ETHICS IN LOBBYING

The First Amendment to the Constitution of the United States is most often associated with freedom of the press and freedom of speech. But among the other freedoms it guarantees is the right “to petition the Government for a redress of grievances.” One element of exercising the right is having others advocate on your behalf. Those advocates are commonly known as “lobbyists.” 

Lobbyists play a significant role in shaping public policy. Corporations, advocacy organizations, and individuals engage public affairs professionals to represent their voices and interests before elected officials and other policymakers. Whether they know it or not, most everyone is a member of an organization that employs a lobbyist. And the lives of everyone are affected by the work lobbyists do. 

It’s popular to think that lobbying is like the Wild West with little or no control. In reality, the people who lobby government do so within a framework of laws and regulations. Given the widespread impact of this activity, it’s important to be aware of the regulations surrounding lobbying, including registration and reporting obligations, restrictions on gifts to public officials, and prohibited actions.

Lobbying

 Individual states are responsible for defining lobbying and lobbyists. In Arkansas, lobbying is defined as “communicating directly or soliciting others to communicate with any public servant with the purpose of influencing legislative action or administrative action.” A lobbyist is a person who receives or spends a combined amount of $400 in a calendar quarter to lobby one or more governmental bodies. Threshold exceptions are made for personal travel, lodging, meals, and dues.

 The Arkansas Ethics Commission is responsible for making factual determinations on whether someone qualifies as a lobbyist. According to the National Conference of State Legislatures, Arkansas is one of 11 states that sets compensation thresholds.

In Arkansas, lobbyists must register with the Arkansas Secretary of State or local government within five days of beginning lobbying activities. Lobbyists are required to re-register by January 15 each year. Once registered, lobbyists must file quarterly activity reports detailing lobbying expenditures related to advertising, entertainment, food, lodging, travel, living accommodations, postage, printing, special events, telephone, and more. The reports must also include information on gifts or loans of credit to public servants, as well as any business associations and partnerships with public servants.

Ethics Commissions

 The Arkansas Ethics Commission has rule-making and enforcement authority over campaign finance and lobbying. It is also responsible for issuing advisory opinions and guidelines on ethical issues. The commission consists of five members who serve five-year terms and are appointed by the Governor, Attorney General, Lieutenant Governor, Speaker of the House, and President Pro Tempore of the Senate.

 According to NCSL, most states, like Arkansas, have one ethics commission. Five states (Alaska, Arizona, Idaho, New Hampshire, and Wyoming) do not have an ethics commission, while another five states (Illinois, Kentucky, New York, Utah, and Washington) have multiple ethics commissions for various aspects of lobbyist activity. For instance, Washington has a State Legislative Ethics Board, a Public Disclosure Commission, and an Executive Ethics Board.

Prohibitions on Gifts and Criminal Offenses

 Rules are in place to regulate the activities of lobbyists and the public officials they try to influence. 

In Arkansas, public officials are prohibited from soliciting or accepting gifts from a lobbyist, anyone acting on behalf of a lobbyist, or any individual employing or contracting with a lobbyist. Public officials covered by this prohibition include the Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Commissioner of State Lands, members of the General Assembly, Chief Justice of the Supreme Court, Justices of the Supreme Court, Chief Judge of the Court of Appeals, Judges of the Court of Appeals, circuit court judges, district court judges, prosecuting attorneys, and members of the Independent Citizens Commission. A gift is defined as any payment, entertainment, service, or anything of value, unless consideration has been given, as well as any advance or loan.

 Additionally, Arkansas state law outlines criminal offenses related to corruption in public office, including abuse of public trust, soliciting unlawful compensation, attempting to influence a public servant, misusing confidential information, abuse of office, and the prohibition against compensation for speeches or other appearances.  

A person commits the offense of abuse of public trust if he or she agrees to accept any benefit in exchange for promising to appoint or nominate someone to a public office; offers any prohibited benefit; agrees to accept any benefit in exchange for a decision, opinion, or any action that favors another person; or offers benefits to a public servant (or someone who will become one) in exchange for favorable decisions or actions.

A public servant commits the offense of soliciting unlawful compensation, a Class A misdemeanor, if he or she requests a benefit for the performance of an official action, knowing that he or she is required to perform that action.

 A person commits the offense of attempting to influence a public servant, a Class A misdemeanor, if he or she threatens violence or economic reprisal or uses deceit with the intent to affect a public servant's decision, vote, opinion, or action.

 A public servant commits the offense of misuse of confidential information if, in contemplation of official action or by relying on information accessed in their official capacity that has not been made public, the public servant acquires or assists another in acquiring a financial interest in any property, transaction, or enterprise that may be affected by the information, or speculates or assists another in speculating based on the information. Misuse of confidential information is a Class A misdemeanor.

 A public servant commits the offense of abuse of office if, with the intent of financial gain, obtaining a sexual favor, or harming another person, the person knowingly commits an unauthorized act that purports to be an official act or fails to perform a duty imposed by law or inherent in the nature of office.

A member of the General Assembly is prohibited from soliciting or accepting compensation for speeches unless the appearance is part of the normal course of business in the legislator’s private occupation. Knowingly or willfully accepting compensation for speeches and appearances is a Class A misdemeanor.

Snyder v. United States

In June 2024, the U.S. Supreme Court issued a ruling that is expected to reduce the number of federal prosecutions for state and local corruption while potentially increasing enforcement by state and local governments. In a 6-3 decision, the Court ruled in Snyder v. United States that a federal anti-bribery law, 18 U.S.C. § 666, does not criminalize state and local officials for accepting gratuities after they have performed official acts. The ruling reversed the conviction of former Portage, Indiana mayor James Snyder, who received a $13,000 payment after awarding city contracts to a local truck company.

Justice Kavanaugh, writing for the majority, differentiated between bribes and gratuities, noting bribes are payments made or agreed to before an official act, while gratuities are payments made after an official act. Justice Kavanaugh wrote, “§666 leaves it to state and local governments to regulate gratuities to state and local officials.”

One possible implication of this distinction is that state and local regulatory bodies might step up their efforts to ensure compliance with public corruption regulations, stepping into areas previously policed by the federal government.