Category Archives: Open Government

“All Matters” Makes Lobbyist Reports Worthless

“Matters Related” phrase used to avoid specifics is blessed by Virginia Ethics Council example.

“With as much specificity as possible.”

That is the instruction given to Virginia registered lobbyists about how they should list the various “executive and legislative actions and procurement transactions” they seek to influence on behalf of their principals.   The instruction to be as specific as possible is routinely ignored and never enforced.

Most of the hundreds of annual lobbyists disclosure forms filed on behalf of corporations, unions, associations, and government entities reveal nothing about which bills, resolutions, budget items or appointments they sought to influence.  Most simply report working on “all matters related to” or “matters of interest to” that company or association or entity.  One Chamber of Commerce lobbyist replied simply: “business issues.”

It is hard to blame the lobbyists for being vague.  In the illustration above, which is from the official example provided on a state website for those filling out the form, the stock phrase “all matters related to….” is shown to be acceptable.

July 1 was the annual deadline for lobbyist filings and if you know how to maneuver on the database you can find them here.  Set the date range for 2017-2018 and then enter a name for the lobbyist or their principal, which can be a client or an employer.  Look for the disclosure reports.  There are still some reports missing but most are up.  (The data will also eventually be picked up on the Virginia Public Access Project lobbyist listings.)

A Glimpse Inside the Process

There are many filings which do list specific bill numbers where the principal’s views were communicated and some even go so far as to list specific budget items by number.  But even in those cases it is not possible to determine if lobbyist expressed support, opposition or sought to amend the bill.  In some cases lobbyists suggested, requested or actually provided the text of a bill or amendment – an important specific detail never reported.

So many of the reports fail to list bill numbers or other details that there is no point in singling out anyone for doing so.  Some of the largest and busiest law firm lobby shops routinely use the “all matters” or “matters related” phrase or something similarly amorphous.

An earlier post described the way some lobbyists evade reporting the names of officials and their families on their entertainment expenses by splitting the cost between more than one client to stay below the $50 reporting trigger.

This failure to require actual details on which bills, appointments or budget decisions are being influenced – ignoring what appears to be a clear instruction – is another weak spot in Virginia’s oversight.  Absent that information the reports are worthless.

Other sections of the reports deal with spending on communication efforts, with advertising, social media and direct mail becoming increasingly common in legislative battles.  How much out-of-town lobbyists spent on hotels for themselves, or whether they rented a locker or subscribed to the bill tracking service, are details which are included.  They are also details which do not matter.

The required information on compensation is also meaningless because most lobbyists pro-rate the amount based on the narrow percentage of their time spent in direct contact with legislators or other officials.   Again, the reports are worthless.

How much information about what bills drew the attention and effort of the lobbyists could be the subject of debate.  The lobbyists’ natural inclination would be to share nothing.  Open government advocates would want to know everything.  Right now “nothing” is winning.

Many of these lobbyists are working for state agencies or for local governing boards, school boards or authorities.  They are spending taxpayer dollars seeking to influence tax and spending decisions or changes to their client’s authority – undisclosed government-to-government lobbying on our dime.

The private company or association lobbyists use private dollars, but are often fighting proposed regulations or seeking for the law to give them an advantage over customers or competitors.  Many of them are seeking tax changes or spending items in the budget that will provide a benefit to them or their stockholders.

One of the most important discussions during 2018 has been about filling an open seat on the State Corporation Commission, still unresolved.  The SCC is the crucial regulator for multiple businesses in Virginia.  You may look in vain for a lobbyist who discloses talking to legislators about any candidate for that job.  Does that mean no lobbyist has weighed in?  Unlikely.

Any competent lobbyist can sit down at the end of the session and list the bills or issues worked in the previous weeks, and some record the specific meetings or communications. (Not all are competent, but that’s another issue.)  They know what they did, and in most cases their employers or clients have received regular reports, with full specificity.  Requiring a list of bills and issues that were worked on the report would not be onerous.

Public Meetings And Private Texts Don’t Mix

A Peek Inside the Process

As a registered lobbyist I am prohibited from walking onto or sitting on the floor of either chamber of Virginia’s legislature while in session, and can get no closer than the desk at the front door or the benches in gallery.  If I wish to speak to a member during session the custom is to send in a business card and ask that legislator to step out to the hallway for a chat.

I might provide an answer to a question they raised on the floor, offer a draft of some amending language, ask for a copy of something they have or ask them why they cast that last bonehead vote (well, I’d be more polite.)  If I ask them to the door just to discuss trivia they will not come next time I ask.

But wait!  That was the rule in the dark ages!  Now all I have to do to communicate with members at the height of floor debate (or committee debate) is email them on their laptops, now present and open on every desk, or even better text their personal cell phone.  The downside is there is a chance they will miss it or ignore me (a good chance, normally, which is why I still use the hallway chat), but the upside is the message may remain in the ether and never be subject to the Freedom of Information Act.

The huge holes in the Virginia’s public meetings and public records law caused by the new communications options were highlighted in a FOI Advisory Council debate Tuesday covered by Graham Moomaw of the Times-Dispatch.  The case at hand involved local officers texting among themselves during a public meeting and hearing from a member not in attendance (but not plugged in by phone as provided by law).  You can compare it to middle school kids passing notes and giggling, but sometimes the real decisions are being made in total secrecy with the public cut out.  This is a way to meet in executive session on matters that could not be the subject of a proper executive session.

Missing from the story was the discussion of how this has also changed lobbying.  The original intent of that quaint rule about lobbyists on the floor has been blown to pieces for several years now, and direct lobbyist communication is probably continuous all session long.  Amendments and votes are discussed directly, and bill language is parsed or changed.  It would make fascinating reading.  We will never get to read any of it.

Communication on Facebook and Twitter and other platforms is also common but I suspect are considered far less secure.  Most people work on the assumption that texts to private phones are FOIA-proof unless somebody chooses to leak or forward them.  Apparently the advice given during the meeting was that is correct unless and until the rules are changed.

So change them.  The law should prohibit electronic communications during legislative sessions or other public meetings about issues on the calendar.  Absent that (and it would hard to ban all communication) open the messages to full FOIA disclosure.  It would be fine with me to prohibit any communication with lobbyists during meetings on those electronic platforms, or to subject those to FOIA.  It would not be fine with many of the other lobbyists.

Open meetings means open meetings.  If you have something to say to a colleague, speak into the mic or go find a corner and have that conversation quietly face to face (knowing all of us in the room can see it happening). If the trends continue, it is possible to imagine a meeting where all the real debate goes on with no spoken discussion at all, and the outcome is swayed by a last-minute text from a lobbyist which will never be made public.  I bet it happens already.