With the National Security Agency in the news, there has been some media attention to who is lobbying whom in the intelligence community, and how much they are spending while doing it. Often media coverage of lobbying expenditures misinterprets the available federal Lobbying Disclosure Act (“LDA”) data. The LDA notoriously contains many gaps. Those who dislike gaps in disclosure statutes might prefer to call them “loopholes.” Because of those gaps, it is usually not possible to say definitively who is lobbying whom based solely on LDA reports.
For example, a company that contacted the NSA, CIA, DIA, or other intelligence agency to encourage award of a contract generally would not be engaged in reportable lobbying activity under the LDA if it contacted only officials who are not “covered officials” under the LDA. Most lower and mid-level officials, including many who handle procurement matters, are not covered officials. So a company could “lobby” them to its heart’s content without triggering disclosure under the LDA, though there might be implications under government contracting rules, including rules that prohibit certain contacts while an RFP competition is active. Government contracting rules also require disclosure of certain lobbying activities on OMB Form LLL. But those disclosures are more obscure, and are not usually where the media looks when it covers lobbying expenditures.
Also, which officials count as “covered officials” varies depending on whether the company doing the lobbying has elected to use the “tax method” of reporting under the LDA or the “LDA method.” Under the tax method, for non-legislative lobbying, only contacts with extremely senior executive branch officials would trigger disclosure that the company had lobbied that official’s agency. For example, currently, there do not appear to be any officials at the NSA who qualify as covered officials under the tax method of LDA reporting. So a company that elects to use the tax method generally would not need to disclose lobbying of the NSA if it lobbied on government contracts or policies, as opposed to lobbying on a legislative issue. In contrast, a company that elected to use the “LDA method,” which adopts a significantly different definition of lobbying, might have to disclose that it engaged in non-legislative lobbying of the NSA if it contacted the Director or Deputy Director of NSA. That’s because they are covered officials under the LDA method.
It’s all very complicated. The upshot is that there are probably lots of companies lobbying intelligence agencies in one way or another without having to disclose on LDA reports that they are doing so. There is nothing nefarious about that. It is simply a function of the complexity of our lobbying disclosure laws. That complexity, in turn, flows in part from the balancing of competing interests when Congress acts to regulate lobbying.