Lobbying Mythbusters Part 1: The Many Faces of Lobbying

If I ask you to picture a lobbyist, what comes to mind? Most people imagine a sophisticated, smooth-talking champion of special interests in a perfectly tailored suit, confidently glad-handing through the halls of a state capitol, or perhaps discussing important matters of state over fine wine and an expensive dinner.

Now, what if I told you that most lobbying looks nothing like this? This commonly-held mental image of a lobbyist can often lead to confusion around how lobbying regulations apply — and sometimes whether they apply at all. The truth is, the term “lobbyist” applies to many more individuals than most realize. In our Lobbying Mythbuster series, we are working to dispel myths like this. 

Myth #1: I don’t go to the state capitol or contact legislators and my organization doesn’t work on legislation, so I’m not a lobbyist. 

In the twenty-first century, reportable contacts don’t need to be face-to-face meetings. Reportable contact can include emails, phone calls, Zoom meetings, and even social media tags (think @SenatorJohnson) or direct messages (DMs) sent directly to a reportable official.

And the subject matter doesn’t need to be legislation. In most jurisdictions, attempting to influence legislation is lobbying, but so are attempts to influence executive branch or administrative agency actions. This means that while you might not ever touch legislation, your attempts to change an agency rule or even influence the appointment of an executive branch official could be considered lobbying. 

When it comes to reportable officials, rarely does a jurisdiction only require reporting around contacts with legislators. In most cases, contact with legislative and executive branch officials is reportable. In some jurisdictions, the universe of reportable officials includes everyone from the governor to legislators and legislative employees, to executive agency appointees and senior employees, and even municipal employees.

Myth #2: I don’t do enough to register as a lobbyist. 

This is another common misconception that can lead to a sticky situation with an Ethics Commission. Many jurisdictions require registration as a lobbyist before any contact is made, with very limited exceptions. It’s true that some jurisdictions do define a threshold before registration is required, usually based on a certain amount of compensation earned or a certain amount of time spent lobbying; however that threshold may not apply to someone who’s part of the government affairs team and specifically hired to lobby.

Myth #3: I’m a salesperson, not a lobbyist. 

Sales activities that involve government entities are often subject to procurement lobbying requirements. In its simplest form, procurement lobbying involves selling to the government. Though some jurisdictions have a carve-out for salespeople, others have specific requirements around procurement activities or simply include sales in the standard definition of lobbying. This means that, while you may not be attempting to influence the passage or defeat of a bill, your efforts to influence how a government entity spends taxpayer dollars could be reportable lobbying activity.

Myth #4: My organization runs ads around legislation, but we don’t contact officials. 

The concept of soliciting others to make a contact on your behalf is not immune from lobbying requirements. Advertisements — think direct mail, digital ads, billboards, and the like — that include a call to action and are directed at the general public are almost always considered reportable lobbying activity. Calls to action include phrases like:

• Call Rep. Smith and tell her to vote no on House Bill ABC! 

• Click here to contact Sen. Jones and ask her to vote yes on Senate Bill XYZ!

The call to action is the key to these types of communications, which are commonly referred to as “grassroots” lobbying. Grassroots lobbying is reportable in most jurisdictions and is sometimes subject to additional disclosure requirements. 

This is an especially important consideration for membership organizations that may be operating under the assumption that their communications to members, which would otherwise fall into this category, are exempt from reporting. Many, but not all, jurisdictions do provide an exemption for communications directed at an organization’s membership, but it’s important to understand these requirements before undertaking any activity. 

The Bottom Line

It’s very difficult to draw generalizations around lobbying requirements because every jurisdiction is so different. But at its core, lobbying is an attempt to influence government action or nonaction. It’s important to understand your organization’s activities in the context of lobbying regulations and be aware of when those activities may trigger a registration and reporting requirement.

Information provided in this article is not legal advice and is not a substitute for actual legal advice and counsel directed at your specific situation.The examples used in this article are presented for illustrative purposes only and should not be considered an exhaustive list. 

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