Wait, What?! I'm a lobbyist?!

Lobbying? Well, you, as a principal, pay your contract lobbying firm to handle all of this. You’re happy as a clam with their efforts and results. You’re drinking your coffee, singing a little song, opening the mail…

Spit coffee… stare incredulously…

And there it is, a letter from the State Ethics Commission. The Commission is investigating you for failure to register as a lobbyist. Then you think to yourself...

“Why? I’m not a lobbyist! I pay someone else to do that!”

...and read further.

The evidence outlined in the letter includes records of your activities on Twitter and Facebook, encouraging your advocates to call lawmakers and support your cause. It also includes confirmation of your meetings and dinners with lawmakers and staff members to educate them on your organization, your mission, your legislative efforts.

Sounds like the Commission might be right, wouldn’t you say? Sure, you paid a firm to lobby for you, keep you updated, watch out for your issues, talk to those decision makers on Capitol Hill; and you filed your principal registration with the Department of State along with your quarterly expense reports. The problem is that it wasn’t just your firm, your contract lobbyists, that pushed for your issues, was it?

Yes, it’s true. You put on the trappings of a lobbyist, and now it’s time to face the music.

The good news is that this situation is entirely preventable. The bad news is that this situation pops up more than people realize.

Recognizing this situation starts with asking yourself some very basic questions about what it is your company or association or organization is doing to influence the decision makers. While exemptions exist within the PA Lobbying Disclosure Law and Regulations for very specific individuals, it takes a comprehensive review of your time and activities to be aware of whether those activities fall under the definition of lobbying. You must be vigilant about your internal activities and circumstances to determine when/if your activities cross that threshold of lobbying (independent of your contract lobbying firm/lobbyists). The threshold is $3,000 or 20 hours of lobbying activities - be it direct or indirect communication - in a quarter. Once the definition is met, and the thresholds are breached, you may be required to also register individually.

Unfortunately, in our experience, many people forget about indirect communication.

Indirect communication is pesky and often overlooked.

In the most basic sense, indirect communication is what many refer to as “grassroots lobbying.”

Why don’t we take a moment right here and talk about some real world examples of indirect communication, but we advise you keep the actual definition in mind and consult an expert about your particular circumstance. **see the note at the bottom of this post**

• Time spent by staff/attorneys drafting documents related to advocacy and/or educational campaigns.

• Staff time spent monitoring legislation (sometimes).

• Staff time spent on material for social media that urges citizens to contact their legislators on issues (nothing is secret on Facebook or Twitter).

• Staff time spent mailing invitations to a hospitality event.

• Staff time spent to organizing a hospitality event.

• A radio ad telling the public how much you dislike a proposed piece of legislation and why.

• A billboard showing statistics about an issue, but also leads a person to check out a website to learn more...and take action.

• Mailers, for example, to all registered voters in a given area warning them of the impact of a bill or regulation, and providing some information on that public issue.

While your activity may not include direct contact with a state official, it may still have the “foreseeable effect of influencing legislative/administrative action.” If that is your goal (intended or unintended), take a moment and pause. Consider your time, effort and cost.

You don’t want to be caught in the same situation as those affiliated with PA Works Now or Citizens to Protect our Pennsylvania...two organizations who were fined by the PA State Ethics Commission for failure to register as lobbying principals in the Commonwealth because their activities (including indirect communication efforts) breached the thresholds outlined in the law. (You can access those adjudications here.)

Nothing is a secret on Capitol Hill - Harrisburg is a small town.

And no matter how many supporters you might have for your cause, your issue, there are just as many against you. Don’t make such an easy mistake. Stop, ask for guidance, and do this the right way!

And if you need us, we are just a phone call or email away.

**Indirect Communication: (i) An effort, whether written, oral or by another medium, to encourage others, including the general public, to take action, the purpose or foreseeable effect of which is to directly influence legislative action or administrative action. (ii) The term includes letter-writing campaigns, telephone banks, print and electronic media advertising billboards, publications and educational campaigns on public issues. (iii) The term does not include regularly published periodic newsletters primarily designed for and distributed to members of a bona fide association or charitable or fraternal nonprofit organization. (iv) The term may include personnel expenses and office expenses. (See 51 Pa Code § 51.1 Definitions.)