WHAT IS LOBBYING?

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Lobbying

Lobbying is the act of attempting to influence decisions made by officials in the government, most often elected officials and regulatory officials who are appointed to their positions.

Mayors, city council members, state legislators, U.S. senators, U.S. representatives, and the president of the United States are elected officials. However, some federal and state officials are appointed, including the heads of the departments in the executive branch, such as the secretaries of education and health and human services. Many senior officials in state executive branches — such as in the Departments of Agriculture and Labor — receive their jobs through the approval of some combination of elected officials. For example, a governor might nominate an individual to run the state Department of Revenue, but the state Senate must confirm him or her. The appointed officials in these branches and departments are regulatory officials. However, there are also permanent employees in these branches and departments that remain in their positions no matter who is elected. Knowing who is an elected official, who is an appointed official, and who has a permanent position may affect your lobbying approach. Understanding how an official got his or her job may influence how you lobby your position on an issue. It may also provide insight about how the official will react to you or your issue when you make contact.

Advocating

Lobbying is also about advocating. This means speaking out in favor of specific public policies, issues, and even candidates for regulatory agencies and judgeships. Advocating can both be part of lobbying and be a separate activity from it. Nearly all public officials monitor their home newspaper's editorial pages as well as statewide papers. Writing a letter to the editor about an issue affecting the community or responding to someone else's letter are good ways to introduce yourself as an activist to the community and to show that your issue has a voice in the community. Writing, calling, and faxing public officials about specific issues, such as when a national organization sends out an action alert, are effective ways to team up to show the power and breadth of your issue's community. If you prefer to write your public officials, try to avoid using regular mail. Instead, send e-mail. Since the anthrax attacks, postal mail is heavily screened, which delays its delivery for unknown lengths of time. It is more efficient and reliable to send e -mail. To find local officials' contact information, try your city or county Web site. To contact state officials, try your state legislative Web site, the specific state department Web site, or the political Web site of a public official.

Another effective collaborative way to affect public policy is to attend public forums and speak when public comments are requested. At almost every level of government, there are open records and open meetings laws. These exist to keep the people's business out in the open, where the people can see what is happening, and not shut behind closed doors without witnesses and input from the public. As the Supreme Court Justice Louis Brandeis said in 1913, "Sunlight is said to be the best of disinfectants." However, if people are not paying attention, these opportunities to speak about issues ranging from zoning ordinances to birth control insurance coverage are missed. Every city, town, or borough; county or parish; and state or commonwealth will have its own set of rules and opportunities for public comment in person and in writing for laws and regulations. To find out what these are in your area, call the local office of your zoning board, city council, parish board, and state legislative office — and use their Web sites as well. The federal government also has rules that require notice of rule changes and the request for public comment. A person can go to www.regulations.gov and search for current federal rules, comments, and regulations. This is also where comments about proposed rules and regulations and changes to the same are accepted electronically. The site has a help function and will direct you to submitting comments.

Educating

Perhaps most importantly, lobbying is about educating our public officials about the multitude of issues they are going to be bombarded with. Being a public official at a federal level is a full -time job. Senators, U.S. representatives, and others have to balance the needs of the job in Washington, DC, with the needs of keeping in touch with constituents and issues in their home states and districts. Most of these elected officials have multiple offices in their home states in order to facilitate communication with local and state officials and with constituents. As elected officials, they are temporary workers who must constantly strive to keep their positions. This creates opportunities for vocal citizen lobbyists to get their attention. Contrary to public perception, the majority of public officials are not wealthy, and being an elected official alone does not make a person rich.

According to Forbes magazine, in 2012 the top three CEOs earned $131.9 million, $66.65 million, and $64.40 million, respectively, for 1 year's pay! The Speaker of the House makes about $223,500 a year. That's less than 0.18 percent of what the highest-paid CEO received in 2012. The highest-ranking member of the U.S. Senate, the Majority Leader, earns less at about $193,000. Our president earns $400,000 annually — a pittance compared to his workload and to what any major company CEO earns.

The pay doesn't get any better for a state or local elected official. The mayor of Los Angeles is the highest-paid mayor in the United States and earns only $232,000 a year. New York pays its governor the most, about $179,000. In most cities and counties around the country, being a state legislator is a part-time job or even a volunteer position. The same goes for being a mayor, city council member, school board member, or other community service position.

So how does the education aspect of lobbying come into this? It matters because a majority of our public officials spend most of their time in their official capacities as public officials in committee meetings, hearings, official functions, and legislative sessions. They rarely have time to do research — or even Google — an issue that is presented to them.

Therefore, many federal — and especially state — legislators depend heavily on lobbyists to educate them about issues: who would benefit, who would not; what are the pros and cons; what is the background of the issue; what is happening in other states; and what is the other side's position. This system works for the most part due to trust. The lobbyists want the legislators to call them for information and to be able to give their spin; the legislators need reliable information quickly in order to make informed decisions. The lobbyists are always on the hook for providing bad information or for misleading the public official. Once burned, a lobbyist will rarely get another chance with that public official — or other public officials if word gets out that the lobbyist was unreliable or deceitful.

The reliance on lobbyists is due to the fact that few public officials have staff to do research about the many issues they will need to know about while serving. There are exceptions, but, for the most part, only large-city mayors, some state legislators (such as in Wisconsin), members of Congress, and, of course, the president and vice president have their own staff. The rest of our public officials rely on caucus staff, part-time assistance, volunteers, interns, and lobbyists.

Additionally, remember all the advocating discussed previously? According to a seminar in 2010 given by a consultant with the Congressional Progressive Caucus, about 75 percent of all U.S. congressional staff time is spent receiving, inventorying, and responding to constituent contacts. All the e-mails, phone calls, messages, and faxes are tabulated and categorized by staff so elected officials can measure how their constituents feel about every issue. This means that the research and writing about bills and issues must be fit into the remaining 25 percent of the staffs' time. It makes sense that state and local officials would track constituent contacts and feelings on issues. In fact, when I worked at the Iowa Legislature, nearly every legislator had a system for tracking constituent contacts about issues — usually by topic — and whether the constituent was pro or con.

This lack of staff power and time presents a citizen lobbyist with an opportunity to be an expert about his or her issue, that issue's community, and other tangential issues. At the local level, citizen lobbyists have the opportunity to have the most impact on public officials.

WHO CAN LOBBY?

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Individuals

Anyone can lobby any public official in the United States. Any citizen or permanent resident has the right to lobby his or her elected officials about issues of concern on their own behalf. If a person is lobbying on behalf of a third party and is being paid to do so, he or she will likely have to register with the state or federal government (for guidelines, see the section "Professional Lobbyists and Lobbying Organizations").

There are no limits on how many letters (or e-mails) can be written, phone calls can be placed, or visits can be made by an individual. (However, do be aware of stalking and harassment laws in your state — no one wants a second shadow!) Individuals may lobby alone or with others. Be aware that if your group is large enough, you may be classified as a protest and may need a permit. It is always a good idea to check the Web site of the place (e.g., statehouse, U.S. Capitol) you will be visiting for any instructions or to call ahead to let them know you are coming.

Groups

Groups of unaffiliated people (friends, family, survivors of cancer, bicycle safety advocates, etc.) may work together to lobby. However, any group that is registered as a 501(c)(3) nonprofit organization is limited in the amount of lobbying it can do as an official organization. The Internal Revenue Service (IRS) states that no such organization may qualify for nonprofit status if a substantial part of its activities are "attempting to influence legislation."

The IRS defines "legislation" as

action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar item (such as legislative confirmation of appointive office), or by the public in referendum, ballot initiative, constitutional amendment, or similar procedure. It does not include actions by executive, judicial, or administrative bodies.

This means that a nonprofit organization will be considered to have violated its nonprofit status if a substantial part of its members' activities on behalf of the organization can be regarded as trying to influence legislation or urging citizens to contact public officials for the purpose of influencing legislation — or if the organization advocates a position on specific legislation.

This doesn't mean that nonprofit organizations can't be part of the public policy conversation. The IRS clearly states on its Web site that "organizations may conduct educational meetings, prepare and distribute educational materials, or otherwise consider public policy issues in an educational manner without jeopardizing their tax-exempt status."

The educational aspect can be widely interpreted. For example, the Kansas City Atheist Coalition hosted a public debate about same -sex marriage in September 2012. Iowa Atheists and Freethinkers hosted a lunchtime educational program at the Iowa Statehouse about the fallacies of intelligent design in 2010. American Atheists was welcomed to the city of Des Moines by Mayor Frank Cownie at the beginning of its national convention in 2011. The Triangle Freethought Society hosted a breakfast social for local public officials during its 2012 National Day of Reason celebration. Dozens of such groups have found myriad ways to bring social issues and public officials together without endorsing political candidates or particular issues, yet still raise consciousness between government and the nontheistic movement.

However, lobbying to some degree is allowed even for 501(c)(3) nonprofit organizations. The IRS measures the amount of lobbying and how much is OK with two tests. The first is known as the "substantial part test." Under this test, a 501(c)(3) nonprofit organization's attempts to influence legislation should not constitute a "substantial part of its overall activities." This is the trickier test of the two because there is no way to quantify what level of lobbying is permissible. Rather, the IRS states that it "considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial."

This test allows large national organizations to employ a lobbyist as part of their overall operations. This allowance also allows smaller local groups to engage in smaller targeted lobbying efforts. For example, Iowa Atheists and Freethinkers for several years sent letters to every member of the Iowa Legislature to protest the prayers said at the beginning of each session day and the stipend and mileage allowance given to the clergy who perform the prayers.

The second test, the "expenditure test," is more definitive and is a better option for groups whose members know that they will be doing lobbying on a regular basis and want both the group and the IRS to be able to measure the lobbying so both parties know what the limit is. In order to qualify, a group must elect for the expenditure test under 501(h). This test allows a group to spend a specified amount of its income on lobbying based on its total expenditures. For example, if a group has $500,000 or less in expenditures for a given tax year, as of 2012, the maximum amount of lobbying expenditure allowed would be $100,000, or 20 percent of total expenditures.

Professional Lobbyists and Lobbying Organizations

The federal government and each state has its own regulations for paid lobbyists — or for those who are acting on behalf of a third party. At the federal level there are two kinds of regulations: for domestic lobbyists and for foreign lobbyists. Foreign entities seeking to "influence U.S. public opinion, policy, and laws" must register under the Foreign Agents Registration Act (FARA) of 1938. FARA covers foreign political parties, any person or organization from outside the United States (except U.S. citizens), and any entity created under the laws of a foreign country or having its principle business in a foreign country. Trying to affect policy in the United States is quite popular. According to the December 2011 FARA report by the Attorney General to Congress, more than 138 countries had registered foreign agents in the United States.

Domestic lobbyists are also regulated by the federal government. While the tax code restricts the lobbying activities of 501(c)(3) nonprofit organizations, the Lobbying Disclosure Act (LDA), 2 U.S.C. § 1605 regulates who is a lobbyist, what is a lobbying activity, and what must be reported to the government. Below are a few highlights of the distinctions between professional lobbying and lobbying by private citizens (please note that this is not a comprehensive list):

• According to the LDA, the president, the vice president, and any elected member of Congress are "covered officials."

• The LDA covers any oral or written communication to any covered official made on behalf of a client.

• The LDA covers those communications that meet bullet 1 and bullet 2, and are related to the formulation, modification, or adoption of federal legislation, federal rules, executive orders, or administration of a federal program or policy.

• The LDA states that the request for a meeting with a covered official is NOT a lobbying contact.

• The LDA states that submitting comments about policy after the government solicits public input is NOT a lobbying contact.