Matt Wuerker Lobbyists call bluff on 'Daschle exemption'

Tom Daschle has earned millions of dollars telling the nation’s biggest companies how to get what they want from official Washington.

He’s not a lawyer, but he works for a law firm — one that’s regularly cited as one of the highest-grossing lobbying shops in town. One of Daschle’s most trusted aides is a lobbyist, well known on the Hill as the former Senate Democratic leader’s emissary.


In short, Daschle, working with his firm’s lobbyists, uses his decades of congressional experience to tell clients how to favorably influence policy.

But Daschle insists, “I do not lobby.”

“I provide my clients with analysis, not access. I offer them strategic advice on public policy matters, including analysis of the substance, procedure and politics associated with different policy initiatives, whether they be legislative, regulatory or otherwise,” Daschle wrote in an e-mail to POLITICO.

Daschle, a senior policy adviser at DLA Piper, is part of a new and seemingly growing class of individuals who take an active role in Washington’s advocacy trade — but don’t register as lobbyists.

It’s not just a matter of skipping some paperwork. By not registering, these individuals don’t have to disclose specific clients they advise, issues they’re working on or how much their firms make from their advice — routine information disclosed by registered lobbyists under laws designed to shine a light on who is seeking to influence policy and why.

“You don’t know what they’re doing, and they have an incredible amount of power and access that no average American would ever have and that no average American can find out about either. It’s a double whammy,” said Dave Levinthal of the Center for Responsive Politics, a political money watchdog.

But now, one group is standing up to say, “Enough” — lobbyists.

The American League of Lobbyists has teamed with the Sunlight Foundation in hopes of changing the law to require more of Washington’s influence class to register.

“I don’t care if you call it a rainmaker or a strategic adviser, if you’re talking to a lawmaker about any issue or anything you’re lobbying,” said Dave Wenhold, president of the league, which represents 1,100 lobbyists.

Currently, the law requires people to register as lobbyists if they make more than one contact, spend more than 20 percent of their time lobbying and have more than $11,500 in expenses or $3,000 in income from lobbying per quarter.

Sunlight is proposing to eliminate the 20 percent rule and to lower the thresholds to $5,000 in expenses or $2,500 in income per quarter, said Lisa Rosenberg, a Sunlight lobbyist.

Right now, anyone who says they don’t clear the 20 percent threshold doesn’t have to register, a provision some insiders even call “the Daschle exemption.” Daschle, however, did not answer a question about whether he utilizes the exemption to avoid registering.

“It’s a common-sense notion that if you pick up the phone or meet somebody at a party or go to use the Senate gym and talk to someone about legislation that is of interest to the clients of your firm, that is lobbying,” Sunlight Executive Director Ellen Miller said. “These are very powerful people with important contacts who clearly direct others in their firm to lobby but skirt the law.”

Observers suspect the trend is fueled in part by the anti-lobbyist tone set by President Barack Obama and the tougher disclosure rules Congress passed three years ago – both of which could be discouraging people from wearing the “Scarlet L,” as some lobbyists jokingly refer to registration.

The evidence is difficult to track, however — even for the good-government groups that keep tabs on K Street. POLITICO identified roughly a half-dozen people whose job descriptions put them in the heart of D.C.’s influence business, but who don’t register.

Former Republican House Ways and Means Chairman Bill Thomas, a senior adviser at the lobbying and law firm Buchanan Ingersoll & Rooney, is not registered as a lobbyist. Neither is Biotechnology Industry Organization President James Greenwood, a former Republican congressman.

Former Service Employees International Union President Andy Stern was a regular on the Hill and at the White House, but had not registered to lobby in years.

All three men say they either don’t lobby or don’t do it enough to register.

Two former Republican congressmen also work in the public policy arena but aren’t registered to lobby, according to public data. Tom Reynolds, listed as a “senior strategic policy adviser” at lobbying law firm Nixon Peabody, and Jim Nussle, who runs The Nussle Group, a public policy consulting firm.

Neither man returned interview requests to talk about their work.

One Democrat whose move raised eyebrows is former White House counsel Greg Craig. About six months after he announced his departure from the White House, Craig went to work for Goldman Sachs while the firm was under scrutiny by the Securities and Exchange Commission, which prompted speculation that the former administration official was lobbying.

Not true, Craig told POLITICO.

“I am not a lobbyist. I am a lawyer. Goldman Sachs retained me to provide legal advice and that is the service that I am providing,” Craig wrote in an e-mail. “I made clear to Goldman when they hired me that I would not lobby on their behalf, and they agreed to that. They have not asked me to engage in any lobbying activity, and I have done no lobbying for Goldman.”

Goldman settled civil fraud charges with the SEC and agreed to pay a $550 million fine, though the company neither admitted nor denied wrongdoing.

More often, the bold-faced names don’t deny lobbying, but say they don’t advocate enough to trigger the 20-percent registration threshold.

For instance, Greenwood spends only 5 percent to 8 percent of his time influencing policymakers, his spokesman, Jeff Joseph,.

“We follow the letter of the law,” said Joseph, adding that the vast majority of Greenwood’s time is spent recruiting and working with members. “We find that his time, if not de minimis, it doesn’t come anywhere near 20 percent of his time. So to label him as a lobbyist is inaccurate and unfair.”

By contrast, another trade group chief, National Association of Broadcasters president Gordon Smith, plans to register as a lobbyist in January. Smith, a former Republican senator, is currently prohibited from lobbying under the two-year lobbying ban for former members of Congress, but will register when the ban expires, said spokesman Dennis Wharton.

Stern had an explanation similar to Greenwood’s. The bulk of his time was spent talking to union members, doing media interviews and participating in public actions, said SEIU spokeswoman Michelle Ringuette. Stern’s lobbying time, she said, “wouldn’t come anywhere near” the 20-percent trigger.

Some observers point to the nearly 50 visits Stern paid to the Obama White House during his tenure as proof of his prolific lobbying work. Ringuette said, however, that he rarely attended meetings alone but usually as part of a coalition or an event.

Thomas believes using the 20-percent rule to avoid registering is a bad idea.

“That’s really walking a high-wire in a hard wind. I would never, ever attempt to lobby but not do it enough to trigger it. That’s not smart and that’s not what I do,” Thomas said.

He continued, “I don’t lobby. I have never gone to a member’s office and talked to a member about a specific piece of legislation in terms of influencing them to support it or oppose it,” he said, adding that he doesn’t call or talk to them about it either.

Essentially, he’s a professional handicapper, Thomas said, helping clients understand the odds of getting something they want, and explaining the dynamics behind his forecast. “Politics is the process of who gets what, when and how. I talk about the process. I don’t talk about influencing specific pieces of legislation,” Thomas said.

Some lobbying watchdogs worry that changing the registration requirements won’t have much effect until there are more serious enforcement efforts.

“Even when there’s public discussion highlighting the scofflaws, … there’s no one picking up the ball and subpoenaing them,” said Craig Holman of the good government group Public Citizen.

The lobbying reforms Congress passed three years ago have criminal penalties and the Department of Justice is charged with enforcing them, Holman said. But of the hundreds of cases referred to the department, only a handful is ever resolved, he added.

The Justice Department did not return a request for comment.

Another K Street phenomenon is the unusually high number of lobbyists deregistering.

The Center for Responsive Politics reported last month that more lobbyists deregistered in 2008 than in any other year in a decade, with about 3,600 leaving the profession. The center attributed the spike to the tougher lobbying laws Congress passed the previous year. And 2009 clocked in as the second-highest year in a decade with almost 1,500 lobbyists deregistering.

“I want everybody registered as a lobbyist,” said Republican lobbyist Sam Geduldig. “If you come to Washington, and you’re getting paid to complain about something, you should be registered.”

Gloria Park contributed to this report.