Anyone who has attempted to confirm an executive branch official is a covered official for purposes of complying with the Lobbying Disclosure Act (LDA) has most likely endured a strange and unsatisfying experience. Most federal agencies do not take their obligations under the LDA seriously and as a result LDA registrants are often unsure whether they are properly disclosing executive branch lobbying contacts.
The LDA is an oddity – it is one of the few federal statutes administered by Congress and because Congress is not a rulemaking agency, it has no implementing regulations. This lack of a meaningful executive branch role (other than enforcement) appears to have led to the neglect of the LDA by the executive branch. This situation might be no more than an interesting political science exam topic if it weren’t so serious – violations of the LDA are punishable by significant civil and criminal penalties.
Who is a Covered Executive Branch Official?
Under the LDA, the definition of Covered Executive Branch Official includes the President, Vice-President, any officer or employee of the Executive Office of the President, any officer or employee serving in levels I through V of the Executive Schedule, any member of the uniformed services at or above pay grade 0-7 (one star), and any schedule C political appointee (Confidential Policy Personnel under 5 U.S.C. § 7511(b)(2)(B)).
Identification of a Covered Executive Branch Official
While some covered executive branch officials are self-evident under the LDA (e.g., the President, Vice President, or Cabinet Secretaries), others are less obvious and the only way to confirm an executive branch official is a covered official is to ask them directly or ask their employing agency. The LDA requires each agency to confirm the identity of its covered officials:
Upon request by a person or entity making a lobbying contact, the individual who is contacted or the office employing that individual shall indicate whether or not the individual is a covered legislative branch official or a covered executive branch official.
Designated Agency Ethics Official
The person at each agency tasked with indicating whether or not an individual is a covered executive branch official is typically the Designated Agency Ethics Official (DAEO) or their designee. While the DAEOs at certain agencies are diligent about responding to these requests, others often may be confused or otherwise be unhelpful in responding to these requests. Certain agencies’ DAEOs often appear to be unfamiliar with their legal obligations under the LDA, even though the statute is very clear, the House and Senate LDA guidance is very clear, and the Department of Justice advises that federal employees with questions about the LDA should contact their agency’s Deputy DAEO.
LDA registrants that do not receive the requested covered official information from an agency must devise some other method to determine whether an agency official is a covered official.
One useful tool is the Plum Book, which identifies executive branch positions that require Presidential Appointment and Senate Confirmation, positions in levels I through V of the Executive Schedule, and Schedule C employees. However, the Plum Book is not dispositive for LDA purposes (under the LDA, only the official or agency can confirm an individual is covered), as it lists many positions that are not typically covered (such as Senior Executive Service and Senior Foreign Service positions) and is not always up to date (it is officially published every four years, although it appears to be updated more often on-line).
Another option is for LDA registrants to opt to use the much narrower Internal Revenue Code (IRC) definition of covered executive branch official: the President, Vice President, any officer or employee of the White House Office of the Executive Office of the President and the 2 most senior level officers of each of the other agencies in such Executive Office, any individual serving in a position in level I of the Executive Schedule and their immediate deputies, and any other individual designated by the President as having Cabinet level status and their immediate deputies. The LDA allows registrants (other than lobbying firms) to use either the LDA or IRC method for calculating lobbying expenses, and when the IRC method is used, the LDA registrant must also use the IRC definition of covered executive branch official. LDA registrants must use the same lobbying expense method (either LDA or IRC) on their quarterly reports for an entire calendar year.
Certain federal agencies make the already difficult task of LDA compliance even more precarious. Given that the LDA clearly requires agencies to provide covered official information upon request and that penalties for violations of the LDA include civil penalties of up to $200,000 per violation and up to 5 years in prison, one would expect the agencies to be more cooperative. Perhaps this is something the General Accountability Office will address in an upcoming annual report on LDA compliance.