Updated Guidance on Lobbying Contribution and Certification Form

The first filing of the semi-annual contribution and certification form (“LD-203”) required by the Lobbying Disclosure Act (“LDA”), as revised by the Honest Leadership and Open Government Act of 2007 (“HLOGA”) is fast approaching on July 30, 2008. The LD-203 requires LDA Registrants — including lobbyist clients and lobbying firms — as well as individual lobbyists to file a semi-annual report disclosing: (1) the PACs established or controlled by the Registrant; (2) the name and amount of any contribution to federal candidates/officeholders, leadership PACs or party committees to whom the Registrant or its controlled PAC contributed over $200; (3) funds expended on behalf of or to honor or recognize a covered legislative branch official or covered executive branch official (“covered officials”); and (4) the name and amount of any Presidential library foundation or inaugural committee to whom the Registrant or its controlled PAC contributed over $200. The Registrant must also certify that the individual or entity understands and complied with the House and Senate gift rules during the January – June 2008 period.


The Clerk of the House and the Secretary of the Senate recently issued additional guidance to assist in completion of the LD-203. That guidance clarified previously issued guidance in two areas: (1) it specified with more detail what constitutes an event to “honor or recognize” covered officials, and (2) it provided that lobbyists who serve on the board of their employers’ PACs do not need to disclose contributions by those PACs on their own LD-203 submissions.


Disclosure of Payments to Honor Certain Officials.
Under HLOGA, Registrants are required to disclose four types of payments made by the Registrant or a controlled PAC on the LD-203, which include: (1) the costs of a meeting or conference-type event held by, or in the name of a covered official; (2) payments to an entity named for a covered legislative branch official or to an entity in recognition of the official; (3) payments to an entity established or controlled by a covered official, or to an entity designated by the official; and (4) the costs of an event to honor or recognize a covered official. The revised guidance did not materially revise prior statements regarding the first three types of payments.


The fourth type of payment, however, contained some ambiguity and the House and Senate’s initial broad interpretation of the term to “honor or recognize” a covered official had resulted in a strong reaction from Registrants. Under the prior guidance, simple attendance or participation by a covered official in an event would require a Registrant to report payments made in connection with that event on the LD-203. In the revised guidance, a Registrant must report payments for such events only where: (1) the facts and circumstances demonstrate that the purpose of the event is to honor or recognize a covered official, and (2) the Registrant is considered to be paying the costs of, or sponsoring, the event.

Events Honoring or Recognizing a Covered Official. The previous guidance advised that Registrants should report payments in connection with an event where a Senator and Representative acted as honorary “co-hosts” even though the event’s primary purpose was not to honor these officials, or for an event where a Senator was listed as an attendee and a Representative was listed as a speaker on the invitation. The revised guidance clarified that covered officials merely allowing their names to be used as event “co-hosts,” for events like a charity fundraiser did not mean the event’s purpose was to honor or recognize those officials. Similarly, the fact that a covered official will be speaking at an event sponsored by a Registrant, or is listed as an attendee on the event’s invitation does not, in the absence of additional facts and circumstances, such as an award or honor by the event’s sponsor, require the Registrant to report the cost of the event.
Paying the Costs of or Sponsoring an Event. The Clerk and Secretary also revised the prior guidance’s expansive interpretation that a Registrant buying tickets or paying for its employees’ attendance at an event organized by a separate entity that included a covered official as an honoree would need to be reported. Under the revised approach, a Registrant would only need to report payments in connection with an event if the Registrant was considered a sponsor under the House and Senate gift rules, or if the Registrant had purchased so many tickets to the event that the Registrant appeared to be paying the costs of the event.

In sum, the only types of payments that need to be reported under the revised guidance are those where the Registrant is the sponsor or is essentially paying the event’s costs and a clear purpose of the event is to honor or recognize a covered official.


Disclosing Contributions by PACs “Established or Controlled” by Lobbyists.
Under the House and Senate’s prior guidance, it was unclear whether individual lobbyists who served on the board of their employer’s PAC were required to include the PAC’s contributions on their LD-203. The revised guidance clarified that so long as the lobbyists disclosed their board membership and the PAC’s contributions were reported in the lobbyist employer’s LD-203 filing, no duplicate reporting was required.


The first LD-203 form, filed electronically and covering the period of January 1 - June 30, 2008, is due by July 30, 2008.


Members of O’Melveny & Myers LLP’s Political Law group counsel clients in lobbying disclosure compliance. Should you have any questions about HLOGA or the LD-203 form, please call Thomas Donilon, (202) 383-5132; Charles Borden, (202) 383-5269; Samuel Brown, (202) 383-5298; or Adam Hellman (202) 383-5419.


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This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Charles Borden, an O'Melveny counsel licensed to practice law in the District of Columbia and New York, Sam Brown, an O'Melveny associate licensed to practice law in New York, and Adam Hellman, an O'Melveny associate licensed to practice law in the District of Columbia and New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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