December 9, 2011

DOJ Enters Into First Post-HLOGA LDA Enforcement Action

Holland & Knight Alert
Christopher DeLacy | Joel E. Roberson

The U.S. Attorney’s Office for the District of Columbia has entered into a negotiated settlement under the Lobbying Disclosure Act of 1995, as amended (LDA), that includes a $45,000 civil penalty. This is the first enforcement action since passage of the landmark Honest Leadership and Open Government Act of 2007 (HLOGA) which significantly increased civil penalties and provided criminal sanctions for LDA violations. It is unclear how many LDA enforcement actions are currently underway, but the secretary of the Senate has referred a total of 10,300 potential LDA violations to the U.S. Attorney’s Office and the Government Accountability Office (GAO) has audited 894 LDA filings.

What does this mean for my organization?

Entities and individuals subject to the LDA should take this opportunity to review their current LDA procedures to ensure they are in compliance with the LDA. All LDA registrants should have an updated LDA compliance program in place and should be prepared to respond to a GAO audit or Department of Justice (DOJ) investigation.

What is the LDA?

The LDA is a federal lobbying statute that applies to legislative and executive branch contacts; it is administered by Congress. The LDA does not apply to state or local lobbying. The LDA requires registration and disclosure of certain lobbying activities including the issues lobbied, individual lobbyists and lobbying costs. The LDA is enforced by the U.S. Attorney’s Office for the District of Columbia and violations are subject to fines of up to $200,000 and up to five years in prison for certain violations.

What should an LDA compliance program include?

The following procedures are currently considered industry best practices for an LDA compliance program:

  1. ensure all filings are complete, accurate and submitted in a timely manner
  2. submit any missing filings in a timely manner once the omission is discovered
  3. amend any defective filings in a timely manner
  4. respond to any inquiries from the secretary of the Senate, clerk of the House, DOJ, or GAO in a timely manner
  5. review and update, if necessary, internal policies to ensure compatibility and compliance with the LDA and House and Senate gift and travel rules
  6. notify employees regarding the LDA and House and Senate gift and travel rules
  7. provide employees with current copies of House and Senate gift and travel rules
  8. provide key employees with annual LDA and House and Senate gift and travel rules compliance training
  9. require expense reimbursement certifications regarding lobbying expenses and House and Senate gift and travel rules
  10. collect accurate data related to the LDA, such as issues lobbied, individual lobbyists (with covered positions, if applicable), lobbying expenses, and certain political contributions and expenditures
  11. create a document outlining the methodology used to create the good-faith estimate of lobbying expenses each quarter
  12. develop and maintain a set of LDA records to be provided during a GAO audit or DOJ investigation
  13. require employees to certify compliance with House and Senate gift and travel rules
  14. review the House and Senate gift and travel rules and consult with the House or Senate Ethics Committees, as appropriate, prior to providing anything of value (including food or drink, local transportation, or travel) to House or Senate members and staff
  15. consult with counsel

An LDA compliance program should be incorporated into your organization’s political law (campaign finance, lobbying, government ethics and pay-to-play) compliance program and into your organization’s comprehensive compliance program.

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