49 Stat. 838) (repealed 2005).
32. Id.§ 79l(i) (2000) (repealed 2005). This Act, along with its specialized lobbying
regulations, was repealed in 2005. See infra Note to Readers, following Chapter 12.
33. S. 2512, 74th Cong. (1935). Section 1 defined a “lobbyist” as anyone who attempts
to influence any Member of Congress, executive agency or bureau, or any federal official. Section 2 included not just direct contact with these officials, but also “causing
to be published” articles seeking or opposing federal legislative or executive action.
Section 3 required registration for congressional lobbyists, and Section 4 required registration for executive branch lobbyists. Section 5 directed each lobbyist to file monthly
reports of “all moneys received and expended by him in carrying on his work as a
lobbyist, to whom paid, and for what purpose, giving the names of all government
officials, agents, or employees entertained by him.” Sections 6 through 8 provided stiff
criminal penalties.
34. In addition to the utility investigation, Senator Black had chaired a committee investigating contracts to carry mail (the notorious air mail scandal). Hearings
Before a Special Comm. on Investigation of Air Mail and Ocean Mail Contracts, 73d Cong.
(1933–1934).
35. Registration and Regulation of Lobbyists: Hearings Before a Subcomm. of the Senate
Judiciary Comm., 74th Cong. 12 (1935).
36. S. Rep. No. 74-602 (1935). Sections 1–3 of the reported S. 2512 read as follows:
Sec. 1. That any person who shall engage himself for pay, or for any consideration, to attempt to influence legislation, or to prevent legislation, by the
National Congress, or to influence any Federal bureau, agency, or Government
official, or Government employee, to make, modify, alter, or cancel any contract
with the United States Government, or any United States bureau, agency, or
official, as such official, or to influence any such bureau, agency, or official in the
administration of any governmental duty, so as to give any benefit or advantage to any private corporation or individual, shall, before entering into and
engaging in such practice with reference to legislation as herein set out, register
with the Clerk of the House of Representatives and the Secretary of the Senate,
and shall give to those officers his name, address, the person, association, or
corporation, one or more, by whom he is employed, and in whose interest he
appears or works as aforesaid. He shall likewise state how much he has been
paid, or is to be paid, and how much he is to be paid for expenses, and what
expenses are to be included, and set out his contract in full.
Sec. 2. Any person, before he shall enter into and engage in such practices as
heretofore set forth, in connection with Federal bureaus, agencies, governmental officials, or employees, shall register with the Federal Trade Commission,
giving to the Federal Trade Commission the same information as that required
to be given to the Clerk of the House and Secretary of the Senate in section 1 of
this act.
Sec. 3. At the end of each month each person engaged in such practices as
aforesaid shall file, either with the Federal Trade Commission or the Clerk of
the House or the Secretary of the Senate, as required herein, a detailed report
of all moneys received and expended by him during such month in carrying
on his work as aforesaid, to whom paid, and for what purpose, and the names
of any papers, periodicals, or magazines in which he has caused any articles or
editorials to be published.
37. 79 Cong. Rec. 8306 (1935).
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38. See Registration of Lobbyists: Hearings Before the House Judiciary Comm., 74th Cong.
(1935).
39. H.R. Rep. No. 74-2214 (1936) (reporting the Smith bill, H.R. 11,663).
40. 80 Cong. Rec. 4541 (1936).
41. Subcomm. on Rules of the House Judiciary Comm., 74th Cong., Report on
H.R. 11,663 (Comm. Print 1936), reprinted in 80 Cong. Rec. 4541 (1936).
42. H.R. Rep. No. 74-2925 (1936), reprinted in 80 Cong. Rec. 9430–34 (1936) [hereinafter Conference Report].
43. Id. § 6(a)–(b), 80 Cong. Rec. at 9431.
44. Id. § 6(c), 80 Cong. Rec. at 9431.
45. Id. § 8, 80 Cong. Rec. at 9431.
46. Id. § 7, 80 Cong. Rec. at 9431; see id. § 8, 80 Cong. Rec. at 9431 (similar statement
to be filed with agencies lobbied).
47. Id. § 4, 80 Cong. Rec. at 9430–31.
48. 80 Cong. Rec. at 9746.
49. Id. at 9752.
50. 2 U.S.C. §§ 261–270 (1994) (repealed 1995).
51. S. 2177, 79th Cong. (1946). The reorganization bill covered a wide range of topics—from reorganizing Congress’s committee structure to rationalizing administrative
procedure, rendering the federal government liable in tort under certain circumstances,
and even abolishing the position of committee janitor. The resulting Administrative
Procedure Act, 5 U.S.C. §§ 551-559(2006) and the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671-2690 (2006) became, in the years to follow, crucial protections of governmental accountability, a destiny not shared by the 1946 Lobbying Act.
52. S. Rep. No. 79-1011, at 26 (1946).
53. Id. at 26–27. This report did not accompany a specific bill; rather it was the Joint
Committee’s broad recommendations for change in the organization of the Congress.
See also Comment, Improving the Legislative Process: Federal Regulation of Lobbying, 56
Yale L.J. 304, 317 n.58 (1947).
54. The original 1946 Legislative Counsel draft limited the contributions that must
be reported to those exceeding $4,500, prohibited lobbying for three years by persons
convicted under the Act, and included an exception for the news media; the 1936 conference bill did not include any such limitation, prohibition, or exception. See Conference Report, supra note 42, 80 Cong. Rec. at 9430–31. The 1936 conference bill covered
attempts to influence federal elections and the executive branch; the 1946 bill did not.
See id. § 6, 80 Cong. Rec. at 9431. There were also several minor differences.
55. S. Rep. No. 79-1400, at 26 (1946). H.R. Rep. No. 79-2614 (1946) has no discussion
of the lobbying (or other) provisions of the bill.
56. As one opponent noted: “We are violating the Constitution. It is directly implied
in the Constitution that we have no right to intimidate them [citizens] so that they cannot petition Congress. What is this but intimidation?” 92 Cong. Rec. 6552 (1946).
57. Kennedy, supra note 25, at 548.
58. Federal Regulation of Lobbying Act (Lobbying Act), 60 Stat. 839 (1946) (codified
as amended at 2 U.S.C. §§ 261-270 (1994) and repealed in1995).
59. See discussion supra note 54. Compare discussion of S. 2512 § 3, supra note 36.
60. Section 305 directed persons covered by certain provisions of Section 307 to file
statements with the Clerk of the House; Section 307 specified that the Act applied to
any person who received anything of value principally for the purpose of influencing
the passage or defeat of legislation in Congress; and Section 308 further delineated
who had to register under the Act (that is, any person who engaged herself for any con-
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sideration for the purpose of influencing the passage or defeat of legislation by Congress), what she had to do in registering, and certain activities that were not covered
by the Act. The scope of the Act’s applicability was rendered somewhat unclear by the
ambiguous and arguably contradictory description in these sections of the persons to
whom the Act applied.
61. Lobbying Act § 308(a), 60 Stat. 841–42.
62. Id.
63. Id.
64. Id. §§ 305, 307, 60 Stat. 840–41.
65. Id. § 305(a)(1), 60 Stat. 840.
66. Id. § 305(a)(4), 60 Stat. 841.
67. Id. §§ 305, 306, 308, 60 Stat. 840–42.
68. Id. §§ 305(a), 308, 60 Stat. 840–42.
69. Id. § 310(a), 60 Stat. 842 (stating that “any person who violates any of the provisions of this title, shall, upon conviction, be guilty of a misdemeanor, and shall be
punished by a fine of not more than $5,000 or imprisonment for not more than twelve
months, or by both such fine and imprisonment”); § 310(b), 60 Stat. 842 (stating that a
person convicted of violation loses right to lobby for three years).
70. For a short time the Department of Justice set up an enforcement division, but
no specific division concentrated on enforcement of the Act after the early fifties. See
Kennedy, supra note 25, at 555.
71. H.R. Rep. No. 81-3239, at 45 (1951).
72. Between 1947 and 1954 approximately 50 investigations were initiated. Oversight of the 1946 Federal Regulation of Lobbying Act: Hearings Before the Committee on Governmental Affairs United States Senate, 98th Cong. 192 (1983) (statement of Mark Richard,
Deputy Assistant Attorney General, Criminal Division).
73. United States v. United States Sav. & Loan League, 9 F.R.D. 450 (D.D.C. 1949) (dismissed); United States v. Slaughter, 89 F. Supp. 876 (D.D.C. 1950) (ending in acquittal);
United States v. Harriss, 347 U.S. 612 (1954).There was one successful, but unreported
prosecution of violations of the Lobbying Act where defendants pleaded guilty. See
United States v. Neff, No. 768-86 (D.D.C. Dec. 14, 1956).
74. 103 F. Supp. 510 (D.D.C.), vacated as moot, 344 U.S. 804 (1952).
75. 103 F. Supp. at 514. Judge Holtzoff found the phrase “to influence, directly or
indirectly, the passage or defeat of any legislation” infinitely elastic and the “principal
purpose” test quite ambiguous.
76. Id.
77. 109 F. Supp. 641( D.D.C. 1053)
78. Information filed Aug. 31, 1949, United States v. Harriss, reprinted in Record at
1 ff., United States v. Harriss, 347 U.S. 612 (1954) (No. 1212-49).
79. In the last three months of 1946 alone, Harriss paid Moore $50,000. 347 U.S. at
616.
80. A further aspect of this scheme were payments by Moore and Harriss to Commissioners Linder and McDonald via accounts at Harriss’s brokerage firm. Similar
payments were made to other individuals, though those individuals were not charged
in this information. Not surprisingly, this activity was not reported as required by the
Lobbying Act.
81. Harriss, 109 F. Supp. at 642.
82. Namely, the three-judge court in McGrath, 103 F. Supp. 510 (D.D.C. 1952),
whose decision was followed by the author of the McGrath opinion, Judge Holtzoff,
in Harriss.
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83. In United States v. Slaughter, 89 F. Supp. 876 (D.D.C. 1950), the defendant waived
his right to a jury trial and was found not guilty—again by Judge Holtzoff.
84. The court dismissed the indictment in United States v. United States Savings &
Loan League, 9 F.R.D. 450 (1950) because one of the counts was too vague and the other
two counts failed to charge an offense under the Act.
85. Harriss, 347 U.S. at 617.
86. Id.
87. Id. at 618.
88. Id. at 623.
89. Id. at 620. It appears that Chief Justice Warren considered an “artificially stimulated letter campaign” to be “direct” communication. Id. See, e.g., Chapter 3, Section
3-5.1.
90. Harriss, 347 U.S. at 625.
91. “The hazard of [self-censorship] is too remote to require striking down a statute
which on its face is otherwise plainly within the area of congressional power and is
designed to safeguard a vital national interest.” Id. at 626. The last claim of the defendants was that Section 310(b) violated the First Amendment’s right-to-petition clause.
The Court dismissed the claim: the appellees had yet to be found guilty, so the question
of the constitutionality of the penalty provision was not yet ripe. Id. at 627. The Court
added that the section could be severed under the separability clause of the Legislative Reorganization Act, so the constitutionality of the statute as a whole was not in
danger. Id.
92. Justice Black’s dissenting position is ironic. Part of the language of the Lobbying
Act held constitutional by the majority was taken from S. 2512, 74th Cong. (1935), a bill
he had introduced while a Senator from Alabama. Indeed, he had stated in 1935 that
“[t]here is no constitutional right to lobby. There is no right on the part of greedy and
predatory interests to use money taken from the pockets of the citizen to mislead him.”
Gregory & Strickland, supra note 30, at 551 (quoting Hearings Before a Special Comm. to
Investigate Lobbying Activities, 74th Cong. (1935)).
93. Harriss, 347 U.S. at 628 (Douglas, J., dissenting).
94. Id. at 628–30.
95. Id. at 629.
96. Id. at 631.
97. Id. at 632.
98. Id. at 633.
99. Justice Jackson characterized the majority’s handiwork this way: “The clearest
feature of the Court’s decision is that it leaves the country under an Act which is not
much like any Act passed by Congress.” Id. at 633 (Jackson, J., dissenting).
100. Id. at 633–35. “Judicial construction, constitutional or statutory, always is subject to hazards of judicial reconstruction.” Id. at 635.
101. Id.
102. See id. at 623 (opinion of the Court).
103. For example, in one quarter of 1976, AT&T spent over $1 million on lobbying
for a communications bill favorable to it. This was not reported under the Act (and
apparently was not required to be reported) because influencing legislation was but
a small part of what AT&T did. See Guy Paul Land, Note, Federal Lobbying Disclosure
Reform Legislation, 17 Harv. J. on Legis. 295, 301 (1980).
104. See Kennedy, supra note 25, at 552 n.102.
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105. Public Disclosure of Lobbying Activity: Hearings Before the Subcomm. on Administrative Law and Governmental Relations of the House Judiciary Comm., 96th Cong. 56 (1979)
(statement of Assistant Attorney General Patricia Wald).
106. Barbara Bado, Comment, Federal Lobbying Disclosure Legislation, 26 Am. U. L.
Rev. 972, 986 n.64 (1977) (citing Staff of the Senate Comm. on Gov’t Operations,
94th Cong., Report on Lobbying Disclosure Act of 1976 6–7 (Comm. Print 1976)).
See also The Federal Lobbying Disclosure Laws: Hearings Before the Subcomm. on Oversight of
Government Operations of the Senate Governmental Affairs Comm., 102d Cong. 388 (1991)
(statement of Ann McBride, Senior Vice President, Common Cause).
107. General Accounting Office, The Federal Regulation of Lobbying Act—
Difficulties in Enforcement and Administration (1975) (1975 GAO Report). See
also The Federal Lobbying Disclosure Laws: Hearings Before the Subcomm. on Oversight of
Government Operations of the Senate Governmental Affairs Comm., 102d Cong. (1991)
(statement of Milton J. Socolar, Special Assistant to the Comptroller General, GAO).
108. 1975 GAO Report, supra note 107, at 9.
109. See infra Chapter 2.
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