This matter comes before our Commission as a result of a company inquiring about whether they qualify as a "lobbyist" as defined in the Lobbying Act and thus should register with the Commission. The company in question advertises themselves as lobbyists and receives a fee for handling all of the grassroots lobbying efforts for its clients. Although this company has exclusive control over the mail fulfillment functions for it's clients, they claim they do not advise, review, edit, or write text on behalf of their clients.
The question presented is whether a company hired as a consultant is required to register with the Commission when said company handles all of the mail fulfillment functions, but does not advise, review, edit or write text for the grassroots lobbying message?
A consultant can and does engage in lobbying activity when said consultant has control over message delivery, and that control results in a direct contact with decision makers. A direct contact includes face to face meetings with legislators, written and printed communications, telephone contact, e-mail or any other electronic means of communication. (Opinion 21).
A lobbyist cannot be allowed to avoid registering with the Commission simply by changing how contact with legislators is made. Any attempt by a lobbyist to influence the passage or defeat of any legislation by either house of the Legislature or the approval or disapproval of any legislation by the Governor, or the adoption or rejection of any rule or regulation having the force and effect of law or the outcome of any rate making proceeding by a state agency is lobbying irrespective of how contact is made (Lobbying Act, Section 3(a)).
A company's use of computer software and the Internet would clearly fall within the Act's meaning of a direct contact. However, direct contact without more may not constitute a lobbying activity.
A person, group or organization that merely processes a client's mail and or delivery functions would not be engaged in a lobbying activity, and therefore, would not have to file a statement of registration with the Commission. For example, if a delivery service were hired by a client to deliver a message to a legislator that advocated a certain position on pending legislation, that delivery company would not be engaging in a lobbying activity. Similarly, it is well established that newspapers and other periodicals and radio and television stations are not included under the definition of lobbying when they publish paid advertisements. (Lobbying Act, Section 3 (c) (2)). However, if a person, group or organization was hired by the same client to deliver the same message, but this time took any other action beyond the mere delivery itself, that person, group or organization would be engaging in a lobbying activity.
Lobbying activity requires some participation in both message content and delivery. A company that has complete control over mailing in furtherance of a grassroots lobbying effort would be a lobbyist only if that company participated in the formation of the message itself or was given some control over reviewing or editing the client's message.
This company does not meet the Lobbying Act's definition of a lobbyist based on the facts that were presented to the Commission. However, this company's actions in advertising their services as a lobbyist is troubling. If this company does not truly engage in lobbying activity and does not wish to register as a lobbyist, it should refrain from holding itself out to the public as a lobbyist.
APPROVED BY COMMISSION: JUNE 18, 1997
CONCURRING: STEWART C. WAGNER, CHAIR; MILTON MOLLEN, VICE CHAIR; MORRIS H. KLEIN, ALBERT S. CALLAN AND BARTLEY F. LIVOLSI./S/