California’s political watchdog is considering a regulatory change to draw “shadow lobbyists,” consultants paid to influence legislation, into the public eye.
Loopholes in the law can allow consultants to act as lobbyists without officially registering with the secretary of state’s office, disclosing their clients or their attempts to sway lawmakers. The commission held a public meeting Tuesday to discuss proposed regulatory changes.
“For too long there’s been a portion of the industry that has gone unregulated,” said Phillip Ung, director of legislation and external affairs at the Fair Political Practices Commission. “The laws and regulations related to lobbying have remained unchanged as the industry has come up with new tactics that essentially keep voters in the dark.”
The amendment establishes a legal presumption of whether a payment is made for lobbying services. Under the proposed changes, a payment will be considered compensation for lobbying if the person receiving the money has been paid by a business or outside group to communicate with legislators and other officials to influence legislation or administrative actions. The compensation must total at least $2,000 in a given month.
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The rule changes allow anyone in question to rebut the claims with evidence of their activities. The FPPC hopes the change increases the incentive for consultants and others working in and around the state’s lobbying industry to keep better records of their activities, while giving the agency more freedom to press cases against shadow lobbyists.
Our feeling is that it’s unconstitutional and a violation of due process.
Ashlee Titus, an attorney for Bell, McAndrews and Hiltachk
The proposed amendment is among a series of actions the commission has taken this year to increase lobbying transparency. The commission is also requiring lobbyist employers to itemize the “other payments to influence” category in state filings, which previously acted as a catch-all for spending with little disclosure.
Ashlee Titus, an attorney for Bell, McAndrews and Hiltachk, spoke out against the proposed amendment at the meeting.
“Our feeling is that it’s unconstitutional and a violation of due process,” Titus said at the meeting.
Titus said the change shifts the burden of proof to the accused by presuming someone is a lobbyist unless they can prove otherwise. “That’s not how our system works.”
Representatives of the FPPC’s legal team and enforcement division said the change simply asks someone to provide records if they engage in direct communication and receive more than $2,000 for their work.
“There’s a gray area, and the point of this small change is to encourage compliance with the lobbying registration rules and make sure that people are being specific about what they are being paid to do,” said Hyla Wagner, general counsel for the FPPC. “It’s a step toward addressing the shadow lobbying.”
The five-member commission is expected to vote on the change at its regularly scheduled hearing on July 21.