The New Lobbying Registration Requirement

The Pennsylvania Independent Regulatory Review Commission (IRRC) has approved amended regulations that require individuals and entities to register with the Pennsylvania Department of State within 10 days of "contracting in any form to engage in lobbying," even if no lobbying services are actually performed. The Lobbying Disclosure Regulations Committee included the phrase "in any form" to be clear that it intended to include both oral and written contracts. Similarly, any principal who enters into a contract for lobbying services is also required to register within 10 days.

Initially, the IRRC disapproved the earlier version of the lobbying regulations, finding that they exceeded the authority of the underlying state statute, Pennsylvania's Lobbying Disclosure Law, by requiring registration for activities that Pennsylvania's Lobbying Disclosure Law did not cover. The regulations that the IRRC disapproved would have required registration (i) upon engaging an individual or entity, or accepting an engagement, for lobbying services, or (ii) when paying, or accepting economic consideration for, lobbying services. 

Effectively, the IRRC determined that the Lobbying Disclosure Law did not authorize a registration requirement in the context of an "engagement" for lobbying services, but did authorize a registration requirement in the context of a "contract" to engage in lobbying. This distinction is not readily apparent in the context of the underlying statute, which regulates those who actually engage in lobbying. A person or an entity "engages in lobbying" according to the Lobbying Disclosure Law when the person or entity exerts "an effort to influence legislative action or administrative action in the Commonwealth."

Logic seems to compel the conclusion that to "engage in lobbying" a person or an entity would have to, at least, take some action "to influence legislative action or administrative action." The IRRC initially agreed with that position when it disapproved the earlier version of the regulations. However, the IRRC ultimately accepted the position that the act of entering into a contract that contemplates lobbying is, itself, an "effort to influence legislative action or administrative action."

The Impact

For lawyers and their clients, in particular, this new regulation is a trap for the unwary. The Supreme Court of Pennsylvania struck down the first Pennsylvania lobbying disclosure statute as unconstitutional in the context of litigation concerning the point at which lawyering activities cross the line into lobbying activities on the basis that the Supreme Court of Pennsylvania has exclusive jurisdiction to regulate the legal profession. Gmerek v. Pa. State Ethics Commission

The new Lobbying Disclosure Law and regulations still do not clarify the point at which lawyering activities cross the line into lobbying activities. The Lobbying Disclosure Law simply regulates lawyers who are "engaged in lobbying" but does not provide guidance sufficient for lawyers to determine when lawyering constitutes lobbying. So, if you are considering entering into a contract in any form that contemplates the possibility of lobbying, you may be required to register with the Department of State as a lobbyist, lobbying firm or principal whether or not you ever actually perform any lobbying services.

Accordingly, the issues raised by the new regulations, which will vary from case to case, should be addressed prospectively – prior to entering into a "lobbying contract." Generally speaking, the parties should consider whether the performance contemplated under the proposed contract constitutes lobbying.

Copyright © 2009 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This newsletter is a periodic publication of Ballard Spahr LLP and is intended to alert the recipients to new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and specific legal questions you have.