Nearly a decade after his release from prison, having served nearly four years on corruption charges, disgraced lobbyist Jack Abramoff may be heading back behind bars, this time as the first person ever charged and convicted for criminal violations of the Lobbying Disclosure Act (“LDA”).  Yesterday the Justice Department announced that notorious lobbyist Jack Abramoff will plead guilty in what is believed to be the first ever criminal prosecution for failure to register under the LDA.

Although the LDA provides for criminal penalties for any person who “knowingly and corruptly fails to comply with any provision of [the Act],” 2 U.S.C. § 1606(b), until now DOJ had never identified an instance of failure to register that was so “knowing and corrupt” as to rise to the level of a criminal violation.  Indeed, even the LDA’s civil penalty—providing for civil penalties up to $200,000 for “knowingly” failing to either (1) remedy a defective filing within 60 days of receiving notice from the Clerk of the House and the Secretary of the Senate, or (2) otherwise comply with the Act—is rarely invoked.

Abramoff’s charges stem from an FBI sting operation in which an undercover agent posing as a business person seeking to fund lobbying efforts agreed to retain Abramoff for lobbying activities including lobbying contacts.  After being retained, and later contacting a member of Congress on behalf of his new client, the Information alleges that Abramoff failed to register.

The LDA requires “a lobbyist” to register with the Clerk of the House and the Secretary of the Senate within 45 days of the earlier of the date of their first lobbying contact, or the date on which the lobbyist was “retained to make a lobbying contact.”  2 U.S.C. § 1603(a).  A “lobbyist” is an individual who is employed or retained by a client for compensation for “services that include more than one lobbying contact,” and engages in “lobbying activities” for 20% or more of the time spent on services for that client over a 3 month period.  Id. § 1602(10).

A “lobbying contact” is any communication with a covered official—including all members of Congress and their staff—regarding legislation, nominations, rules, regulations, Executive Orders, or any other “program, policy, or position of the United States Government.”  Id. § 1602(8)(A).  “Lobbying activities” includes both “lobbying contacts, and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.”  Id. § 1602(7).

To be fair to prosecutors, these rules can be so complex that a “knowing and corrupt” violation is difficult to commit.  Many businesses (and their lawyers) routinely scrutinize whether their employees or consultants have triggered LDA registration by making “more than one lobbying contact” and engaging in “lobbying activities” for 20% or more of their time.

The charging documents in this case seem unconcerned with the definitions of “lobbying contact” and “lobbying activities,” instead focusing on Abramoff’s blatant obligation to register once retained to undertake these functions.  While the rules are complicated and arcane to many businesses and lobbyists, prosecutors in this case were clearly convinced that Abramoff, of all people, should know better: the information charging him for violating the Act specifically points out that Abramoff “was aware of the obligations to register as a lobbyist in part because Congress amended provisions of the Lobbying Disclosure Act in 2007 in part as a reaction to Abramoff’s past conduct as a lobbyist.”

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Matthew Shapanka

Matthew Shapanka draws on more than 15 years of experience – including on Capitol Hill, at Covington, and in state government – to advise and counsel clients across a range of industries on significant legislative, regulatory, and enforcement matters. He develops and executes…

Matthew Shapanka draws on more than 15 years of experience – including on Capitol Hill, at Covington, and in state government – to advise and counsel clients across a range of industries on significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies, many with significant legal and political opportunities and risks.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters within the Committee’s jurisdiction, including federal election law and campaign finance, and oversight of the Federal Election Commission, legislative branch agencies, security and maintenance of the U.S. Capitol Complex, and Senate rules and regulations.

Most significantly, Matt led the Rules Committee staff work on the Electoral Count Reform and Presidential Transition Improvement Act – landmark bipartisan legislation to update the antiquated process of certifying and counting electoral votes in presidential elections that President Biden signed into law in 2022.

As Chief Counsel, Matt was a lead attorney on the joint bipartisan investigation (with the Homeland Security and Governmental Affairs Committee) into the security planning and response to the January 6, 2021 attack on the Capitol. In that role, he oversaw the collection review of documents, led interviews and depositions of key government officials, advised the Chairwoman and Committee members on two high-profile joint hearings, and drafted substantial portions of the Committees’ staff report on the attack. He also led oversight of the Capitol Police, Architect of the Capitol, Senate Sergeant at Arms, and executive branch agencies involved in implementing the Committees’ recommendations, including additional legislation and hearings.

Both in Congress and at the firm, Matt has prepared many corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at legislative, oversight, or nomination hearings before congressional committees, as well as witnesses appearing at congressional depositions and transcribed interviews. He is also an experienced legislative drafter who has composed dozens of bills introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, as well as the election and political laws of states and municipalities across the country.

Before law school, Matt worked as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on all aspects of state-level policy, communications, and compliance for federal stimulus funding awarded to Massachusetts under the American Recovery & Reinvestment Act of 2009. He has also worked for federal, state, and local political candidates in Massachusetts and New Hampshire.