For several years, we have been warning clients and others that it was only a matter of time before we would see criminal referrals against lobbyists who fail to register under the federal Lobbying Disclosure Act (“LDA”). Until now, the U.S. Attorney’s Office for the District of Columbia has focused exclusively — and rarely — on bringing cases against registered lobbyists who fail to timely file reports. This week, however, the Office of Congressional Ethics (“OCE”) of the U.S. House of Representatives mentioned in its quarterly report that during the second quarter of this year, “OCE voted to refer one entity to the U.S. Attorney’s Office for the District of Columbia for failure to register under the Lobbying Disclosure Act.” This is big news.
We don’t know which “entity” OCE referred to the Department of Justice for failure to register. And given OCE’s history of making trumped up referrals to the House Ethics Committee, it is hard to know whether this new LDA-related referral to DOJ is credible. It might not be. Regardless, because there clearly are lobbyists active on Capitol Hill whose firms have not registered under the LDA, this is not likely to be the last referral.
Very few, if any, complaints have been filed by the usual suspects with the Department of Justice concerning unregistered federal lobbyists. Ironically, the reform groups that typically file complaints against lobbyists and public officials have had little appetite for complaints about unregistered lobbying because it would undercut their main narrative about the LDA, which is that it is so filled with “loopholes” that firms can easily lobby without actually triggering registration. The media have picked up this narrative.
Nonsense. While there are generous exceptions in the LDA, and gray areas, there are also many scenarios in which the obligation to register is clear as the Rocky Mountain air (on a good day).
Identifying firms that should register but don’t is not easy work for law enforcement. But the same could be said about many other areas of criminal law. The relative lack of enforcement against unregistered firms has more to do with the priority placed on it by DOJ — seemingly very little — and the media’s lack of interest in the story. Time will tell whether the new OCE referral is the beginning of a trend, or a flash in the pan.