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At What Point Does Advocacy Become Regulated?

March 13, 2007

Whether it is speaking out against the proposed hospital tax or in support of the electronic records initiative, there are many reasons why health care professionals are communicating with state public officials this year. In making these communications, it is important that individuals and organizations are aware of Wisconsin’s lobbying registration and reporting requirements. 1

“Lobbying” and “Lobbyists” in Wisconsin
The Wisconsin Ethics Board regulates lobbying, lobbyists and those organizations that employ lobbyists in Wisconsin.2 Wis. Stat. § 13.61. A lobbyist is generally “an individual who is employed by a principal, or contracts for or receives economic consideration, other than reimbursement for actual expenses, from a principal and whose duties include lobbying on behalf of the principal.” Wis. Stat. § 13.62(11). Symmetrically, a principal is “any person [including organizations] who employs a lobbyist.” Wis. Stat. § 13.62(12).

An individual is required to be licensed and to register as a lobbyist if the individual is compensated for his or her attempts to influence state legislation or administrative rules on behalf of a business or organization. This requirement applies, however, only if the individual communicates with elective state officials, agency officials, or legislative employees on five or more days within any six-month reporting period (January to June or July to December). Wis. Stat. § 13.62(11).

In other words, an organization is required to register with the State Ethics Board as a lobbying principal if the organization retains an individual lobbyist:

  • For compensation;
  • To communicate with elective state officials, agency officials or legislative employees;
  • In an attempt to influence state legislation or administrative rule making on the organization’s behalf; and
  • The individual communicates (in the form of a lobbying contact) with elective state officials, agency officials or legislative employees on five or more days during either the first or last six months of any calendar year. Wis. Stat. §§ 13.62(12), 13.64.

It is important to recognize that the registration requirement for each individual is triggered by the number of days on which each individual has lobbying contacts--regardless of the number of meetings on those days, the length of the meetings, or whether the lobbying communications were on several different topics. That is, in determining whether registration is required, an individual should track the number of days on which he or she communicates about specific matters, however briefly, with elective state officials, agency officials, or legislative employees. The number of meetings held or topics discussed on any given day are irrelevant.

The term “lobbying” broadly encompasses virtually every attempt to influence anything the state legislature may do as well as the promulgation, repeal or modification of any administrative rules.3 A lobbying communication may include matters that do not yet have a bill or clearinghouse rule number--a lobbying topic. Wis. Stat. § 13.67(1). Talking to a state official or legislative employee about the possible introduction of legislation, for example, can be a lobbying communication. So can discussing with a legislator why legislation would be a bad idea or a good idea or discussing with an agency employee why an administrative rule may be needed.

Lobbying Registration and Reporting
Any individual who engages in lobbying--with the lobbying activity not otherwise exempt from registration--must be licensed as a lobbyist, and the person or organization that hired the individual should be registered as a lobbying organization or principal. Wis. Stat. §§ 13.63, 13.64. The principal should formally authorize and designate each of the individuals lobbying on its behalf and file a publicly available authorization form with the Ethics Board.

To register, a person or organization that hires a lobbyist should complete a Registration of Organization Engaged in Lobbying Activities and Authorization of Lobbyists form, Eth. 5, State Ethics Board. If the individual does not already have a license to lobby, he or she will need to complete an Application for Lobbying License, Eth. 7. Registrations and authorizations become effective when the Ethics Board receives a completed form and correct fees, and both registrations and authorizations expire on December 31 of even-numbered years. The Ethics Board recommends that an organization register and authorize its lobbyists prior to engaging in any lobbying activity. See “Does your organization need to register as a lobbying principal,” Eth. 513, State Ethics Board (Oct. 2003).

Twice a year (in January and July), a lobbying principal files a Statement of Lobbying Activity and Expenditures, Eth. 10, summarizing all of the lobbying activity engaged in by the principal. See Wis. Stat. § 13.68. The reports include a summary of the amount of time and money spent on the principal’s lobbying activities as well as an overview of the subjects lobbied. As part of these reports, each lobbying principal must provide a daily itemization of the time its contract lobbyists and employees (lobbyists as well as certain non-lobbyist employees) spend on lobbying and lobbying-related activities. See “Reporting requirements once an organization is registered as a lobbying principal,” Eth. 514, State Ethics Board (Aug. 2004). Through the Ethics Board’s web site (ethics.state.wi.us), a great deal of information on lobbying activity in Wisconsin is publicly disclosed as soon as it becomes available.

If you would like more information or assistance with your participation in the political process, please contact Mike Wittenwyler (608-284-2616 or wittenwyler@gklaw.com), or another member of our Godfrey & Kahn Political Law Team.

Footnotes
1 Organizations communicating with members of Congress and other federal officials should be aware of the requirements under the federal Lobbying Disclosure Act. Similarly, any health care institutions operating as section 501(c)(3) charitable organizations should be familiar with the limitations on lobbying activities under the Internal Revenue Code. We regularly advise organizations on these issues as well and can answer any questions you may have on either topic.

2 Under 2007 Wisconsin Act 1, the Ethics Board will be replaced later this year with a new regulatory agency: the “Government Accountability Board.” While the creation of “GAB” is a significant change in who regulates lobbying in Wisconsin, the new law does not modify what lobbying activities are regulated.

3 Certain communications, however, are not considered “lobbying” for purposes of determining whether an individual must register as a lobbyist or whether a communication must be included on a lobbyist’s time reports. The statutory exceptions include:

  • Communicating through the media or public addresses to audiences principally composed of persons other than legislators or agency officials (Wis. Stat. § 13.621(1)(a)); or,
  • Providing responses to requests for information from agency officials (but not responses to requests from elective state officials or legislative employees) (Wis. Stat. § 13.621(1)(f)); or,
  • Participating as a member of an administrative advisory committee or a committee of the legislature (Wis. Stat. § 13.621(1)(e)); or,
  • Communicating only with a state senator or representative who represents the area in which the individual resides – whether or not such communication is made on behalf of the individual or on behalf of another person (Wis. Stat. § 13.621(6)(b)).

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