Are Defense Contractors Ignoring Lobbying Disclosure Requirements?

Politico has an interesting story this morning revealing that defense contractors can do a great deal of lobbying effectively underground because there’s so much confusion surrendering disclosure requirements, to the point where companies can potentially ignore them altogether.

As you may know, in theory, all federal contractors are required to disclose the details of their lobbying activities, and it’s technically illegal for contractors to use any federal money to lobby for additional federal projects. Lobbying firms are supposed to fill out a special lobbying disclosure form — OMB form LLL — that explains their outreach activities and is supposed to attest that no federal dollars has been used to obtain more contracts. That form is the product of a 1989 law called the Byrd Amendment. Unfortunately, as is often the case, a well-intended requirement has been the source of much confusion and complexity. Politico explains: 

 The White House website has two versions of the blank form online, but OMB puts the onus on the individual agencies to cough up the completed disclosure records.

“OMB does not collect information from the public through the SF-LLL; for details about the use of information collected with a specific form, OMB would refer you to the relevant agency issuing the form,” an official there said.

The confusion isn’t limited to the administration.

One K Street attorney told POLITICO he advised a client to file the LLL form with Congress, because the client had lobbied for a direct appropriation (i.e. earmark). But congressional staff had no idea what to do with the form — the House and Senate collect a different form.

The White House would not make the counsel’s office available to clarify the administration’s interpretation of the law.

This opacity and confusion — on intelligence and contracting lobbying in particular — stems from major loopholes in the nation’s lobbying transparency laws.  

Now, it is clear that, because money is fungible and some defense contractors make most of their revenue from the federal government, the question of whether a firm uses federal dollars or not to lobby is delicate. But even trying to figure out whether they’ve vouched that they’re not doing so is  extremely difficult, mostly because it is almost impossible for the public to put their hands on these forms. It’s so hard that it isn’t even clear if they exist in the first place:

But when POLITICO sought records from the White House Office of Management and Budget, Justice Department, Defense Department, National Security Agency, FBI and CIA, the government response was an almost universal brush-off.

“Thank you for contacting NSA. We do not have anything for you. Please submit a FOIA request,” said NSA spokeswoman Marci Green Miller.

“You’ll for sure have to go through FOIA for this. Sorry,” a Department of Defense spokesman said.

“We are forbidden from lobbying at the FBI,” an FBI spokesperson emailed back in response to a detailed query. “Are you referring to contractors? What is it exactly you want to see/know?” 

Press officers for most of those agencies initially said they’d never heard of the form required of government contractors and grant recipients, which are separate from the lobbying disclosures filed with the House and Senate that are easily available online.

Almost all agencies advised POLITICO to file a Freedom of Information Act request — the costly, difficult, backlogged and sometimes expensive process that can take years. The ones that didn’t declined to answer the request entirely. The White House also declined to comment.

Some agencies also said that since some disclosure forms were submitted as part of classified contracts — they therefore could not say whether the responses are classified or not. Others were not sure whether they’d ever received the forms despite the legal requirement that lobbyists file them.

POLITICO also requested the forms from a half-dozen of the government’s top contractors, all who declined to provide them or did not respond. . . .

Those who have tried to actually obtain the forms ran into roadblock after roadblock. Sunlight’s Allison eventually filed a FOIA as agencies suggested — but he never did get the forms.

”I spent several years trying to track them down,” Allison said. “When Congress did away with the requirement that these get sent to a central respository, agencies became able to hide them or not require them — out of sight out of mind.”

In other words, it’s not clear whether agencies are requiring firms to fill out the form, if the firms really are paying attention to the requirements, or if everyone is simply ignoring the law without consequence. This incredible lack of transparency is troubling, to say the least, considering how much taxpayer money goes to defense contractors (even after sequestration), the poor performances and cost overruns of some of these companies’ products, and the wasteful spending that goes on this side of government.

The least the government can do is to make sure that all this spending is as transparent as possible so that taxpayers and lawmakers can start looking at it, in order to sort out what’s legitimate defense business and what’s cronyism.