This paper provides a summary of action to date on legislation being considered on the Senate floor and a review of provisions relating to nonprofits. Although the entire legislation affects the nonprofit community by helping to offset the role money has in influencing public policy, there are provisions specifically applying to nonprofits that we describe.

Summary of action to date:

On March 6, the Senate combined two bills, S. 2128, the Lobbying Transparency and Accountability, which was reported out of the Homeland Security and Governmental Affairs Committee, and S. 2349, the Legislative Transparency and Accountability Act, which was reported out of the Rules Committee. The combined bill is being debated as S. 2349.

On March 8, debate continued on S. 2349. The amendments that were considered were as follows:

• An amendment to strike the meals and refreshments exception for lobbyists, creating a total ban on travel and gifts paid for by lobbyists. It was agreed to by voice vote. (Dodd, D-CT)

   

• An amendment to add Title III of S. 2180, the Honest Leadership and Open Government Act. This included a range of changes that were in the Democrats leadership bill supported by nearly the whole Democratic caucus. It was rejected 44-55.(Reid, D-NV)
• An amendment to deny Members who oppose cost-of-living adjustments (COLAs) the increased pay. It was agreed to by voice vote. (Inhofe, R-OK)

   

• An amendment to establish as a standing order of the Senate a requirement that a Senator publicly disclose a notice of intent to object to proceeding to any measure or matter. This would stop anonymous holds on bills. The amendment is still pending. (Wyden, D-OR and Grassley, R-IA)

   

• An amendment to the Wyden amendment, to prohibit any foreign-government-owned or controlled company that recognized the Taliban as the legitimate government of Afghanistan during the Taliban's rule between 1996-2001, may own, lease, operate, or manage real property or facility at a United States port, pending at recess. This amendment would ban Dubai Ports World from operating U.S. ports. (Schumer, D-N.Y.)

Frist then made a motion to close debate (invoke cloture) on consideration of S. 2349 in order to stop debate on the Schumer amendment. If the cloture motion were to garner the required votes, Schumer's amendment could be set aside as non-germane. Usually this takes 60 votes, but because the underlying lobbying bill changes Senate rules, Republicans needed a two-thirds majority of those voting to invoke cloture. On March 9, Frist's motion was considered, and rejected 51-47. In response, Frist pulled the bill, saying that he intended to work with the four managers to get consensus on a cloture vote and then bring the bill up next week.

At the same time, Dubai Ports World announced its intention to “transfer” authority for the U.S. ports operations to a U.S. company. The White House said that decision should provide a “way forward.” But Schumer said that until the details are provided, he does not intend to withdraw his amendment.

Nonprofit Provisions:

1. Coalition provision

S. 2349 requires disclosure of organizations that (1) contribute $10,000 or more to a coalition or association registered under the LDA; and (2) plans, supervises or controls in a substantial way in the management of lobbying activities. S. 2349 contains an additional provision exempting disclosure if it is "publicly available knowledge that the organization that would be identified is affiliated with the client or has been publicly disclosed to have provided funding to the client, unless the organization in whole or in major part plans, supervises or controls such lobbying activities." This includes an affirmative statement that this provision should not be interpreted to require the disclosure members of, or donors to, an organization.

Sen. Rick Santorum (R-PA) is considering offering an amendment to strip the coalition provision. (Congress Daily, 3/7/06)

2. Grassroots Lobbying Provision

In the March 2 markup of S. 2128, Sens. Joseph Lieberman (D-CT) and Carl Levin (D-MI) offered an amendment to change requirements under the Lobbying Disclosure Act (LDA) to include grassroots lobbying disclosure. The amendment passed, 10-6. Key elements of the grassroots lobbying provision include:

• While grassroots lobbying expenditures would not be used to calculate if an organization is required to report, expenditures of $25,000 or more per quarter for grassroots lobbying would have to be disclosed for organizations already reporting under the LDA.

   

• The amendment excludes any grassroots lobbying communications to an organization's members. This is defined in accordance with the tax code definition -- i.e. anyone who contributes more than a nominal amount of time or money to the organization or is entitled to participate in the governance of the nonprofit. Reporting would also not include communications directed at less than 500 members of the general public. Voluntary or unpaid grassroots lobbying efforts also does not need to be reported.

   

• 501(c)(3) organizations are allowed to use the tax code definitions of grassroots lobbying in place of the new definitions.

Both Santorum and Sen. Robert Bennett (R-UT) have made comments they did not like the grassroots lobby disclosure provision. Bennett said he expected someone to offer an amendment to strike the provision. (Congress Daily 3/8/06)

Republicans in the House and Senate have been heavily lobbied by a coalition of conservative groups calling themselves "Lobbysense" (www.lobbysense.com). The group continues to have a lobby presence on the Hill. The ACLU also recently sent up a letter protesting the grassroots lobbying provision. (http://www.aclu.org/freespeech/gen/24423leg20060307.html).

Update: Bennett has introduced an amendment (SA 2994) to strike section 220 of the Lott bill, which is the grassroots lobby disclosure provision.

3. Disclosure of Campaign Contributions

S. 2349 requires registrants under the Lobbying Disclosure Act to make an annual disclosure of contributions to federal candidates and office holders, leadership PACs and political party committees — but not to their employers as previously proposed. Originally, the bill required the disclosure through the LDA reporting; thus, employers could see the political contributions. Instead, under the new provision registered lobbying employees would have to report contributions over $200 directly to the Office of the House Clerk and/or the Secretary of the Senate.

4. Disclosure of Donations

There is currently a provision in S. 2349 that requires registered lobbyists or an employee listed as a lobbyist to disclose the date, recipient and amount of funds the lobbyist contributed, disbursed or arranged to an entity “established, financed, maintained, or controlled” by members of Congress, or key congressional or executive branch staff. This would cover contributions to charities. The definition of “controlled” is not provided.

In addition, lobbyists would also need to disclose funds:

• To pay the costs of an event to honor or recognize a covered official;
• To, or on behalf of, an entity that is named for a covered official, or to a person or entity in recognition of such official; or
• To pay the costs of a meeting, retreat, conference or other similar event held by, or for the benefit of, one or more covered officials.

The above provision does not apply to donations made to political committees and are otherwise required reported under FECA.

Sen. Max Baucus (D-MT) also introduced an amendment on March 8 that would require disclosure of donations of more than $200 to any charity “substantially influenced" by a Member or Member's spouse. (This broadens it beyond lobbyist disclosure, as currently in the bill.) The amendment would also prohibit: Members, their spouses or their staff from receiving compensation from the charity; an individual or firm from receiving any money from the charity if they have financial ties to a Member’s political action committee: and use of the charities funds for a Member’s travel when engaging in fundraising activities, including through payment to another charity to pay for a Member’s travel. There are limited exceptions to the prohibitions.

The Baucus amendment was tabled. It is not clear if it will emerge again.

5. Travel/Gifts

S. 2349 requires lobbyists to provide detailed documentation on travel they organize for lawmakers, staff and executive branch officials — including itemized reports of all payments, reimbursements and travel expenses, along with the purpose, final itinerary and sponsor list for the trip. Lobbyists also must disclose any other expenses they cover.

The bill also prohibits lobbyists from giving gifts to or sponsoring travel for members or staff, unless the gift or travel is in conformity with current House and Senate rules. Lobbyists would also be required to report gifts of $20 or more given to lawmakers or executive branch employees.

Sen. Harry Reid (D-NV) offered an amendment to include Section III of his bill, S. 2180 (see above), which failed. The amendment would have, among other provisions, banned gifts from registered lobbyists, and modify Rule 35 of the Standing Rules of the Senate to state that a Member of Congress or congressional employee may go on a trip sponsored by a 501(c)(3) organization, as long as a lobbyist does not take a major role in planning or financing the trip, or participate in the trip. The charity must then provide certification to the Select Committee on Ethics that the lobbyist did not plan or attend the trip. Additionally, any 501(c)(3) organization that is affiliated with any group that lobbies before Congress is prohibited from arranging or paying for travel. Banned privately funded travel except travel by a 501(c)(3) that is not affiliated with any group that lobbies before Congress.

6. Disclosure of Lobbying for Federal Funds

Sen. Tom Coburn (R-OK) and Sen. Barack Obama (R-IL) filed an amendment requiring recipients of federal funds, if they are currently filing under the LDA, to disclose the following on their LDA form:

• the costs and a description of any lobbying activities engaged in
• the name of any currently registered lobbyists that was paid money to lobby for Federal funding
• the amount of money paid to the lobbyist.

Federal funds are described as an "award, grant or loan".

7. Inhofe Amendment

An amendment filed by James Inhofe (R-OK) adds a penalty clause to Sec. 18 of the LDA, which prohibits 501(c)(4) organizations that engages in lobbying activities from applying for Federal funds. The amendment adds a provision that if a 501 (c) organization engages in lobbying activities with Federal funds an officer of the organization can be be imprisoned for not more than 5 years and fined.