TEXAS LOBBYING REGISTRATION AND REPORTING Baker Botts LLP (Texas) Foley Hoag LLP (Federal) Tad Heuer and Pat Cerundolo

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1 Last Updated: January 2010 Federal Update: October 2013 TEXAS LOBBYING REGISTRATION AND REPORTING Baker Botts LLP (Texas) Foley Hoag LLP (Federal) Tad Heuer and Pat Cerundolo Table of Contents 1. Federal Registration and Reporting 2. Texas Lobbying, Registration and Reporting The following is intended to provide a brief overview of the various potential registration and reporting requirements under federal and Texas laws with respect to the lobbying activities of most social sector organizations, both nonprofit and for-profit, including public charities, social welfare organizations and other forms of organization with a social change mission. The lobbying limitations imposed on tax-exempt organizations by the Internal Revenue Code are described in the section entitled Nonprofit Taxation and are not reiterated here. 1. Federal Registration and Reporting Organizations that engage in a specified amount of lobbying activities and lobbying contacts through personnel that receive financial or other compensation are required to register and file disclosure reports under the Lobbying Disclosure Act of 1995, as amended (most recently by the Honest Leadership and Open Government Act of 2007). Other than religious orders, tax-exempt churches, and their integrated auxiliaries, all social sector organizations nonprofit as well as for-profit that otherwise meet the thresholds on lobbying contacts and overall expenses (discussed below) must register and file reports. a. Registration The federal Lobbying Disclosure Act (the Act ) is intended to reach professional lobbyists those paid to lobby on behalf of an employer or client. Thus, if a social sector organization engages in covered lobbying contacts through its own staff that exceed the statutory thresholds, that organization must register as a lobbying entity, and 1

2 must register its individual employee-lobbyists (who are sometimes referred to as inhouse lobbyists). If, however, a social sector organization employs lobbyists only from an outside lobbying firm, the outside lobbying firm must register (and identify its social sector client) if its lobbying exceeds the statutory thresholds, but the social sector organization itself is not required to register. All federal lobbying registrations and reports must be filed electronically at a single location, which covers registration for both the Secretary of the Senate s Office and the Office of the Clerk of the House. A social sector organization is required to register its employee-lobbyists if it meets the following two conditions: First, the organization must have one or more compensated employees who (a) make more than one lobbying contact on behalf of the organization and (b) spend at least 20% of their total time for the organization on lobbying activities over a given quarterly reporting period. A lobbying contact is a written, oral or electronic communication to a covered federal official, (which includes a Member of Congress, congressional staff, and certain senior executive branch officials), with respect to the formulation, modification or adoption of a federal law, regulation, rule, program, or policy, or the administration or execution of a federal program or policy. Lobbying activities include not only lobbying contacts but also background activities, research, and other efforts that support lobbying contacts. Note that there are also several enumerated exceptions to what constitutes lobbying contacts for purposes of the Act for instance, they do not include testifying or submitting written testimony, and do not include lobbying either legislators or governmental bodies at the state or local levels. A Section 501(c)(3) organization that has made the safe harbor election under Section 501(h) of the Code has the option of using either the Act s definition of lobbying activities or the Internal Revenue Code s definition of influencing legislation to determine the organization s reporting obligation. Second, the organization must have spent more than $12,500 in a quarterly reporting period on lobbying activities. The $12,500 includes salaries, overhead, and other expenses, as well as payments to any outside lobbyists made during the three-month reporting period. This figure is increased periodically for inflation. If an organization hires an outside lobbyist or a lobbying firm, then the outside lobbyist and his/her lobbying firm must register on behalf of the client/organization if he/she (a) makes more than one lobbying contact with a covered official on behalf of that client/organization, (b) spends at least 20% of his/her time for that client/organization in a given quarterly reporting period on lobbying activities, and (c) his/her/its total income 2

3 from that client/organization for lobbying exceeds $3,000 in that quarterly reporting period. Lobbyists are required to be registered within 45 days after either (a) being hired by a client (if the intent is that the lobbyist will make more than one lobbying contact and meet the 20% threshold), or (b) making a second lobbying contact (if the intent to make a second contact did not exist at the outset of the engagement) and meeting (or intending to meet) the 20% threshold. Information required on the registration form, known as the LD-1 form, includes: identification of the lobbyist(s); the client or employer of the lobbyist(s); identification of any foreign entity and its contributions over $5,000 (if the foreign entity owns 20% of the client or controls, plans or supervises its activities); and a list of the general issue areas on which the registrant expects to lobby. b. Reports Registrants under the Lobbying Disclosure Act are required to file both quarterly and semi-annual reports. Quarterly reports by the lobbying entity (either the outside lobbying firm or the employer of in-house lobbyists), also known as LD-2 reports, are to be filed within 20 days after the end of each calendar quarter. Among other items, these reports must include not only the issues lobbied upon, but the bill numbers lobbied upon, the names of the lobbyists, and the Houses of Congress and federal executive branch agencies contacted. Reports must also include a good faith estimate of either lobbying expenditures (for reports filed by organizations who employ in-house lobbyists), or income received from clients (for reports filed by outside lobbyists). Amounts in excess of $5,000 are to be rounded to the nearest $10,000. Semi-annual reports by individual lobbyists, also known as LD-203 reports, are due on January 30 and July 30. The required disclosures in these reports include: the names of all political committees established or controlled by the lobbyist or registered organization; disclosures of contributions by each lobbyist of more than $200 to federal candidates or officeholders, political committees, or leadership PACs; and funds disbursed for events to honor covered government officials, to entities that are named for or in recognition of such officials and to entities that are controlled or designated by such officials. The name of each presidential library and inaugural committee to which contributions of at least $200 were made during the semi-annual period must also be reported. Additionally, registrants are required to certify that the organization or person filing the report has read and is familiar with the rules of the House and Senate regarding gifts and travel, and that they are compliant with these rules. 3

4 For more detailed information, the House Clerk maintains a comprehensive Guide to the Lobbying Disclosure Act at c. Penalties Amendments in 2007 to the Lobbying Disclosure Act increased the civil penalties for violations of the Act and for failing to remedy a defective filing to up to $200,000. In addition, the amendments imposed criminal penalties for knowingly and corruptly failing to comply with the Act, with a maximum of five years imprisonment. d. Grassroots Lobbying The Lobbying Disclosure Act only applies to direct lobbying direct communications with covered federal officials, and the lobbying activities that the person making the direct communication engages in to prepare for those contacts. Grassroots lobbying is not covered. An organization that engages only in grassroots lobbying will not be required under the Act to register and report. e. Congressional Gift and Travel Rules The Lobbying Disclosure Act imposes civil and criminal penalties on registered lobbyists (or organizations that employ them) for violations of congressional gift and travel rules. The Act expressly prohibits any registered lobbyist, any organization that employs them (and is required to register), and any employee required to be listed as a lobbyist from making a gift or providing travel to a Member of Congress or staffer (and other covered officials ) if the registrant has knowledge that the gift or travel may not be accepted under House and Senate rules. The congressional gift and travel rules, and the numerous exceptions to those rules, are extremely detailed and particularly restrictive with regard to registered lobbyists. No attempt will be made here to summarize those rules. Any questions concerning the applicability of the congressional gift and travel rules to specific situations should be addressed to counsel with specific expertise in this area of law. f. Federal Funds and Grants Grant money and funds under federal contracts may not be used by nonprofits and other organizations for lobbying or for other advocacy or political activities unless authorized by Congress. These restrictions apply to both direct and grassroots lobbying at the federal, state and local levels. 4

5 g. Resources Jack Maskell, Lobbying Regulations on Non-Profit Organizations, CRS Report (May 7, 2008). The House gift and travel rules are available online at al.pdf The Senate gift and travel rules are available online at Office of the Clerk, United States House of Representatives, Guide to the Lobbying Disclosure Act (Effective Jan. 1, 2008; Revised Feb. 15, 2013), William V. Luneburg, Tomas M. Susman, & Rebecca H. Gordon, The Lobbying Manual: A Complete Guide to Federal Lobbying Law and Practice (4th ed. 2009). 2. Texas Lobbying, Registration and Reporting 1 a. Definition of Lobbying Texas lobby laws regulate direct communications with members of the legislative or executive branch of state government to influence legislation or administrative action. i) Communicates directly with or any variation of the phrase means contact in person or by telephone, telegraph, letter, facsimile, electronic mail, or other electronic means of communication. See e.g. Ethics Advisory Opinion No. 85 (1992) (holding that if an organization publishes a newsletter for its members, the individuals writing the newsletters are not communicating directly with members of the legislature, even if a legislator may read the newsletter.). ii) Member of the executive branch means an officer, officer-elect, candidate for, or employee of any state agency, department, or office in the executive branch of state government. Member of the legislative branch means a member, member-elect, candidate for, or officer of the legislature or of a legislative committee, or an employee of the legislature. While the lobby law is not applicable to communications with the judicial branch or local government 1 Much of the information in this guide can be found in a document produced by the Texas Ethics Commission, entitled Lobbying in Texas, A Guide to the Texas Law, available at 5

6 iii) officials, individuals should ensure they comply with other regulations related to such communications. Legislation means: (A) a bill, resolution, amendment, nomination, or other matter pending in either house of the legislature; (B) any matter that is or may be the subject of action by either house or by a legislative committee, including the introduction, consideration, passage, defeat, approval, or veto of the matter; or (C) any matter pending in a constitutional convention or that may be the subject of action by a constitutional convention. Administrative action means rulemaking, licensing, or any other matter that may be the subject of action by a state agency, including the proposal, consideration, or approval of the matter. b. Lobbyist Registration i) Lobbyist registration is required if a person meets either the compensation and reimbursement threshold or the expenditure threshold. Pursuant to the compensation and reimbursement threshold, a person must register if the person receives, or is entitled to receive under an agreement under which the person is retained or employed, more than $1000 in a calendar quarter in compensation and reimbursement for lobbying. Notwithstanding this requirement, a person is not required to register if no more than 5.0% of the person's compensated time during a calendar quarter is time spent engaging in lobby activity. For calculation purposes, a person shall make a reasonable allocation of compensation between compensation for lobby activity and compensation for other activities. Pursuant to the expenditure threshold, a person must register if the person makes total expenditures of more than $500 in a calendar quarter for lobbying. An expenditure is defined as "a payment, distribution, loan, advance, reimbursement, deposit, or gift of money or any thing of value and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure." There are six types of expenditures: transportation and lodging, food and beverages, entertainment, gifts, awards and mementos, and attendance of a state officer or employee at a political fundraiser or charity event. A lobby expenditure that one person makes on behalf of and with the consent or ratification of another person is considered to have been made by each person for purposes of calculating the expenditure threshold. (If an expenditure is attributable to two or more registrants, the reporting requirements for that lobby expenditure are satisfied if one of those registrants reports the expenditure.) Certain things are expressly exempt from the definition of expenditure, including taxes and tips, a lobbyist s 6

7 ii) iii) own expenditures, payments of less than $200 if the person who makes the expenditure is fully reimbursed by the state officer or employee benefiting from the expenditure before the date the expenditure would otherwise be required to be reported, and gifts to a state agency which become state property. Whether a state agency may accept a gift depends on the laws specifically applicable to that agency. Entity Registration: A corporation, partnership, association, or other type of entity may be required to register as a lobbyist if the entity exceeds either the compensation threshold or expenditure threshold. An entity that is required to register may nonetheless avoid registration if all activity otherwise reportable by the entity is reported by one or more registrants. An individual reporting compensation, reimbursement, or expenditures for an entity must indicate that he or she is doing so on the lobby registration or activities report, as applicable. The fact that an entity has registered does not relieve any individual associated with the entity of the obligation to register if the individual crosses a registration threshold. For example, if a law firm registers, an individual lawyer employed by the firm as a lobbyist for the firm's clients must also register if he or she meets either the compensation or expenditure threshold. Communications on behalf of a political party: A person who lobbies only on behalf of a political party is required to register only if the person s lobby compensation and expenditures combined exceed $5,000 in a calendar year. iv) Exceptions from Required Registration Incidental Lobbying: A person is not required to register under the compensation threshold, regardless of compensation, if lobbying constitutes no more than five percent of the person's compensated time during a calendar quarter. The "incidental lobbying" exception is not an exception to the expenditure threshold. Exempt Communications: Compensation or reimbursement received for certain communications to influence a state officer or employee do not count toward the compensation threshold and are not required to be reported. Public Officials: A government officer or employee who communicates to influence legislation or administrative action in his or her capacity as a government officer or employee is not required to register on the basis of those communications. v) News Media: The statute excepts from the registration requirement a person who owns, publishes, or is employed by the media, provided that the person does not engage in any other activities requiring registration. 7

8 vi) c. Lobbyist Reporting Lobbyist s Employer/Client: A person does not have to register if the person s only activity to influence official action is to compensate or reimburse someone else to lobby on the person s behalf. i) Registration Online: Lobby registrations and lobby activity reports are generally required to be filed electronically. ii) iii) iv) Registration Fee: The lobby registration fee is $500 for all registrants except organizations exempt from federal taxes under the IRS Code, 26 U.S.C. 501(c)(3) or 501(c)(4) and lobbyists who represent only such organizations. The fee for those registrants is $100. The fee is not prorated for lobbyists who are registered for only a portion of the year. Note that the Texas Ethics Commission recently posted new proposed rules regarding registration. The new proposed rules are available at Filing: Registration must be filed no later than five days after the date of making communication which necessitates registration. Reporting: The lobby registration requires information about each person that employs, retains, or reimburses a lobbyist. v) Reporting Compensation: A lobby registration must contain the compensation and reimbursement that a lobbyist receives. vi) Reporting Subject Matter: A lobby registration must identify the subject matters about which one lobbies. vii) Reporting Assistants: A lobby registration must report a research or administrative assistant, but not one who provides only clerical or secretarial support. viii) Time of Filing: Lobbyists must file quarterly, unless they intend to make less than $1,000 of expenditures per year, in which case an annual filing is allowed. d. Prohibitions and Restrictions i) Restrictions on Expenditures: The lobby law contains a number of restrictions on expenditures by lobbyists, but lobbyists should also be aware of the restrictions in Chapter 36 of the Penal Code. The lobby law contains a number of restrictions on acceptance of lobby expenditures, including cash gifts and loans, transportation and lodging, food beverages, and entertainment, gifts, and awards and mementoes. Furthermore, there is a general requirement that a lobbyist be present at 8

9 an event in order to pay for activities involving a state officer or employee. ii) iii) Other Restrictions Contingent Fees: Contingent fees for lobbying services are generally not allowable. However, this prohibition does not apply to cases in which contingent fees are expressly allowed by law, such as a contested hearing or adversarial proceeding. The contingent fee prohibition is also generally inapplicable to efforts to influence the purchase decision of a state agency within certain fiscal constraints.note that the 81st Texas Legislature passed new laws with respect to contingent fees in H.B The new proposed rules are available at Conflicts of Interest: The lobby law sets out circumstances in which a lobby registrant may not represent a client, or for some reason must satisfy certain conditions prior to representing a client. False Communications: The lobby law generally prohibits knowingly false statements made to a state officer. Access to the Floor of the Legislature: A lobbyist may not go on to the floor of either house of the legislature while that house is in session unless invited by that house. Penalties: The law provides criminal and civil sanctions for violation of the lobby law or the Penal Code. Criminal Penalties Bribery is a second degree felony, punishable by imprisonment of no more than twenty years and no less than two years. Additionally, a fine not to exceed $10,000 may be imposed. Violation of the prohibition against contingent fees is a third degree felony, punishable by imprisonment of no more than ten years and no less than two years. Additionally, a fine not to exceed $10,000 may be imposed. Any other intentional or knowing violation of a provision of the lobby law, or of one of the Penal Code prohibitions against accepting or offering a benefit, is a Class A misdemeanor, punishable by a jail term of up to one year, a fine not to exceed $4,000, or both. Sworn Complaints: An individual who believes a person has violated a provision of the lobby law or the Ethics Commission's rules may file a sworn complaint with the Ethics Commission. New proposed rules regarding sworn complaints are available at 9

10 Reports: Lobbyists are subject to fines for late or inaccurate reports. 10